Tesco Personal Finance CCJ - no claim form received **WON**

[Blossomandebony]

Couldn't believe that i received a JUDGEMENT FOR CLAIMANT form today (CCJ) even though I've not received the original court claim form. (It's from Tesco Personal Finance)

 

Now I know I have to send in a form to get the judgement set aside for the reason above but am wondering:

 

Will a set aside hearing definitely take place or can the court say NO - pay up???

 

If the judgement is set aside what happens? Is the judgement suspended until I get my day in court???

 

And should I phone the court to tell them or just send in the form for the set aside???

 

Has this happened to anyone else??- if so, can you advise!!!

[rory32]

You shouldn't have any problems getting a set aside as you do have a valid reason ( I assume if you had got the summons you would have defended). Just send the N244 to the court and ask that they acknowledge recept (they should do this anyway).

If the judgement is set aside what happens? Is the judgement suspended until I get my day in court???

Yes.

[Blossomandebony]

Thanks, Rory, that has reassured me.

 

Yes, I would have entered a defence - they have no vaild CCA, (only a dodgy application form), and if that fails, I can demonstrate that they actually owe me more money in charges and interest than they want from me!!

 

The reason I've not put in a claim against them first was that I figured we could call it quits! No such generosity on their part!

[rory32]

I can demonstrate that they actually owe me more money in charges and interest than they want from me!!

Then you may want to have this as your first counter claim, rather than use there is no copy of the agreement.

[skyrider]

I am no expert with this but have struggled with a lost defence on an MBNA claim, I was told that you have to prove 2 things to get a judgement set aside:

 

1. that you acted expeditiously when you found out

2. that younhave aviable defence,

 

in my inexpereinced way sounds like you are OK on both these counts just need to address it as 2 issues!

 

good luck!

[powelll]

Useful link below on set asides as well

 

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

[Robdblynd]

Go for it Blossom, I was successful in getting set aside for my Oh on a Cap One card for the same reason.

 

We didn't get the paperwork and the first we knew was when the Bailiff rang us (on ex directory number) asking for the money.

 

Applied for set aside and quoted non-receipt of original claim form, would have entered defence and counterclaim as unlawful charges applied to account outweighed the amount being claimed, and no enforceable agreement. (Thanks CAG).

 

Got the set aside and then the solicitors acting for Cap One (our "friends" Bryan Carter) sent notice of discontinuance. Game over.

[Blossomandebony]

That is great news, Rob, cheers!

 

I've contacted Northampton Court and they said to give the N244 form in person, to a local court, as the postal strike is on. I've taken the bloke's name to show that I am acting quickly on this, (though he did worry me slightly by saying to do it sooner rather than later as the claimant can go for enforcement!)

 

So I will give the form in first thing Monday morning, with the £75 fee.

 

The only thing I'm not sure of is how detailed I need to be in my application - and whether I need to photcopy items like my CCA request and previous correspondence as evidence to support my application. And do I need to quote things like the s.127 of the CCA Act or is that too much information?

 

Any ideas???

[Robdblynd]

Well all I can tell you is what I did, which was filled in the N244, photocopied letter and statements etc highlighting the charges, did a spreadsheet from the templates library on CAG showing the charges etc.

 

I worked on the basis that if I gave them all the info I wouldn't have to take it them later and they could have a good look before the hearing.

 

Yes you will probably have to go to a hearing but it's very informal. You and the DJ in a smallish room sitting at opposite ends of a long table. The claimants may or may not turn up, in my case they didn't, they wrote to the court instead saying why they opposed the set aside. The DJ reads your stuff, reads theirs, asks questions and makes a decision based purely on the law and what info you've supplied which shows you have a valid reason for your request and that you have a reasonable chance of not having a judgement entered against you had you received the original paperwork and defended.

 

Hope this helps. And the very best of luck.

[tomterm8]

Here is a little key advice.

 

Do your set aside application using an affidavit in support. Use something like the following

 

"

With respect to this claim, the first time I found out about it was on DATE, when I recieved a court judgement. I did not recieve any court documentation before this. I am therefore applying for this set aside within X working days of being notified of this matter. It is public knowledge that the postal service is suffering huge delays and problems due to recurrent postal strikes.

