Set aside denied and HCEO fees too high

[sn10]

Hi,

I'd like some help on the best action to take. Here's the background.

A company received a default judgement against me for a charge I had disagreed with. The court paperwork was sent to the incorrect address so the first thing I knew about it was the HCEO posting a notice of seizure.

I filed an N244 application to set aside the judgement based on not receiving the paperwork, but admittedly I had left it too long so the application was denied on that basis. This has also added their costs for the opposing side onto the original debt.

I accept that I'm going to have to pay it but the HCEO fees are dwarfing the original judgement amount. I can't afford to pay them and I'm worried they'll take my car I use to get to work, meaning I will lose my job and be in an even worse position.

Is there any possibility I could file a N245 application to pay the original debt amount in installments or will I be have to try and negotiate payment with the HCEO for the debt including their fees?

The original debt was just over £700, and the added court fees and interest make it about £1800. The HCEO fees are about £1800 too making the total £3600.

Please help if you can suggest anything.

Many thanks,

sn10

[labman]

Re: Set aside denied and HCEO fees too high

There are a couple of real HCEO experts on the site. Hopefully they'll be around tomorrow (later today) and be able to answer your question.

[ploddertom]

Re: Set aside denied and HCEO fees too high

Sounds as if the set aside would have been declined on more than just not doing this promptly as you you would have had to have had more grounds than just disagreeing with the debt. This doesn't mean to say you cannot appeal this but depends on the grounds you may have. Is there a chance you could explain a little more about the origins of this?

As for what you have now then yes you can apply for a Variation Order by which instalments may be made. As you rightly say this is done on Form N245 and the form is returned to the Court where the original CCJ was granted.

To deal with the HCEO is a little more tricky. I assume you have been left a Form 55? You say a Notice of Seizure has been left - if so can you list the goods seized exactly as described on it? You may make an application for a Stay of Execution against the HCEO, the grounds you can use are:
i - you cannot afford the fees demanded
ii - pending determination of a Variation Order - if you submit an application for this
iii - the HCEO is thraetening to remove & sell XXX & YYY - depends what goods they have listed.

Are the premises they are attending residential or commercial? Have they managed to gain entry?

[bizzybob]

Re: Set aside denied and HCEO fees too high

As a first option apply for a Stay Of Execution, against the HCEO, using even the ground that you cannot afford the HCEO fees, which usually are over inflated in the Misc (anything they think they can get away with) category this will halt enforcement whilst you apply for the Variation Order where the court will set payments that are affordable according to your means. the experts willbe along later, but I would be thinking along those lines

[bizzybob]

Re: Set aside denied and HCEO fees too high

There we go ploddertom beat me to the draw, PT is one of the experts,

[sn10]

Re: Set aside denied and HCEO fees too high

Sounds as if the set aside would have been declined on more than just not doing this promptly as you you would have had to have had more grounds than just disagreeing with the debt. This doesn't mean to say you cannot appeal this but depends on the grounds you may have. Is there a chance you could explain a little more about the origins of this?

As for what you have now then yes you can apply for a Variation Order by which instalments may be made. As you rightly say this is done on Form N245 and the form is returned to the Court where the original CCJ was granted.

To deal with the HCEO is a little more tricky. I assume you have been left a Form 55? You say a Notice of Seizure has been left - if so can you list the goods seized exactly as described on it? You may make an application for a Stay of Execution against the HCEO, the grounds you can use are:
i - you cannot afford the fees demanded
ii - pending determination of a Variation Order - if you submit an application for this
iii - the HCEO is thraetening to remove & sell XXX & YYY - depends what goods they have listed.

Are the premises they are attending residential or commercial? Have they managed to gain entry?

Hi ploddertom

thanks for the reply. The debt relates to a rent charge or service charge on a property I own. I thought that the company would maintain the communal landscaped areas around the property. The judge pointed out at the hearing that unfortunately the terms of the charge mean that I must pay with no expectation of this property management company maintaining those areas. I believe the judge did have some sympathy for the situation and granted 14 days to file a counter claim on a possible point where the company may be failing in their duty. I'm not sure whether to pursue that as if I lose again there will be further solicitor costs from the other side to pay.

