Fraudulent misrepresentation and Prenuptial agreement

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

the property isn't held on trust. It won't be a sale order just a final charge - more likely a restriction due to the joint ownership. James does hold an interest in the land - he has never transferred full ownership over to his wife and her son. Now he can't unless he sorts out this debt first. The charge will sit on the house while James makes installment payments at an affordable rate until such time as he sells the house, or transfers his share to his wife (when he must pay the debt in full).

The only way I can see to avoid the charging order being made final is to apply to set aside the judgment, and succeed with that, then either defend fully or pay off the debt/come to an agreement outside of court to repay it. I'm not sure James has those kind of funds available though.

The fraudulent misrep and prenup have no bearing on the case at all I'm afraid. It's a CCJ for a debt, to be secured on the property which is owned jointly between James and his wife. His wife and her son live in the property as their home and have a number of issues which would classify them as vulnerable. That all can go in the witness statement but we need to get this set aside app sorted for which we need more info on the debt.

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

the property isn't held on trust. It won't be a sale order just a final charge - more likely a restriction due to the joint ownership. James does hold an interest in the land - he has never transferred full ownership over to his wife and her son. Now he can't unless he sorts out this debt first. The charge will sit on the house while James makes installment payments at an affordable rate until such time as he sells the house, or transfers his share to his wife (when he must pay the debt in full)."

If you have never studied trust law especially the trust of the family home, with respect how would you even know what is meant by 'held on trust.'...this is all part of property law. The legal and equitable interests are held by op and his wife wherein the legal interest relates to a legal joint tenancy which can never be severed, and the equitable interests relate to an equitable joint tenancy which can be severed. There is automatically land held on trust by the Op and his ex wife even before ToLATA 1996 owing to the legal interest.

"The only way I can see to avoid the charging order being made final is to apply to set aside the judgment, and succeed with that, then either defend fully or pay off the debt/come to an agreement outside of court to repay it. I'm not sure James has those kind of funds available though."

Yes there are no options to set aside the charging order itself as it has not been finalised at this point. However, the only way it will be set aside would be if the Op were to say the land is protected by joint tenancy (ergo, implied trust). If the OP does not inform the court of the joint tenancy the court will simply grant a final charging order to the creditor, it's as simple as that. If the court has not been informed the land is protected by a joint tenancy then any order for a final charge will automatically create a severance, ergo therein a tenancy in common. Right now Op's land register does not have a tenancy in common. But if he does not rely on the defence I have provided he will forfeit the joint tenancy and force a restriction by the land registrar. Once the final charge is there the argument for the joint tenancy will have been forfeited also as there would only be a tenancy common held by op and his ex wife, therein it won't be possible to discharge or vary the term of the final charging order based on a joint tenancy defence, which would normally be the recourse for actual charging orders.

"The fraudulent misrep and prenup have no bearing on the case at all I'm afraid."

I never said otherwise, rather I put the OP's reliance on this swiftly to the side. However the reason for the joint tenancy are very relevant and they're founded on the pre-nup statement: ie hold property for wife and child.

"It's a CCJ for a debt, to be secured on the property which is owned jointly between James and his wife. His wife and her son live in the property as their home and have a number of issues which would classify them as vulnerable. That all can go in the witness statement but we need to get this set aside app sorted for which we need more info on the debt.

The vulnerabilities should not be the centre of the legal defence as every property owner would argue the vulnerabilities but they're not legally substantive. Joint tenancy is a legally substantive defence, as aforesaid. I suspected this initially but thought about it a bit more since I respect your opinion, Amethyst. However, I was right in that a joint tenancy is a substantive defence but only at the interim charge stage and not post final charge. It makes sense and logical too.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

