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Robinson Way CCJ/CO Cap1 card debt - was unable to respond - now want to set aside **LOST** - appealed - **WON** Claim reset - **WON - Case dismissed**


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Thanx R&B

I seem to see 14days mentioned in various places but nothing specific to WS's so guess I should send WS at least 14days before hearing. Of course if any other guidance on this shows otherwis.

 

Been trawling through other threads and will check out those you mention. I will prepare my draft witness statement and post it for opininion please.

 

Not sure that penny is starting to drop with proceedures etc. Am I right with following:

 

1. N244 application to set aside contained my evidence to support application.

 

2. After N244 I can prepare and serve a witness statement as further evidence to support application.

 

3. The witness statement does not need to include CPR's but can refer to breaches of them and practice directions.

 

4. At the hearing I am able to expand further on the evidence (original on N244 and WS).

 

5. Also at the hearing I can introduce new evidence at the DJ's discretion.

 

If I am correct with this, its a breakthrough in my understanding, but I stand to be corrected.

 

I do not know how I would have got this far without you and CAG

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Interesting update. Just had letter from DWF acknowledging request 31.14 stating requesting docs from client saying "hope to forward the same to you before the Charging Order hearing ..... In the meantime, we look forward to receiving a copy of your application to set Judgment aside".

 

Facts are:

 

1. Application made to set aside. Stamped received by court 15/06/2009.

 

2. Notice of hearing to set aside dated 25/06/2009.

 

3. Box 9 on N244 stated Horwich Farrelly (sols then on record for service of docs) should be served with app. I asumed court does service, am I right.

 

4. Notice of change of solicitor received from new sols and form dated 19/06/2009. Old sols Horwich Farrelly, new DWF LLP. This was received after notice of hearing but I didn't keep letter it arrived in to show they may have delayed posting.

 

5. Interim charging order 29/06/2009.

 

Views please on this event

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In our set aside hearing, we ticked the box asking for documents to be send to the Claimant, the court then forwarded onto the Claimant our application, you may want to check with the court to see if they sent a copy of your application to the other side and what address did they send it to, if they sent it to Farrell you may want to send a copy to DWF (to stop them denying any knowledge of the hearing).

 

Regarding the Charging Order, it shouldn't matter for the moment aslong as the hearing date for that is after your set-aside hearing.

 

If the judgement is set-aside the Charging Order and it's hearing will be removed - you may want to bring it up in the hearing if you win, as in our case the judge filled some paperwork in to get the Charging Order removed, in case the judge forgets or isn't aware of the Charging Order.

 

Also if the judgement is set-aside make sure the other side don't try to get the Final Charging Order Hearing moved to the same time as the hearing for the case or straight after it - Link tried to do that in our case, that brought a scornful look from our judge, as even if they get a CCJ they can only get a Charging Order if you haven't paid.

 

In our case we didn't actually need to argue the defence - Link got Judgement in default because the court lost the defence.

 

All the judge did in our hearing to set aside was look at her book (I assume it was the CPR rules) and say if a defence was submitted, judgement in default can not be obtained and the judgement must be set-aside, Link tried to argue but as they and the court now had a copy of the defence there was nothing they could do.

 

CPR 13 deals with setting aside judegment

 

it can be done under the following conditions:

 

Cases where the court must set aside judgment entered under Part 12

 

13.2

 

The court must set asidea judgment entered under Part 12 if judgment was wrongly entered because –

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

Cases where the court may set aside or vary judgment entered under Part 12

 

13.3

 

(1) In any other case, the court may set aside(GL) 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.

 

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

From that there is two routes you can take

 

13.3 - is upto the judge, s/he may decide your circumstances on their own are enough to set aside judgement and give you a chance, or you may need to produce a decent defence that gives the judge a reason to set-aside.

 

13.2 - may be a safer route, as if they broke 13.2 the judge must set aside the judgement with 12.3 (3) saying they cannot get judgement in default if you admitted and asked for time to pay.

