moved to scotland seeking set aside help!

[jssandy01]

Hi, briefly

had finance through First National in sept 03. thought we have paid it off. Last correspondence from First was 2004 moved to Scotland august 2006. Found out debt sold to Link asset in Aug 07 they aquired CCJ in Jan 08 via Cardiff CC all documentation went to old address in england and we were not aware. Attempting to get set aside.

When we found out sent cca request no reply, however copy now sent as part of their witness statement together with assignment letter copies.

Where do we stand in english/scottish law?

Set aside hearing on tuesday 20th may so short of time..sorry but my mother has been taken ill which was given priority over last week or so.

[rory32]

Attempting to get set aside.

You should have no problem getting it set aside as the claim in the first place was legally incompetent. As you were domiciled in Scotland the County Court did not have jurisdiction to grant any claim against you. Have a read here for further information on the jurisdiction of courts in the UK Can I be sued in England? | free help from Govan Law Centre , Glasgow

[jssandy01]

Hello Rory, thought this might be the case and maybe our salvation, but unsure how a judge would react and how to present it. We have sent in copies of utility bills to prove address in scotland after august 2006 plus proof of purchase of our home in scotland by way of copies of correspondence from our solicitor confirming the deal was done. As financial institutions ask for utilities as proof or residency this must be cast iron evidence of our residential status? However, In their witness statement they say 'The claimant is not able to provide meaningful representations regarding the defendants statement - but it is of course for the defendants to prove to the satisfaction of the court'. This sentence relates to our set aside request partly based on the fact we moved from the served address in 2006. We were still on the voters role for 2006/7, which we were not aware of, which they have also jumped on. Further advice would be helpful in preparations for Tuesday. many thanks

[rory32]

Did you read the link I gave you?

Denied that this court has jurisdiction. I reside at [insert your full postal address]. This is my principal or main home and I am domiciled here for the purpose of section 41 of the Civil Jurisdiction & Judgments Act 1982 ('the 1982 Act'). I entered into a contractual agreement with the plaintiff as a consumer. Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property which has been arrested and is not applicable. Paragraph 3(6) does not apply. Accordingly, this action is incompetent for want of jurisdiction and should be dismissed with expenses in favour of the defendant.

[rory32]

Hello Rory, thought this might be the case and maybe our salvation, but unsure how a judge would react and how to present it. We have sent in copies of utility bills to prove address in scotland after august 2006 plus proof of purchase of our home in scotland by way of copies of correspondence from our solicitor confirming the deal was done.

As a sort of belt and braces do you have anything relating to the sale of your property in England?

[jssandy01]

Hi Rory, proof of sale of english property has already been supplied and has been acknowledged, however it was sold after we moved as it was kept a while after for investment puposes. They tried to obtain charging order but had to withdraw once they found out it is now sold.

I have read the article you provided which looks conclusive.Should I post this to claimant & court or just refer to it at the hearing on tuesday? The court has ordered a telephone conference hearing due to the fact court is in Cardiff and we are in NE Scotland! I am also epileptic and the travelling would do me no good at all not to mention the cost!

I have also downloaded an article from the Home office regarding how they establish people re-domicile by choice etc. which was useful and the purchase of a permenant residence is pretty key. What was also interesting is that it states you can be resident in more than one country but only domicile in once. This may be useful if they claim we still had house in England and was still on electoral role .We also have our own business there (we have a small holiday let business on the coast). Thanks for your time on helping us with this. What do you think?

[jssandy01]

Hi Rory, proof of sale of english property has already been supplied and has been acknowledged, however it was sold after we moved as it was kept a while after for investment puposes. They tried to obtain charging order but had to withdraw once they found out it is now sold.

I have read the article you provided which looks conclusive.Should I post this to claimant & court or just refer to it at the hearing on tuesday? The court has ordered a telephone conference hearing due to the fact court is in Cardiff and we are in NE Scotland! I am also epileptic and the travelling would do me no good at all not to mention the cost!

I have also downloaded an article from the Home office regarding how they establish people re-domicile by choice etc. which was useful and the purchase of a permenant residence is pretty key. What was also interesting is that it states you can be resident in more than one country but only domicile in once. This may be useful if they claim we still had house in England and was still on electoral role .We also have our own business there (we have a small holiday let business on the coast). Thanks for your time on helping us with this. What do you think?

[rory32]

Should I post this to claimant & court or just refer to it at the hearing on tuesday?

Providing a copy of the relevant statute never hurts, although if your hearing is on Tuesday you may just have to refer to it over the phone. The judge should know the statute anyway.

What was also interesting is that it states you can be resident in more than one country but only domicile in once.

Which is why I used the term domiciled. It's key to the legal arguement.

What do you think?

I think you shouldn't have a problem with the set aside. Earlier this week a District Judge threw out (not just set aside) a CCJ on exactly this issue.

[jssandy01]

Sorry Rory, one other thing, we had already cca'd them with no reply, but in their witness statement they supplied a statement of account. We dispute now the balance as there are 'charges' on there which are unexplained etc. So in summary to you think we have grounds to have set aside due to:

1. Domiciled in scotland at time of claim issued therfore service of documents irrelevant
2. Claim legally incompetent
3. Non service of documents from court
4. Unabe to defend ourselves on original claim
5. Claim amount now in dispute
5. Evidence of grounds to defend

Thanks again for your help with this. I just need to get it all clear in my head.

[rory32]

So in summary to you think we have grounds to have set aside due to:

1. Domiciled in scotland at time of claim issued therfore service of documents irrelevant
2. Claim legally incompetent
3. Non service of documents from court
4. Unabe to defend ourselves on original claim
5. Claim amount now in dispute
5. Evidence of grounds to defend

The claim is incompetent due to where you were domiciled at the time of the claim and continue to be domiciled e.g. Scotland and for this reason the claim should be thrown out. Failing that the CCJ should be set aside for reasons 3 to 6 that you have stated.

[TheAnalyst]

May not even be as hard as all this...

I had a CCJ applied back in 2004 even though I live in Scotland, in Aug 2007 I emailed MCOL asking them why a CCJ has been applied when I am resident in Scotland, as far as I was aware CCJ's were for English prople only.

Never heard a peep so called Northampton County Court in March 08 to chase and see if I could get any further, I spoke to a very helpful woman who advised she would call me back. When she called back she advised that a judgehad looked at it it and agreed to set-aside on the grounds that the CCJ should never have been applied in the first place.

4 weeks later after a couple more calls to the court and them calling registry trust on my behalf it vanished from my credit files.

Hope this can be of some help to you, give me a shout if I can help at all?