I've got judgement by default - For the second time !!!**WON**

[tomterm8]

You asked for my comments

 

As far as I am aware, they CAN apply to have a judgement in default set aside after 28 days, in fact, I have personally advised people who have managed to set aside judgements four or five years after they were originally granted.

 

The 28 days is the minumum period you should wait for enforcement, since (technically) they are not breaking the terms of a forthwith CCJ before then.

 

Have you called the court, and informed them they have not notified you of any attempt to set aside the judgement?

 

I've asked a couple of site helpers to look in on your thread (because, ironically, I must be the only mod on the forum never to have actually issued a penalty charges claim

[hedgey06]

Hey there blossomandebony,

 

Unfortunately, regardless of the fact that credit card claims aren't included in the current OFT test case, the banks/building societies/etc., have taken the opportunity to have all claims (including credit card claims) stayed - as you're already aware.

 

As Tom's already pointed out to you, they can also apply to have the judgement in default set aside......... many have successfully done so.

 

The only advice I can add onto Tom's advice is to be as prepared as possible for this. Read through here: http://www.consumeractiongroup.co.uk/forum/cases-stayed-pending-oft/114308-objection-stay-credit-card.html and edit this to suit your own claim/circumstances as this gives you a good ground from which to argue your case further if necessary.

 

Best of luck with this, hedgey x

[noomill060]

In the end it would be up to the judge to decide whether or not to accept the excuse they give for not entering a defence by the return date.

[Blossomandebony]

Cheers for the replies, everyone!

 

Well, a date has ben set for the set aside hearing - early March.

 

Surprisingly, there was no set aside application attached to the court directions, even though it said, 'see attached application' so I'll have to follow that one up as well.

 

In the meantime I've been on the phone to the CC company's litigation depatment to see if they're willing to pay my claim in return for me not objecting to the set aside. They've told me it's in the hands of their 'legal' department, who are quite prepared to defend the claim. The litigation mob are supposed to ring back with further info regarding my proposals, in the next day or two. I also told them I hadn't received a copy of the N244 application and asked that they supply me with one.

 

So, unless they respond favourably I have to prepare for the setaside.

 

I will certainly be turning up for the hearing and will be objecting to their application. Trouble is, I've not read one thread where objecting to a setaside has actually worked! (bear in mind that this is not an objection to a stay application.)

 

So any ideas for the hearing are welcome.

 

At the moment I will be highlighting the fact that I have followed every procedure by the book while they have blatantly ignored my LBA, the Court claim form and the judgement. I have also phoned them on many occasions and they have had plenty of time to defend the case etc. All my letters were sent recorded/ proof of posting and I have logged every phone conversation. It was only after the bailiffs arrived at their head offices that they acknowledged a thing!

 

So - have I got a case? And has anyone any other ideas?

 

Cheers, BAE

[tomterm8]

Hm, what does the order determining the hearing say? when was it served?

[Blossomandebony]

Hi, Tom,

 

All I've received is a 'Notice of Hearing of Application'. It is dated 18th February.

 

It simply says,

 

The hearing of the defendant's application for Set Aside Judgement, (see copy attached), will take place at xxxxxxx on the xxx March at xxxxx County Court.

 

BAE

[tomterm8]

was the application attached? if not, get the court to send it streight away. If it is, what does it say?

[Blossomandebony]

The application wasn't attached, so I rang an hour ago and the court is going to send it . . .

 

BAE

[car2403]

Contact the Defendant and ask them to fax it to you - they should have served it on you when sending it to the Court.

[Blossomandebony]

Well, no sign of the set aside notice - you would think the court would have sent one by now, but no.

 

So - I have the set aside hearing next week and will probably have to go in there without the full details of why the defendant thinks it should be set aside, (though I can imagine they will say something like, 'Oh, Sir, the defendant really has no knowledge of this claim, or the subsequent default judgement, or the dozen phone calls the claimant has made, asking when it will be sorted, or the numerous recorded delivery letters he has sent - we just don't know what could have happened, Sir, etc, etc . . . ! ! !).

 

I have never been to a set aside hearing so would like to hear from anyone who has, or anyone who knows what I will need to take.

