Fraudulent misrepresentation and Prenuptial agreement

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

"Further consideration of the application

Civil Procedure Rules 73.8

(1) If any person objects to the court making a final charging order, he must –
(a) file; and

(b) serve on the applicant;

written evidence stating the grounds of his objections, not less than 7 days before the hearing.

(2) At the hearing the court may –
(a) make a final charging order confirming that the charge imposed by the interim charging order shall continue, with or without modification;

(b) discharge the interim charging order and dismiss the application;

(c) decide any issues in dispute between the parties, or between any of the parties and any other person who objects to the court making a final charging order; or

(d) direct a trial of any such issues, and if necessary give directions.


(3) If the court makes a final charging order which charges securities other than securities held in court, the order will include a stop notice unless the court otherwise orders.
(Section III of this Part contains provisions about stop notices.)

(4) Any order made at the hearing must be served on all the persons on whom the interim charging order was required to be served."

https://www.justice.gov.uk/courts/pr...art73#IDA1RUBB

I am not to sure what this means. have we not set the grounds in my email to the court. ? The legal terms do confuse me at times I guess because I am not used to them. Again is the email enough or do I need to asked in writing and provide the witness statement? I just don't want to miss my deadline date. Thank you

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

I am not to sure what this means. have we not set the grounds in my email to the court. ? The legal terms do confuse me at times I guess because I am not used to them. Again is the email enough or do I need to asked in writing and provide the witness statement? I just don't want to miss my deadline date. Thank you

Hi James

My last post relates to you asking for a discharge of the interim charging order. You have 7 days before the hearing to get this information to the relevant claimant, ie the claimant: creditor/ solicitor ('serve on the applicant'). Interim means temporary and final charging order means generally permanent. The witness statement means the same thing as 'written evidence' stating your objections to the interim order.

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

It wasn't a letter it was an email I sent. that was what made me wonder if that was enough.
I know they said to email them but I was concerned. I think I want to try and fight it if you think that is for the best. But if I have to ask for it to be moved to another court do I not need to follow the steps and send my request with a witness statement. I will do whatever you all think is best.

Letter/Email yes that's fine. Call court and check they have received it and if they are doing anything. about it. they may shut at 4. If the hearing is being cancelled and moved to a new court with a new date then you don't need to put in your statement. If its not moving then you need to get the WS against the charging order and the set aside application sent in tomorrow.

Why did you not receive the original court papers ? Did they go to a different address so you know ? We need to have some idea how the judgment got through without being defended to do the set aside application.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Letter/Email yes that's fine. Call court and check they have received it and if they are doing anything. about it. they may shut at 4. If the hearing is being cancelled and moved to a new court with a new date then you don't need to put in your statement. If its not moving then you need to get the WS against the charging order and the set aside application sent in tomorrow.

Why did you not receive the original court papers ? Did they go to a different address so you know ? We need to have some idea how the judgment got through without being defended to do the set aside application.

I have spoken to the court and they said it is being processed, they have got my email. The reason I didn't know is because I haven't lived in the house for nearly 10 years so I don't really even bother with mail there. When I was phoned and told about the land registry I went through some of the letters and I found a tax rebate from 2012 in them for a sum of money. I didn't know it was there. I haven't been registered at that house for donkeys years. So do I wait now for a new date? They did say that they will try and arrange it for the same date or close to that date.

- - - Updated - - -

Hi James

My last post relates to you asking for a discharge of the interim charging order. You have 7 days before the hearing to get this information to the relevant claimant, ie the claimant: creditor/ solicitor ('serve on the applicant'). Interim means temporary and final charging order means generally permanent. The witness statement means the same thing as 'written evidence' stating your objections to the interim order.

So I need to send a copy of my email to the solicitors Restons?

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

I have spoken to the court and they said it is being processed, they have got my email. The reason I didn't know is because I haven't lived in the house for nearly 10 years so I don't really even bother with mail there. When I was phoned and told about the land registry I went through some of the letters and I found a tax rebate from 2012 in them for a sum of money. I didn't know it was there. I haven't been registered at that house for donkeys years. So do I wait now for a new date? They did say that they will try and arrange it for the same date or close to that date.

- - - Updated - - -


So I need to send a copy of my email to the solicitors Restons?

