CCJ set aside - help and advice please?

[robcag]

Hello All,

 

Prior to my coming across this extremely valuable asset of CAG, I had a CCJ followed by a final charging order awarded against me earlier this year. Now, having read many of the threads on here (many more to read!) and trying to learn as much as I can, I would like to enlist the help of the good people of CAG to attempt to get first of all the CCJ set-aside, then the removal of the charging order.

 

A brief background to the case:

 

This debt is in relation to a credit card balance upon which for several months I had not been able to make the normal minimum payments as requested on the monthly statements, but had been in contact with the creditor by telephone and had been paying a very small pro rata token payment. This was a verbal agreement and they did not put this agreement in writing.

 

However, after making these small payments for about 3-4 months, I started receiving letters from a firm of solicitors threatening legal proceedings. I spoke to these solicitors and was initially told to submit an income & expenditure form to them by 2nd March 2007 otherwise they would go ahead and issue a court claim. I did as they suggested and have no reason to believe that my submission was not received by them in time, but then in early March I received through the post a Claim Form from the Northampton Bulk Centre in regard to the alleged debt. Yes, you probably guessed, it was issued on 2nd March! Bar stewards!

 

Being entirely unfamiliar with the processes involved and being a bit anxious about all that was going on, not being able to afford to pay a solicitors costs to advise me, and not knowing my rights, I did not know what to do. One of the things I did do was telephone the claimants solicitors to query the large “Collection Charge” which was listed on the claim form. I was then told that if I admitted the default balance of the claim, they would drop the collection charge. Obviously I cannot now prove what was said as it was a telephone call (I now know from CAG not to speak to these people on the telephone!).

 

I then took what I saw as the easiest and most obvious way to me, I logged on to the MCOL site and made a “part admission” (i.e. the default balance) and elected to defend against the collection charge.

 

Consequently the CCJ was awarded against me for the default amount plus interest to date of judgement, with a “forthwith” payment order being made.

 

As I was not in a position to make a payment in full, the claimants solicitors then followed up with an interim, then final charging order. Again, had I understood my rights and the processes involved, I could have opposed this on the grounds that I had other creditors who were being disadvantaged, and also the fact that the equity in my house was only partially mine as it is jointly owned.

 

 

 

Grounds for set-aside as I see it so far:

 

1) I originally admitted the alleged default sum claimed as correct but do not now agree with that amount because;

a) I was ignorant of the law and was under duress, i.e. having phoned the claimants solicitor to query the huge “collection fee” which had been added to the alleged default balance in their POC I was told that if I admitted the debt they would not claim the collection fee (which they then dropped like a hot potato it seems).

b) I now know the alleged default amount stated was incorrect as it would have included unlawful penalty charges.

 

2) Any default issued (if sent) prior to court action being taken would have been invalid due to the aforementioned penalty charges being included. Presumably this would then enable me to claim;

a) That court action should not have been able to proceed in the first place.

b) Unlawful rescission of contract, with the result, inter alia (see I’m learning!), that the claimant would not be able to take any further action in the future on this alleged debt.

 

 

Other possible grounds?

 

1) The claimants POC were summary, vague, and insufficiently particularised.

2) The claim form was not accompanied by any documents to support the claim, such as a copy of a regulated agreement, (even though these were not referred to in the POC ?), and therefore the claimants claim should not have been able to proceed due to them having not complied with certain CPR.

 

 

My initial questions on this matter:

 

1) Do the experts on here think I have reasonable grounds to apply for a set-aside?

2) Can anybody think of any further grounds for set-aside?

3) Which forms should be used to proceed with this?

4) What is the likely cost?

5) I am unemployed at the moment and on JSA so is this something for which I would I be exempt from the court fees?

 

I would like to get this started fairly soon if possible, at least before Christmas so it would then at least be underway in the same calendar year as the CCJ was made (probably doesn’t make and difference, but it seems like it would look better than waiting until 2008!).

 

Fire away please!

Rob

[pt2537]

Hey Rob,

 

CCJs arent my thing to be honest, however i know of a website which may be able to help you

 

Removal of CCJ's - Main Menu

 

regards

paul

[robcag]

Hey Rob,

 

CCJs arent my thing to be honest, however i know of a website which may be able to help you

 

Removal of CCJ's - Main Menu

 

regards

paul

Thanks for the swift reply Paul (as usual!), and the useful link.

 

It looks like that site will answer some of my questions, but I'm hoping to get some encouraging opinions on my grounds and chances of success.