 

I was simply going to take a witness statement detailing why I object to the set aside, along with any accompanying evidence, i.e. log of phone calls, timetable of events, copies of relevant letters - is this right ???

 

Although I expect the set aside to be allowed, does anyone have any amazing ideas to strengthen my objection ???

 

BAE

[car2403]

Contact the Defendant and ask them to fax it to you - they should have served it on you when sending it to the Court.

 

Did you?

 

I have never been to a set aside hearing so would like to hear from anyone who has, or anyone who knows what I will need to take.

 

I was simply going to take a witness statement detailing why I object to the set aside, along with any accompanying evidence, i.e. log of phone calls, timetable of events, copies of relevant letters - is this right ???

 

Although I expect the set aside to be allowed, does anyone have any amazing ideas to strengthen my objection ???

 

BAE

 

Sounds right to me.

[Blossomandebony]

Hi, Car,

 

ask them to fax it to you - they should have served it on you when sending it to the Court . . .car

 

Didn't actually request a fax, (because I haven't got access to a machine), but I asked their litigation dept, who promised that a copy would be sent - they haven't. I feel it's a case of the left hand not knowing what the right is doing, on their part, so I'm hoping they're as incompetent when it comes to the set aside hearing.

 

I still don't know if set asides are more or less a formality or not, but I've got a bad feeling that they usually are.

 

On a positive note, I'm also hoping that they don't turn up at the hearing so I can argue my case with no opposition and a judge that may be vexed at their arrogance!

 

If they do turn up - which I think is very likely - I wonder if they'll approach me before the hearing? What would they say? Again, I'd hope it would be some sort of negotiation, like, 'we agree to pay the judgement so long as you don't object to the set aside.' If so, I'd obviously need something in writing to ensure they weren't going to dupe me.

 

Here's hoping, BAE

[car2403]

I think the point of setting aside Judgment is to test whether they have a real prospect of defending the case - I've recently been to a summary judgment hearing with HFC Bank, which is probably similar to a set aside hearing in practise, where the Judge said that summary judgment wouldn't be granted if a defence was entered as it would take longer to hear summary judgment arguments than it would to hear the full case at trial, which is the only place a defence should be tested. (Her opinion)

 

Applying this here, if they say they have a real prospect of defending so judgment should be set aside, I can't realistically see a Court not setting it aside - I can't see how they can test a defence in a set aside hearing and argue that is in the interests of the overridding objectives. (Cost saving, time saving for the Court, etc)

 

I have a set aside hearing with O2 on 14 April, so I'm in the same boat as you BAE. Have to see what happens and if it's the same for both of us...

[car2403]

I still don't know if set asides are more or less a formality or not, but I've got a bad feeling that they usually are.

 

This might help;

 

Debt Factsheets - How to set aside a Judgment in the County Court

 

Looks like a formality to me, then... :o

[Penfold92]

This might help;

 

Debt Factsheets - How to set aside a Judgment in the County Court

 

Looks like a formality to me, then... :o

 

On the other hand Car, is this not aimed at us the LIP people (Litigants in person) and not big Companies who are well aware of the Law and the ways to respond to the Courts?

 

I cannot see how a Credit Card/ or Bank can say " we can defend this..." be allowed to set aside when they made no effort to respond to the Court or the Claimant? I believe that if you can show the Court at any set aside hearing that you have made every effort to contact and resolve the claim then surely they cannot grant such an application? That's why records of letters and phone calls are very important...

 

My opinion obviously...

 

Penfold

[car2403]

On the other hand Car, is this not aimed at us the LIP people (Litigants in person) and not big Companies who are well aware of the Law and the ways to respond to the Courts?

 

I cannot see how a Credit Card/ or Bank can say " we can defend this..." be allowed to set aside when they made no effort to respond to the Court or the Claimant? I believe that if you can show the Court at any set aside hearing that you have made every effort to contact and resolve the claim then surely they cannot grant such an application? That's why records of letters and phone calls are very important...

 

My opinion obviously...

 

Penfold

 

I agree, Penfold - like O2 saying they didn't get the claim form because they were "closed over the Christmas period"...

[Penfold92]

Personally I say bring it on...How can they have the audacity to use such tactics, I would seriously say to the Judge "forgive my bluntness, but are we all that naive your honour? Surely you can see they are wasting our time..."

