How strong would an application for setaside be with all in agreement?

[dinkdink]

Hi

 

Title says it all really, just wondering;

 

If i wanted a setaside, and the creditor agreed to support my application, would i still need a strong defence in order to get it granted?

 

I want to get rid of a CCJ i found not too long ago as i didnt know about it, was registered to a term time student address, and i had moved out many months before hand, and the creditor failed to contact me on the address they had, think they assumed i'd moved out, even though the evidence (electoral roll) still pointed to the fact i lived at the address they had?

 

They have agreed to support my application should i pay in full, which i can and will, but i cant make them seem like they did anything wrong.

 

Otherwise, if i apply without there support, or paying in full before, they will fight me all the way, principle i think.

 

Thanks

[BankFodder]

If the claimant agrees then there should be no problem at all.

 

 

Get it in writing from the creditor and attach the letter to your N244 application notice

[ploddertom]

In your case you don't actually need the agreement of the Claimant although if they do it will help. It would also help if you can pay the Claimant before applying - this will go strongly in your favour. Winning will see the CCJ wiped from your file as the Court automatically notify Registry Trust who in turn inform the CRA's. This doesn't happen in an instant and may take a couple of months to filter through.

 

PT

[postggj]

i had two ccj setaside

 

it is important you get the creditors permision in writing and attach to the n244 form

 

as sugested

 

pay the ccj as the judge will ask if its been settled

[dinkdink]

Well this could be great news.

 

The creditor want the full judgement value, so what shall i use as my defence?

 

I was thinking of putting in a defence of not been at the address, and not oweing the full judgement as i think some of the judgement fee has been awarded to trace my address.

 

BUT, if i dispute the sum, then they wont fully support me, and thus, this might spoil my chances?

 

The extra was just under £200, which is nothing on a 3k judgement, so, am i best paying up and getting there support, or dispute the sum for a defence and not get there support.

 

I will pay in full, and they have agreed to supply me and the courts with a written support statement.

 

thanks

[ploddertom]

The original claim will have been listed as for £XXX + Judgment costs of £YYY making a total listed on the original CCJ of £ZZZZ. The Set Aside can only be allowed on this. Don't forget that if you win the Claim goes back to the beginning.

 

There is nothing wrong with claiming your defence as not at the address where the documents were listed as long as you qualify why. Also make offer of payment in whole or by affordable sums.

 

For my own purposes I was in a similar situation and not only overturned the CCJ that was awarded, not only that but because the Claimant had been hasty and got their figures wrong all the Court costs were disallowed so ended up only paying what I originally owed and not a penny more.

 

PT

[dinkdink]

I think in my case all has been done by the book, they are Solicitors, and they have outlined there defence to me if i go for a set-aside without there support, and i think its pretty tight.

 

Only think i could get them on, is last know address, as they used the wrong one, but, from what i have been told, its not important, as they found it.

 

I must add, advice here is great, better than legal aid helpline.

 

They told me to give up, and deal with it, in slightly different words.

 

I moved out the address 3 months before hand, and it was a term time address as i was a student. The address they had, i was still contactable on, and if they didnt bother trying to find a different address all would have been fine, as i would have got the paperwork. The address they had, was also where i was registered on the electoral roll at time of judgement and submission.

 

So really its

 

1) Defend sums and address, and offer to pay all but the fees to find me, but i dont get a supporting letter this way

 

or

 

2) Defend address only and pay in full, and get a supporting letter.

 

The sums for finding me was just over £100, so its not a great sum to loose if a defence is stronger with there support.

 

Thanks again, support here is truly great.

[ploddertom]

Remember that if you do go for Set Aside you have the best defence person on that particular day - the District Judge. As a Litigant in Person you are allowed some dispensation and where things are not clear he should guide you through. Personally I would go for it, as said previuosly if they ahve added these costs on afterwards then that is their problem. Don't forget as well that if you do win then all HCEO action must cease and all charges raised on that score are scrapped. The Claimant then faces an Abortive Fee payment from the HCEO - are they going to expect you to pay that as well. If they had taken the time originally to serve the documents on you properly none of this would ever have arisen.

 

PT

[2ltr16valve]

Is this Bryan Carters by any chance ?

[bustthematrix]

Remember that if you do go for Set Aside you have the best defence person on that particular day - the District Judge. As a Litigant in Person you are allowed some dispensation and where things are not clear he should guide you through. Personally I would go for it, as said previuosly if they ahve added these costs on afterwards then that is their problem. Don't forget as well that if you do win then all HCEO action must cease and all charges raised on that score are scrapped. The Claimant then faces an Abortive Fee payment from the HCEO - are they going to expect you to pay that as well. If they had taken the time originally to serve the documents on you properly none of this would ever have arisen.