 

If I had recieved the claim form, i would have defended it on the basis of an unenforceable credit agreement and a counter claim of unlawful penalty charges.

 

On the DATE, a request was made under section 78-79, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by DELIVERY METHOD to the Claimant’s Solicitors, with the statutory £1.00 fee enclosed. It was received on the DATE, which gave the Claimant twelve working days from receipt of the request, to provide said document, which is stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The claimant has not provided this document. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimants are in default of said request under section 78(6)(a) or 79(6)(a) of the Consumer Credit Act 1974.

 

I deny that there has been any failure to make payment in accordance with the alleged contract. 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 avers that no agreement has ever existed for there to have been any failure to make said payment.

 

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.

 

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.

 

 

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.

 

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.

 

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and I put the claimant to strict proof that said monies are due.

[tomterm8]

You can attach copies of any documents to the claim form.

 

edit: the affidavit form is http://www.hmcourts-service.gov.uk/courtfinder/forms/n285_0499.pdf ... take it to the court, and get them to witness it (it's free) or to a soliciter (probably around £2-5)

[Robdblynd]

Thomas, as always, fab advice.

[tomterm8]

Thomas, as always, fab advice.

 

Heh, thanks you gave some good advice too:)

 

The application form Rodblynd mentioned is available http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

You want to use something like

 

1 - at a hearing

2 - 10 mins

3 - no

5 - distict judge

6 - claimant

 

fill in the side on the right (you are the defendant)

 

part a

 

I apply for the judgement to be set aside

 

because i did not recieve the claim form, and the judgement was issued in default

 

part b

the attached affidavit

 

sign it.

 

Take three copies of everything to the court.

[Blossomandebony]

Cheers, Tom, superb that!!! :-)

 

Don't know how you know all that posh jargon but i'm glad you do! I really appreciate the effort you've put in to help me - the way you've phrased things is much better than I could have achieved. In fact, I think the statement you wrote for me should be in a sticky or the library for others to use who don't get the benefit of your advice.

 

I will word my N24 and affidavit with confidence now.

 

Just time for afew more queries:

 

1 Will I definitely get a hearing to set aside the judgement?

 

2 If , (and it looks unlikely), the judge hears my evidence at the set aside hearing and says, 'No chance - pay up', is that it? CCJ!! Or . . . can I appeal on the point of law that is the Wilson case, because it is a HOL precedent?

 

3 Should I bring up any of the defendant's shocking behaviour in harassing me for this alleged debt, including saying by letter that they had deleted the 'Late payment' entries on my credit record, when they hadn't - I have written proof! (This in a previous small claim against them last year where I asked for charges and a deletion of these negative entries , on my POC), or will that just annoy/ confuse the judge? Any opinions welcome.

 

Anyway, for now - thanks to all those who have posted advice.

[tomterm8]

Cheers, Tom, superb that!!! :-)

 

Don't know how you know all that posh jargon but i'm glad you do! I really appreciate the effort you've put in to help me - the way you've phrased things is much better than I could have achieved. In fact, I think the statement you wrote for me should be in a sticky or the library for others to use who don't get the benefit of your advice.

 

I will word my N24 and affidavit with confidence now.

 

Just time for afew more queries:

 

1 Will I definitely get a hearing to set aside the judgement?

 

No. It's at the discretion of the judge. That's rather like asking me if Australia will definitely win at cricket. However, the arguments rehersed in the set aside application are substantially the same as other arguments I've seen that have got a set aside.

 

2 If , (and it looks unlikely), the judge hears my evidence at the set aside hearing and says, 'No chance - pay up', is that it? CCJ!! Or . . . can I appeal on the point of law that is the Wilson case, because it is a HOL precedent?

 

That very much depends if a higher court gives you permission to appeal.

3 Should I bring up any of the defendant's shocking behaviour in harassing me for this alleged debt, including saying by letter that they had deleted the 'Late payment' entries on my credit record, when they hadn't - I have written proof! (This in a previous small claim against them last year where I asked for charges and a deletion of these negative entries , on my POC), or will that just annoy/ confuse the judge? Any opinions welcome.

 

Don't do it in the set aside application, but you can mention it to the judge when you meet them.