 

The problem with using 13.2 is that you are saying you admit the debt and want time to pay, so I'm not sure what happens if you get the judgement set-aside, will the judge just give you longer to pay, and if you don't pay you go back to where you are?

 

If you want to try and defend the claim instead of just buy some more time to pay, it might be best to go down the 13.3 route and try and convince the judge you have a good defence and/or a good reason for judgement to be set-aside, in this case you would need to supply a copy of your defence to the court.

 

Regarding sending the documents to the court in advance, reading various threads this seems to depend on the judge/court - some are ordered to serve documents in advance other judges seem happy for documents to turn up just before hearings.

 

If you don't send information to the other side, the judge may ask you why you didn't - if they are refusing to provide any documents it may be in your best interests to send your statement/defence to them before the hearing - it shows they are the ones being unreasonable by withholding documents.

 

The downside is if you are relying upon them not producing documents (i.e. the agreement) and tell them so in your defence, they may decide to produce them (i.e. if you are relying on them not having an agreement and they produce it before the hearing in reponse to your defence you may have a problem).

 

In your case it may be better to send a copy to the other side - shows your being reasonable and shows why you need certain documents, if they provide documents you can then defend on the merits of the documents, rather than defending on the fact that they haven't produced the documents - a dodgy document is better than no document (unless they say they don't have the document or it doesn' exist) if they don't disclose the document there is nothing stopping them from producing it latter, but if they produce a dodgy document they are stuck with it.

 

Though I'd wait and see if they respond to your CPR31 or SAR requests, if they don't before you need to submit the statement you add that to your defence.

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Thanx Someone else

Appreciate ur imput.

 

Will call court on mon and see who was served with app to set aside. Prob I have is that charging order hearing is set same date and time. When phoning court I will ask that my app be heard first.

 

Still looking for guidance on 56 &57 posts. What do you think and if 42Man is looking in any further thoughts on witness statement content. Still looking at other threads though to see if I can find anything.

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Robin, I am just going to have a read of your thread again.. then will see who it would be best to contact on your behalf.

 

There isnt a template witness statement as such because each one is individual.

 

BRB

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ok, do I have this correct.

 

A claim form was issued against you. Due to personal circumstances whereby you were full time carer to a parent suffering from cancer, a partner suffering from severe depression, thereby effectively being a single parent to 2 x small children.. you just ticked the "guilty as charged" box without paying too much attention to the consequences ?

 

You have now had the time to assess the situation and feel you have a reasonable chance of success at getting a default judgement set aside.

 

You require help in preparing a witness statement ?

 

You also dont know by what time you have to submit this with the case due to be heard 7/09/2009 ?

 

I will try and find someone with knowledge in this area to have a look at your thread.

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Interesting update. Just had letter from DWF acknowledging request 31.14 stating requesting docs from client saying "hope to forward the same to you before the Charging Order hearing ..... In the meantime, we look forward to receiving a copy of your application to set Judgment aside".

 

Facts are:

 

1. Application made to set aside. Stamped received by court 15/06/2009.

 

2. Notice of hearing to set aside dated 25/06/2009.

 

3. Box 9 on N244 stated Horwich Farrelly (sols then on record for service of docs) should be served with app. I asumed court does service, am I right.

 

4. Notice of change of solicitor received from new sols and form dated 19/06/2009. Old sols Horwich Farrelly, new DWF LLP. This was received after notice of hearing but I didn't keep letter it arrived in to show they may have delayed posting.

 

5. Interim charging order 29/06/2009.

 

Views please on this event

 

Are they saying they havent received a copy of the set aside ? Did you tick the box to have the court to serve the papers ?. It might be in your interest to phone court.. on Monday now and ask if they have served the papers. If so, then advise court that opposition have said they dont have them ?

 

If the court hasnt sent them a copy then it might be a good idea to photocopy your and send them a copy.