 

PT

This makes sense DD.

If you lose, what you'd have to pay won't be much more than what you'd pay now (unless you can tell us otherwise).

 

It's therefore worth a try as you may get more out of it!

[dinkdink]

If you go for a setaside without permission, then, do you stand to gain extra costs from the setaside hearing?

 

I am not 100% too bothered with gaining or loosing cash, as its negligable, but i am 100% bothered with having a C.C.J as its going to put a massive downer on my carear. Its so bad, i may loose my job, and not be able to apply within the industry (banking).

 

So, if its stronger to just accept, pay, get their support, and apply for the setaside, then to me its the best way to go about things.

 

CCJ is going to cost far more in the long run, as i may loose my job, mortgage issues, bank issues, loan issues, just general credit issues.

 

I really am at a loss on what to do?

 

I just dont know which direction to go down.

 

Its not Bryan Carters either.

 

thanks for all the response, its been great.

[ploddertom]

If you apply for Set Aside you can only apply to have the CCJ and its respective amount Set Aside - no extras. Your application has to be served on the Court & Claimant and it is up to them whether to oppose it or not. Your Claimant cannot make it a pre-condition that you pay £XX extra because they agree with your application. They could however submit a "defence" to your application saying that they agree with it but they want £YY as out of pocket expenses for example - you may agree or disagree on this but it is then up to the Judge to decide.

 

The ball is in your Court as it is for you to decide. Dither and they could actually apply to have the Order enforced and if it is in excess of £600 that usually means employing a High Court Enforcement Officer and their fees are horrendous.

 

If you apply and win then your CCJ is automatically wiped although it can take a few weeks for it to filter through to the CRA's. The longr you leave it then the harder it may be as you do have to explain why it may have taken you so long particularly when you now know about it.

 

PT

[dinkdink]

I am after some more help =)

 

I have decided the best thing to do is;

 

Pay the claimant in full, get there support, and request a setaside

 

reason;

 

Had i have received the court papers, this is the action i would have taken, and therefore, this seems the best thing to do now.

 

-----

 

So, what i need help with, What should i put in my defence statement?

 

My only concern is that, they do state, a setaside is not usually granted if you did not receive the papers?

 

But, the address they used was a term address as i was a student, and they found this address via a linked address in late June, which is a common and well known time that student return home.

 

My electoral roll address has always been my home address, always and still contactable there, and its the address the claimant had before they decided to try find me else where. The claimant had my email address too, so they could have contacted me on that to request my new or an address i was at.

 

Any help on a defence would be great,

 

or if you think i am making a massive mistake paying then in full first, without disputing the sum, please say.

 

Thanks for all the help, its been great, and just hope this nighmare will be over soon.

[ploddertom]

I am after some more help =)

 

I have decided the best thing to do is;

 

Pay the claimant in full, get there support, - not necessary and request a setaside

 

reason;

 

Had i have received the court papers, this is the action i would have taken, and therefore, this seems the best thing to do now.

 

-----

 

So, what i need help with, What should i put in my defence statement?

 

My only concern is that, they do state, a setaside is not usually granted if you did not receive the papers? - who states this , the Claimant, if so they are wrong + you have other factors also, have a read of this:

Debt Factsheets - How to set aside a Judgment in the County Court

 

But, the address they used was a term address as i was a student, and they found this address via a linked address in late June, which is a common and well known time that student return home. - you are answering your own questions

 

My electoral roll address has always been my home address, always and still contactable there, and its the address the claimant had before they decided to try find me else where. The claimant had my email address too, so they could have contacted me on that to request my new or an address i was at. - as above

 

Any help on a defence would be great,

 

or if you think i am making a massive mistake paying then in full first, without disputing the sum, please say. - goes in your favour

 

Thanks for all the help, its been great, and just hope this nighmare will be over soon.

 

At present if you just pay you would have to pay £15 to get a Certificate to prove the debt Satisfied, the CCJ still stays. Winning Set Aside removes the CCJ in its entireity albeit may take a couple of months after the Hearing.

 

PT

[dinkdink]

Well my idea was to pay, get a letter of support from the claimant, and apply for the set-aside.

 

Otherwise, the claimant, who are solicitors, will contest the setaside, and it worries my as that means i will be up against solicitors.

 

So, i was thinking to pay in full, get there support and then claim for a setaside.

 

I need the CCJ removing to i can progress, well, get into my career as a CCJ will and has stopped me.

 

I am getting worried time is passing, and i really dont know what to do.

 

All i know is, i want rid of the ccj and i know had i have received the papers, i would have paid it in full to avoid all this.

 

-----

 

I have just had a letter from the courts with the breakdown of the judgement

 

2037 was the sum and 190 was the court fees.