I am going to start with a statement. I honestly do not believe I would even have considered fighting this without the help, support but most of all the belief you all gave me. The statements are done and the dice is rolled.
Now to tell you all where I am at. OpenLaws defence I have use for my ex partner. Because I have had no interest in the property or gain. I have also put in the health issues Advised by Amethyst But today and why it has taken me so long to sort out I came across some old letters. Now you talk about pennies from heaven. When I first came on I talked about how the bank pushed me to the edge and I tried everything. I said how I wrote letters asking for document's and things. Well I found the original letters I sent to the bank dated 2009 but in one letter I defaulted on the loan calling it in to dispute. and instructing the bank to stop taking my money because I had priority debts. with these letters I had also put one threatening eviction because I couldn't pay my rent. But I also found one with the bank replying and agreeing to stop all my standing orders and all payments to the credit card. So two months on the default notice would have been served. any other payments they might have taken were without permission. So my witness statement is that it should never have been allowed because it was status barred.
I even found a copy of the original agreement plus all the terms. that part I had told you but I was very please.
When I get to court I will speak about the The application for Interim Order. the land registry defence had to be in by the 7th. That is where it stopped my making a valid objection. by not sending me any details it meant that I wasn't able to get a defence in the time. the reason why I asked is I wasn't sure. But for someone that was on the brink of despair you have brought me to looking at law in a whole new way.
Now I cant wait to get to court, (Grins) I really cant thank you all enough, I know I keep saying but this site is the best with the best. So I will have to post all my paperwork as it progresses. I cant post my partners statement because of content but I will send it to amethyst if he wishes to see it

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

I still haven't heard from the court but my statement went today and I have asked again for it to be moved closer to where I am. so that will arrive tomorrow
then its all about how I behave in court and what I say. Can you teach me to be a Master of law with a eloquence to express myself in an esteemed manner before the date?
I hope so

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

So if you believe the debt was statute barred at the time they brought the claim you would be applying to set-aside the judgment. If not statute barred then those letters would prove the original creditor knew your change of address and that you were not at the address the assignee served the papers to which is clear enough reason to set aside the judgment so long as you have a reasonable prospect of success with a defence.

If you aren't going to appluy to set aside and defend the CCJ, then the statements will be most important, particularly on your wife and sons vulnerabilities and it being their family home. You will need to make an offer to pay by instalments - however low, backed up with your income and expenditure so they need to be reasonable, and affordable long term. To the judge you are contrite, you have a debt and you are trying to sort things out - your main priority is to protect your wife and her son, and always has been. You have taken a while to get your head around things and been unsure what to do and have written objections to the LR, you weren't aware of the original judgment, or even that the debt still existed or that Cabot were chasing you for it. You are confused as Lloyds knew your address had changed but don't seem to have passed that on to the claimants in this case. You had a dispute back in 2009 with Lloyds and stopped payments and haven't had any contact with them, or anyone else about the debt since then.

You will likely get the charging order made final, however that does not mean you lose the house.

Also James, you mentioned not being able to get an appt with Citizens Advice - I would have another go tomorrow and tell them about the hearing and try and get in to see them asap. They will have seen hundreds of charging order apps and be able to talk you through what to expect and how to deal with the hearing. Also hopefully set your mind at rest a bit.

Best of luck xx

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

@Openlaw Email would be better if you want to discuss your moderation.

[wales01man]

Re: Fraudulent misrepresentation and Prenuptial agreement

James When you go to court they will see that you have an interest in the house as registered with land registry best chance of avoiding final order is to say why it should not be granted on the basis that the CCJ should be set aside the court may grant the order until the ccj is set aside expect in reality its really a formality unless you go with a really good Solicitor.
With respect to Openlaw I think you are pulling to many arguments out of the hay for most of us mere mortals would be able to argue in court.
Whatever happens James good luck

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

I still haven't heard from the court but my statement went today and I have asked again for it to be moved closer to where I am. so that will arrive tomorrow
then its all about how I behave in court and what I say. Can you teach me to be a Master of law with a eloquence to express myself in an esteemed manner before the date?
I hope so

