Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[AndyOrch]

Ok Spam had a quick look at your thread.What a load of nonsence.

 

A large number of County Court Judgements, CCJ's, are the result of undefended summonses. Usually because the defendant is unaware of the response needed does nothing, so the court enters a 'Judgement by Default'.

The Central Registry then passes the judgements to the credit agencies. A debt can be paid off but the judgement stays on record because no one asked for it to be 'set aside'. Simply because they did not know that it was necessary.

There are other reasons, detailed later, which the courts will or will not accept to 'set aside' e.g. A defendant can state that they have been making regular payments But not if the payments have been irregular.

 

What you will need:-

 

1. The original summons
   
2. The name of the plaintiff. (The one who took out the summons)
   
3. The name of the court
   
4. The Case Number - Without the case number the courts will not even read an application. If you do not have this, then contact the central registry and ask for details of the judgement and case number. This will cost around £15, paid to the registry.
   

Reasons to apply for the Set a side:-

 

To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

 

 

 

 

 

 

 

 

 

 

 

1. Were you given 28 days notice in order to pay?
   
2. Were you living at the address when the summons and judgement took place?
   
3. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.
   
4. Did you receive the summons? They are not sent by recorded mail.
   
5. Maybe you were unable to attend court and defend yourself.
   
6. The judgement should not appear on the credit files if it was paid up within 28 days.
   
7. If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.
   
8. If you did not receive any notification of the judgement/s made against you, then you can appeal.
   
9. Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
   
10. Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?
    
11. It could have been that you were away from the time between the issue of the summons.
    

To have your judgement set aside you will need to put forward a reason why. You must keep your reason as clear and simple as possible.

 

 

1. Were you given 28 days notice in order to pay?
   
2. Were you living at the address when the summons and judgement took place?
   
3. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.
   
4. Did you receive the summons? They are not sent by recorded mail.
   
5. Maybe you were unable to attend court and defend yourself.
   
6. The judgement should not appear on the credit files if it was paid up within 28 days.
   
7. If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.
   
8. If you did not receive any notification of the judgement/s made against you, then you can appeal.
   
9. Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
   
10. Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?
    
11. It could have been that you were away from the time between the issue of the summons and entry of the judgement?
    
12. Did you receive the summons on time for you to apply to the court. You have 21 days to reply to the court. If the summons was 21 days late then the judgement would have already been taken out against you?
    
13. Did somebody use your name or address to obtain credit, which resulted in a County Court judgement without you knowing?
    

You can use any of the above reasons to have your judgements set aside.

Remember that no correspondence sent by the courts or the plaintiff is ever recorded. In the majority of cases County Court Judgements fail to comply with every detail.

This gives you the chance of having your judgement removed forever.

 

Ok so far Spam back shortly

 

Regards

 

Andy

[AndyOrch]

Ok Spam this i one I have used on a previous case with success, you will need to edit to suit partic with regards to the DNs.

 

 

Case NO…..

 

 

Dear Sir or Madam,

 

RE: FAILURE BY CLAIMANT TO PROVIDE INFORMATION

 

Respectfully, I wish to apply for a set-aside of the Judgment given in this case to the Claimant.

Further to two previous court hearings. firstly on the 31st March 2008 the court ordered that the claimant file & serve within 7 days of the next hearing certain documents of proof of the debt. On the 13th May 2008 I wrote to CL & enclosed a letter for the courts saying that I had not received any correspondence as ordered by the court pertaining to the hearing on the 20th May, 2008. On the morning of the hearing I telephoned the court to ask if any documents had been filed and was told no , I was due in court that afternoon. I attended court to find that the hearing had been adjourned by request from CL as they had not received sufficient notice to file & serve the relevant documents.

