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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22400
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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hi i had my credit card removed from HSBC 4 years ago, as

Customer Question

hi
i had my credit card removed from HSBC 4 years ago, as i asked them for my bank charges back. They asked me to pay the full balance within 30 days which i was unable to do, so they put me over to their voluntary payment section and i have been paying them monthly. Last April they put me in court as i missed a payment. Due to court error i did not know about the hearing and judgement was entered against mefor the debt. I was informed i could on this basis ask for judgement to be set aside which is what i am asking for next week in court. However my arguement if the judge allows the hearing is that whilst i acknowledge and owe the debt when i missed the payment i was mental incapasitated and missed the payment. would i be allowed to use this arguement as to why i was one payment late? i am having variable different opionions.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

Could you confirm you have applied to set aside the judgement please?

JACUSTOMER-glyxmxv2- :

Yes but this is beening done on court error, if judge do set this aside the arguement is if i was mentally capuable?

Josh-2010 :

Have you applied on form N244 on the basis that you did not receive the court papers?

JACUSTOMER-glyxmxv2- :

Yes that is happening for next week as judge gas given me up to the 10th to do this

Josh-2010 :

Thanks. If you did not receive papers you should be successful in obtaining a set aside order providing you applied in good time once you discovered the judgement. You can ask HSBC to not oppose the application and to agree to continue a payment plan agreed.

Josh-2010 :

If they refuse then attend the hearing for the set aside application. You will likely be successful in this application in the circumstances.

JACUSTOMER-glyxmxv2- :

how ever what about my arguement which i am trying to find advice on- am i liable whilst i am mentally incapasitated??

Josh-2010 :

At the same time you can apply to the court for a time order potentially. A court has the power to set a time in which you can repay the debt, reduce or even freeze interest and set a repayment plan which is binding on both parties.

Josh-2010 :

You can make an application for a time order using this form:

Josh-2010 :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=583

JACUSTOMER-glyxmxv2- :

i know this from national debt advice

Josh-2010 :

Great - it is good advice.

Josh-2010 :

You can ask the judge to hear both your applications together though he may decide to hear the time order application at a later date after deciding your set aside application.

JACUSTOMER-glyxmxv2- :

can you answer my question on the matter i contacted you about?

Josh-2010 :

Providing you can show a credible repayment plan a judge should be open to your application. Ensure you take with you evidence to show that you can likely meet the repayment plan - i.e. evidence of income, saving etc.

JACUSTOMER-glyxmxv2- :

mental incapasity?

Josh-2010 :

Could I ask the nature of your mental incapacity at the time? Do you have any medical evidence to support your claim - e.g. from your GP or hospital consultant?

JACUSTOMER-glyxmxv2- :

yes both bi-polar

Josh-2010 :

Thank you. On that basis providing you have medical evidence to support your claim which from what you say you do this would be extremely helpful in your application for a time order. In practice I do not think you would necessarily need to rely on such evidence or argument if this is the first time you have missed a payment but it certainly is very helpful if you can show the reason you missed the payment.

JACUSTOMER-glyxmxv2- :

i am not sure you understand . If the judge allows me to go back to court due to a court error to set judement aside, the national dept advice people asked me what would be my arguement to the judge. this is what i want your advice about as if it would stand up in court ? as hsbc has done nothing wrong by putting me in court i was the one who missed the payment and had judgement put against me.

Josh-2010 :

Does the above answer all your questions or is there anything I can clarify or help with any further?

JACUSTOMER-glyxmxv2- :

could you answer the above please i dont think you are getting to the root of my problem

Josh-2010 :

I am sorry if I have no made myself clear. There are two potential applications here. The set aside application and then the possible additional application for a time order. I will deal with each in turn:

JACUSTOMER-glyxmxv2- :

i know about time orrder

Josh-2010 :

1) the set aside application: - you will need to give a statement explaining the position and ask the judge to set aside the default judgement on the basis that you did not receive papers and that you wish to defend the claim on the basis that you have medical evidence to explain your missed payment and believe you have a reasonable chance of success. You will need to explain that you have made the application as soon as possible once you discovered the default judgement. You will have to pay £75 fee with your application.

Josh-2010 :

You do not need to actually defend HSBCs claim at the set aside hearing. All you need to show is that you did not receive papers and you believe you have a reasonable prospect of defending the claim.

JACUSTOMER-glyxmxv2- :

i have already done this

Josh-2010 :

It is then in any subsequent applicaiton for a time order and so on that you would need to put your detailed evidence forward in respect of medical evidence, financial information and so on.

Josh-2010 :

Does that make sense or can I clarify any part of the above for you any further?

JACUSTOMER-glyxmxv2- :

as i stated i have already done this. why i have contacted you is in the basis of mental capuability. was i liable for the missed payment legally whilst i was ill and missed the payment

Josh-2010 :

If you have made the above points in your set aside application then this is all you need do for the set aside application. Based on what youhave said I would expect your application to be successful which will reset the matter to the pre hearing stage. You will thne have the chance to defend the claim put by HSBC and if you wish apply for a time order as above. You are legally liable for payments whether you can show metal incapacity or not but the incapacity can operate as an excuse for missing the payment and will likely mean that a judge would be very open to granting relief to you in the form of for example a time order

Josh-2010 :

Does the above assist or do you feel I am still not addressing the issue for you adequately?

JACUSTOMER-glyxmxv2- :

to set aside judgement will the judgemrnt be removed at this stage b4 the pre hearing?