 

Anyway, for now - thanks to all those who have posted advice.

..

[Blossomandebony]

Update:

 

Rushed back from work to put in my application for the set aside at my local court. Got there just in time, 10 to 4, and then was told that they could not process it and I have to send it to Northampton!

 

Apparently the clerk at Northampton CC had give me incorrect advice so that was irritating to say the least. Anyway, it was not a wasted trip as I did get the court staff to witness the affadvit, as advised by Tomterm.

 

Now I will send the aplication notice, affadavit, supporting documents and a covering letter to the judge, to Northampton CC first thing in the morning.

 

I think that's all I can do at the moment.

 

By the way, Tom, the superb affadavit you wrote was slightly too long for the form, when typing it. I thought about adding an extra page but wasn't sure. In the end I cut a little part about the default notices, but I don't think it detracted from the quality of it.

[tomterm8]

Use Special delivery, next day delivery; don't use first class post.

 

the default notice section isn't necessary, but in itself it provides a complete defence to the CCJ. Lots of people get away with only the charge and CCA arguments, though.

[Blossomandebony]

Sent off the application for the set aside today, Next Day Delivery. Fingers crossed . . .

[Blossomandebony]

Got a N271 court letter yesterday - 'NOTICE OF TRANSFER OF PROCEEDING TO ANOTHER COUNTY COURT.'

 

Basically, this is good news - the case has been transferred from Northampton to Warrington County Court, which is where I got the affadavit signed. So at least I know that they received my application for the set aside.

 

Now I have to wait and see if the District judge will give me the set aside . . .

[Blossomandebony]

Result!

 

Just posting to say thanks to those who have helped me in fighting this CCJ. In particular, Tomterm, Rory32 and Robdblynd - cheers!!

 

 

Basically, this is what has happened in the past 6 weeks:

 

1. Using Tomterm's excellent template, I applied for a set aside.

 

2. Within 10 days the Incasso solicitors, who had applied for the CCJ on behalf of Tesco personal Finance, wrote top me with a Notice of Discontinuance! They had dropped the case!

 

3. I was relieved and amazed at this but then I got a date from the court for the Set Aside hearing.

 

4. I wrote to the court to tell them the the case had been dropped so why did they still want a hearing? This was also the reason I've not posted for a while because I was expecting confirmation from the court on the issue of removal of the CCJ but they seemed oblivious to the NoD.

 

5. A few days ago I received the good news - the court has set aside the judgement and removed the CCJ!!

 

The strangest thing is that no sooner than Incasso drop the case, then a barrage of other DCAs / collection agents have started writing to me about the very same debt - are they stupid or what? The latest one is Intrum Justitia, who have been informed that they are pursuing fresh air, there is no debt anymore, read this copy of a Notice of Discontinuance from your beloved and intellectual client . . .

 

Anyway, cheers all who posted, BAE

[Robdblynd]

BAE, I am delighted you were seuccessful, well done.

 

You will get others trying to get money out of you, it's the nature of the beast I'm afraid.

 

Now you've seen you can fight back .... go for the throat.

 

I'm pleased I was able to help, even if it was only in a small way. And if ever need any advice again, just yell and CAG will come running.

[rory32]

Great news BAE Couldn't be happier for you.

[pt2537]

great result BAE

[Blossomandebony]

Hi,

 

Thanks for the comments, Rob, Rory, PT.

 

Yes, Rory, there will be many, many more battles ahead but with the people on this site ready to help and support there are no worries on my part!!

 

Once you've fought back against the DCAs, CC companies, banks etc you realise their ignorance and total lack of morals. I'm at the point where I quite enjoy the antics they try on me and find their flounderings,(is that a word?) highly amusing! Like a lot of people on this site I've come to a point where I'm not at all bothered by what they throw at me. I look at the legal angle and say, "No, you can't actually do that, let me tell YOU what is going to happen . . . "

 

Anyway, thanks again and PT, I will have that scanned form asap . . .

[sg1981]

Well done Blossomandebony. I'm in a similar position with Capquest at the moment, I just applied for a set aside as I never had a claim form.

 

Your story has been an inspiration I am now looking forward to taking on these nasty parasites myself.