Charging Order? The myth

eggbox

KDPR25


To be accurate on advice can you advise what is registered on your deeds relating to this debt (the actual wording)


You can now search your Deeds online at the Land Registry

eggbox

Hi Dakota

Did your hearing take place on the 20th?

DAKOTA45

Hi Eggbox….

Yep… still reeling from the decision of the Judge to dismiss my set aside and prevent me from appealing.

I'm really confused as the Judge who gave directions to the other side that they must provide a skeleton argument obviously thought I had a point.

But it was a different judge at the hearing and he was saying he didn't know why the other judge (a QC, no less) had given those directions to the other side because as far as he was concerned, my counterclaim against the creditor shouldn't have been issued by the court anyway…Something to do with me not being allowed to issue a counterclaim after the Interim Charging Order had been applied…

I'm very confused because the creditor interfered with my sale (which effectively prevented me from paying the debt) before enforcement of the debt took place, so his actions were unlawful in that he wasn't allowed to intervene in order to prevent disposal of assets until the ICO came into effect.

So when on earth was I supposed to make a counterclaim? There wasn't enough time to do so before the ICO as the creditor interfered with my sale just days before the Order was sealed...

It just doesn't make any sense to me at all.

The Judge said if I wanted to make a separate claim against him for his interference I could do so…

I'm running out of options here, but once again I feel discriminated against by the court in that justice has not been done.

I would imagine the creditor will now apply for an Order for Sale…

What a mess!

D45

Oh yeah… and get this… the creditor's solicitors were directed to serve and file their argument at least 14 days before the hearing… they eventually served two days late (by email) saying the late service was because the creditor had a change of solicitor. This was a complete lie and I pointed it out to the court that the old solicitor, Blake Lapthorn was the same firm at the same address as their supposedly new firm, Blake Morgan..(As you may know, there was a merger two years ago)… and when I pointed out to the court that they had served late and without reason, the court allowed them to proceed as usual! This was a deliberate ploy by the creditor… an outright lie and the court didn't give a sh*t!

eggbox

Hi Dakota

Right, you need to clarify that the Judge actually refused your counter claim on the basis of an Interim Charging Order being in place. Because if that was the reason then I'm fairly confident it is wrong in Law and you have grounds for appeal. The appeal court allows an appeal where the decision of the lower court was either:

Wrong (in that it erred in law or in fact or in the exercise of its discretion).

Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

An Interim (or a Full) CO only has relevance as securing a debt determined as owed by a Court ruling. It has no relevance (or power) in determining whether the original decision was correct?

Your original counter claim was also not heard due to a procedural error by the Court who have admitted that error. Therefore, it is certainly "unjust" that the counter claim is not taken into account a make the correct Judgement.

DAKOTA45

Thaks Eggbox…Yep… that seems to be what he was saying…but to make sure, I will need a copy of the Court transcript… I really did find it difficult to understand the law as he was referring to it… He dismissed my set aside and refused me permission to appeal… I don't know where that leaves me and I understand you only get a very limited amount of time if you think the judge has made a mistake…

The court admitted a mistake in failing to issue my defence/counterclaim and that's why I applied for the set aside which the first judge seemed to think was correct procedure… so if this other judge is saying that the court should never have even considered issuing my counterclaim (because it was wrong in law), the judge should have turned down my set aside rather than having it go to court which has added a further two grand to my costs?
D45

eggbox

I'd write to the MOJ as soon as possible to ask for advice as there has been a fairly clear error made.

But do get the transcript to back up your case.

DAKOTA45

Yep… I've not had notification of the decision yet… perhaps they will include full reasons for refusal of set aside…it does seem a bit weird that Judge A (QC), seems to have seen some merit in my case, otherwise he would have turned down my application, rather than ask the other side to produce a defence… and yet Judge B at the hearing is actually heard saying he "can't quite see why Judge A has ordered the directions for a hearing…"

I'm just totally baffled…but something is dreadfully amiss here and this court has made error after error… and to allow the other side, who had three whole months to provide their skeleton, to file and serve it two days late, by lying to the court about a 'change of representation' where there was no such thing, and when I spoke to the court they even agreed with me that it was just a change of name… I thought the rules were strict about that kind of thing.. I mean it amounts to perjury!
Whatever I do, it needs to be quick or they will be taking my home away…

D45

DAKOTA45

Still waiting to see if Judge will allow me a transcript at public expense… D45

DAKOTA45

Hi Eggbox…

I have just received the judgement order in relation to the recent hearing… you remember I was confused as to what he was saying about my counterclaim?

It states that the counterclaim has been struck out, there having been no application for permission to bring the counterclaim pursuant to CPR Part 20.4(2)(b)

Here is the rule for quick reference;

Defendant’s counterclaim against the claimant
20.4
(1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.
(2) A defendant may make a counterclaim against a claimant –
(a) without the court’s permission if he files it with his defence; or
(b) at any other time with the court’s permission.
(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).
(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

Now… I made the defence/counterclaim together, so shouldn't have needed the court's permission, but where I may have slipped up is with making the defence within the time limitation…

As you know, the ICO was made without notice, so I was not aware of it until a long while afterwards, where I would have been out of time to defend…

So, it seems I have been caught out by the complicated rules…as a LIP I did not realise that permission would be needed to defend/counterclaim aftr the limitation period had run out..

It all becomes clearer…but too late!

A bit strange, however, that this procedural error was not picked up on by the court at the two previous hearings, and where the court has apologised for not issuing a counterclaim because 'I'd not paid a court fee'...

Anyway, plan 'B';

I have made a claim for compensation due to the economic loss caused by the creditor's unlawful interference/slander of my property.

I had the papers back yesterday, and am a little confused as to whether I need to send him a response pack, as I had an 'Issue of Claim' form, dated 5 July…does this mean the court has issued a response pack to the defendant already, do you think?

Any advice would be gratefully received, D45

amberlou_2

Hi Everyone
I wonder if the regular posters on this thread would be kind enough to take a look at my thread

ex partners debt and application to register a restriction

sorry can not post links yet

I would be gratfull of any help to understand what restriction in Form P is and can that be used on a property in joint names when the debt is only one persons.Also what should I use as my main points of objections against the restriction being allowed.

Thank you for any help you can offer