I actually, about 3 years' ago, coached an American woman to be confident to stand up for her rights in court in a family law situation, ie removing a final protection order. i did this over the internet, I think it was Yahoo on voice or Skype. I had written the defence down for her which she submitted, including the main legal arguments based on between states' law, but primarily that she was no immediate threat to her children despite her dangerous ex's view to the contrary. So all's she had to do was appear in person. It worked too, and although the judge assumed an attorney (US lawyer) had written her defence, appearing in court was enough to have the protection order removed. James, getting back to you, you have the ability; the court is not going to expect the best defence barrister/ US attorney and his or her eloquence and their legal adeptness. Like in the case of the American woman, the courts/ judge just want you to take an interest, as wales01man also, says below. It is enough you being there and saying, look my property is protected by a joint tenancy, just as it would be enough if a bank were trying to get a possession order. The County Courts are set up to be formal for the average Joe to access justice, ensuring there is equal footing between the parties, you can see this if you read the overriding objective under the Civil Procedure Rules, at the beginning. The Courts want to deal swiftly with charging orders so on the day of your hearing so do not be nervous James, rather be confident. Talk to the judge as you would to us. Tell the judge what you told us about the reason for the joint tenancy, ie the pre-nuptial statement (ie statement before marriage dealing with assets were a marriage to end). Do not mention anything about misrepresentation. You have us here to encourage you too up to that point.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Also James, you mentioned not being able to get an appt with Citizens Advice - I would have another go tomorrow and tell them about the hearing and try and get in to see them asap. They will have seen hundreds of charging order apps and be able to talk you through what to expect and how to deal with the hearing. Also hopefully set your mind at rest a bit.

Best of luck xx

The reason I was not here yesterday was my appointment with the CAB. I took all the bits you have given me with all the papers I had found. For me to try and do it here in one day just wasn't possible and the one constant point all of you have made is the need for legal advice face to face. The true value of my letters I didn't understand until it was shown to me. I will post them tomorrow morning. today was a day where I had to look after my family, its her shopping day and doctors etc. so I couldn't post today. But tomorrow I will I still need to be right when I get to court. I might have a loaded gun in my hand with my letters but I don't want to shoot the wrong person so to speak

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

James When you go to court they will see that you have an interest in the house as registered with land registry best chance of avoiding final order is to say why it should not be granted on the basis that the CCJ should be set aside the court may grant the order until the ccj is set aside expect in reality its really a formality unless you go with a really good Solicitor.
With respect to Openlaw I think you are pulling to many arguments out of the hay for most of us mere mortals would be able to argue in court.
Whatever happens James good luck

When I post my witness statement tomorrow you will see it is simple, its based on a few letters nothing more. The one point that is still eating at me is the abuse of process The question is do I have right to a defence against the entry by the land registry. They are obliged to inform me as soon as practically possible. You argue that they are within their rights because the final order is the one that counts. my land registry was due on the 7th of january But by not giving me ample time to defend the opportunity given by the land registry against the temporally order they have compromised my defence. If I had successfully defended and my objection was found to be good surely going into the court my case would be stronger. By withholding from me that a temporally order had been taken out until such times as it was almost impossible to gain any legal advice. I do not want to use this in my witness statement but add to this that when I asked for paperwork they took three weeks to reply, all they said is they wont speak to me unless I use a signature. so it took three weeks for them to tell me I ain't getting any cooperation from them. The kept my pound by the way. I intend to be the gentleman in this and send them copies of all my documents so that I cannot be accused of anything. Also today I received confirmation that my case has been moved to a local court which is great news. That was done using the email supplied by all of you. It didn't have a signature on it. Yet the courts of England found it perfectly acceptable having a case number and a claim. Do you not think it is worth bring this up in court, not as part of my defense but more of the unfair treatment of the claimant?