With regards to the variation order I have no savings available but I do own my own house outright and my car. I'm planning on selling and downsizing again but this won't solve the immediate problem. Would this mean on paper I can afford the debt?

The form I have from the HCEO is form 55. They have not gained access to my property and with the stay of 14 days granted above I have a small amount of time before they return. They haven't seized any goods or listed anything on the form. The premises are residential and I'm a 60+ years single female.

Before the hearing, my son made a without prejudice offer to pay the claimant their judgement amount without the HCEO fees but that was declined and they said to deal with the HCEO. He can't afford to pay the total amount the HCEO is looking for either.

Thank you for your help.

[ploddertom]

Re: Set aside denied and HCEO fees too high

I'll get back to you later today - might be tonight when I get home. I will in the meantime ask someone else to have a look who knows a fair bit about this. Don't worry too much as the paperwork makes it sound worse than it is.

[pepsie]

Re: Set aside denied and HCEO fees too high

Hi ploddertom

thanks for the reply. The debt relates to a rent charge or service charge on a property I own. I thought that the company would maintain the communal landscaped areas around the property. The judge pointed out at the hearing that unfortunately the terms of the charge mean that I must pay with no expectation of this property management company maintaining those areas. I believe the judge did have some sympathy for the situation and granted 14 days to file a counter claim on a possible point where the company may be failing in their duty. I'm not sure whether to pursue that as if I lose again there will be further solicitor costs from the other side to pay. Judges are not permitted to say outright..'look I can see good reason for a counterclaim' but I truly think this is worth getting a solicitor to look at. It will be the Terms of the service charge that will need to be looked at more closely ie: the small print.

With regards to the variation order I have no savings available but I do own my own house outright and my car. I'm planning on selling and downsizing again but this won't solve the immediate problem. Would this mean on paper I can afford the debt? No ..you will simply need to furnish an I & E to your regular outlay and income....I will return to this a little further down.

The form I have from the HCEO is form 55. They have not gained access to my property and with the stay of 14 days granted above I have a small amount of time before they return. They haven't seized any goods or listed anything on the form. The premises are residential and I'm a 60+ years single female.This makes it rather more than difficult for them to remove any goods as long as you continue to deny them access to your home...as they have not levied on your car I would be inclined to 'sell' it to your son and send the V5 away to the DVLA to show change of ownership, the insurance can be changed to show your son as the owner and yourself as an additional driver.

Before the hearing, my son made a without prejudice offer to pay the claimant their judgement amount without the HCEO fees but that was declined and they said to deal with the HCEO. He can't afford to pay the total amount the HCEO is looking for either.

the reason the creditor refused your son's offer is quite simply due to the fact there are some companies who will look on such a settlement to be outside their T&C's and insist the creditor then becomes liable to their fee's,(you do not say which HCEO company is involved but I can tell you there are those who are a lot easier to deal with than others) In certain circumstances creditors wishing to accept an offer of direct payment CAN negotiate with the HCEO a figure to withdraw from the writ.

In reality as long as you never allow them to make a levy there is little to nothing they can do and they would eventually return the Writ to the creditor... (which then allows you once again to make an offer direct to the creditor)a writ is only valid for twelve months but can be renewed on request.

Returning to the question above 'Would this mean on paper I can afford the debt'? if they return the writ they would do so with a recommendation the creditor seeks a charging order on your property, no offence here, but due to your age I doubt it would ever go to the stage they would attempt to force a sale.
Thank you for your help.

Lastly ...as I do not know what fees have been charged I cannot tell you if those fees have been correctly applied but I would strongly suggest you send a request for a breakdown of them. If it can be seen they have applied incorrect and questionable fees you also have the option to apply for a detailed assessment to them.

If you require further advice on this can I suggest you send PT or myself a PM as it would be better to keep more detailed replies out of the eyes of the HCEO concerned...they read these forums diligently.

Pepsie