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citizenB said:
Are they saying they havent received a copy of the set aside ? "YES" Did you tick the box to have the court to serve the papers ?. "YES" It might be in your interest to phone court.. on Monday now and ask if they have served the papers. If so, then advise court that opposition have said they dont have them ? "AGREE"

 

If the court hasnt sent them a copy then it might be a good idea to photocopy your and send them a copy. "AGREE"

 

Thing is set aside date stamped by court 15/06. Notice of hearing to set aside dated 25/06. Notice of change of solicitor from horwich farrelly to dwf dated 19/06 (after horwich farrelly would have had set aside hearing date). Obviously RW must have been aware of app set aside and instructed new sols to obtain a charging order. Hence Interim Charging Order 29/06.

 

It just seems that rw are trying to bombard me with things to see if I will cave in. They miss judged me:x.

 

Thanx citizenb, its comforting that there are people out there prepared to help stop these people acting they way they are.

 

Hi all

Anything more on help with my witness statement? or opinions on my posting 65

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So, you have two sets of solicitors acting on this ?.. one for the Default Judgement and the other for the Charging order ?

 

Sorry for all the questions, but anyone popping in and offering assistance will need all the information in one place.

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Ok, well the information given so far by the site team is that you need to prepare your witness statement in chronological order and also attach a copy of your defence statement as well.

 

You should put all your paperwork in date order and your witness statement should follow the sequence of events as to how you have arrived at this point in time.

 

HTH.

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5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Hi CitizenB

Yes correct. First sols got default judgment by failing to follow CPR's (believe called an irregular judgment) then when I applied for set aside claimant deinstructed 1st sols and instructed 2nd sols to obtain charging order. Will check with court on Mon, but 1st sols and claimant must have been aware of set aside before instructing 2nd sols. And if they were served before change sols on record, surely they have a duty to notify new sols.

 

I have had my suspicions that it was RW purporting to act as Horwich Farrelly as subsequently discovered that address for service was Hor Far at RW's address and that person I spoke to at what I believed was Hor Far on tel num on claim form, was in fact an employee of RW. Anyway maybe another fight at another time

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Yes, you should indeed phone the court on Monday and at least establish if there are one or two solicitors and to whom the paperwork was directed initially. Having established who is going to be representing the opposition, then I guess you will need to find out if it is you or the court who needs to copy in the new solicitor?

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5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Will do that CitizenB. In meantime, I will make an attempt at a witness statement. Would you suggest when done I post it here for ur and others opinions. Would it also be sensible to aim to get my witness statement served by the end of next week as hearing is 04/09. Also, would I be correct that witness statement should be sent to court and served on claimant's sols. By the way, is there an pplication form I should send to court with my witness statement?

 

Thanx for ur continued help.

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Here is a copy of the first 2 pages of a Witness statement I produced for an application for a Summary Judgement against LTSB.. HTH

 

Yes, if you would like someone to proof read, run their eye over it for you.. but please make sure you edit out all personal references first.

 

 

 

 

 

 

Filed on behalf of: Claimant

Witness: Citizenb

Number: 1st

Exhibits: cb1

Date: 03 August 2009

 

 

IN THE ??????COUNTY COURT Claim No: ?????

 

 

BETWEEN:

CITIZENB

Claimant

and

LLOYDS TSB BANK PLC

Defendant

 

_________________________ _________________________ ____

WITNESS STATEMENT OF CITIZENB

IN SUPPORT OF APPLICATION FOR SUMMARY JUDGEMENT

_________________________ _________________________

 

I, Citizenb of Consumer Action Group, will state as follows:

I am a ???? and the Claimant in these proceedings. I make this witness statement in support of the Claimant’s application for summary judgment.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked “CB1”. The exhibit CB1 contains copies of the documents to which I will refer in this witness statement. Their related document number can be found at the bottom right hand of each page.

 

 

-1-

 

 

 

4. On 27 March 2009 a Subject Access Request was made to Lloyds TSB Bank Plc, the Defendant (see CB1-001). This request was made for details of my personal and financial information that would be held within the internal record systems of Lloyds TSB Bank Plc and was quite specific as to my requirements.

