Robinson Way CCJ/CO Cap1 card debt - was unable to respond - now want to set aside **LOST** - appealed - **WON** Claim reset - **WON - Case dismissed**

[r&b]

hi Robin,

.when was the judgment u r trying to set aside?

.why was it a default judgment?

.presumablty its on a CCA1974 regulated account?

.what were the POC particulars of claim? do u have the original claim form and from which court was it issued?

.did u ever return anth with the claim form i.e admission of debt/defence.,etc?

.depending on some of the above, it may be advisable to prepare a defence and skeleton argument in support of your application in which u can show a DJ that u could have successfully defended.

.again depending on when they are with the charging order, you may be better off asking the court in question to hear that along with your set aside as it is directly dependant on that outcome.

[r&b]

hi robin,

is it definitely a Default Judgment does it actually have that at the head of the paperwork from the court? if u adnmitted the claim i dont believe that would be the case as it is essentially a form of defence (so explained by a DJ to me !!) and becomes a judgment under admission.

couple of threads to read regarding your predicament if its not a Default Judgment.

 

1 http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt.html

2 http://www.consumeractiongroup.co.uk/forum/legal-issues/123971-ccj-set-aside-help.html

3 http://www.consumeractiongroup.co.uk/forum/legal-issues/182436-mint-cca-enforcable.html

4 http://www.consumeractiongroup.co.uk/forum/legal-issues/180864-finding-faulty-cca-agreements.html

[r&b]

do u have any paperwork in regard to the debt CA/DN/TN/etc? if not have u done any requests for them?

[r&b]

hi robin,

really sorry to hear about ur mum. when is ur hearing?

maybe look to do a SAR if £10 is not a problem, they get 40 days to reply but it may come earlier and cud be useful in the future if matters are not settled completely at teh hearing, send it to the original creditors regstd address. also have a read up on the following thread regarding getting disclosure within proceedings, u can set ur own timescales as long as they are reasonable (7 days if u are in a hurry):

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[r&b]

have u submitted the N244? i thought u had submitted ur application?

 

added: palomino has a SAR template post 14 here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/192486-court-claim-o-draft.html

send £10 postal order if poss and dont sign anth at all....

 

regstd addresses:

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/31052-contact-details-banks-j.html

Edited July 31, 2009 by r&b
added

[r&b]

do u have a hearing date for the set aside?

 

the procedure would be u putting ur case to the DJ at the hearing as will the other side. he will either decide one way or the other there and then or may wish to hear more and give directions for a further hearing (hence the SAR) so as i said above it may be useful to have a defence and supporting skeleton argument ready.

[r&b]

plenty of time then to get the docs etc... ive got to disappear now so im hopeful others will join in and give their point of view..

[r&b]

i would try to make as little of the admission as possible myself (personal experience...lol), but if u have had legal advice then assuming u are happy with that, u must follow it (do they specialise in this field?). i would also concentrate on the fact its a default judgment and what that allows under part13 to set aside, of which u are already aware. hopefully there will be more informed input here.

 

on the disclosure front (i think 31.14 is correct as u are in proceedings), i would ask for a copy of the original CA, a copy of the original Default Notice and proof of Termination of the account, along with statements of the whole account to prove the sums claimed (this will eke out any charges). if the debt is not with the original creditor you also require Notice of Assignment of the debt. all of these are required to lawfully enforce the claim. i would suggest giving them 14 days in which to reply to the 31.14 as u have some time until the hearing, this will leave ample time to send out reminders if their 'in tray' gets a little muddled, which is very common;)

unless anyone has another avenue?

[r&b]

hi robin,

i believe strictly speaking, that is correct. if u were answering the original claim u would only ask for what was on the POC.

SAR goes to original creditor, however u can also SAR the DCA as this may throw up details of assignment, etc. it is another £10 fee tho. have u had any Notice of Assignment?

have a check who the claimant is on the original claim.

[r&b]

hi robin,

im not sure u need to file and serve a Witness Statement, its not been necessary in my experience and ur showing ur hand very early.

as far as im aware, u have made an application to set aside the default judgment. u have been granted a hearing in september, at which u and some representation from the other side will sit with a District Judge and put your relative cases, on which he will either decide to set aside or not, or give further directions for another hearing.

as an example, at my first hearing the DJ said the CCA1974 was too complicated for him to sort out there and then so i should file and serve a defence within a set timescale and the other side should file and serve a reply to that defence such that he could then make an informed decision based on the facts within. so i would be tempted to keep my defence points under my hat at the moment.

 

if u havent seen this already its worth looking thru and relevant to ur case i believe:

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/139232-hfc-restons-charging-order.html

 

added: i personally would steer away from the admission as much as possible. also any accusations i would imagine would need very careful wording or substantial evidence.

just my opinion and others will hopefully put their views

Edited August 3, 2009 by r&b
added

[r&b]

hi robin,

as its a default judgment set aside comes under CPR13 as u have found, so i believe ur thoughts would be correct regarding a defence. u probably need to make as best u can before u receive any docs on which to add further so reading thru some threads may prove useful in associating urself with the requirements of the CCA1974 in regards to those docs.

re the charging order, in my opinion i wouldnt worry too much, even it was granted and made final. with a young family in this present environment it is highly unlikely that a judge would force the sale of ur house. my collection runs to 3 at this moment in time:(

are u unclear as to what will happen at the hearing or smth else?

