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RobinWayRobinme

Trying to set aside judgement - Round 2: Case dismissed

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I have put in an application to set aside a default judgment. Have received date for hearing. However after looking through threads in cag I need to expand on my statement of case and evidence. Can some someone help me with the actusal process of expanding my statement of cas and evidence. ie

 

1. Can I just do it by letter or should it be more formal.

2. If more formal do I need to make an application to the court with a fee payable.

3. Are there time limits in doing this.

4. Since putting in an application to set aside, claimant Robinson Way, have applied for a charging order. Advice on how to deal with this is needed, or should I deal with this in another thread?

 

Help please.

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I have put in an application to set aside a default judgment. Have received date for hearing. However after looking through threads in cag I need to expand on my statement of case and evidence. Can some someone help me with the actusal process of expanding my statement of cas and evidence. ie

 

1. Can I just do it by letter or should it be more formal.

2. If more formal do I need to make an application to the court with a fee payable.

3. Are there time limits in doing this.

4. Since putting in an application to set aside, claimant Robinson Way, have applied for a charging order. Advice on how to deal with this is needed, or should I deal with this in another thread?

 

Help please.

 

 

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.

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Hi R&B

 

default judgment 05/2009. I believe I wrongly admitted claim & returned to sols asking time to pay. They ignorred this and just obtained default judgment.

 

Only admitted as not able to think straight at time as looking after mother with cancer who p[assed away within couple weeks of all this (emotional times and very little sleep)

 

Reason to set aside on app made on grounds claimant didn't follow CPR 14.10 and asked that it be set aside in accordance with cPR 13.2 or 13.3.

 

Since doing this I discovered CAG and have been looking through threads and believe I need to also show that I could have reasonably defended. I believe I could.

 

Hearing has been set and charging order set for same date and time.

 

More advice please as very confused with proceedures etc

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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

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Hi Robin,

 

Yes definately a Judgment in default. I have proof of posting and confirmation of receipt. Sols were Horwich Farrelly and I also phoned them after I recieved default judgment pointing out that they had not followed CPR's. They basically said that was tough and agreed that they had not dealt with request for time to pay.

 

Further thoughts appreciated as I believe that they have ignored throughoout proper procedures and rules.

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

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request for CA sent last week according to CCA S78 enclosing £1 po. but requested informally first time Jan 09. First I heard from Roninson Way was end Dec 08. They didn't say who they ere or what capacity writing. Feel they have deliberately tried to mislead all along.

 

Could'nt get head round this properly until now dure to caring for mum with her cancer.

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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

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Hi R&B Your advice has been brilliant & I will look up how to do a Subject Access Request properly and look at other thread.

 

Still bit confused at correct way to present all this to court. Can the basis for setting aside be done by letter to court and claimant? and also is the fact claimant didn't follow CPR's and obtained what I've now found to be called an irregular default judgment be set aside because they did'nt follow CPR's

 

I really appreciate yr time. Thank you

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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 by r&b
added

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Yes already submitted N244 with main reason for setting aside breach of CPR's on receipt of admission & req time to pay. however,since looking here think I need to expand on reason for originally putting in admission with req for time to pay and demonstrate that I think I could sucessfully defend.

 

Very messy and trying to turn back clock to defend this and that at time POC recd and app to set aside put in I was not able to deal with this properly in view of family problems stated earlier.

 

Just think that in interests of justice I should be able to deal with this.

 

Thanx for the links etc. Researching them as we speak.

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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.

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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..

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great help R&B. wished I had found CAG earlier. Any other help from others greatly appreciated.

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You're going to be busy - Firstly you must try to get the CCJ set aside and then the Charging Order will be dismissed.

 

Get the SAR request off as well if not done already.

 

Have a read of these links on Charging Orders just in case -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/203298-guide-charging-orders-orders.html

 

Have a look at the links below on Charging Orders and what grounds you may oppose them -

 

Insolvency Helpline

National Debtline

and this gem of a post ( Courtesy of FunkyFox ) -

 

FunkyFox post


 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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Hi supa

Yes seems lot to do. Still need an answer on question of being successful in getting judgmnet set aside as claimant ignorred fact that they had an admission and req for time to pay in time. All can be proven with proof of posting and delivery (also confirmed by sols)

 

Putting together Subject Access Request now and also CPR 31.14 for copy of CA (only doc mentioned in POC)

 

Help with advice on this needed at this time

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Hi supa

Yes seems lot to do. Still need an answer on question of being successful in getting judgmnet set aside as claimant ignorred fact that they had an admission and req for time to pay in time. All can be proven with proof of posting and delivery (also confirmed by sols)

 

Putting together Subject Access Request now and also CPR 31.14 for copy of CA (only doc mentioned in POC)

 

Help with advice on this needed at this time

 

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?

Edited by r&b

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Thanks for additional advice. Have been putting together 31.14 and sar to original creditor. Is my interpretation correct of 31.14 that I can only ask for a copy of the original CA as that is all they have relied upon in poc, or should I include request for other docs as well.

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Hi R&B just to clarify point on SAR. Am i correct that it should be sent to original creditor even though it appears debt may have been assigned?

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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.

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Did send 31.14 yesterday and did ask for all docs you mentioned. Thought what the hell nothing to lose.

Its pretty confusing with POC as the events were as follows:

1. First contact from RobinWay end 12/08 to Occupier asking details of occupier etc as mail returned "Gone away" I ignorred this.

2. Mid 01/09 letter from RW headed formal demand due to "ROBINSON WAY EX CAPITAL ONE".

3. Letter to RW asking who they were and why writing to me and asked for a copy of credit agreement. They inorred this.

4. Letter from RW beginning 02/09. "Appointment for home visit" again money due to "ROBINSON WAY EX CAPITAL ONE".

5. Claim Form received. Calimant "ROBINSON WAY & CO LTD (ASSIGNEES OF EX R/O: CAPITAL ONE).

 

It goes on from there, but all through they have been deceitful and tried to mislead me. All at a time I was unable to deal with it as looking after my mother. But, no Notice of Assignment, Default notice or anything else received. Just as listed above.

 

Because of all this, despite my admission and request for time to pay, which they ignorred and went for default judgment hence not following CPR's, I believe that in accordance with S140A to 140C of CCA 1974 the "Unfair Relationships Test" applies.

 

any comments of this line or otherwise also greatly appreciated.

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31.14 request posted as amended. Comments greatly appreciated

Re: ROBINSON WAY & COMPANY LTD v ROBINWAYROBINME

CPR 31.14 Request

 

I received the Claim Form issued on XX March 2009 in this case out of the XXXXX County Court with Judgment by Default on XXX May 2009. The proceedings were transferred to XXXXX County Court on XX June 2009.

 

I have applied to have judgment set aside as it is my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the original document mentioned in your Particulars of Claim:

 

1. the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2. the assignment.

3. the default notice.

4. the termination notice.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 14 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the original of the document I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any versions to include an obligation to recover and preserve such versions which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Yours faithfully

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Looks good to me, Robin:)


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