 

4a. Included in the Subject Access Request was the required legal fee of £10.00 by way of a postal order, (see CB1-002), which was crossed and made out in favour of “Lloyds TSB Bank Plc”.

 

4b. The Subject Access Request was mailed via the Royal Mail’s Special Delivery service which provides a tracking service and proof of posting (see CB1-003).

 

4c. According to the Royal Mail tracking service the Subject Access Request was received by the Defendant on 28 March 2009. The signed receipt (see CB1-004) was retrieved from the Royal Mail’s website.

 

5. The Data Protection Act 1998 allows for 40 calendar days from date of receipt for complying with a Subject Access Request. The Defendant should have complied by 07 May 2009.

 

6. On 21 May 2009, having received neither the data requested or any form of communication from the Defendant, the Claimant telephoned the Post Office in order to establish if the Postal Order had been banked. The Post Office advised it had been passed through the Defendant’s bank account on 18 May 2009. Having confirmed this, the Claimant sent a Letter Before Action (see CB1-005) to the Defendant. This pointed out the Defendant’s failure to comply with the Subject Access Request and advised that a Court order would be sought obliging the Defendant to comply if the data requested was not received within 7 days. The letter also advised that the Claimant was aware the original Subject Access Request had been received and that the Postal order had been cashed.

 

7 The Letter Before Action was sent using the Royal Mail’s Special Delivery mailing service (see CB1-006).

 

7a. The Royal Mail’s tracking service advised delivery had been made on 22 May 2009. The signed receipt was retrieved (see CB1-007).

 

8. The Claimant telephoned the Post Office on 01 June 2009 and asked for written confirmation of the encashment of the Postal Order. This was received 03 June 2009 (see CB1-00:cool:. The letter confirmed the earlier call on 21 May 2009, that the Postal Order had been banked on 18 May 2009.

 

9. On 11 June 2009, the Claimant filed for an order under Section 7 and Section 15 (2) of the Data Protection Act 1998.

 

 

etc, etc....

 

HTH

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4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

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1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Seems I'm forever thanking you citizenB, but you have been so helpful and very informing. What you have posted helps me with a proper sructure to a WS. Am I correct in thinking serve by special delivery on other side and court. Is it OK just to send to court as is or do I submit with a court form?

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TBH, I really dont know in your situation. In mine because I was making an application, I just printed up 3 copies of everything and ticked the box on the application form for the court to serve.

 

Are you doing this with a form N244 ? if so, then tick the box for the court to serve docs.

 

Remember at the end of your witness statement to include the "statement of Truth bit.. as follows:

 

 

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

Signed ..................................................

Citizenb

Dated ..................................................

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Uploading documents to CAG ** Instructions **

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2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Originally put in app to set aside on N244, ticked box for court to serve papers (find out Mon who they served them on). Just not sure whether the WS now preparing just needs to be sent off to court or should I put it in with a certain form. Just want to make sure other side can't say I didn't do it properly so can't use it:confused:

 

OK hear goes. Opinions please on my WS. Hope you are looking in CitizenB and R&B. Will give my eyes a rest for a little while

1st Witness Statement of XXXXXX

Claim Number: XXXXXXXX

Exhibits: XXX

Date: XX August 2009

IN THE XXXXXXXX COUNTY COURT Claim No. XXXXXXXX

BETWEEN:

ROBINSON WAY & CO LTD (ASSIGNEES OF EX R/O: CAPITAL ONE) Ref: XXXXXXX

Claimant

AND

XXXXXXXXXXX

Defendant

WITNESS STATEMENT OF XXXXXXX

IN SUPPORT OF APPLICATION FOR JUDGMENT TO BE SET ASIDE

1. I XXXXXXX of XXXXXXXXX am the defendant in this case and a litigant in person and I make this statement in support of my application for the Judgment to be Set Aside.

2. I make this Witness statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

3. There is now produced and shown to me a bundle of documents marked “XXX”. The exhibit XXX contains copies of the documents to which I will refer to in this witness statement. Their related document number can be found at the bottom right hand of each page.

