Sainsbury CCJ - old credit card debt - need to set aside.

[Axiom99]

link to the agreements.... ( 4 further pages of the first agreement and all 8 pages of the 2nd agreement)

 

AXIOM pictures by hunni2006_photos - Photobucket

 

and below is the defence....

 

 

 

 

was there any explanation as to why you got 2 agreements in response to your CCA request?

 

Hunni,

Thanks again for taking the trouble to post the documents .Don't know why there were two separate agreements sent in response to the 77/78 request its a bit of a mystery.

Any thoughts on the defence allegedly sent to court by the solicitor or on the timescale to respond issue?

[citizenB]

Hmm, that looks more like terms and conditions to me. I would suggest they have probably sent a set that they claim to have been from inception and a current set.

 

You would need to see if there is any date code or it means checking all the clauses to see if there were any changes made from one set to the other.

 

As Caro has already pointed out, there doesnt appear to be anywhere for you or them to sign. Usually an agreement / application would be one A4 page maybe doublesided with your personal details on one part, and the prescribed terms. There would be space for both you and them to sign. There would also be a declaration in respect of the Data Protection Act. All of that appears to be missing, so it would seem to me all you have is a set of terms and conditions.

 

So, your plan is to have the default judgement set aside yes ?

[Axiom99]

Well originally my solicitor allegedly submitted a defence to the claim but it appears not to have arrived at the court so a judgement in default was issued.

The solicitor then said they would apply to have the judgement set aside but after chasing them for months all of a sudden they wanted 500 quid plus VAT to do this which is how I ended up on this thread having concluded I might as well try to apply for set aside myself.

I was then advised to post up agreements here so people could advise if I had a defence to offer and thats where I am now.

I was advis

[Axiom99]

I am concerned that enforcement action will be taken by the lender soon,can anyone please help with opinions about the agreement I have posted and the defence which was prepared by the solicitor?

[caro]

Regardless of the documents supplied, the court have enforced the agreement so your first priority must be to apply to set that aside, and the sooner the better. What did the court order say?

 

I think you normally have 7 days to apply for a set aside, so the longer you leave it, the harder it will be to justify not dealing with it sooner.

 

Apply on an N244 using the grounds that your solicitor led you to believe that a defence had been filed, but the court had not received it, and that you believe that the CCA should not be enforced.

 

You need to make up your mind if you're going to deal with this yourself or with the solicitor.

 

Once the judgement is set aside, you will be able to put in a defence, and can decide what you want to use.

[Axiom99]

Thanks Caro,the default judgement was received in January and I have been trying to get the solicitor to act since then with no result so I guess I have no choice but to either pay him 500 quid( and given his performance so far that seems like a waste of money) or deal with it myself which is what I will do.

 

I can show the court many many emails between the solicitor and myself to back up my assertion that my solicitor has let me down and I acted in good faith so hopefully that will be enough for the court.

 

I would appreciate if someone could please clarify the points about completing the form which I raised in post number 3.

Also I have been told that when attending the court to apply for the set aside the court will probably ask what grounds I have for believing there is a valid reason for the set aside to be granted,ie the argument that I believed a defence had been submitted by my solicitor is not sufficient and I will need to convince them that I had a valid defence which had at least a realistic possibility of success in the first place.

 

I guess this is to stop people issuing spurious set aside applications to drag things out even when they do not have a cogent argument to present which will be seen as a waste of the courts time.

 

The only thing I have at the moment is the defence prepared by the solicitor posted up earlier so I will have to go with that unless anyone has any opinions.

 

Having checked out some other threads it occurred to me that I have never actually had a copy of the CCA sent to me and that according to what I have read theere should have been a copy sent with the claim and a copy of the default notice as they refer to it in the claim.

Can I therefore offer an embarassed defence as such:

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form or sent to me as laid out in Practice Direction 16. Paragraph 7.3.

Any thoughts?

