Cabot/Mortimer Calrke obtained interim restriction order - HELP!

**judgemental24** · 22nd September 2015, 12:43:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

You need to set aside the original CCJ. that will be through a N244 form and cost you £155 for the privilege.

That will get rid of any charging orders

STATUTE BARRED IS A 100% PERFECT DEFENCE

The fact you went to the FOS is a good thing as it shows your willingness to try and sort this out before going through the courts

**pange34** · 22nd September 2015, 12:53:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

ok thanks for the advise
When you set aside a judgement is it best to send as much evidence as possible?
and if cabot/mortimer clarke send letters in the meantime whilst i apply for a set aside (its going to take me a month or so to get the money together) do i just write to them informing them i continue to fight this?
The FOB have not upheld my complaint so does this mean the court will do the same?
I am currently in a debt management plan and have dealt with all creditors in the past that i believe i owe money too so will this gfo in my favour?
Apologies just trying to get a varied view to keep me in a positive frame of mind this application coming out of the blue has put a lot of strain on me and my relationship with my partner who quite rightly so is concerned that a charging order (well restriction) will be put on the property he pays the mortgage for every month

**Kafka** · 22nd September 2015, 12:57:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Being statute barred is a defence you can use where a claim is out of time. It has no value with the creditor now there is a judgment, so you would have to apply to the court to get the judgment set aside. If I read you correctly the postponed hearing in Dec 2014 was for the Interim Charging Order? The CCJ must have preceded that and you should have received a claim through the court with the chance to defend, then a notice that judgment had been granted. Can you offer an explanation as to why you never received those documents?

**judgemental24** · 22nd September 2015, 13:00:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

If you are on benefits or low income you can get a fee remission on the application cost

**FlamingParrot** · 22nd September 2015, 13:02:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Originally posted by pange34 View Post

Hi There
I am new to this page so please bear with me and I have a long story to post.....
Back in January this year (2015) i received letters from land registry and mortimer clarke solicitors on behalf of cabot informing me that a application for a restriction order had been made against my property
I called Mortimer Clarke to speak with them to ask what they were colecting and it was a old Sainsburys bank credit card from 2004
They requested the full amount of £1118 striaight away over the phone but i did not bite and instead wrote a complaint to both mortimer clarke and cabot requesting more information as
1 - I was not aware a county court judgement had been made against me
2- That they were pressuring me for money over the phone when i called them to ask why I had only just had a letter from them
In the letters mortimer clarke sent it showed a court application for a charging order and also a hearing date for a court hearing on the 2nd of December 2014 (I had no previous knowledge of a court hearing taking place) so I argued in the letter that i was not able to defend myself I later found out the court hearing had been adjourned but no date had been set

Presumably you mean December 2015 for the hearing which has been postponed pending re-listing. The hearing would be to make the restriction final and sadly they are just above the £1k limit.

Originally posted by pange34 View Post

Also mortimer clarke also said that they would not accept any payment from me until the charging order had been granted

That's rather odd and totally pointless. First of all, the charge secures the debt regardless of whether payments are being made or not. It used to be the case that if you were making the agreed payments into your CCJ, they could not record a charge but that only applies to judgments made before October 2012. No payments towards a judgment secured on property can be used as an argument to apply to the court for an order for sale, however, they are hardly ever granted and in this case the amount of the debt is so small it would be very unlikely to succeed, not to mention the fact the property is not even in your sole name. In a word:

Originally posted by pange34 View Post

So I wrote to them again informing them i had received no letters and requested some more information regarding the debt and that i believed unless they can prove otherwise that the debt is Statue barred as it is so old they sent me back a screenshot of a payment sheet (didn't look very professional or from a legit customer payment system) highlighting a payment of £1 that was made from Sainsburys to them on the 10th of July 2010 to which i do not recognise as i know no payment has been made to Sainsburys since 2004! (i lost my job and Sainsburys at the time would not accept my debt management company proposals)

Two points here:

Is there any chance the £1 payment was the fee for a CCA request you made back in 2010? It's not uncommon for the fee to be paid into the account.
You say Sainsbury's wouldn't accept your repayment proposals made through a DMC. If these proposals were made in writing, they could be construed as acknowledgment of the debt for limitation purposes, even if they were not accepted or made by yourself, the DMC would have been acting on your behalf so they would be taken as coming from you.