[r&b]

more reading re the hearing:

http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

at the hearing u will have the opportunity to put ur case, what u include in that should be the facts that determine why u believe the judgment shud be set aside. at the moment u seem to have issues with their conduct and the assignment of the debt along with the fact that no documents have been made available such that u may assess ur lawful obligation.

as i have said before it may help to format a defence and skeleton argument which will aid u thru the hearing in logical steps so u dont get lost and make it very easy for the DJ to follow.

if u think that might be worthwhile, IGNM is extremely knowledgable on these matters and his posts #6 and #14 on this thread show how to set them out.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191754-arrow-global-ignm-1st.html

 

forget the underlining as this was for an amendment on his part. the defence shud be short and to the point and the skeleton can be used to put any statutes and case law to back up ur defence.

this is not totally necessary but cud make it a lot easier for u to make and understand ur case.

 

id ideally like some other opinions in case im missing anything....

[r&b]

This is becoming a full time job, but absolutely necessary as so much at stake. Sill working through other thread and will check out ur other suggestions after.

the idea is to build up a general knowledge of the points required, the more u go thru the site the more acquainted u will become and the easier it will seem (never easy tho in my experience lol)

 

Presume what you are suggesting is to have a template for my defence at the hearing and when I'm able to speak then work through that verbally. Is this correct.?

yes thats it exactly

 

Appreciate other opinions as u suggest. How do I get those or do I wait until someone else picks up on my thread?

 

 

we ll just have to wait for people to happen upon the thread but keeping the posts active will put u at the top of the pile, making it easier for people to see.

if there is anything really urgent there is the red triangle at the bottom left of the post which will alert the site team should it be required.

[r&b]

little bump here,

anyone know the answer to the above?

 

robin, if it were me, id try and make as much fuss as poss with any innaccuracies, but my guess would be that it depends on the judge on the day, some may say just chge it others may not.

hopefully someone can give a definitive answer however.

[r&b]

hi robin,

i think ur points are valid but im just worried that u may be giving them a heads up on your plan of attack.

i believe that for the set aside u really need to just deal with the facts of the judgment. u may be better off waiting until u get some form of reply to ur disclosure requests such that u can then attack from that angle and have the back up of statutes and case law to guide the judge.

did u add the other docs (DN/TN/NoA) to ur 31.14 request btw?

 

alternative views have been rather sparse which is unusual so if anyone has any please air them.....

[r&b]

hi 42man

thanks for adding some clarity. would u suggest waiting until the OP receives some form of documentation from his requests or submitting smth along the lines of his posts 27 & 43 as soon as poss?

[r&b]

hi robin,

in the absence of any better advice, id be tempted to await any docs b4 submitting, as the last thing u want is to submit, then receive unenforceable docs and have to apply to change everything. u have enough time to wait and any non compliance with ur disclosure rqsts can go onto the WS.

as a separate note, keep an eye on the date u gave for disclosure and get the reminders straight off giving 7 days to comply etc etc it will all bolster ur case.

of course take any other opinions from people who know the score here.

[r&b]

Hi R&B

Do take that on board, but is there any time limits on WS's and are there any templates around so I can start putting one together.

im afraid i dont know the answer to that robin, but i dont think there are hard and fast rules as to time on that, most of the CPR i believe relies on 'reasonable' as a key word, but i may be wrong.

there are numerous examples for varying cases if u search thru the site. although the content may not be of use the format might help, post 5 here :

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Yes, I have diarised for 31.14 to chase. Again, any templates for chasing.

I also sent a S78 CCA rewuest for copy of credit agreement to RW and time limit is now up. Should I not pursue this now in view of 31.14 or should I chace this as well:confused:

im not sure there are any templates but maybe look at PT2537s 31.16 thread and rejig that reminder, to suit.

the s.78 request is a bit of a non starter at this point (tho worth a try) as the judgment supercedes the credit agreement and therefore frees them of that liability.

 

if it were me i would prepare a WS without the docs, including the fact that i had made disclosure rqsts, ready to go at short notice and also have a few ideas ready in case the docs do turn up, so u can get them off as and when necessary.

sorry its not great but thats all i can think of at the present time. u may find time well spent trawling thru some threads that have had a similar issue to yourself, its amazing what u pick up, even if it is a bit brain draining.

[r&b]

hi robin,

very small issue regarding points 5 & 6. in point 5 u say 'clearly' and in point 6 u say it was 'unclear', i would change the wording here as it seems contradictory.

glad citb has u under the wing of the site team.

[r&b]

Hi all,

 

Coluln't resist posting this! Just checking through paperwork and think I discovered reason new sols weren't put on record straight away. They sent their notice to wrong address They sent it to Magistrates Court at different address to County Court.

 

hhmmm......shows u wot ur dealing with doesnt it !!!

[r&b]

send reminder giving 7 days for compliance...enclose copy of ur original request recd del... u can show these rqsts and receipts of postage at the hearing in an effort to undermine them.

[r&b]

best of luck robin hope all goes well.

[r&b]

hi robin,

just seen your result and how very disappointing, very poor.

dont know if this helps but post 263 here from BRW has a few concise pointers for any appeal process u may wish to take.

[r&b]

my apologies:

http://www.consumeractiongroup.co.uk/forum/legal-issues/180864-finding-faulty-cca-agreements-5.html

[r&b]

hi robin,

looks like you and lilly have it all under control.

i just wonder whether there is a case for endeavouring to attack the original judgment head on, rather than going thru the appeal for set aside and, if successful, them undoubtedly not pursuing the debt further, leaving u with a dodgy credit file for 6 years.

i dont know the answer, just putting an idea forward. could a fresh action not be taken, appealing the original judgment on the basis of new evidence (no CCA, admitted by the other side) adding the s142 and clearance of credit file in that action so that if successful, the whole claim is thrown out and ur credit file is cleared in one foul swoop so to speak?

just a thought.