4. I received a letter from the Claimant dated 30 December 2008, addressed to “The Occupier” which I refer to the exhibit marked “XXX-1”. This was the first time I had heard from this company. I had never heard of them before this nor had any correspondence ever been received from them during the considerable time I have lived at my current address. They stated in the letter that post had been returned “gone away”. Post had not been returned “gone away” and I ignored the letter.

5. I received a second letter from Claimant dated 14 January 2009 which I refer to the exhibit marked “XXX-2”. This was addressed to me and was headed “FORMAL DEMAND FOR PAYMENT”. The letter clearly states that the Claimant’s are acting as debt collectors and they are collecting money due to their clients “ROBINSON WAY EX CAPITAL ONE”.

6. I sent a letter to the Claimant dated 30 January 2009 which I refer to the exhibit marked “XXX-3”. I pointed out that (a) it was unclear and asked who they were and in what capacity they wrote to me, (b) requested a copy of a Credit Agreement, © responded to their letter dated 30 December 2008 which I refer to the exhibit marked “XXX-1”, questioning the reason for it, and (d) asking who they were. I never received a reply to this letter.

7. I received a third letter from Claimant dated 01 February 2009 which I refer to the exhibit marked “XXX-4”, stating “APPOINTMENT FOR HOME VISIT”. Again this letter clearly states that the Claimant’s are acting as debt collectors and they are collecting money due to their clients “ROBINSON WAY EX CAPITAL ONE”.

8. There was no further contact what so ever with the Claimant or the Claimant’s solicitors until a Claim Form was received dated 20 March 2009. The Claimant was stated as ROBINSON WAY & CO LTD (ASSIGNEES OF EX R/O: CAPITAL ONE).

9. At no time before receipt of the claim form in this case was it brought to my attention that Robinson Way & Company Limited were anything other than a debt collector nor was I made aware from the Claimant or the Claimant’s solicitors that solicitors had been instructed by the Claimant to commence proceedings.

10. At this time exceptional circumstances prevented me from taking advice or be able to attend court to defend myself, therefore I felt I had no choice and reluctantly returned the admission in accordance with CPR 14.4, requesting time to pay in accordance with CPR 14.9 which I would refer you to the exhibit marked “XXX-5”. I have proof of posting by first class recorded delivery on 31 March 2009 which I would refer to the exhibit marked “XXX-6” and proof of delivery on 01 April 2009 obtained online from the Post Office “Track and Trace” which I would refer to the exhibit marked “XXX-7”.

11. The exceptional circumstances preventing me from making proper decisions or take advice or being able to attend court to defend myself were that I was totally drained both physically and mentally and had received very little sleep for many weeks as I was a full time carer for my mother in the later stages of a long and painful battle with cancer. From February 2009, my mother was unable to care for herself, was bed ridden and needed 24 hour care and attention. She remained at home with me until she passed away 12 April 2009, with her funeral on 28 April 2009. In support of this I would refer to the District Nurses notes on care given to my Mother which I would refer to the exhibit marked “XXX-8” and my Mother’s death certificate which I would refer to the exhibit marked “XXX-9”. In addition to this for some considerable time I had been looking after my 2 young children (now 5 and 6 years), and my wife who is suffering and continues to suffer from severe depression also requiring my care. Additionally, I was caring for my seriously ill father until he passed away 09 November 2008.

12. I then received a Judgment in Default of not replying to the claim dated 15 May 2009.

13. On 26 May 2009 I telephoned the Claimant solicitors, Horwich Farrelly. I spoke to a person called Toni on extension XXXX (she refused to give her last name) and she confirmed that they had received the request for time to pay but the amount offered was not acceptable to them. I pointed out that I believed they had not acted in accordance with Court rules and she said that there was nothing they could do and suggested I applied to set aside Judgment. I requested that they agree to the default judgment being set aside so it could be dealt with without a hearing and save on costs and court time, but they declined. It was made clear to the Claimants solicitors that I intended to make an application to set aside judgment.

