Urgent help required with a reissued claim form.

[Lapchien66]

I have a set aside hearing on 1st July, I found out recently that I have a ccj for £20K from Lloyds, the ccj was registered at an address I left in 2004. The ccj was entered by default in 2007.

 

I only found out about it recently when I applied for a car loan. Checkmyfile were not aware of it either, until they tweaked my old address!

 

I have letters from Lloyds at my old address, and, crucially, my new address (card statements, bank statements, notice of tax paid, PIN notification etc). I also have other documents showing my new address since 2004.

 

I am requesting that the court set aside the ccj as:

 

I was unaware of it, until I applied for a car loan in April 2009

I have no idea what debt for £20K I could possibly have - my last staement from Lloyds shows an overdraft limit of £1800 and the balance of £36 o/d, my credit card had a limit of only £1000. It could be identity theft - I just don't know. The default was put through at the Northampton bulk centre so I have minimal information about it.

 

I wrote to Lloyds, asking for a CCA, and they wrote back saying they do not hold an account for me, and returned my PO!

 

I have a schedule of key dates (left old address, informed bank etc), and also a document schedule (bank statement, card statement, letter from employer, information from electral role for periods in question etc).

 

I have my papers in order, and have a bullet pointed list of key issues.

 

But guys, I'm struggling with the wording and procedure. Do I have to say, "Sir, it is my application today that I request you to set aside this ccj because..."? Is there a certain way I have to put this?

 

Any advice would be, as ever, very gratefully received - court on 1st July!

 

Thanks

 

Lapchien

[AndyOrch]

Hi Lapchien.

 

Reasons to base your setaside on:-

 

13.3 (1) In any other case, the court may set aside (GL) 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 (GL) 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.

 

Here is one i have successfully used before:- (edit to suit)

 

I wish to apply for a set aside as I did not receive the response pack when the claim was issued.Had I received the claim, I would have submitted a defence and counter-claim against the Claimant,as it is my belief that no credit agreement exists.

 

I was totally unaware of the existence of the County Court Judgment, until very recently, when I obtained a copy of my credit file from Experian. On the basis of that information, I requested a copy of the credit agreement on the xx xxxx 2008, from the Claimant, that the alleged debt refers to, under s.77/78 (Delete as ness )(1) of the Consumer Credit Act 1974. My request has been completely ignored by the Claimant and they have now been in default of said request since xx xxxx 2008. I have enclosed a copy of the letter sent to the Claimant, as evidence of my request.

 

It is my contention that as a result of this and the aformentioned reasons, the Judgment has been improperly granted.

 

I would therefore respectfully ask the Court to set-aside the Judgment, on the basis that I never received the claim pack and consequently was denied the opportunity to respond to the claim; which I would have done as it is my sincerely held belief that no credit agreement exists.

 

 

Ok with the above? you now need to draft your Directions to attach to the N244 along with everything else ie CCA S.A.R etc as much detail as possable in the papertrail.If there are any questions you are unsure of on the N244 just post.

Regards

 

Andy;)

[Lapchien66]

Just back form the court. No problems, Lloyds did not attend, but they did send a note to the Judge asking for the case to be adjourned in order to locate the 'papers'. The Judge refused, briefly read the paperwork (I couldn't see much, but did see a letter from Setchari Clark + Mitchell (? - think that's what they are called)).

 

The Judge then said that the account was sold to Moorcroft, and that Lloyds had bought it back. He has given them 14 days to resend the claim form, and a further 14 days for me to file a defence.

 

So for now, any advice? Do I CPR or SAR Lloyds, and if so - to which address?

 

Thanks

Lapchien

[I've got no money]

Yes - I'd do a CPR 31.14 request to the Solicitors and a CPR Part 18 Request which specifically asks them to explain how the sum claimed has arisen

 

I'd also do a DPA SAR to Lloyds and Moorcroft

 

It sounds really strange - Lloyds sold the account and then bought it back...bizarre

 

Have you managed to get a copy of the summons yet - when you do can you post it on here - make sure that you cross out anything that might identify you and we'll help with the defence

[Lapchien66]

The ccj was set aside on 1st July, the judge ordered that Lloyds resubmit the claim form by today. Lloyds have not sent me the claim form - so what happens to the set aside ccj now? Do I need to do anything? I'm not exactly screaming for a new claim form, mind you...

[surfaceagentx20]

Lapdog,

A Claim Form for service in England and Wales has a life expectancy prior to service of 4 months only. See CPR 7.5. Since the default judgment, now set aside, dates back to 2007, the Claim Form clearly pre-dates the judgment and hence is now older than 4 months. The default judgment was set aside on grounds of non-service of the Claim Form and perhaps other grounds as well. That is why in setting the judgment aside, the Judge gave the claimant 14 days to serve the Claim Form. In effect, the Judge granted an extension of time for service of the Claim Form from some date in 2007 to 15 July 2009.