 

I have Amber by the boll*cks and am waiting for them to try this...

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/112345-penfold-amber-home-loans.html

 

I will have them at the hearing I promise...

 

Penfold

[Blossomandebony]

Update:

 

As expected, they got the set aside. I couldn't make it to the hearing as my job won't allow much flexibility but I sent my objections to the court by fax.

 

To be honest, I knew it was pretty much a formality . . .

 

I received court directions as follows

 

1. The judgement be set aside under cpr 13.2 (a) and (b)

 

2. The defence attached to defendant's application do stand and reservice on the claimant be dispensed with.

 

3. AQs be forwarded to the parties.

 

Direction 2 is a joke because neither the court or the defendant has sent me a copy of the defence yet!!!

 

As for completing the AQ it's going to cost me £35, which surprised me because I didn't think I had ever had to pay at this stage, (maybe the court charges have changed recently or maybe I've just forgotten?).

 

I'm wondering whether to tick 'yes' to box A, 'Settlement' in order to negotiate a decent settlement... I mean, if I do, would it look as acting properly and fairly? If we couldn't resolve matters in a month, and it gets to court, I could at least claim that I had tried???

 

The whole business is boring me at the moment, to be frank, as getting a resolution seems a long way off and there's only me - the claimant -interested in sorting anything out . . .

[Penfold92]

Sorry to hear that BAE,

 

But it is noever easy to get your point across if not there yourself. Still however bored you are with the process remember you can now add further costs and interst....

 

I know it is not what you wanted to hear, but you still have the upper hand and they cannot delay anymore now...

 

Penfold

[Blossomandebony]

Yeah, cheers, Penfold - I am still determined to see this through, I just wished I could get somewhere with a bit of negotiation!

 

I was 99 % sure that the claim would be set aside as I haven't seen one example of a set aside not being granted, from the posts on this site - I was more gutted that I couldn't attend the hearing to gain a bit more experience of such matters.

 

But hey, there's no use crying over spilt milk . . .

 

Thanks for the interest anyway - it'll certainly get more interesting once the final hearing comes around. And from what the 'litigation department' of the defendant has told me, they're set to defend with all guns blazing.

 

Oh, yes, and I will definitely be adding more costs and charges!!

 

BAE

[Penfold92]

LOL I love that: "And from what the 'litigation department' of the defendant has told me, they're set to defend with all guns blazing. " and they could not send back a defence why? LOL Bless them, they are all at it now. Then two days before the hearing "actually we'll settle"

 

Keep us informed,

 

Penfold

[Blossomandebony]

Update:

 

Filled in the AQ a few weeks ago, including a special request that the court issue an order for the Cc company to send a breakdown of their costs regarding the charges, and the claimant, (me), to serve a breakdown of the charges.

 

Finally, a court order has arrived and I'm kinda pleased that I have been granted the order, albeit with the Judge's different slant / wording.

 

This is what it says;

 

IT IS ORDERED THAT

 

The claimant shall, by xxx May 2008, file and serve a breakdown of sums claimed, in default the claim shall be struck out.

 

The defendant shall, by 4 pm on xxx May 2008, (provided the claimant has complied with the above), file and serve an amended defence specifically dealing with the sums claimed. In default the defence shall be struck out and judgement may be entered with fixed costs and interest.

 

On the downside, the order does not specifically state that the defendant has to show a full disclosure of costs involved for each charge, which is what I requested. On a more optimistic note, it does ask the defendant to deal with the sums claimed so I will still be expecting them to show a full breakdown of how they work the charges out - if not I will attempt to get the defence struck out.

 

I also like the fact that the judge has warned them that costs and interest will be awarded if they don't comply, but he has not given me a similar threat!

 

BAE

[saintly_1]

Not quite but almost what you wanted . Lets see what they come up with

[Penfold92]

Better than ignoring the request all together and have any of these actually turned up in Court as yet? I don't think I have seen any...

 

Penfold

[Blossomandebony]

Thanks, Saintly and Penfold and others, I really do appreciate the input and support you offer - Sometimes I do think, 'is it worth it?' but I'm sticking to my guns for now!!!

 

BAE