Urgent : Being taken to Court

jasonbloomberg

Thanks for all the good advice and CAG is indeed well worth a read. It has been quite hectic in the last few days and I have really been helped.

I have a little experience in County Court ( full court hearings, representing myself, respondent (claimant) and defendant, non-CCJ stuff ) and I came a hair's breadth from securing a committal for Contempt of Court -- if only the defendant weren't also due before the same Judge in the afternoon on another case ! Mind you he spent long enough in the "do I send him down" contemplation that the legal reps were sweating.

So I'm not intimidated by the thought of Court nor Judges, and particularly the other side's solicitors. One once told me the case was likely to be postponed and I may as well go home now :-) I had another screaming and shouting at me in the Court foyer that I was illegally harassing their client by dragging them into court, didn't have a leg to stand on, yadda, yadda. Simple response, "I'll let the court decide on that". I won that case.

Nonetheless, as here, it can take a while to get ones wits together. Thanks for the help with that. Any time one's future is at stake there's always a degree of panic which sets in.

I will be filing a defence to the entire claim. They have to prove they have the debt and it's not for me to disprove it. That does not seem unreasonable to me even if they can turn up in court with evidence, and I will throw myself on the mercy of the Judge if they do. I will ensure all parts of the claim are defended as well as on the overall 'no valid claim here', and make sure I have the Admission I would otherwise have sent filled in with me. The back-dating of interest to before they bought the loan ( if they have ) and charges they have subsequently added I would have defended against anyway. At least this way it will be the court telling me they do have the right to claim, not me admitting they do when they may not. The downside may be a few quid in their solicitors costs.

It's perhaps easy to imagine that Judges are the stereotypical draconian types who hate the lower classes, but my experience has been entirely different. Put your best togs on, brush up smartly and pay due respect -- even if you don't think it's due ! The best way to get a Judge against you is to be uncivil or lack that respect. The Court is 'theatre' ( perhaps not so much in private hearings ) so play your part in that, embrace it, don't fear it. Beyond that its a matter of Law and evidence.

I don't know how it will turn out, but I don't see how I could be much worse off than I would be otherwise. I'm sure you'll all wish me good luck, and I'll keep everyone updated on how the case goes.

neverdespairgirl

jasonbloomberg wrote: »

The Court is 'theatre' ( perhaps not so much in private hearings ) so play your part in that, embrace it, don't fear it. Beyond that its a matter of Law and evidence.

I don't know how it will turn out, but I don't see how I could be much worse off than I would be otherwise. I'm sure you'll all wish me good luck, and I'll keep everyone updated on how the case goes.

Best of luck with it!

I don't, however, think that you should overdo the "theatrical" element (-:

thedebtprofessor

jasonbloomberg wrote: »

Thanks for all the good advice and CAG is indeed well worth a read. It has been quite hectic in the last few days and I have really been helped.

I have a little experience in County Court ( full court hearings, representing myself, respondent (claimant) and defendant, non-CCJ stuff ) and I came a hair's breadth from securing a committal for Contempt of Court -- if only the defendant weren't also due before the same Judge in the afternoon on another case ! Mind you he spent long enough in the "do I send him down" contemplation that the legal reps were sweating.

So I'm not intimidated by the thought of Court nor Judges, and particularly the other side's solicitors. One once told me the case was likely to be postponed and I may as well go home now :-) I had another screaming and shouting at me in the Court foyer that I was illegally harassing their client by dragging them into court, didn't have a leg to stand on, yadda, yadda. Simple response, "I'll let the court decide on that". I won that case.

Nonetheless, as here, it can take a while to get ones wits together. Thanks for the help with that. Any time one's future is at stake there's always a degree of panic which sets in.

I will be filing a defence to the entire claim. They have to prove they have the debt and it's not for me to disprove it. That does not seem unreasonable to me even if they can turn up in court with evidence, and I will throw myself on the mercy of the Judge if they do. I will ensure all parts of the claim are defended as well as on the overall 'no valid claim here', and make sure I have the Admission I would otherwise have sent filled in with me. The back-dating of interest to before they bought the loan ( if they have ) and charges they have subsequently added I would have defended against anyway. At least this way it will be the court telling me they do have the right to claim, not me admitting they do when they may not. The downside may be a few quid in their solicitors costs.

It's perhaps easy to imagine that Judges are the stereotypical draconian types who hate the lower classes, but my experience has been entirely different. Put your best togs on, brush up smartly and pay due respect -- even if you don't think it's due ! The best way to get a Judge against you is to be uncivil or lack that respect. The Court is 'theatre' ( perhaps not so much in private hearings ) so play your part in that, embrace it, don't fear it. Beyond that its a matter of Law and evidence.

I don't know how it will turn out, but I don't see how I could be much worse off than I would be otherwise. I'm sure you'll all wish me good luck, and I'll keep everyone updated on how the case goes.

Hi Jason, by all means defend the claim, but be aware that if the claimant is successful they will expect you to pay their costs in attending and preparing for the hearing. it could therefore be a costly exercise for you but....

I would suggest filing an acknowledgement of service but as youve done the defence (i presume its gone already) the acknowledgment is no longer an issue.

