Link got a CCJ - help to set aside - **WON**

[linz2011]

Hi I have today received a judgement for claimant - i acknowledged the claim but failed to submit the defence in time.

 

Any help with which form and how to complete

 

Would I be able to use 'missed deadline" as a reason to set aside - any guidance appreciated

 

Hi I acknowledged online and posted the defence off, the judgement had been issued prior to them receiving it - they still have not received it

[yourbank]

what were the circumstances behind missing the deadline?

[supasnooper]

Did you send the defence by a trackable delivery service i.e. Recorded Or Special delivery ?

[linz2011]

unfortunately not!!

[the_shadow]

Do you have the defence all ready to send...

 

I personally would fill out an N244 set aside application and attach the defence to this. I would also state it was sent [give as much info as you can about where posted/when and when you chased with the court] but never received by the court and you respectfully wish the judge to take the attached defence and the interests of justice into account and set aside judgement.

 

Your defence needs to be strong to convince the judge that it would be an injustice not to set this back to stage 1 of the court process.

 

How long ago was the defence supposed to be filed? Time doesnt normally matter but in this case as its due to a postal problem I would suspect it might?

 

Just my opinions as always

 

S.

[linz2011]

Hi

 

This is my defence that was sent - is this ok or should I add anything else on the set aside???

 

I have asked for disclosure of documents related to this defence, including statements from the period of the agreement, a copy of the executed agreement, and a break down of all charges made to the account for the duration of the agreement.

 

This request has not yet been acknowledged by the claimant, neither has the claimant sent such documents. Therefore, I respectfully ask the permission of the court to amend this defence as and when such information is provided.

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all.

 

It is averred that the Claimant having failed to serve a Notice of Assignment on the Defendant as required by section 136(1) of the Law of Property Act 1925, does not possess any legal right to issue a claim demanding monies allegedly owed. Under the aforementioned Act, the absence of a Notice of Assignment precludes the claimant from instigating these proceedings and continuing with the same.

 

The Defendant puts the Claimant to strict proof that a Notice of Assignment was received, as averred in the Particulars of Claim. Accordingly, the Defendant does not know the case it has to meet 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 the claim is vexatious and amounts to unlawful harassment pursuant to section 40 of the Administration of Justice Act 1970.

 

In respect of that which is denied, a request was made under section 78-79 (since I have no knowledge of the type of agreement) of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery on DATE to the Claimant’s Solicitors, with the statutory £1.00 fee enclosed.

 

The Claimant has 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. In response to the request, no letter has been received. 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 78-79 of the Consumer Credit Act 1974.

 

The Defendant denies 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, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

Further, in respect of that which is denied, it is averred that during the period in which any alleged account was operating the claimant, or the original creditor, 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 or original creditor.

 

The defendant contends 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 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.

 

 

I put the claimant to strict proof that any notice of assignment sent to me was valid. I note that to be valid, a notice of assignment must be accurate in respect of the amount of money assigned.

 

It is denied that any Default Notice was received from the claimant, and the claimant is put to strict proof that any default notice sent complied with section 88(1) of the Consumer Credit Act 1974, as to form and content, and has therefore been registered with Credit Reference Agencies unlawfully.

 

The Claimants are not entitled to claim interest, as they have not established a legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely unmeritorious and should be struck out for the aforementioned reasons.

[the_shadow]

Seems ok to me, standard holding defence due to no documents from claimant.

 

Would wait for others to advise though just to be safe.

 

S.

 

Just re-read and noticed a HE instead of a SHE if your avatar is to be relied on

 

Also where DATE is mentioned you'll need the real date.

 

Sorry if being pedantic but dont want this to fail.

Edited May 26, 2009 by the_shadow

[linz2011]

Thanks will wait to get further advise

 

Any help with the wording on the set aside would be useful - never done it before

[the_shadow]

Hi Linz, sorry just passing through so not got time to trawl...

 

I've not done it but I've seen it done on a few threads in this legal forum, might be an idea to trawl back through a couple of pages and look for ones with Set aside in the title..

 

I'll try and take a look tomorrow for a few examples.

 

s.