If Restons are the solicitor representing the client then you contact them. I have been doing some legal research. You are more likely to have an interim (temporary) charging order removed than a final charging order. It is frustrating that legal words confuse you but i'll simplify where I can. You have the right to argue against an interim charging order as you have no interest in land at all, ie it's tied by a joint tenancy. Restons argument will be that you either have an interest in land or trust in property under s.2 (1), Charging Order Act 1979. I won't explain the legal jargon here. In short your joint tenancy will defeat s.2 which you will bring to the court's attention reliant on CPR 73 relating to Interim Charging Orders. James, courts look at charging order applications in bundles so they are not looked at individually and the person affected (ie home owners) according to my research do not object to it. They think they do not have a choice. I am convinced you will not get a final charging order if we can get a defence in time, ie 7 days before final charge hearing.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Name DoB Court Case No. Date Amount Status
*............. ....... COUNTY COURT BUSINESS CENTRE ........20/10/15 £8,041 Unsatisfied Judgment
......................................
England and Wales High Court Judgments

I was just reading through and the date on this is 20015. There doesn't seem to be any reference to the original ccj. Is it possible that this is status barred. I am also thinking about your suggestion to setting aside the interim judgment. the original card was insured, will have had ppi attached, I don't know if these are grounds. The last payments were taken without my consents as my letter to the bank indicated. It is possible the last genuine payment is over six years ago. Isnt there a law about payments being taken without consent?

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

If Restons are the solicitor representing the client then you contact them. I have been doing some legal research. You are more likely to have an interim (temporary) charging order removed than a final charging order. It is frustrating that legal words confuse you but i'll simplify where I can. You have the right to argue against an interim charging order as you have no interest in land at all, ie it's tied by a joint tenancy. Restons argument will be that you either have an interest in land or trust in property under s.2 (1), Charging Order Act 1979. I won't explain the legal jargon here. In short your joint tenancy will defeat s.2 which you will bring to the court's attention reliant on CPR 73 relating to Interim Charging Orders. James, courts look at charging order applications in bundles so they are not looked at individually and the person affected (ie home owners) according to my research do not object to it. They think they do not have a choice. I am convinced you will not get a final charging order if we can get a defence in time, ie 7 days before final charge hearing.

Thank you for that
I think I understand it. the date is still the 25th and I haven't heard from the court. So a registered letter sent Friday will be there Monday which I think is ok with my defence. I have been also looking at their claim for interests and cost. I have found the original letter containing the form for the credit card and it tells me how I am insured etc. in all the leaflets. also the full terms and conditions from a book with it plus interest rates. Even the amount being claimed would be wrong. I asked in 2009 for the bank to stop taking money out of my account and asked for a copy of the original agreement I found a letter telling me they would then one. I sent one telling them they hadn't done it. But they were told I had priority depts.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

SECTION II – STOP ORDERS

Interpretation

73.11

In this Section, ‘stop order’ means an order of the High Court not to take, in relation to funds in court or securities specified in the order, any of the steps listed in section 5(5) of the 1979 Act.


Back to top of page
Application for stop order

73.12

(1) The High Court may make –
(a) a stop order relating to funds in court, on the application of any person –
(i) who has a mortgage or charge on the interest of any person in the funds; or

(ii) to whom that interest has been assigned; or

(iii) who is a judgment creditor of the person entitled to that interest; or


(b) a stop order relating to securities other than securities held in court, on the application of any person claiming to be beneficially entitled to an interest in the securities.


(2) An application for a stop order must be made –
(a) by application notice in existing proceedings; or

(b) by Part 8 claim form if there are no existing proceedings in the High Court.


(3) The application notice or claim form must be served on –
(a) every person whose interest may be affected by the order applied for; and

(b) either –
(i) the Accountant General at the Court Funds Office, if the application relates to funds in court; or

(ii) the person specified in rule 73.5(1)(d), if the application relates to securities other than securities held in court.

am I in the right section here? I feel really excited and I am trying to read up what you are telling me. I am so grateful for the time and efforts you are all putting in for me
Would this be my full defence?

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

am I in the right section here? I feel really excited and I am trying to read up what you are telling me. I am so grateful for the time and efforts you are all putting in for me
Would this be my full defence?

