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optima on behalf of MBNA CCJ, some advice if possible!


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At this time, you don't have grounds for a set aside. What you need is that information mentioned (SAR/CCA/CPR) already.

 

The grounds for a set aside of a Default Judgment are contained in CPR Part 13;

 

PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT - Ministry of Justice

 

PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT - Ministry of Justice

 

As you didn't file a defence, the Court doesn't have to grant the set aside

 

But;

 

13.3

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

 

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

 

(ii) the defendant should be allowed to defend the claim.

 

 

 

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

Now, for me, I don't think you can ask for the Judgment to be objected to - the Order from the Court will allow time to object to/vary the order. You don't have grounds for that, now.

 

Once you have the information (or, rather, don't have it, as they probably don't possess it ;)) you then have a prospect of defending, so the Judgment should be set aside.

 

You can apply for the set aside now, on the basis that you can submit a holding defence requiring them to disclose the documents as part of the claim - this is regardless of you sending the SAR/CCA/CPR, but doing that now adds weight to this when it comes in front of a Judge - but that isn't without risk, as they may well have an enforceable agreement.

 

It's a tough lesson to learn, finding out that ignoring the claim form now means you have more work to do. :(

 

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thanks, so at the moment I need to pursue the information request and also submit a holding defence..as I am not possession of all the information. Is the holding defence done through the n244 form?

 

Or have I misunderstood what you have suggested? thanks again.

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Yes, you're applying to have the judgment set aside on the basis that you have a realistic chance of successfully defending it based on a holding defence as no documentation has been submitted.

 

So, you need a N244 for the set aside and you need to submit it with your defence attached.

 

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thanks, are there any threads on here you can point me to for the wording for the defence? I am just thinking a holding defence would be reasonably common or generic argument, if that makes sense.

 

Or am I best to post up what I have written to be looked at?

 

cheers

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Guys I am putting the holding defence in today, this has been trasferred to local court so its nearby. Can anyone help with the wording?

 

This is one of the ones thats used on this site quite a bit but I'd wait for someone to confirm its ok to use this.. Have you filled out the N244 to attach to this?

 

 

1) I, ********** of ************** make this statement as my defence to the claim brought by **************

 

2) The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

3) No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information none has been forth coming and as a result I cannot plead in defence to the claim.

 

4) Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5) Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

Signed:

 

Ensure you edit to match the circumstances i.e. what documents they have provided as I've not looked back through the thread.

 

S.

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personally i think it wud be difficult to get to a set aside hearing with a holding defence, i dont think u need to add this to the N244 application...u say above that the 21 days runs out monday but as long as u are seen to act 'promptly' there wont be an issue with timeframes i.e. u dont leave it 3 mths b4 going for set aside...

if u want to put ur N244 in now, u need a basic outline in sec.3 but i would outline your evidence for set aside i.e default judgment, vague POC, no documentation has been forthcoming, etc etc in section 10... also put in there that u have sent disclosure requests and u are awaiting replies. then get ur disclosure requests off asap if u havent already dun so. u can give 7 days in which to reply on the CPR rqsts if necessary. u can then build your case for the hearing.

 

heres an example of what i put in. it got me a hearing:

 

http://i615.photobucket.com/albums/tt231/robntanya/HFCN244.jpg

http://i615.photobucket.com/albums/tt231/robntanya/HFCN2442.jpg

http://i615.photobucket.com/albums/tt231/robntanya/HFCN2443.jpg

 

just my opinion from what ive dun myself of course

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thanks, for the .2 in your second scan I guess I would need to edit this as I havent recieved anything back from mbna/optima.

 

So the 21 days isnt really that important in terms of submitting the n244? ie if it was a few days after this it wouldnt be a major issue.

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So the 21 days isnt really that important in terms of submitting the n244? ie if it was a few days after this it wouldnt be a major issue.

 

 

from what ive seen/heard its all about being reasonable.in my opinion u will be seen to have acted promptly even if u are a few days outside the deadline....having said that its better to be within it of course where possible.

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dont need to but i would as it all supports the issue.

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thats good. keep on top of any requests you have made for docs (wot have u dun so far?) in case your hearing pops up quicker than u thought....

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CCA has been sent, SAR will be sent tommorow. Not as on top as I would like. Appreciate the help with n244, I feel I have definately messed up with the claim not being put in prior to the judgement but oh well.

 

Would the court officer been presented with some kind of agreement when the case heard? Or would the officer just passed judgement on optima/mbna's request?

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CCA has been sent, SAR will be sent tommorow. Not as on top as I would like. Appreciate the help with n244, I feel I have definately messed up with the claim not being put in prior to the judgement but oh well.

 

Would the court officer been presented with some kind of agreement when the case heard? Or would the officer just passed judgement on optima/mbna's request?

 

They wouldnt have needed to prove anything.. if you dont defend they win by default, no checking that their claim is valid at all :-(

 

S.

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personally i think it wud be difficult to get to a set aside hearing with a holding defence, i dont think u need to add this to the N244 application...u say above that the 21 days runs out monday but as long as u are seen to act 'promptly' there wont be an issue with timeframes i.e. u dont leave it 3 mths b4 going for set aside...

if u want to put ur N244 in now, u need a basic outline in sec.3 but i would outline your evidence for set aside i.e default judgment, vague POC, no documentation has been forthcoming, etc etc in section 10... also put in there that u have sent disclosure requests and u are awaiting replies. then get ur disclosure requests off asap if u havent already dun so. u can give 7 days in which to reply on the CPR rqsts if necessary. u can then build your case for the hearing.

 

heres an example of what i put in. it got me a hearing:

 

http://i615.photobucket.com/albums/tt231/robntanya/HFCN244.jpg

http://i615.photobucket.com/albums/tt231/robntanya/HFCN2442.jpg

http://i615.photobucket.com/albums/tt231/robntanya/HFCN2443.jpg

 

just my opinion from what ive dun myself of course

 

I must have missed this thread.

 

Sorry, but I think you've missed a trick here.

 

Not only do you have to be quick in submitting what you want to submit, but you also need to show that you have a realistic prospect of successfully defending the claim.

 

At this time, the Claimant already has Default Judgment, so you need to demonstrate that you have a defence which should be heard. The onus is on you to show this, which is why I suggested putting a holding defence together requiring the other side to disclose their documentation.

 

I still don't feel you have grounds to have the set aside granted without being able to show that the agreement is unenforceable, or doesn't exist. If you go back to post #28, I've outlined the reasons there.

 

Nevermind, it's done now, I'm just pointing out the potential pitfalls at this stage...

 

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