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Ja

mes, getting back to you, you have the ability; the court is not going to expect the best defence barrister/ US attorney and his or her eloquence and their legal adeptness. Like in the case of the American woman, the courts/ judge just want you to take an interest, as wales01man also, says below. It is enough you being there and saying, look my property is protected by a joint tenancy, just as it would be enough if a bank were trying to get a possession

Its not so much my inability to speak its more my ability to not speak. I was a shop steward for a number of years and I was very vocal. Here as you have already pointed out a more refined role will be needed. That's the bit I worry about. I am so up for this now I can almost taste it. I remember how I used to press my hands with my fingers spread and breathe to try and control that excitement when I went into any meetings. I love the battle I love the fight. There is no fear inside me now about this. not the fight ahead. But the worry I will mess up is still very much alive

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

So if you believe the debt was statute barred at the time they brought the claim you would be applying to set-aside the judgment. If not statute barred then those letters would prove the original creditor knew your change of address and that you were not at the address the assignee served the papers to which is clear enough reason to set aside the judgment so long as you have a reasonable prospect of success with a defence.

Application notice

For help in completing this form please read the notes for guidance form N244Notes.
1 What is your name or, if you are a solicitor, the name of your firm?
***********************
2. Are you a Claimant / Defendant Solicitor
i I Other (please specify)
If you are a solicitor whom do you represent?
3. What order are you asking the court to make and why?
To set aside the above County Court Judgement under CPR 13.3(a) and to stay the enforcement the under rule 3.1 (2)(f) of the Civil Procedure Rules.
4. Have you attached a draft of the order you are applying for? 0 Yes [✓] No
5. How do you want to have this application dealt with? 0 at a hearing without a hearing
0 at a telephone hearing
N244 Application notice (05.08) Name of court Claim no. ******************* Warrant no. (if applicable) Claimant’s name (including ref.) Cabot Financial (UK) Limited Defendant’s name (including ref.) ****************** Date 15/01/2016
Hours
20 Minutes
□ No
Yes
None
District
Cabot Financial (UK) Limited
6. How long do you think the hearing will last?
Is this time estimate agreed by all parties?
7. Give details of any fixed trial date or period
8. What level of Judge does your hearing need?
9. Who should be served with this application?
€> Crown copyright 2008
1

2
10. What information will you be relying on, in support of your application?
[/] the attached witness statement the statement of case I I the evidence set out in the box below If necessary, please continue on a separate sheet.
The outstaning account is statute barred as the last aknowlagement of the debt was over 6 years ago. The last time that I aknowklaged the debt was on 09/03/2009 when I aknowlaged that the credit card account was in default and requested the Bank to stop making any payments from by current account into my credit card account. I was forced cancel all the payments from by direct debit acount because I was in rent arrears. Due to the Bank's right to set off the rent arrears at the time were over £2,000 and I was faceing eviction.
Furthermore Lloyds wrote to me on 05/03/2009 and advised that all the direct payment from by direct debit account have been canceled and since then there has been no aknowalgement or payment from my behalf.
I am also in the process of complaining about missold personal protection insurance which I belive will reduce the amount held to be outstaning on the account.
Therefore I kindly request that under CPR 13.3 (a) the County Court Judgement made on 20/10/2015 to be set asid as the account was at the time statute barred under the Limitation Act 1980 section 5 and because in respect of an agreement regulated by the Counsumer Credit Act 1974 the time runs from the date of default by the debtor.
Statement of Truth
(I believe) (The opplioorrt boliovos) that the facts stated in this section (and any continuation sheets) are true.
Signed ______________________________________________ Dated 15/01/2016 ________________________
Applicant's Solicitor)(’s litigation-friend)
Full name ****************************** ............ ........................ .................................................. ................ ...........................
Name of applicant's solicitor’s firm __________________________________________________ _____________
Position or office held __________________________________________ __ ____________________________
(if signing on behalf of firm or company)
11. Signature and address details
Signed ___________________________________________ Dated 15/01/2016
Applicant^ Golicilui)('b litigation fiiend)
Position or office held __________________________________________________ ______
(if signing on behalf of firm or company)
Applicant’s address to which documents about this application should be sent
If applicable
Phone no.
Fax no.
DX no.
Ref no.
E-mail address
Postcode M 3 8 9 N P