Stop orders are to stop the debtor trying to sell land or other things i think, so it seems me they're the creditor's powers. I think you should have the interim charging order removed first as this affects your property, because if the charging order becomes final it will mean the severance of your joint tenancy. This is why you should act straight away with this. Afterwards you can deal with the debt.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Having said that, there is anecdotal evidence that some creditors may seek to use the threat of a charging order and its enforcement by an order for sale as a means of extracting a larger instalment payment than a pro rata division would justify. This, I suggest, is capable of unduly prejudicing other creditors. And the growing practice of waiting until the last possible moment to serve the interim order (presumably seeking to give the defendant as little opportunity as possible to be awkward) appears to be a clear breach of Civil Procedure Rule 23.7(1)(a).
District Judge Neil Hickman sits at Milton Keynes County Court. He is general editor of Civil Court Service (******s)

this is something I came across last night and I really think it might be relevant as a small edition to my defence.
To explain.... The interim charging order was granted on the 8th Dec. They didn't have to tell me when they applied for it but they did once they had it. the first I knew was when I received a letter from the land registry their letter is dated the 14 and at that time of year would have arrived about 16th. 8 days have passed and still there has been no attempt to contact me. the letter informing me of the order from Restons was dated the 18th. that was a fri. This means on the last week end before Christmas when the post is the heaviest of the year the chances of my letter reaching me on the Monday was almost nil. The Christmas holidays were then upon us. my chance of finding citizens advice to defend against this order was not possible, they were all closing for the Christmas and new year break. My ability to mount a proper defence was compromised by what now I see as a deliberate breach of Civil Procedure Rule 23.7(1)(a).
(1) A copy of the application notice –
(a) must be served as soon as practicable after it is filed;

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

If it is possible I really would appreciate help in the preparation of my witness statement if you could write out how I say what your telling me and incorporate the part I found if you all think it matters. But if you could help with this today I can actually get this to the court in an email so its there tonight. Then tomorrow I could take it straight to the post office sending hard copies to both the court and Restons registered they will get there Monday.
I have to go out this morning. I have an appointment. I am hoping to be back about 2pm if that's ok.

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

Morning Reading back.

Okay, working on this now xx

So two bits;

Firstly to set aside the original default judgment and allow you to defend the claim.... this will take a bit of work as I know very little about the original debt.

SET ASIDE

You will need to make your application on form N244 - you will have to either pay £155 or complete the EX160 for fee remission - you can find this https://www.justice.gov.uk/courts/fees

It will need to go to Kings Lynn County Court and a copy to Restons.

You should put each of these documents ( witness statement, defence, draft order) on separate A4 sheets and fill in your details ( claim number etc)





Section 3: An order ( a draft of which is attached) that the default Judgment in the case be set aside pursuant to Civil Prodecure Rule 13.3. The claim form was not delivered to my address I and I first became aware of the claim when I received a letter from the Land Registry informing me of the imposition of an interim charging order over the property known as xxxx address of property xxxxxxxxxxxx. I have not resided at that address since xxxxxxxxx. The original creditor ( Lloyds Bank Plc ) was fully aware of my change of address in xxxxxx and the claim in this case appears to be based on incorrect information being passed during any assignment process to the Claimant.



Then Witness Statement to attach to that

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

XXXXXXXXXX

Claimant

- and –

Defendant

XXXXXXXXXX

_________________________________

WITNESS STATEMENT OF xxxxxxxxxxxxxxxxxxxxxx
_________________________________

I XXXXXXXXXX of XXXXXXXXXX address XXXXXXXXXX being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXXXXXXX Judgment dated XXXXX) be set aside.

2: CPR 13.3 states (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

3. I learnt of the existence of this claim on the XXXXXXXXXXXXXXX when I received a letter from the Land Registry informing me of an interim charging order being attached to my property at xxxxxxxxxxx address xxxxxxxxxxxx [EXHIBIT A]

4. I have not heard directly from the Claimant at all prior to the original county court claim nor following judgment. I did not receive any documents from the Court and was not given any opportunity to defend the claim. I have still not received any copies of the claim form or documents supporting such.

5. My address changed in XXXXXXXXXXXXX. I informed the Original Creditor ( Lloyds Bank ?? ) that I had moved house in writing/telephone on XXXXXXXXXXXXXX. There is no reason that the Claimant could not have made the claim at my current address. I believe I have a full defence to the claim ( see draft attached)

6. I therefore ask that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence.


Statement of Truth

I, XXXXXX, the Defendant, believe the facts stated within this Witness Statement to be true.