 

I the defendant would like to make the court aware that the hearing that was held on the 31st March 2008 where the Judge ordered that the claimant file & serve certain documents I received the order for the next hearing on the 5th April and checked with the court that the same order had gone out to claimants at the same time. I have to say that it seems convenient that the claimants say that they didn’t receive the copy of their order until the 14th May 2008 I then wrote to them on the 12th of May 2008 where the letter was ignored butt prompted them to ask for an adjournment

 

I would therefore respectfully seek the Courts permission to request sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of 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. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in

law per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169

 

It is therefore averred that I the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on 13th January 2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, (which they received signed for) whichi s vital to this case from the claimant The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, Claimants are in default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

 

To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

The Claimant, possessing no legal right claim monies allegedly owed, has acted unlawfully in obtaining a CCJ and furthermore issuing a Charging Order and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists.The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

1 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 Claimant’s claim at trial.

 

Regards

 

Andy

[AndyOrch]

Ok Spam we need to polish a tad, be careful that you do not turn it in to a Witness Statement, it must defend the points raised in the Claimants P.o.C. i would advocate removing the Claimants P.o.C from your defence.I will provide you with a section also refuting the Claimants Claim to section 69 interest shortly.

 

Regards

 

Andy

Edited July 12, 2009 by Andyorch

[AndyOrch]

Spam you need to start your defence off with :-

Respectfully, I wish to apply for a set-aside of the Judgment given in this case to the Claimant.Then flow into your defence.

I will try to illustrate by advising what I write when drafting defences. First, I always write(or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has!

So write it as an holding Defence if you mix the two ie Witness Statement you may fall foul of admittance

Here is the section you also need to include towards the end

 

 

The claimant also wishes to claim interest under section 69 of the County Courts Act 1984. Under Section 69(4) Interest shall not be awarded when interest on a debt is already running. This is a claim under a regulated agreement and as such, an interest vehicle is operating and as such, interest is not claimable

Regards

Andy

[AndyOrch]

Ok Spam looking better.

 

When you are applying to have a Set a side there is an approach that you need to follow(bit like a replay really)

Firstly application for set a side stating reasons for the application (keeping it very simple and in line with the guidance i posted earlier on).From that list check what reasons fit yours and draft a short statment to attach to the N244 (i appreciate that you have already got past that stage).

Now we have the hearing and wish to seek application success for the application and in fact the DJ does grant the Set a Side.This is were you will mention the alleged account with your DMC,and if you had know this and that etc....So giving good enough reason for the set a side and of course the DJ allows it, we can now rewind to the beginning and submit the Defence that we would have initially if aware of what was happening out of your control.Are you getting the picture Spam?

 

Regards

Andy

[AndyOrch]

Hi Andy,

 

I think I am, but I'm still a little confused.

 

When at the set aside hearing do I first need to prove that I am capable of a successful defence and then if that is granted, give my reasons for having admitted/failed to defend originally? Yes simple and fact

 

Or, Is it the fact that as it has got as far as a hearing for a set aside that my reasons for not defending in the first place which were on my Statement of truth on the N244 have now have been accepted by the court and I may just have to elaborate on them and provide proof of my lack of knowledge at the time or am I only beeing granted a hearing 'cause I've paid the £75. Yes again you can defend any claim brought against you but be careful not to admit anything at this stage

 

It's the County Court System and protocols that confuses me most and getting my head around what I have to do where and when is tying me up in knots!. I understand that Spam and is quite normal for LiPs

 

Spam.

 

Regards

 

Andy

[AndyOrch]

Ho Spam

 

Disregard their offer you wont look unreasoable as the above cannot be introduced into proceedings anyway,WP

 

Regards

 

Andy

[AndyOrch]

I'm wondering which banana boat they think I arrived on..

 

They are most certainaly on the ropes Spam,it smacks of desperation to me stick to your guns and go get em I will be watching on the 19th.

 

Regards

 

Andy

[AndyOrch]

Well Done Spam

 

I am delighted for you, you put a lot of effort and researched your case well.

 

 

Regards

 

Andy

[AndyOrch]

guess I'm gonna have to wait and see what happens and counterclaim with my defernce for all the monies I've paid to them so far and go from there... thats the way plus damages.