[linz2011]

Hi

Thanks shadow - I have trawled and trawled, the only things I can find are if they have never received the summons/paperwork - not if they missed the defence.

 

I just need to know what wording to use on the N244 and whether or not I should say it has been lost in the system?

[supasnooper]

Have a look at this thread, I think the OP was in a similar situaution -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/168352-lisa-hsbc-cca-court.html

[linz2011]

Hi thanks for that - I have read it but am still at a loss as to what to put down on the N244 - I did CCA the DCA (recorded delivery) and not received a response this was back in January - i can send all papers with the N244 (should I do that)

I just do not want to leave myself open to fire

[r&b]

Hi Linz, sorry just passing through so not got time to trawl...

 

I've not done it but I've seen it done on a few threads in this legal forum, might be an idea to trawl back through a couple of pages and look for ones with Set aside in the title..

 

I'll try and take a look tomorrow for a few examples.

 

s.

 

dont know if this will help but its wot i put on N244 for set aside, mixed with others it may point u in the rite direction:

 

http://i615.photobucket.com/albums/tt231/robntanya/RBSMINTN244.jpg

http://i615.photobucket.com/albums/tt231/robntanya/RBSMINTN2442.jpg

http://i615.photobucket.com/albums/tt231/robntanya/RBSMINTN2443.jpg

[linz2011]

Hi thanks for that I will certainly use bits of that.

I am struggling with the reason I am asking to set aside - i did acknowledge the claim but my defence is still in the system and missed the deadline (court have not received it) they advised I put a set aside in but not sure how to word it

[linz2011]

being reading about it and I am really scared now - how long have i got before bailiffs turn up

[the_shadow]

Hi thanks for that I will certainly use bits of that.

I am struggling with the reason I am asking to set aside - i did acknowledge the claim but my defence is still in the system and missed the deadline (court have not received it) they advised I put a set aside in but not sure how to word it

 

I think its just a case of stating something like this;-

 

I respectfully request that the court set aside the judgment obtained in default on xx/xx/xxxx. I posted my defence by normal first class post at xxxxxxxxx post office on xx/xx/xxxx. I have attached my defence to this application to show the courts that the defence was clear,concise and answered the claimants claim.

 

Just my opinion as ever....

 

S.

[the_shadow]

being reading about it and I am really scared now - how long have i got before bailiffs turn up

 

Ok how long ago was the judgement, sorry brain a bit addled this morning... have the DCA been in touch regarding making payments?

 

They would have to go back to court to apply for some kind of enforecement order against you, this could be ballifs/charging order against property or attachment of earnings.

 

As far as I'm aware they have to warn you first that they are going for enforcement in a kind of LBA.

 

S.

 

Basically that set aside needs to get into court ASAP in my opinion.

[linz2011]

Hi it was only issued on 23rd May

[the_shadow]

Hi it was only issued on 23rd May

 

Thats brilliant, as the closer it is to judgement the better in my opinion, will show the judge you had the defence ready to file and just a simple mistake of the post office loosing the document meant a default judgement.

 

S.

[linz2011]

Hi all an update on this

- managed to get this set aside,

 

 

hearing was held and Link turned up

 

 

- Judge tore him apart as his documentation was not satisfactory.

 

 

Quite an amusing part they had provided several copies of statements where interest/fees were showing

but on the T&C's it stated if the payment is late or overlimit a charge of £0 would be applied tut tut

 

 

- Judge was not happy she gave him two weeks to provide the original agreement and a full statement of account or struck out this was over a month ago

 

 

- spoke to court for an update and they have not filed any documents with the court.

Looks like this is going to be struck out

[the_shadow]

Hi all an update on this - managed to get this set aside, hearing was held and Link turned up - Judge tore him apart as his documentation was not satisfactory. Quite an amusing part they had provided several copies of statements where interest/fees were showing but on the T&C's it stated if the payment is late or overlimit a charge of £0 would be applied tut tut - Judge was not happy she gave him two weeks to provide the original agreement and a full statement of account or struck out this was over a month ago - spoke to court for an update and they have not filed any documents with the court. Looks like this is going to be struck out

 

Well done Linz.

 

S.