Compliance with CPR 7.5 and any time extension granted where service is by post is achieved not by the Claim Form arriving on your door mat, but by the Claim Form being put into a post box before the extension expires. So the Claim Form could turn up in the next day or two with compliance under CPR 7.5 having been achieved. If the Claim Form should show up in the next few days, look carefully for evidence of the date of posting. If posting occurred after 15 July, service will be bad. Tell Lloyds that and tell them they will have to make an application to the court for further time. Copy the letter to the court. Other than that, do nothing. If you receive nothing, telephone the court and ask if Lloyds have issued an application notice seeking an order extending the time for service once more. If one has been issued wait for the application notice to arrive. If you are told there has not been an application write to the court to say the Claim Form has not been received and that you were informed by a court officer that Lloyds had not made an application for an extension of time before the extension ran out. That letter will be placed on the court record and may come of use should Lloyds ever try to resurrect the case in the future.

As an alternative you could adopt the procedure set out in CPR 7.7, but frankly I wouldn’t bother. It’s a procedure where you write to Lloyds giving them not less than 14 days notice to serve the Claim Form and where if they don’t, you can then apply to the court for an order that the claim be struck out. The trouble is that if you write that letter and on the strength of it Lloyds serve, you’re then involved in a court case.

Assuming you don’t go with CPR 7.7 and a Claim Form was not processed in accordance with CPR 7.5, the position is that the proceedings are dead in the water until such time as Lloyds persuade a court to extend the time for service. Lloyds will have to persuade a court that there was some particular reason which prevented them from putting the Claim Form in the post in accordance with the terms of the set aside order. An application for an extension should be made promptly before the time allowed for service runs out. If Lloyds make an application after 15 July they will have to explain why they not only failed to serve in accordance with CPR 7.5 but also why they didn’t put on their application in good time. Clearly, the longer Lloyds delay, the less likely the court will grant another extension.

 

x20

[Lapchien66]

Many thanks - I'll read it a few times to understand it, and let you know how I intend to proceed.

[Lapchien66]

It's been a week now since the re-submitted claim form was due to be served, and still nothing. I will 'phone the court today and ask them if Lloyds have made an application to extend the time for service, I'll update later.

 

As an aside, this account appears to be a debt comprised of a combination of an overdraft, credit card and loan, all started in 2004. I don't know what additional charges have been added - no doubt there are plenty.

 

One part of this combined amount, the credit card, was sold to 1st crud, and uncle bob has confirmed that 1st crud own it. They have recorded a default (in late 2005). How can Lloyds try to get me to pay the account, whilst at the same time 1st crud are attempting to bully me in to paying it? That would mean I would in effect be paying twice for that! Enrichment? Fraud? I was thinking this morning that I would very much like to report 1st crud to the plod if this continues...

 

Any thoughts anyone?

[Lapchien66]

Bit of a strange one - I never received a claim for from Lloyds, so I assumed that this one was dead in the water.

 

Then today I received an Amended General Form of Judgment or Order, exactly the same points as the original one, except that they now have until 24th August to serve a claim form.

 

The original order is dated 1st July 2009, then it says Amended 28th July 2009.

 

Is it Lloyds who have asked for the order to be amended for them to get more time to serve the claim form?

 

It's further complicated - for Lloyds - in that 1st crud are chaing me for 1/3 of the original judgement, they have confirmed to me in writing that 1st crud are the sole owners of the debt!

[Lapchien66]

Update. Even stranger, following the amended order to resubmit a fresh claim form, today I have received from SCM a copy of the original claim form - not a fresh one! The POC sets out what they think is due, amounts on agreements under the CCA 1974, no CCA. The POC is short and sweet and obviously relies on the 'sap' (i.e. me) not responsing, or not knowing how to respond, and then obtaining judgement by default.

 

Any help with how to respond to this?

 

To recap, the judge set aside the original CCJ, and told Lloyds to submit a fresh claim. He then extended the time for them to do this (to last Friday). Today I have received a copy of the original claim form, with the original issue date of Nov 2006!

 

Talk about them not knowing what they're doing...

[Lapchien66]

I've now received a claim form - very, very late - and need some advice regarding my response. The amount claimed is for £20k. It is made up of 3 accounts, a credit card, bank account o/d and loan. The card is being chased by 1st crud who insist they own it and not Lloyds. Lloyds have not yet replied to my subject access request (they have about 10 days left to reply).

 

Am a bit stuck here now and would really appreciate some help on how to respond...

 

Thanks

Lapchien

[Lapchien66]

Can anyone help with this please..?

[Lapchien66]

A little more information - the claim form itself is a photocopy of the original claim form, and is dated xxth November 2006. The response pack says I have 14 days to reply... Doesn't this issue date have to be more recent; i.e. within the last few weeks?

[42man]

What are the particulars of the claim ? (don't be specific with the numbers). Next stage is the CPR asap either CPR18 or 31.14 depending on the POC's....