This is my witness statement. Next is my ex's

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Sorry I meant to say Application. this is my witness statement
This is my witness statement
Exhibits:
7 letters
CLAIM No:
IN THE County Court Business Centre **************
BETWEEN:
Cabot Financial (UK) Limited CLAIMANT
- and -
****************** DEFENDANT
WITNESS STATEMENT OF ************************
I************************************************* ******************will say as follows:
1. I object to a final charging order on the ******************* , ******** as the account was statute barred at the time the County Court Judgement was made.
The last acknowledgement of the account made on 09/03/2009. At the time I have acknowledgement that I was defaulting on the agreement due to the fact that the bank has exercised the right to set off for a long period of time and I have not been able to pay for the ongoing bills.
Therefore on 09/03/2009 I have requested for the payments towards the credit card to stop because at that time I had rent arrears of more than £2,000 and I was facing eviction due to rent arrears.
I can submit evidence that the Bank committed to cancelling all the direct payments from my current account on 05/03/2009 and a copy of the letter I have submitted to the Bank requesting for the payments towards the credit card to stop.
In respect of an agreement regulated by the Consumer Credit Act 1974 the time runs from the date of the default by the debtor and I have defaulted on the agreement on 09/03/2009. If any payments have been made after this date by the Bank the payment is not payment by the
Page 1
t .____________________
Debtor in respect of the debt and the creditor has appropriated the money. (Re Footman Bower & Co Ltd [1961] 2 All ER 972.
Therefore I have applied to set aside the County Court Judgment dated 20/10/2015 under the CPR 13.3 (a).
Furthermore I am in the process of complaining about the miss-sold of payment protection insurance which I believe will reduce the amount held to be outstanding on the account.
I would also ask the Court to ensure that the case would be transferred to *********** under CPR 30.3(2)(b) on the grounds of “convenience or fairness” as I would like to attend the hearing.
Statement of Truth
I believe the facts contained in this statement are true.
Signed............................................ ............................

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

I would also mention that when you spoke with Lloyds in 2009 you made them aware of your change of address. Therefore there is no reason why court papers should not have been served at your current address.

I am also in the process of complaining about missold personal protection insurance which I belive will reduce the amount held to be outstaning on the account.

I wouldn't mention that if you are claiming statute barred as a PPI complaint could be deemed as acknowledgement.

because in respect of an agreement regulated by the Counsumer Credit Act 1974 the time runs from the date of default by the debtor.

not correct, and it isn't what you have argued further up.


Not sure if you've sent this yet, if not are you okay if I have a teeny fiddle with it?

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

This is my ex's statement. as you are aware I have had to delete a lot of content due to personal reasons

Exhibits:

CLAIM No:
IN THE ******************* COUNTY COURT ********************
BETWEEN:

Cabot Financial (UK) limited CLAIMANT
- and -
********************* DEFENDANT




WITNESS STATEMENT OF Ex- Partner ***********************




I, ************************************************** **************
I will say as follows:

1. I object to a final charging order on the property my son and I live in because *********** (the defendant) left the household over 10 years ago and the mutual understanding at the time was that the property will be left solely to me and my son and that from that day forward ******** will not have any interest in the property.

For the past 10 years my son and I were solely liable for all the household bills and repairs/maintenance of the property as *******gave up his interest in the property when we separated. Unfortunately this has not been formalised as this was an agreement that ********honoured until now and I had no reason to believe that the situation will change.

I would also like to bring to the Court attention that I suffer with the following medical conditions ************************************************** ************************************************** ***********************. **************** Unaided. If an order for sale will be made on the property that I have lived in most of my life it will be very difficult to me to find affordable accommodation as I am fully relined on social security benefits.
My son also ************************************* All places for treatments for both my son and myself are within a very short distance.
Also I would like to bring to the Court attention that the property was purchased more than 30 years ago to provide a home for the child for as long as he chooses to live here, this is why our son remained in the property as he is aware that this property was purchased for him.

I would kindly ask the Court to consider our household circumstances under the Trust of Land and Appointment of Trustees Act 1996 and not make a final charging order on our property.



Statement of Truth

I believe the facts contained in this statement are true.

Signed ………………………………………………
( Name )

Dated ………………………………………………..