I would also suggest you phone or write to the creditor first thing on monday requesting a copy of the agreement under the consumer credit act and full statement of account of the moneys claimed. The creditor has 28 days i believe to supply you with the agreement (not statement) and if unable to do so technically commits a criminal offence (although practically hardly ever suffers consequence for failing to do so)

then if they fail to supply you with a copy of the agreement it is likely the claim will be withdrawn or 'stayed' (put on hold) if it gets lost in the admin system as is occasionally the case.


if all else fails and the creditor does supply proof, there is something you can do....

1. find out if it is the creditors intention to apply for order for sale or not. generally they require charging orders for security of the debt while you make payments at a rate you can afford.

2 if it is you could let them go ahead with the charging order as long as the creditor makes it clear at the charging order hearing it is not their intent to apply for an order for sale

3 make an offer of payment on the admission form. if the creditor still requires security they will probably request a forthwith judgment (pay all at once) - dont be scared by this - find out from the creditor if it is their intention to obtain security and get an assurance/letter from them stating that once the charging order is in place for the security of the debt they will accept payments at the rate you can afford. once you have this assurance there is no need to panic about a forthwith judgment.

4. if your house is in a joint name but debt against one party the charging order is worthless. can explain in more detail at a later stage if this is the case.

5. if you simply decide to defend the case for the hell of it, be aware with a balance that big it is likely the case will be allocated to the 'fast track' which means a hearing probably in about 6 months and if the creditor does present with evidence and obtain judgment remember, you will probably have to pay their sides costs. which could be very significant indeed.

6. be aware if the creditor is unable to supply a copy of the agreement within the prescribed period stated in the consumer credit act, there is nothing to stop them issuing further proceedings once documents have been obtained.

Hope this helps.

Best wishes,

thedebtprofessor

jasonbloomberg

@ thedebtprofessor : Thanks. The defence has gone in so that's in the lap of the gods. CCA was also sent before filing defence. Both have been confirmed by Royal Mail as having been delivered.

If the Claimant does provide CCA proof I will have to take that into account and alter my defence as appropriate.

The claimant has said it's their intention to get a Charging Order. I very much doubt they will agree to confirm they would not seek an Order for sale. I'm currently unemployed. Property is entirely in my own name.

stapeley

If they turn up at court with a enforceable aggrement . You can ask why was it not supplied before you went to court. I would ask for costs not to be awarded ,against you because their actions led to the court case ie non compliance to the CCA REQUEST. Did you ever recieve a notice of assignment ? If not ,how can you be expected to believe this DCA own the account ? I believe they need to show this assignment in court . My guess will be that the DCA come back to you with "a once only offer ". My veiw is the OC lost or never had an enforceable CCA , and that why they sold the account !

jasonbloomberg

Been away for a while, not least catching my breath and getting myself calm and collected.

I filed a CCA request, then filed my defence, no admission.

In response I've received a letter from the Claimant's solicitors claiming no request for a CCA has ever been made ( it was, Recorded Delivery, PO confirm delivery ), making a number of false assertions and a blatant lie of the Claimant's. It includes a, without prejudice, Full and Final Settlement offer and the usual inferences of doom should I not take it.

No CCA response, and they've now had 21 days, well over the 14+2 required.

They are threatening to seek an Application for Summary Judgement ( no surprise there ). I shall respond to their letter in a manner which will be advantageous if they take it to Court or seek Summary Judgement.

Good point about costs stapeley; thanks.

I've received what purports to be a Notice of Assignment but there are things about this which I do not wish to disclose in public at this time. Suffice to say it fits under the heading of, "!!!!!! is going on here ?". I certainly believe it provides enough validity to having defended the claim.

laccal

4. if your house is in a joint name but debt against one party the charging order is worthless. can explain in more detail at a later stage if this is the case.

How does the above work.

i currently have a company trying to ccj me with a charging order but mortgage is in joint names and debt is mine.

stapeley

What was the full and final settlement % offer ? Why would they offer that if they had a correct Agreement ? It could still happen that they withdraw the case . A point in your favour is their non compliance of the request . You can explain your defence is due to the actions of the DCA , which lead you to believe a correct CCA did not exsist.
Many are in the same position as you . Please continue with updates it will be most helpful . BEST WISHES .

shinyhead

laccal wrote: »

4. if your house is in a joint name but debt against one party the charging order is worthless. can explain in more detail at a later stage if this is the case.

How does the above work.

i currently have a company trying to ccj me with a charging order but mortgage is in joint names and debt is mine.

I'd also like to know how that works as well as I'm in the same boat! I have read the National Debtline's factsheet on CO's and there seem to be lots of get outs where a CO will not even be granted, it seems to be a matter of what ones you can defend yourself with.

jasonbloomberg

@ stapeley : The F&FO was the outstanding debt at the time they claim it was assigned, so 100%, but it does exclude the back-dated interest they added for year when interest had been frozen and excludes their purported legal costs so far. That amounts to an 11% 'saving' on what is being claimed in Court.

Making a F&FO potentially puts them in a better position in Court should it be found in their favour, and it doesn't really cost them anything to make it. I shall of course let them know that I will seriously consider their offer upon production of an executed CCA and satisfactory proof that the assignment to them has been made, that is I will not be explicitly turning it down.