 

My origional debt was 1840, in mid 2008. so it would seem they did not charge to locate me, so now i have no defence to origional sums as i did owe the money.

 

Now i have to defend why i didnt get them, what evidence should i be putting forward to prove i was not there, and they could have used a better address which was the one they already had?

 

At this point, with no defence for the sum, should i pay in full and get a letter of support from claimant and apply for the set-aside?

 

Thanks

Edited May 24, 2010 by dinkdink

[ploddertom]

Well my idea was to pay, get a letter of support from the claimant, and apply for the set-aside.

 

Otherwise, the claimant, who are solicitors, will contest the setaside, and it worries my as that means i will be up against solicitors. If that is their conditions then they are blackmailing you - which is illegal. If it goes to Court you will have the best Public Defender on the day - the judge - as a Litigant in person he must allow you some leeway and correct where necessary.

 

So, i was thinking to pay in full, get there support and then claim for a setaside. What's to say they give the letter, you apply and they then retract.

I need the CCJ removing to i can progress, well, get into my career as a CCJ will and has stopped me. Set Aside is the only way forward.

 

I am getting worried time is passing, and i really dont know what to do.

 

The longer you dither the harder it will be for you to say you have only found out about this.

All i know is, i want rid of the ccj and i know had i have received the papers, i would have paid it in full to avoid all this.

 

-----

 

I have just had a letter from the courts with the breakdown of the judgement

 

2037 was the sum and 190 was the court fees.

 

My origional debt was 1840, in mid 2008. so it would seem they did not charge to locate me, so now i have no defence to origional sums as i did owe the money.

 

Now i have to defend why i didnt get them, what evidence should i be putting forward to prove i was not there, and they could have used a better address which was the one they already had? You have already answered your own questions previously

 

At this point, with no defence for the sum, - it's not the sum you are trying to defend but the manner or lack of how the original docs were served - should i pay in full and get a letter of support from claimant and apply for the set-aside?

 

Thanks

 

PT

[dinkdink]

Great reply thanks.

 

Only thing to add.

 

I cant agree to pay, and then retract, as they will only write the letter upon the actual payment been made.

 

I didnt see it as backmail, but, i guess it is.

 

I agree, i need to get this sent a.s.a.p, its been 6 weeks now since i first found out, and i am guessing this is going to go against me. Just the process is so complicated on whats the best thing to do.

[Emily12]

Your defense is that

1. Had you been served properly you would have admitted liability in accordance with rule 14.4 and asked for time to pay under rule 14.9 or alternatively you might have paid in full before the time limit for default judgement had expired.

2. Default Judgement in those circumstances would not be permitted. There would have been a different type of judgement but not this one that you are asking to have removed.

3. The claimant had reason to believe that you were not at the address on the claim form and did not take reasonable steps to ascertain your current address for service.

 

With or without the claimant's consent you are likely to succeed in getting it set aside.

 

You would still end up with a judgement ultimately if the claimant applied for one, but not this particular one, which would be set aside.

To avoid the judgement being applied for you would ask your claimant to file a Notice of Discontinuance in relation to the claim on the basis that you satisfy it in full.

 

On no account should you pay any money without the agreement in writing that the Notice of Discontinuance will be filed within say 7 or 14 days of the receipt of the money. As they are solicitors they would be bound to adhere to this - but do make sure that you have that assurance in writing.

 

If you write to the claimant telling them what you intend to do they will agree (I imagine) to file Notice of Discontinuance without you having to bother setting aside as long as you pay them.

 

Getting it all off your credit file is another matter. But at least it will show paid in full and you can put on a correction that it was discontinued.

[dinkdink]

Hi

 

Thanks for all that, very helpful.

 

I am paying and then applying for the setaside.

 

This notice of Discontinuance, should i reqest one as soon as i make the payment or after i apply for the setaside?

 

Can a notice of Discontinuance be used to remove a judgement, or is it only useful after a setaside has been made?

 

Thanks again.

[Emily12]

Don't pay yet. Write to the claimant solicitor asking them to agree to file a notice of discontinuance within seven days of payment being received.

 

If they agree to do that (in writing) then you make your payment .

 

There is then no need to apply to set aside. The proceedings are terminated. It is still likely to show up on a credit check whichever way you go about this as proceedings have been started.

[dinkdink]

If i get a set-aside i can apply to the CRA's to have the judgement removed, is that correct?

 

A notice of discontinuance wont allow me to contact CRA's and request its removal will it?

 

Thanks again

[ploddertom]

 

There is then no need to apply to set aside. The proceedings are terminated. It is still likely to show up on a credit check whichever way you go about this as proceedings have been started.