Signed: ________________________________

Dated:

Then Draft Defence to attach

IN THE XXXXXXXXXXXXXX COUNTY COURT

CLAIM No: xxxxxxx

BETWEEN:

NAME of CLAIMANT

CLAIMANT

And

YOUR NAME

DEFENDANT

__________________________________________________ ______
Draft Defence
__________________________________________________ ______

1. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim

2. It is denied that the Defendant owes the Claimants £XXXX as stated in their particulars of claim.

3. The claim appears to be for an agreement between Lloyds Bank Plc and the Defendant for a credit card/loan etc ?

4. The last contact the Defendant had with Lloyds Bank Plc was in xxxxxxxxxxxx. Therefore the Defendant contends that any debt alledged would be time barred pursuant to section 5 Limitations Act 1980 as of xxxxxxxxxxxxxx ( date 6 years from last contact )

5. The Defendant has received no documents at all from the claimant. No notice of any assignment of the agreement from Lloyds Bank Plc to the Claimant has been delivered to the Defendant.

( have a look at http://www.legalbeagles.info/forums/...t-Court-Claims for other parts which might be appropriate - as I don't know the details of the original debt the claim is based on it's difficult to do much more.)

6.


I believe the facts stated in this Defence are true.


Signed __________________________

Dated: ____________________________

And Draft Order

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

XXXXXXXXXX

Claimant

- and –

Defendant

XXXXXXXXXX

_________________________________

DRAFT ORDER
_________________________________

IT IS ORDERED THAT:

Upon reading the defendant's application dated xxxxxxxxxxxxx

It is ordered that:

1. 
   The judgment dated [insert date of judgment] be set aside.
2. 
   The Defendant shall file and serve his Defence by 4pm on [insert date].
3. 
   The Claimant has permission to file and serve a reply if so required.
4. 
   The hearing listed for xxxxxxxxxxxxx to create a Final Charging Order in favour of the Claimant over the Defendants property at xxxxxxxxxxx address xxxxxxxxxxxxxxxxxxx be vacated.

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

this is something I came across last night and I really think it might be relevant as a small edition to my defence.
To explain.... The interim charging order was granted on the 8th Dec. They didn't have to tell me when they applied for it but they did once they had it. the first I knew was when I received a letter from the land registry their letter is dated the 14 and at that time of year would have arrived about 16th. 8 days have passed and still there has been no attempt to contact me. the letter informing me of the order from Restons was dated the 18th. that was a fri. This means on the last week end before Christmas when the post is the heaviest of the year the chances of my letter reaching me on the Monday was almost nil. The Christmas holidays were then upon us. my chance of finding citizens advice to defend against this order was not possible, they were all closing for the Christmas and new year break. My ability to mount a proper defence was compromised by what now I see as a deliberate breach of Civil Procedure Rule 23.7(1)(a).
(1) A copy of the application notice –
(a) must be served as soon as practicable after it is filed;

Abuse of Process (procedure)

In short, you should have been notified (served) of the Interim Charge at least 21 days prior to the court hearing: CPR 73.5:"Service of interim order

73.5

(1) Copies of the interim charging order, the application notice and any documents filed in support of it must, not less than 21 days before the hearing, be served on the following persons –
(a) the judgment debtor...."

CPR 23.7 (1) a relates to serving in general but property is far more strict in terms of correct procedure, as follows. However, you're right and great spot by the way. It is simply an abuse of process if the Interim Charging Order has been incorrectly served, which in accordance with CPR 73.5 ought to have been 21 days before the hearing. The application for Interim Order will surely fail for abuse of process (ie procedure) in addition to the land being protected by a joint tenancy. Great news...when the devil plays so bad, it is more obvious than it would have been if he were shrewd, so to speak .

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

18 dec is at least 21 days before the hearing, that's just the way it is. 2 days is postage time accepted. If posted on Friday 18th there is no reason it wouldn't have arrived Saturday 19th or Monday 21st.

What date was the letter actually received ?

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

18 dec is at least 21 days before the hearing, that's just the way it is. 2 days is postage time accepted. If posted on Friday 18th there is no reason it wouldn't have arrived Saturday 19th or Monday 21st.

What date was the letter actually received ?

Hmm, the final charge date hearing is 25 Jan 2016 I see. Even if the letter arrived 3rd Jan 2016 it would still be reached within the 21 days. I don't know if the claim for the charging order could be struck out under CPR 3.4. It could be argued there is no prospect of success given there is no interest in land for s.2, Charging Order Act 1979 to apply, as the land is either protected by a joint tenancy, which must be severed: s.34/ s.36, Law of Property Act 1925; or, the property is protected land as it is held on trust for others, ie the OP's wife as trustee of land for herself and beneficiary children: Trust of Land and Appointment of Trustees' Act 1996.