 

 

Andy

[AndyOrch]

Thanks again FG...

 

I will have a crack at doing the above but me and spreadsheets don't get on too well.. I'll see if I can get one of the daughters to give me a hand..

 

One query I have about the unlawful charges though... If part of my defence is the lack of agreement, would my asking for the reimbursment of charges to the account be an admission that the agreement exists??

 

Would depend how you draft it Spam First, I always write(or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has!

 

Don't want to drop myself in it...

 

The other query is the AQ.. this defence is to be filed and served by the 16th. The judges directions were that the AQ should be sent out to me by 23rd... Is it best to wait for the court to send it out or easier to download it and do the 2 together?? Absolutly Spam never prempt A DJ

 

Sorry to be a pain..

 

Spam.

 

 

Regards

 

Andy

[AndyOrch]

Thank you Andy,

 

I'll have a go at that too and post it up for you knowledgeble ones to have a look at before I get it sent off.

 

Spam.

 

No probs Spam, you have to be careful how you draft the Defence and Part 20 CC. The order was to set a side the CCJ so tread carfully with regards to its enforcability.Im sure you are aware tht this wil lbe a full defence and not mearly an holding defence,it will not be staight forward!!!

 

Regards

 

Andy

[AndyOrch]

If there is no agreement produced containing the prescribed terms the court is prevented from enforcing it - it's what you referred to in your defence. To get the court to declare it unenforceable in such circumstances comes under S142.

 

And request Judgement in your favour (if we are not jumping ahead too far!!)

 

 

Andy

[AndyOrch]

Notice of discontinuance for whole claim received today.... What do I do Now???

 

Well done Spam now work out your costs.Check with the Court to see if they have recieved it.

 

 

Delighted for you;)

 

Regards

 

Andy

[AndyOrch]

You want to go for Judgement also Spam?

 

Andy

[AndyOrch]

oh my Lord. now that's almost sexual.............

 

What have you been eating or drinking today R&B:D

 

Ok normaly you can apply for judgement in your favour if the claim as been struck out.Must admit i have not tried it in a NoD as FG states you would decline and set a side using it as a threat, however heres the letter if you wish to have a go:-

 

I would advise you (on reciept of the order) to make an application (N244) without hearing and at no cost to you.

 

I would suggest something along the following lines

 

In the light of the order of Judge ???? dated ??/??/?? striking out the statement of case of the Claimant, I hereby apply for judgement to be entered against the Claimant.

 

I further apply for defence costs under CPR 27.14(2) of £??.??, which is calculated as follows:

 

 

 

Costs under CPR 27.14(2)(g)

 

I also respectfully ask the court to award costs of £?.?? due to the claimant's unreasonable behaviour in issuing a claim without following pre-action protocols, and their subsequent failure to provide evidence to substantiate their case. I estimate that it has taken me ?? hours to research and prepare my response to their action @ £9.25 per hour, which is a total of £??.??, plus £?.?? which I estimate I have spent on postage, printing and stationery.

 

 

 

He may agree these, he may not - but if you don't ask, you don't get!

 

Regards

 

Andy

Edited September 25, 2009 by Andyorch

[AndyOrch]

You must do what you feel comfortable with Spam if its just costs then leave it at that.Im sure you have had enough of this without further prolongment.

 

Regards

 

Andy

[AndyOrch]

Well,

 

Apparently the court haven't received their copy yet so I'll give them a day or so to see if it turns up... Court suggested I ring Mort Clarke... but I'd rather not!!

 

Assuming that the court does get a copy.... what happens about the order for costs that I got awarded at the Set aside if I were to 'win the case'. Not if you bargain with them in your acceptance.You want costs and any adverse information removed or you will set a side and apply for judgement in the matter along with costs-get the picture Spam?

Will I lose them if I agree to the discontinuence? This may well be a deciding factor in what route I take from here..

 

Help please..

 

Thanks, Spam.

 

Andy;)

[AndyOrch]

Thanks Andy...