 

I'm pretty keen to go ahead, so if the worst comes to the worst, I guess I'll just have to suck it and see, after I've got some help on here of course!

 

Rob

[sequenci]

1) I originally admitted the alleged default sum claimed as correct but do not now agree with that amount because;

a) I was ignorant of the law and was under duress, i.e. having phoned the claimants solicitor to query the huge “collection fee” which had been added to the alleged default balance in their POC I was told that if I admitted the debt they would not claim the collection fee (which they then dropped like a hot potato it seems).

b) I now know the alleged default amount stated was incorrect as it would have included unlawful penalty charges.

 

It is certainly worth a shot although I know that judges are VERY reluctant to set aside once it gets to the execution of the judgment stage so you will need to put forward a very strong argument coupled with as much supporting evidence as possible. I would certainly advocate part of your argument including the Woodchester Leasing V Swain argument as it is likely the default notice may have been served for the incorrect amount. I imagine you will need to back this up with other arguments too.

 

 

 

1) The claimants POC were summary, vague, and insufficiently particularised.

 

I wouldn't imagine a judge would care less.

 

2) The claim form was not accompanied by any documents to support the claim, such as a copy of a regulated agreement

 

see above, harsh but true.

 

therefore the claimants claim should not have been able to proceed due to them having not complied with certain CPR.

 

this is pretty weak too.

 

 

1) Do the experts on here think I have reasonable grounds to apply for a set-aside?

yes, although it might be an uphill struggle

2) Can anybody think of any further grounds for set-aside?

not at this stage

3) Which forms should be used to proceed with this?

n244

4) What is the likely cost?

5) I am unemployed at the moment and on JSA so is this something for which I would I be exempt from the court fees?

if you're on JSA(income based) then the application would be free.

[robcag]

Hi sequenci, and thanks for your reply, your comments are very welcome and appreciated.

 

It is certainly worth a shot although I know that judges are VERY reluctant to set aside once it gets to the execution of the judgment stage so you will need to put forward a very strong argument coupled with as much supporting evidence as possible. I would certainly advocate part of your argument including the Woodchester Leasing V Swain argument as it is likely the default notice may have been served for the incorrect amount. I imagine you will need to back this up with other arguments too.

Yes, Woodchester v Swain was what I was thinking would be relevant to use in my argument. Given my outline of the facts so far, do you have any suggestions as to any further arguments I could use?

 

yes, although it might be an uphill struggle

I hope the hill won't be too steep to climb if I start up it!

 

Do you think it is worth mentioning the facts I mentioned above in my original post: "1) I originally admitted the alleged default sum claimed as correct but do not now agree with that amount because;

a) I was ignorant of the law and was under duress, i.e. having phoned the claimants solicitor to query the huge “collection fee” which had been added to the alleged default balance in their POC I was told that if I admitted the debt they would not claim the collection fee (which they then dropped like a hot potato it seems)."

Do you think that would count for anything, or do you think it would be thrown out as irrelevant?

 

I will try and make a start in putting together an argument using points copied from other defences on here and altered to suit my case, as it seems some people have already constructed some strongly worded defences (which state the facts better than I could manage) and with references to the relevant points in the Woodchester v Swain precedent. It will probably take me quite a while, but I'll put it up in this thread and request comments and help when I've got something to work on, and will probably need advice from others with more experience on the layout and presentation.

 

Thanks again

 

Rob

[bustthematrix]

Hello All

 

I am a new CAGer and have been on hooked on these forums for the last few hours - trying to take it all in! The resource here us truly amazing! I can only think how much better my finances would be had I known of this resource earlier and accessed help from it.

 

I'm also in a similiar situation to robcag and would certainly consider getting a CJ setaside. However in my case, not sure what the chances are as the charging order has already been paid by me earler this year because I had to do a remortgage.

 

Anyway, I'm following with interest. I've also been a victim of the HFC/Restons double act which was exteremely shoddy to be honest. Due to my lack of knowledge though, I lost my defence at the time. The Judge sympathised with me and knew I was being taken for a ride. In not so many words, she indicated that had I been properly defended Restons' case would have been thrown out!

[robcag]

In the past few days I've read somewhere on these forums something about interest being charged after a default is issued, or interest being charged up to the time of judgement, but this only being permitted if there is a clause in the agreement specifically allowing this. ISTR that in the abscence of such a clause, then the default is that interest is not permitted to be charged.

 

My problem is that I cannot recall which thread this was in, so I wonder if anybody can remind me please?