14. I made my application to set aside judgment which was date stamped as being received by the Court on 15 June 2009, and I subsequently received a Notice of Hearing of Application to set aside dated 25 June 2009.

15. I subsequently received a notice dated 19 June 2009, stating that the Claimant had instructed DWF LLP in place of Horwich Farrelly.

16. The Claimant instructed their solicitors to apply for a Charging Order and I was served with an Interim Charging Order made on 29 June 2009.

PRINCIPLE ARGUMENTS TO SET ASIDE

17. On receipt of my admission in accordance with CPR 14.4 requesting time to pay according to CPR 14.9 the Claimant failed to follow CPR 14.9 and 14.10 with the rate determined according to 14.11. As further evidence to support this claim I received a letter from the Claimants former solicitors dated 31 July 2009, which I refer to the exhibit marked “XXX-10”. Horwich Farrelly admitted to receiving the admission and request for time to pay and that the offer was not acceptable. However, they state that they are satisfied that they have acted according to Court Rules. However I aver that they clearly have not. With this alone I respectfully ask the court to set aside judgment under CPR 13.2 as the Default Judgment is an irregular judgment.

18. Not withstanding the above, I aver that the Claimant has failed in substance to comply with Pre-action Protocols as set out in Practice Directions - Pre-Action Conduct which severely prejudiced my position prior to the commencement of proceedings. Quite simply, if the Claimant had properly identified them self and I had received a proper letter before claim, I would have merely asked for some time to care for my terminally ill mother and then deal with the matter.

19. I believe that the Claimant acted dishonestly and has engaged in a business practice that is deceitful, oppressive, unfair and improper (whether unlawful or not). I allege that the Claimant has acted in an unfair way in accordance with Section 140A of the Consumer Credit Act 1974, as amended by the Consumer Credit Act 2006, and taking account of the Office of Fair Trading Guidelines published in May 2008, the Unfair Relationships Test applies, rendering the alleged agreement unenforceable. The Claimant is put to strict proof that they have acted fairly prior to Judgment being obtained.

20. I would maintain that the claimant has been unfair as defined according to the European Unions Directive 2005/29/EC “Unfair Commercial Practices Directive” which states:

a practice will be unfair if (a) it contravenes the requirements of professional diligence and (b) it materially distorts the economic behaviour of the average consumer with regard to the product.

“Professional diligence” is defined as “the standard of special skills and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either (a) honest market practice in the traders field of activity and/or the general principle of good faith in the traders field of activity.”

21. I believe that that there reasonable grounds to suppose that I will be able to successfully defend this action and I give below a brief summary of my defence and I would invite the court to conclude this also:

21.1. I deny that I am liable as alleged in the Particulars of Claim, or at all.

21.2. In respect of the alleged agreement it is denied that any such agreement was entered into by me and the Claimant is put to strict proof that such an agreement exists. A request for a copy of the alleged original signed agreement was made in accordance with CPR 31.14 on 01 August 2009, which I refer to the exhibit marked “XXX-11”. The Claimant’s solicitors have acknowledged receipt of my disclosure letter in a letter to me dated 05 August 2009 which I refer to the exhibit marked “XXX-12”.

21.3. Should it be proved that such an agreement exists, such agreement would be a regulated agreement in Accordance with the Consumer Credit Act 1974, it is denied that the claimant has the legal right to enforce that agreement and therefore is put to strict proof of their rights of ownership by way of Assignment. A request for a copy of the Assignment was made in accordance with CPR 31.14 on 01 August 2009, which I refer to the exhibit marked “XXX-11”.

21.4. I deny that a valid Notice of Assignment was received and therefore put the claimant to strict proof that one was issued in line with Section 196 the Law of Property Act 1925 which is required to give the Claimant a legitimate right of action in their own name since it appears this is an assigned debt.

21.5. I deny that a default notice was received from the claimant and therefore the claimant is put to strict proof that one was issued and of the contents supposedly stated therein. A request for a copy of the default notice was made in accordance with CPR 31.14 on 01 August 2009, which I refer to the exhibit marked “XXX-11”. The Consumer Credit Act 1974 s. 87 (1) states:

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement (a) to terminate the agreement.