[42man]

Embarrassed defence then issue draft order for directions on the AQ.....as you say they are hoping you don't fight this one !!! Im just trying to get some clarification on what has to be done in your case when you have been sent a claim that is 3 years old....

[citizenB]

I have seen a similar issue on the forums this morning, I dont know whether point 2 in the following defence will of any help to you. I have also put the thread link as well

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2530933.html

 

I, xxxx, am a Litigant in Person & make application for a strike out of this application for reinstatement of this claim for the following reasons:

 

1. The claimant, xxxx, issued a summons in the xxxx County Court on xxxx. The defendant issued his defence & completed his AQ on xxx. The claimant was ordered to submit a fee by 23 July 2009 if he wished to continue with the claim. The claimant failed to comply & the court permitted him a further 7 days in which to comply. The claimant was notified of this on 24 July 2009. Again the claimant failed to comply & the case was ‘struck out’ on xxxx. That order was evidently, not appealed within the time limits set by the court and therefore remains the order of the court in relation to the issue.

 

2. Since the claim is for the same amount as before and the earlier proceedings were dealt with by a Court then the doctrine of estoppal known as res judicata applies and this action should be deemed an abuse of Court process as that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114: "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

3. I sent a request under CPR31.14 to the claimant on xxxx for information necessary for me to formulate a defence. This included copies of the default notice & proof of mailing plus statements of account to enable me to assess the accuracy of the claim. To date I have not received this information.

 

4. It is necessary under S87 of Consumer Credit Act 1974 to serve a default notice before terminating an account & commencing legal action. I have not received a default notice & therefore put the claimant to strict proof of mailing of such. He has failed to supply me with this evidence.

 

5. Furthermore failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119). The claimant has not provided a detailed statement of account & it is therefore impossible to ascertain the accuracy of the default notice.

 

6. The claimant has been given the opportunity to assess the validity of my defence & has been offered two opportunities to progress with the claim. He did not take those opportunities & he has not fulfilled my CPR31.14 request. I therefore request that court considers the full implications of CPR3.9 & an abuse of process under CPR3.4. The claimant has no reasonable prospect of success & I request that the court denies the claimant permission to reinstate this claim.

7. Alternatively, if the court grants the claimant’s application for reinstatement of claim, I request the court to issue directions for the appropriate information to be provided by the claimant to enable me to compile a defence. Without production of the requested documents the case cannot be dealt with justly and fairly, and would severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998. (draft directions attached)

 

 

The other Cagger I have linked the above information to, is Clynite on the following thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/210585-claim-struck-out-can-10.html

 

HTH

[42man]

How about a possible strike out under CPR 3.4(2)© ? As they have NOT issued a fresh claim ?

[Lapchien66]

Thanks for your help so far guys, in reposne to 42man, this is their POC:

 

• The Claimants are Bankers whose registered address is xxxxxxxx
  

• The Defendant is indebted to the Claimants in the sum of £xxxxx, in respect of accounts maintained by the Defendant with the Claimants said Branch being money lent to the Defendant by way of an agreement(s) regulated by the Consumer Credit Act 1974.
  

• In breach of the agreement, ther Defendant failed to make payment and on the xx/xx/05 the Claimants did issue a Default Notice pursuant to section 87(i) of the Consumer Credit Act 1974.
  

• By letter of xx/xx/06, from the Claimants to the Defendant, the Claimants demanded repayment of the said sum, but the Defendant has failed to repay the sum or any of it.
  

• In the premises, the Defendant is indebted to the Claimants in the sum of £ xxxxx
  

• THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER THE AGREEMENT: £xxxxx
  

[Lapchien66]

I have seen a similar issue on the forums this morning, I dont know whether point 2 in the following defence will of any help to you. I have also put the thread link as well

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2530933.html

 

 

 

The other Cagger I have linked the above information to, is Clynite on the following thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/210585-claim-struck-out-can-10.html

 

HTH

 

 

I'm ready to send the acknowledment of the claim back to the court, and I'd like some comments in regard to 2 options - either going for the strike out (as above) or merley submitted in embarrased defence.

 

Any further comments anyone?

 

Thanks

Lapchien

[angel_1]

hiya

 

am subbing if i may as ive picked up some very useful points,

 

good luck laters angel x

[Lapchien66]

bump - anyone?

[citizenB]

I am not able to offer any advice on this one. Did you check out the link I gave you to Clynites thread in post 16 ?. I think he is going for a strike out. He is in a similar position to you.

[Lapchien66]

I did see that, it's certainly an option. I've acknowledged the claim and stated that I intend to wholly defend it. Not too sure that the strike out applies to my trouble entirely, although it is certainly interesting. If I go for the strike, and it gets bounced, can I still go down the unenforceable and/or wonky defualt notices route?

[citizenB]

I am going to edit the title of your thread, people looking will assume that the date for assistance has passed.

[Lapchien66]

I'm going to call the court tomorrow to make sure that it is a re-issued claim, and not just a photocopy of the existing claim form (the claim form I have received is in fact a photocopy, but the response pack is not).