**pange34** · 22nd September 2015, 13:10:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

the only explanation for the documents not being received is i moved out of my parents house into mine in 2007 and the only correspondence received from Cabot was a letter dated July 2013 that was passed on to me by my parents (they moved away from the home in July 2013 and it was a mail redirect i sent a statue barred letter was sent to cabot then asking for proof but i never got a response Cabot only started writing to me at my new address once i complained to them back in January this year
the only explanation i can think of as to not receiving the ccj paperwork is the letters were sent to my old address (my parents) after redirect had been cancelled and they have been lost (apparantly they sent letters to both my old address and my new address in 2014) but no letters have arrived at my new address otherwise i would have not let this escalate and would have began fighting sooner)
its a complicated one and one of their word against mine i guess

**judgemental24** · 22nd September 2015, 13:12:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

That might be a problem if you never informed the original creditor prior to Cabot that you had moved address.

Did you inform the original creditor you have moved to a new address??

Were cabot aware of your new address prior to them issuing the court claim??

Do you have any documentation from Cabot at your new address prior to the claim?

**pange34** · 22nd September 2015, 13:13:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Flaming Parrot - just reading your responses further up on the letters i got from mortimer clarke in January 2015 the court hearing was listed for the 2nd of december 2014 and then adjourned the first i knew of this was in the letter they sent in January 2015

**FlamingParrot** · 22nd September 2015, 13:13:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Originally posted by pange34 View Post

Anyway I took this further to the financial ombudsman and they have not upheld my complaint and have gone in favour of Cabot and Mortimer Clarke saying they Cabot and Mortimer Clarke did not have to provide me with evidence that they can claim as they have already got the support of the court

The FOS tends not to get involved in issues where the courts are concerned. Technically they are correct in saying that their duty to respond to a CCA request no longer exists because judgment has been obtained.

Originally posted by pange34 View Post

so what i want to ask is - what shall i do when the letters start coming again regarding the charging order application?

As noted above, you could consider applying for set aside but you'd need to do that as soon as possible rather than waiting for anything further. The court will expect you to act promptly. Although this judgment was made in January, you were not aware of it until you heard about the charge, which is not uncommon with default judgments. You'd also need to show the court you've got a solid defence to the claim or else it would be a waste of time for all parties concerned. :ohwell:

Statute barred is, indeed, an absolute defence, however, you need to consider the two points above. The £1 payment could well have been your CCA request if you were dealing with this back in 2010 but there's also the matter of the repayment proposals to be considered. :mmph:

If you decide to apply for set aside, the charging order hearing will not take place until the outcome of your application is known, if the underlying judgment is set aside then the interim restriction would also be removed. thumb:

If you are thinking of set side, these links should be useful:

Originally posted by pange34 View Post

also my name is on the house but i do not pay the mortgage my partner does so that is why they are going for a restriction order on my half of the property so can i contact the court to defend my case? or do i just give in to these bullies and offer a payment to avoid any possible application for restriction going on my property? the letters of complaint have been going back and forth for 9 months now
any advise would be greatly appreciated

The restriction is only against your beneficial interest on the property which means it *could* be sold without paying it but it would require a good conveyancing lawyer who is experienced in these matters rather than your average high street firm. :twin:

Even if you offer a repayment plan, their application is still likely to succeed because the judgment was made after October 2012 as noted above.

**pange34** · 22nd September 2015, 13:14:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Hi Judgemental
in the letter i sent to cabot i did not inform the creditor i had moved address they have obviously used search methods to find my new address

**FlamingParrot** · 22nd September 2015, 13:15:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Originally posted by pange34 View Post

Flaming Parrot - just reading your responses further up on the letters i got from mortimer clarke in January 2015 the court hearing was listed for the 2nd of december 2014 and then adjourned the first i knew of this was in the letter they sent in January 2015

So when was this judgment made? Over a year ago? If you've been aware of it for all this time it may be harder to convince the court to grant you a set aside. :mmph:

**pange34** · 22nd September 2015, 13:15:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Hi Flaming Parrot
No no request for information from me and no £1 paid from me either

**FlamingParrot** · 22nd September 2015, 13:16:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Originally posted by pange34 View Post

Hi Flaming Parrot
No no request for information from me and no £1 paid from me either

Could it have been sent on your behalf by the DMC you were using? How about the repayment proposals?

**judgemental24** · 22nd September 2015, 13:16:PM

Re: Cabot/Mortimer Calrke obtained interim restriction order - HELP!

Were cabot aware of your new address prior to the claim being issued??

Cabot/Mortimer Calrke obtained interim restriction order - HELP!