21.6. I deny that a termination notice was received from the claimant and therefore the claimant is put to strict proof that one was issued. A request for a copy of the termination notice was made in accordance with CPR 31.14 on 01 August 2009, which I refer to the exhibit marked “XXX-11”.

21.7. Not withstanding the above, should it be proven that the alleged agreement exists, I aver that the claimant has acted unfairly in accordance with Section 140A of the Consumer Credit Act 1974, as amended by the Consumer Credit Act 2006, and the Unfair Relationships Test applies, rendering the alleged agreement unenforceable. I would maintain that the claimant has been unfair as defined according to the European Unions Directive 2005/29/EC “Unfair Commercial Practices Directive” which states:

a practice will be unfair if (a) it contravenes the requirements of professional diligence and (b) it materially distorts the economic behaviour of the average consumer with regard to the product.

“Professional diligence” is defined as “the standard of special skills and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either (a) honest market practice in the traders field of activity and/or the general principle of good faith in the traders field of activity.”

21.8. As it would appear that the Claimant is suggesting that the purported debt is an assigned debt from Capital One, I have made a Data Subject Access Request under Section 7 of the Data Protection Act 1998 to the original creditor and I refer to my copy letter dated 01 August 2009 and the exhibit marked “XXX-12”. I have proof of posting by first class recorded delivery on 01 August 2009 which I would refer to the exhibit marked “XXX-13” and proof of delivery on 04 August 2009 obtained online from the Post Office “Track and Trace” which I would refer to the exhibit marked “XXX-14”.

21.9. To date the claimant has failed to comply with my disclosure request under CPR 31.14 nor has the original creditor replied to my Data Subject Access Request and as a result it has proven difficult for me to compose my defence, especially given that I am a Litigant in Person.

21.10. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimants claim at trial.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signed ………………………………………………………..

Name

Dated …………………………………………………………

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Robin, wow, you have worked hard on this I see:)

 

I will ask a couple of people to look in and have a look, see if you have all the bits in the right place. :)

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When does this need to be in and do you know if this has to be accompanied by form N244 are you exempt from court fees do you know ?

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2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Robin, feedback is .. what you have posted so far is good.

 

Just waiting for some information in respect of the CPR Rules for set aside that you will need to include. BRB

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2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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These were some of my earlier questions Citizenb as originally applied for set aside on N244 and wasn't sure if I needed to send this in with another N244 or whether it is just considwered as further evidence for set aside hearing. As hearing is 04/09 I want to send in asap as I want it to be considered at hearing and not other side saying they didn't have enough time to consider it (Can't find time limits for submitting WS).

 

Yes can get application with fee remission but prefer to pay then claim back as when first put in N244, despite getting court to say what I was sending in was adequate documentation they just returned it. Because 0f this prefer to pay and claim back later.

 

Thanx for feedback so far citizenB. My last post was in reply to urs No.79

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These were some of my earlier questions Citizenb as originally applied for set aside on N244 and wasn't sure if I needed to send this in with another N244 or whether it is just considwered as further evidence for set aside hearing. As hearing is 04/09 I want to send in asap as I want it to be considered at hearing and not other side saying they didn't have enough time to consider it (Can't find time limits for submitting WS).

 

Yes can get application with fee remission but prefer to pay then claim back as when first put in N244, despite getting court to say what I was sending in was adequate documentation they just returned it. Because 0f this prefer to pay and claim back later.

 

 

Aha.. right, well I think you will probably need to submt this on a N244

 

YOu can download the form, from

 

Her Majesty's Courts Service -Forms and Guidance

 

 

 

This is the CPR rules you need. kindly provided by Car2403 for you.

 

 

Cases where the court may set aside or vary judgment entered under Part 12

 

13.3

 

(1) In any other case, the court may set aside(GL) 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.

 

 

 

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

 

Bolded the bits he needs to address

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Uploading documents to CAG ** Instructions **

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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