Set Aside Hearing

[jon_boy75]

hi there

 

I have a hearing at the County Court in a few weeks. The defendant, Abbey, has requested the judgment by default be set aside. I want to be fully prepared for this. I'm guessing this will just be an opportunity for them to argue why the case should be heard in full, and for me to argue against...?

 

Any advice is appreciated. They ignored the original requests for information and the judgment, but I'm guessing they will be heard as they will claim they didnt receive the files etc.

[jon_boy75]

Can anyone tell me if I should have received an agreement for an overdraft at some point, including the rate and T&Cs?

 

I made a subject access request and CPR disclosure, but nothing came back

 

thanks

[jon_boy75]

Submitted my Arguments and Statement of Evidence today, set-aside hearing on Tuesday.

 

will keep you posted

[jon_boy75]

I CANT BELIEVE I MISSED THIS!!

 

Just checking and double checking my paperwork for court on Tuesday, and managed to decipher the system codes and notes from Abbey.

From the dates, it looks like they gave me 28 days to settle the account before they would issue a DN and report to CRA. I paid, despite never receiving a letter of intention to file, within 19 days...and they still defaulted me!!

I'm not sure what to do now? Do I submit a letter to the judge that new information has come to light that could expedite a speedy resolution..?

Don't know how I missed this.

System notes say:

21/12/2006 - Sent letter of Intention to File a Default

08/01/2007 - Account settled (£108) and closed

22/12/2006 - Default posted with CallCredit

05/05/2009 - Default posted with Experian (yes, 3 years later)

 

According to their template Default Intent letter, they gave me 28 days to act...I acted in 19 days and still got defaulted!

[jon_boy75]

am in court in 2 hours, although i feel like I'm drowning now. Hope I can hold it together.

[jon_boy75]

Ok, here goes...

 

Nobody won or lost, as it was a set-aside hearing. But I got what I went there for, so it's a victory in a sense. The default has been removed from all CRAs after a 3 year fight!

I will post up more details as soon as I've finished my work!!

[maroondevo52]

Hi, jon_boy75.

 

Sorry no one seems to have caught on to this thread

Sounds like a result on your part.

 

Regards.

 

Scott.

[jon_boy75]

Here's what happened, in brief as it ended up being a 3-hour hearing, scheduled for 2.

I went to court to get a default removed from my credit file, added due to a disputed overdraft debt of, wait for it, £108. See here for backstory..

First of all this was a set aside hearing, as the defendant, Abbey, had failed to respond to my initial claim. So I got Judgment by Default. They wanted this judgment set aside. So that was the first order of business, after which they wanted my claim struck out altogether for having "no real prospect of success".

 

The judge agreed that the Defendant should state her case, and she asked if she should do it just for the set aside request, or for their entire argument, which included my initial case being thrown out. The judge asked for all of it. At one point during the opening I tried to chip in, being unfamiliar with the process, and a Litigant in Person. The judge dismissed me with a wave and said I would get my chance to speak. My heart sunk at this point as he was quite cheery with the 'learned counsel' and quite abrupt with me, so I thought this would be another one down to the judge lottery.

The defendant tore apart my Subject Access argument, plus s87 of the CCA, saying they had exemption from part 5 and therefore did not require any signed agreement for the overdraft. However, when I got my chance to speak I asked to see the Part V exemption, which they didnt have. The judge was satisfied that it did indeed exist. He was also satisfied they had sent me default letters and notices, despite not being required to, which I found odd.

It was all going badly wrong!

Then we came to the issue of the defaults being posted with the CRAs. Abbey did post one with CallCredit in Dec 2006, when they allege they had rightfully defaulted me. The defendant also claimed they had posted this with Experian at the same time. They hadn't. The default only appeared on Experian last year, when I first noticed and queried the CallCredit one.

 

Anyway, I finally had the judges attention. I had completely muddled my POCs and arguments, with the key one being buried. Back in 2007, I challenged Abbey over bank charges, still ignorant of the fact they had defaulted me the year before. They settled out of court and paid me about £2500.

In 2009, I spotted the default, queried it, and their response was to post the default with another CRA, Experian. 3 years after the account had closed.

So, this all come out in court and moments before throwing me out, I think the judge decided I did indeed have a case, just not exactly the one I had presented. He was a man of few words and wanted me to take the initiative and decide what to do. I said I would push forward, refocus my POC and arguments and, if the court allowed it, press ahead to a full hearing. He didnt say anything except that he would retire for 5 minutes leaving me and the defendant alone.

So, despite their also being a compensation element to my claim for damage to creditworthiness, I simply wanted the defaults removed and have been fighting for that for 3 years through reasoned, polite negotiation, the FOS and ICO...which got me exactly nowhere.

So, I said to the defendant, this will go to a hearing as you can see, but if you guys just remove the default we can all get back to our lives and not waste any more time on this. One phonecall to the client and all was agreed. The judge seemed pretty amazed their was no claim for costs by either side...i think his view of me changed right there, too late!

 

What have i learned from this?

I was amazed this even went to court considering no money was owed. The CRAs are entirely within the control of their masters, the various financial institutions, who give them reason to exist. I battled for months with Experian to remove this wholly false default, posted 3 years later! I have about 12 email exchanges with a senior manager there who flat out refused to even consider removing the default, despite seeing no evidence from Abbey that I defaulted. Well, they will be removing it now by order of the court. It's completely stunning I had to go to court to prove my innocence, as the assumption is that all credit information is perfect, unless the banks tell them otherwise. I'm considering my next steps with Experian.

If you believe you've been wrongly defaulted, take it to court. You really have nothing to lose, aside from the off fee of £75.

 

More to follow...

[jon_boy75]

i will post up more detailed legal info, asap, if that will help others

[jon_boy75]

lo and behold, 5 months after the court date and the default has still not been removed from the CallCredit file, despite an order of the court.

 

what next? go back to the court and make them aware this has been ignored? Of course I've contacted Abbey, who sent me a standard letter about my 'complaint'

amazing really, I dropped all monetary claims for a quick resolution, but I'm now tempted to claim the whole lot for an additional 5 months damage to credit etc.

i think i will just go back to the court that made the order and open up the case again...the judge will be immensely displeased that we're back there!