 

I am thinking this might be a useful argument to strengthen my case if I can show that interest has been claimed and added to the judgement amount without the claimant producing an agreement at the original judgement, in which case the judge could/would be shown to have acted incorrectly.

 

Fingers crossed someone can point me in the right direction, and comments on this idea welcome.

 

Rob

[Bug]

Hi Rob - I'm following with interest.

 

Good luck

 

Bug

[robcag]

Thanks Bug. I'm trying to figure out how to apply to the court for an order to force the claimant to disclose documents in another case ATM, so I'll have to put this one on a hold for a little while.

 

I was also hoping someone might be able to answer my queries in post #7 above. I hope I didn't imagine what I've asked about!

 

Rob

[Soo43]

i would interested to know what the outcome of this thread was if anyone can inform me please - we are in a similar position

[robcag]

i would interested to know what the outcome of this thread was if anyone can inform me please - we are in a similar position

Hi Soo43

 

Sorry, I've only just seen your post in this thread.

 

Unfortunately I don't have any updates for you yet as I haven't gone any further with it yet. I'm still mulling it over from time to time, but despite having 1 or 2 ideas I haven't done anything positive. I really need to make more of an effort and give it some more time and concentration.

 

As soon as I make a move I will add to the thread.

 

Have you started on your own set-aside yet? Good luck if/when you do!

 

Rob

[Soo43]

I can not believe it - we applied for a set aside on one of our cases that goes to court for re-determination on 19th march - this moring got a lettering informing us the hearing for the set aside is 2nd April 2008!!!!! - is this right??? do you have the set aside AFTER the redetermination???

 

Please advise someone

[robcag]

An update to this thread:

 

Back around the beginning of this month I sent a CCA request and a SAR to HFC regarding this account as I have read somewhere in these forums that even though they have obtained a CCJ they are still obliged to keep the documents relevant to the account and provide them to the debtor on request. The delay in my requests has been partially (mainly) due to the cost involved as I am on JSA and money is very tight and I do not wish to jeopardise my payments for priority expenses such as utilities etc.

 

However, today I was having a good old rummage through some of the jumble of paperwork which I received over a year ago from various creditors (and luckily I hadn't thrown all of it away), when I fortunately came across the Default Notice which had been issued for the account.

 

As luck would have it, it turns out that it is invalid due to not giving the required 14 days to remedy the arrears. Coincidently it was issued on the same date as the DN for my other HFC account, and gave the same 13 days as that one, see posts #14 to #20 of this thread: http://www.consumeractiongroup.co.uk/forum/legal-issues/124572-hfc-no-agreement-amended.html

 

What I would like to know now is, does this invalid Default Notice have any bearing on the legality of HFC (via Restons solicitors) bringing the claim against me, ie has the claim been filed illegally?

 

If it has been filed illegally, I would imagine this would be a ground for a set-aside?

 

Rob

[bustthematrix]

Good on yer Rob, keep chipping away at the problem, one of these days you'll get some sort of breakthrough.

 

Perseverance and determination always pay off.

[robcag]

Back around the beginning of this month I sent a CCA request and a S.A.R - (Subject Access Request) to HFC regarding this account as I have read somewhere in these forums that even though they have obtained a CCJ they are still obliged to keep the documents relevant to the account and provide them to the debtor on request. The delay in my requests has been partially (mainly) due to the cost involved as I am on JSA and money is very tight and I do not wish to jeopardise my payments for priority expenses such as utilities etc.

The above requests were sent just after the beginning of March, together with a PO for £11.00 to cover the 2 fees.

 

I have heard nothing (not even acknowledgement) on the CCA request.

 

However today I received a response to the S.A.R. but which only contained approximately 6 years worth of copy statements, and a covering letter (in an envelope which was badly torn and only just holding its contents) which referred to "your request for information and charges on your account". No mention of the other items which I requested in the S.A.R. (including a copy of the original executed Credit Agreement and any Default Notice that had been issued).

 

I guess I now have to reply telling HFC bank they have failed to fulfill my requests, and repeat the requests.

 

The upside is that they probably don't have an agreement.

 

One other thing which was welcome was the return of the £11.00 PO as they said they did not require payment.

 

Rob

[goorooji]

I would like to follow your thread as I would also like to do something similar with 2 charges put on by HFC/Restons on our property unlawfully i beleive?

 

But currently fighting with HFC/Restons with another claim they have sent to my wife...

 

Good luck.

 

Kind regards.