 

 

Not correct - if you apply for Set Aside and win the case goes back to the beginning and the CCJ is wiped. The Court notifies Registry Trust who in turn notify the CRA's. It can take a little while for this to happen as it is not instantaneous. By going the route you suggest the CCJ will still be there for the next 6 years - albeit possibly marked as Satisfied.

 

PT

[bustthematrix]

Be careful DD.

 

It is possible that the CCj can be completely removed from your file on the basis of a successful set aside, as long as the Claimant does not then re-apply for Judgement.

 

Therefore the set-aside is best done by the Claimant.

 

It seems to me that for the sake of your work and future career, cleaning up your credit file is an immediate priority. The key is to work with them to get the best result for you - NOW. One of the best ways to achieve this is to have the money ready to pay but don't pay anything until the Claimant/Solicitor has confirmed exactly what they will do in regards to the existing judgement AND your credit file.

 

Ideally, you want them to request an Order from the Court to SET ASIDE and CANCEL the REGISTRATION of the Judgement, and then pay them an agreed sum OR, getthem to confirm that they WILL do this in writing within x days of receiving payment from you.

 

I think this is the best outcome for you in this scenario as it won't take too much time and can be done by the Claimant for no cost with just a letter to the Court (so I'm led to believe as it's happened to someone I know).

 

When this little episode is then sorted, you can look at ways to obtain some degree of damages, a remedy etc going forward.

[dinkdink]

Hi

 

This is what I am doing, please tell me if i have any part wrong

 

1) An agreement has been made, if i pay in full, they will support my set-aside application, and bring no further action.

 

2) Upon receipt of a letter of support for the setaside from the claimant, i will file my setaside request.

 

3) If the setaside is granted, I would have already paid the judgement and they have agreed no futher action will be taken.

 

Result i hope this will lead to is removal of CCJ from CRA.

 

Its interesting that you say the set-aside can be done by the claimant, if the claimant does it, does this futher my chance of success?

 

Claimant has agreed to support the application so far, and has said so in writing. Can they do anything more do influence the outcome? Is there anything specific they can say to support me further?

 

If i can get something specific i want them to do, then i can put this to the claimant for there consideration, as every post brings a new method or more advice, which is great.

 

My only 2 goals are to pay, which is a sure, and the removal of the judgement, which seems 50/50.

 

Thanks again for all the help and time.

[bustthematrix]

First of all, you can do what you've outlined below. However you will not be in as strong a position, in my view. See my comments below.

 

Hi

 

This is what I am doing, please tell me if i have any part wrong

 

1) An agreement has been made, if i pay in full, they will support my set-aside application, and bring no further action.

What this means is, they won't contest it and will let the Court set it aside. You not only want Set Aside, you want the Registration of the Judgement Cancelled or Unwound.

 

2) Upon receipt of a letter of support for the setaside from the claimant, I will file my setaside request.

You can do this but I believe it will cost you some money. If they do it, the Court advised that it's free to them and a letter from them would suffice. You can mention this to them and hope they act on it. Someone I know has had this happen.

 

3) If the setaside is granted, I would have already paid the judgement and they have agreed no futher action will be taken.

A lot of ifs. As they are solicitors though, they have to do what they've said they will do. BUT remember that their client interest is no.1 so if the client changes their mind...

 

Result i hope this will lead to is removal of CCJ from CRA.

Don't hope. Make sure by getting agreement in writing from the people with the power to ensure that it happens. It's clear that all they want is their money. Don't be afraid to ask them to remove it FIRST, with your written guarantee to pay them once done. Or if they doubt you go 50:50. It's only negotiation. The CCJ removal takes some time to happen and once they have their dosh, it will cease to become a priority for them.

 

Its interesting that you say the set-aside can be done by the claimant, if the claimant does it, does this futher my chance of success?

If the Claimant does it, IT IS Success! They will ask the Court to Set Aside the Judgement and Cancel the Regisration of the Judgement on the Court Register. Make sure YOU request that from them though as a condition of full payment.

 

Claimant has agreed to support the application so far, and has said so in writing. Can they do anything more do influence the outcome? Yes, but agreeing to support your application is not as good as them applying to remove it themselves. THEY registered the judgement, let them remove it! Point out it's cheaper and faster for them to apply or simply write to the court rather than you. I think it will cost you at least £75 if I'm not mistaken.

 

Is there anything specific they can say to support me further? As above

 

If i can get something specific i want them to do, then i can put this to the claimant for there consideration, as every post brings a new method or more advice, which is great. As above

 

My only 2 goals are to pay, which is a sure, and the removal of the judgement, which seems 50/50. Exactly. To further motivate them to do the work of unwinding the judgement, you can even show proof of funds to settle in full. You may want to agree a balance to pay as well so they know how serious you are to pay them.

 

Thanks again for all the help and time.

 

Oh, if I've helped, please give us a nod below.