Josh-2010 :

Yes if your set aside application which you say you have already made is successful then the judgement will be removed and the whole matter "reset" to before the hearing stage, A new hearing date will be set for the matter to be heard. This could potentially be the same day the judge hears your set aside application but usually it is a later date.

JACUSTOMER-glyxmxv2- :

could you tell me why at hearing when all parties are present why my mental incapasity is not a reason?

Josh-2010 :

Is this the set aside application hearing you are referring to or the subsequent full hearing following granting of the set aside application?

JACUSTOMER-glyxmxv2- :

if i am allowed next week to set aside judgement, i am talking now about the full hearing.

Josh-2010 :

Thanks. Please correct me if I am wrong but I do not think I have stated that mental incapacity is not pertinent. Quite the opposite I believe I have said that I think it would be extremely helpful to your case if you can demonstrate medical evidence that shows on the balance of probability that you were impaired at the time you were due to make the payment. For the avoidance of doubt I beleive that such evidence would be extremely helpful to your case and I suggest you consider submitting medical evidence to support your claim of impairment such as a letter from your GP or other appropriate medical evidence.

JACUSTOMER-glyxmxv2- :

we are establishing the full hearing? as the advice i have been granted is that i am acknowledging that i owe the money hense and that as i missed the payment hense i have no defence, only in a crimal matter would my mental incapasity be taken into account.

Josh-2010 :

You have no defence against paying the debt owed - i.e. you cannot avoid paying the debt due to mental incapacity but you can apply to the court for time to pay the debt fairly as discussed above. Medical evidence supporting why ou missed a payment and financial evidence showing that you can maintain future payments would make such an application by you relatively strong.

Josh-2010 :

This is not criminal as you say - it is a civil matter.

JACUSTOMER-glyxmxv2- :

i have been advised that as this is a cival matter my mental health would not be a defence to why the case should not of come to court.

Josh-2010 :

But you would not be using it as a defence to avoid paying the debt. You would simply be using it as evidence to support your request for time to pay the debt. This are very distinct issues. I would agree that you cannot use it as a defence to avoid the debt but this is not what we are discussing. We are simply considering using it as supporting evidence to support an application for time to pay.

Josh-2010 :

Does this make sense?

JACUSTOMER-glyxmxv2- :

in short

JACUSTOMER-glyxmxv2- :

the judge removes judgement due to court error and sets aside hearing, at that hearing using the mental health as an excuse why payment was late, at that hearing could he then not except my evidence and put a new ccj on me?

Josh-2010 :

Essentially that is correct - you have made your set aside application as discussed above. This then resets the matter back to pre-hearing stage. You can then have the opportunity to defend the matter if you feel that a judgement should not be made though based on what you say you do not contend that you do not owe the debt or you can accept the debt is owed but ask for a time order to repay the debt.

JACUSTOMER-glyxmxv2- :

also why in these matters when a person is mental incapasitated why is this not taken into consideration, it is in other areas of the law

Josh-2010 :

If you apply for a time order judgement can still be entered against you but subjet to the provisions of the time order. Once you have repaid the debt in accordance with the time order you can apply for the judgement to be marked as satisfied.

Josh-2010 :

Mental incapcity can and will be taken into account by the judge. However you cannot use mental incapacity as a defence to avoid a debt accept in a very narrow set of cicumstances where for exampe a lender knows someone does not have capcity when taking out a loan

Josh-2010 :

To use it as a defense against the debt you would need to show that you were mentally incapacitated at the time you took out the loan and incurred the debt and that the creditor knew this or ought to have known. This is difficult to show and the onus would be on you to show it.

Josh-2010 :

Does the above answer all your questions or is there anything I can clarify or help with any further?

JACUSTOMER-glyxmxv2- :

could u answer mu question please?

Josh-2010 :

I believe I have answered your question above?

Josh-2010 :

I am not sure I can assist much further beyond what I have said above. I hope it has been of some assistance. If you feel I have been unable to answer all of your questions, please let me know and I will opt out to see if a colleague can assist further.

JACUSTOMER-glyxmxv2- :

how do this work when payments are missed due to the illness in a court as for 4 months my mind was elewhere?

Josh-2010 :

I think we have already covered this above reference a time order and I am not sure I can make much further progress. What I will do is opt out in the hope that one of my colleagues will be able to assist you further. If you could avoid replying to the thread for the moment this will open the thread up to all.

Josh-2010 :

I hope you are successful in court. Best wishes

Expert:  Joshua replied 3 years ago.
Opting out for others.
Expert:  Stuart J replied 3 years ago.




I see that Josh has opted out and so I will try to assist you.

Even in the judgement is set aside on the basis that you did not get the
papers, there is likely to be another hearing where you would be able to put
your case to defend the bank's action. At that court case, you will either win
or lose and if you lose, you get a judgement.



If your defence is that you were mentally ill and therefore unable to make
the payment, because (your words) your "mind was elsewhere" then it is highly
likely that unless you have a psychiatric report that confirms that you were no
longer aware of the nature or the quality of your actions, the chances are that
your defence will fail substantially.



Just because you were mentally ill at that time does not absolve you of
paying the debt and even if the judge accepts your illness, I do not think it
would provide you with a valid defence.



In addition to the above, I am not altogether certain what further
information you need.



I appreciate that this is not the answer you wanted but I'm afraid the
family I cannot give you the answer you want because that would be misleading
you.



If you want me to say "yes, mental incapacity is a wonderful defence, go
for it and you will winning court" I can say that. However when you get to
court you might be just a little bit disappointed



Can I assist further?



Please bear with me today because I will be online and off-line .



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