 

G

[robcag]

Hi All

 

Due to being busy with other stuff I haven't gone any further with this yet, but if any experts who happen to look in on this post would care to comment on what I have written below I would be grateful.

 

Bearing in mind I am contemplating challenging the CCJ on the ground that the amount of the Judgement is wrong (i.e. I agreed with the amount at the time, but now no longer agree with that amount), today I found some time to go through the statements which I received a few weeks ago from HFC following my S.A.R and decided to add up all the contractual interest I had been charged on those statements (no agreement has been forthcoming despite my S.A.R and seperate CCA request, so therefore nothing to prove they were allowed to add contractual interest throughout the life of the account?).

 

Shock, horror! Adding up the interest only, (and excluding a few 'penalty' charges, and ATM and 'finance' charges for balance transfers etc.) I got a figure of over £5200 for the period April 2002 to February 2007, and I'm sure I can add some more onto that figure when I dig out another 15 months worth of statements from my untidy pile of stuff.

 

As the alleged original default balance was £9853.32 the contractual interest is well over 50% of that amount.

 

Although I originally admitted the default amount of the debt due to not having found CAG at the time and knowing no different, and also because of being 'conned' by Restons, I would now like to disagree with the amount.

 

Points to consider;

1. The default notice was invalid due to insufficient time being allowed to remedy, therefore litigation was started with no legal basis to do so. Furthermore the invalid DN would have meant the agreement was terminated unlawfully.

 

2. No LBA was issued.

 

3. The main point to support the set-aside, no agreement has ever been produced, let alone a properly executed one, therefore nothing to prove contractual interest should ever have been charged.

First things first, get the judgement set-aside! If I can use this argument and get back to the claim stage, IMHO I won't have any problem convincing the Court that I can successfully defend any new claim.

 

So basically, my question to the experts is;

Using the right (convincing) arguments against the contractual interest being added unlawfully, and quoting suitable case law in support, what do you think my chances are of convincing a court to allow an application for a set-aside based on that argument of the contractual interest being added in the abscence of an agreement to allow this?

 

TIA

Rob

[sequenci]

I think it you were to put forward a very well prepared argument quoting all the relevant sections of the laws + the caselaw too (i.e. woodchester leasing v swain for default issues) you would be in for a fair shout.

[robcag]

Hi sequenci, thanks for your reply and your time

 

I think it you were to put forward a very well prepared argument quoting all the relevant sections of the laws + the caselaw too (i.e. woodchester leasing v swain for default issues) you would be in for a fair shout. Do you think the fact that the Judgement was now over a year ago (13 months actually) would have too much negative bearing on my chances? That's why I was emphasising the fact that I no longer agree with the amount of the Judgement owing to the unlawful (IMHO) contractual interest being charged.

 

If you wouldn't mind commenting, what do you think specifically about the argument of unlawful contractual interest being charged, and possibly backing this up using the Wilson judgement where she was awarded her interest back as well as the car and the amount she had to pay to retrieve the car?

 

TIA

Rob

[Blossomandebony]

Hi, Robcag,

 

I've been in the position of applying for a set aside and I think that the more arguments you can put across, the better the chance you have.

 

The biggest problem you have is that you originally admitted the debt, (albeit without the collection charge) - so you need to have a strong argument and evidence prepared to the effect that you were 'pressured' / bamboozled / mislead into the admittance etc. and the true debt was concealed by the cc company, whose word, which you took to be true at the time, you have now found out was toal cobblers!! If you can be specific, by giving times of phone calls, letters which demonstrate the poor behaviour of the cc company, etc, then you will have some chance.

 

Below is the bones of a statement that I was helped with, using the standard 'Lack of CCA', Unlawful Charges and Improper Default Notice arguments -you may be able to use some ideas from it and add to to fit your circumstances:

 

Now that I understand my rights, and also the duties of the claimant, I deny that there has been any failure to make payment in accordance with the alleged contract.

 

Lack of Credit Agreement

 

1. The Claimant has failed to produced a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, I aver that no agreement has ever existed for there to have been any failure to make said payment.(Give details of your CCA requests etc.)

 

Improper Default Notice

 

2. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. (You will need to put the details of their so called Default Notice and why it does not comply, here)

 

3. Moreover, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If the claimant sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

 

Unlawful Charges

 

4. In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

I contend that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

5. Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

 

 

 

Cheers, BAE

[robcag]

Hi BAE

Thanks for your input

 

Hi, Robcag,

 

I've been in the position of applying for a set aside and I think that the more arguments you can put across, the better the chance you have. Agreed!