 

One last question.. (Yeah right:rolleyes:)

 

If I agree to the discontinuence to this claim, could they then make another one at a later date and/ or still come after me for payments as the agreement hasn't yet been judged 'unenforceable'?

 

Spam.

In a word yes providing they have the Courts permission which would be difficuilt.That why I gave you the option to seek Judgement in your favour then they cant.

Alternativly you can request that in your acceptance and agreement that they put it in writing that the case is now dead and no comebacks.

 

How do you want to play it?

 

Regards

 

Andy

[AndyOrch]

Thank you Spam delighted to assist and even more to get your result now go get the iceing on the cake;)

 

 

Kindest Regards

 

Andy:D

[AndyOrch]

Nothing to report I'm afraid..

 

No letter from MC in response to mine of last week, and I know they received it last tuesday as I sent it recorded delivery and I have the Sig for receipt..

 

I know they like to play close to the deadlines and there have been postal strikes but this is too close so I guess I need to prepare for my second set aside..

 

Perhaps the A team could step in and advise how I go about this..

 

Thanks,

 

Spam.

 

 

Hi Spam

 

N244 set a side NoD as you a re prob aware, however in your interests alone have you tried speaking to the Sols before you make this move and and ask what their intentions are to your proposals.One phonecall could make all the difference and save further costs.IMHO

 

Regards

 

Andy

[AndyOrch]

I would fully agree now you have given opportunity to the Claimant to respond.Retain proof of your communication Spam.

 

Regards

 

Andy

Edited September 23, 2009 by Andyorch

[AndyOrch]

N244 time then me thinks Spammy:D

 

Andy

[AndyOrch]

Hi Spam

 

No hearing and the fee is £35.00

 

 

Andy

[AndyOrch]

Hi all,

 

 

 

Thanks FG, I'll PM you about that..;-)

 

Well, I've just had the most ridiculous ding dong with my court with regards to setting aside the discontinuance....

 

Spam.. I wish to make an application to set aside the discontinuance of a claim.

 

Court... you can't do that.

 

Spam... Yes I can, it's in CPR 38.4 that I can do that within 28 days of discontinuance.

 

Court.. But the claimant doesn't wish to continue.

 

Spam... I know, but I do. I want to claim my costs and get the agreement judged unenforceable.

 

Court.. You need to make a seperate claim for that..

 

Spam... No, I don't , it is my right to continue with this one..

 

Court officer trots off to see court manager...

 

Court ... The court manager says that the judgement has been set aside and the claimant no longer wishes to claim so you can't set aside the discontinuance..

 

Spam... It is in civil procedure rules 38.4 that states I can if i wish set aside the discontinuation as long as it's done within 28 days... Do you have a copy of CPR? I will show it to you...

 

Court.. No we don't..

 

Scuttles off back to Court manager.... I'm beginning to doubt myself now..

 

Court... Court manager says we'll accept your application... but it will have to go in front of the judge...

 

Spam... ok thank you here's the £35

 

Court ...£75 It's an application for a set aside and it will have to go for a hearing...because the other side need to be there

 

Spam... Excuse me....I'm not asking for a judgement to be set aside I'm asking for a set aside of a discontinuance and I've asked for without a hearing so why do the other side have to be there... there was no hearing for them to discontinue... this is my response to there discontinuance...

 

Court... Blank stare... I'm not legally trained... it's £75

 

Spam....(hands over £75.. and copy of application...) do I have to send a copy to MC or will you do it...

 

Court... We'll do it... oh do you have a spare copy then cause otherwise we'll have to copy the application to send to them.

 

Spam...( Puts copy back in envelope and in hanbag) Smiles (thinks... you want £75 and then expect me to provide photocopies!!! ) Thank you for being so helpful...

 

It went on a bit longer than that but I won't bore you... that's the gist..

 

Just Unbelievable....

 

Spam.

 

 

:D:D:D:D:D:D:D:D

 

 

Best laugh of the day Spam

 

 

Andy