 

Having checked out some other threads it occurred to me that I have never actually had a copy of the CCA sent to me and that according to what I have read theere should have been a copy sent with the claim and a copy of the default notice as they refer to it in the claim.

Can I therefore offer an embarassed defence as such:

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form or sent to me as laid out in Practice Direction 16. Paragraph 7.3.

 

Any thoughts?

 

Can anyone please help me to progress this situation or failing that advise where/how I can obtain further help,

Thanks

A

[caro]

Axiom99 said:

 

3.What order are you asking the court to make and why? I am seeking Summary Judgement ordered on xx January 2010 to be set aside as the defence submitted by my solicitor was not received by the court.

 

4.Have you attached a draft of the order you are applting for?

You could put something along the lines of:-

a The defendant requests that the summary judgement given on xx January 2010 is struck out.

b The claimant provides the following documents within 14 days.

(list all documents you need that they refer to, any docs you need to form your defence, and exactly how they've arrived at the figure claimed).

 

c The defendant is permitted to file an amended defence within 21 days after receiving the above documents.

d That the claim is allocated to the small claims track (assuming it's under £5k).

etc

 

5.Presumably I should ask for this to be dealt with at a hearing

 

Ideally the set aside could be dealt with without a hearing which will make your application cheaper. If the court feel it's necessary they will order it.

 

6.How long will the hearing last? Leave blank

 

 

7.

Give details of any fixed trial date or period Leave blank

8.

What level of Judge does your hearing need? Leave blank

9.

Who should be served with this applicatio

The claimant

 

 

 

10.

What information will you be relying on, in support of your application?

the attached witness statement

the statement of case

the evidence set out in the box below

 

 

I guess the statement of case is 'my solicitor cocked it up' and the evidence would be a print out of all the emails I have mentioned.

 

Cheers

 

You could send the application to Sainsbury's solicitors along with a covering letter explaining the lost defence from your own solicitor, and ask them to agree to the set aside, which would mean you wouldn't need a fee.

 

If they don't agree you can still apply to the court, but will need to pay.

[Axiom99]

 

Thanks for the help and the suggestion of writing to Sainsbury's solicitors but I am concerned about more delays as the judgement was nearly 3 months ago and the case has been passed to my local court for enforcement.

I am worried that I will run out of time to apply for the set aside and also that Sainsburys will apply for a charging order or similar before I egt the judgement set aside.

[Axiom99]

Help!kicking myself for prevaricating now but have had lot of other problems going on and have not submitted N244 yet(solicitors did say they would deal with this but have not done so predictably!)

I have now received Interim Charging order dated 7.05.2010 and the date for application to be heard is 16.06.2010.

I hope I am not too late to still apply for set aside,can anyone please help with advice as to what to do next?

 

Can any one please help with my question above ,starting to get very worried now about what to do next with this charging order situation.

[citizenB]

Have flagged your post for attention of the site team.

[Axiom99]

Have flagged your post for attention of the site team.

 

Thanks CitizenB

 

A

[steven4064]

COs are not my thing but, if you are going to make an application, do it ASAP.

[caro]

As Steven says, you must deal with the set aside. This post will explain the reason.

http://www.consumeractiongroup.co.uk/forum/show-post/post-2921299.html

 

This may help.

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=12_how_to_set_aside_a_judgment_in_the_county_court

[Axiom99]

Thanks Caro will get onto it staright away and post here what happens

[MARTIN3030]

Will move this to legal issues.

[Axiom99]

Will move this to legal issues.

 

Thanks for the move I presume this is a more appropriate place for this problem

[citizenB]

Thanks for the move I presume this is a more appropriate place for this problem

 

Most caggers lurk around the forums they are best able to help in. Those with legal knowledge, or experience are more likely to be found in the legal issues forums.. so yes, where a claim has been issued or situations such as you find yourself it.. the legal forums will be a more appropriate place.