 

The biggest problem you have is that you originally admitted the debt, agreed, but I believe it's acceptable to no longer agree with the amount admitted (albeit without the collection charge) - so you need to have a strong argument and evidence prepared to the effect that you were 'pressured' / bamboozled / mislead into the admittance etc. and the true debt was concealed by the cc company, whose word, which you took to be true at the time, you have now found out was toal cobblers!! Notwithstanding the (hopefully) unlawful contractual interest being added, I was conned (over the phone) by the claimants solicitors, our friends Restons, as at the time I knew very little (more like nothing!) about the law and my rights. If you can be specific, by giving times of phone calls, letters which demonstrate the poor behaviour of the cc company, etc, then you will have some chance. I can refer to the phonecalls I had with Restons (with approximate dates), and name the people at Restons who I spoke to, but obviously cannot prove what was said.

 

Below is the bones of a statement that I was helped with, using the standard 'Lack of CCA', Unlawful Charges and Improper Default Notice arguments -you may be able to use some ideas from it and add to to fit your circumstances:

 

Now that I understand my rights, and also the duties of the claimant, I deny that there has been any failure to make payment in accordance with the alleged contract.

 

Lack of Credit Agreement

 

1. The Claimant has failed to produced a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, I aver that no agreement has ever existed for there to have been any failure to make said payment.(Give details of your CCA requests etc.) (my CCA and S.A.R - (Subject Access Request) was only made after the Judgement as I had no idea about my rights etc. beforehand )

 

Improper Default Notice

 

2. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. (You will need to put the details of their so called Default Notice and why it does not comply, here) (I'll be OK on that score, as the DN for this account was exactly the same, dates and content-wise [apart from amounts] as another DN for another account with HFC/Restons and which they have now admitted was defective, which I've been reporting on in another thread, and which I attended a Court hearing for last week regarding said DN )

 

3. Moreover, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. (Covered, see above ) If the claimant sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt. (The unlawful charges on this account are very small, probably regarded as 'de minimus', so probably won't help)

 

Unlawful Charges

 

4. In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

I contend that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

5. Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges. See above regarding unlawful charges, which is why I am hoping to make a play on the issue of 'unlawful charging of contractual interest', which is a far more substantial amount (over £5200, see above).

 

 

 

Cheers, BAE

 

Thanks

Rob

[Blossomandebony]

Hi, Robcag,

 

You seem to have most bases covered - go or it! . . .and good luck!

 

BAE

[robcag]

Hi All

 

Further to my post #15 above in which I mentioned that HFC had failed to fully comply with my S.A.R. having only sent me 6 years worth of statements and nothing else which I had requested, especially the agreement, I am now going to give them one last chance to comply before I get stuck in to my set-aside application. I'd like to either get a copy of any alleged agreement (probably just an application form), or better still an admission that no agreement exists, as this would then enable my set-aside application to be made on a sound footing.

 

I've read of other instances where people have had to reply to an unfulfilled S.A.R. but now I can't find any of the good responses they have sent. Can anybody kindly point me in the direction of one of the better letters please?

 

I've found the template (template 2) at http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6986-data-protection-act-non.html which is a LBA to the offending creditor and I'm wondering whether it would be best to just use this and dive straight in at the deep end.

 

Cheers

Rob

[steven4064]

Rob

 

you need to send a LBA before diving in in order to comply with the Civil Procedure Rules.

 

There is a POC for Data Protection Act non-compliance in the same area as the DPA LBA i the templates library, but I guess that wouldn't really fit the bill for you.

 

I am slightly worried about the 'lack of CCA' in the argument. Someone will no doubt correct me if I'm wrong (hopefully I am) but I think the fact of the CCJ means that they have no obligation to comply with a request under s77/78 of the CCA 1974. The SAR should have thrown it up though although you don't often get a copy with a SAR.

 

You may want to have a look at s 14 of the DPA as a possible nail to hang your argument on regarding DPA non-compiance.

Edited June 25, 2008 by steven4064

[robcag]

Hi Steven

 

Thanks for your reply. Sorry if I gave the wrong impression, but what I actually meant was "dive in at the deep-end with a LBA" (rather than just give them more time then send a LBA).

 

Thanks for the other info, I'll follow it up later as I've got to go out for a bit.

 

I actually sent a CCA s78 request and a S.A.R. at the same time, but neither turned up an agreement (or even an excuse for one), so when I do go ahead with the set-aside request I'll probably have to aver that I believe no agreement exists or ever existed.

 

Cheers

Rob