Default Judgement entered due to late return of AoS - whose to blame what to do

[scrible]

Hi again. I need to submit this draft defence by tomorrow (Tuesday). Re reading the threads that donkey pointed to I'm begining to have doubts that the draft may not be sufficient. Do I need to included reference to CPR for example?

 

Thanks

 

Scrible

[DonkeyB]

What you have put here is an application for a set aside – which you already have – not a defence to the main claim.

[scrible]

Hi donkey, thanks so much for your response. This is the confusing part. I applied for set aside because my AOS was outside of the prescribed time frame. I completed form N244 and received, in response to the set aside request, the two following documents :-

 

1 General Form of Judgement or Order - (stating) The defendant shall file at Court and serve on the claimant a draft defence setting out in full why she disputes the claim 14 days before the hearing.

 

and

 

2 Notice of Hearing of Application - (stating) The hearing of the defendat's application to set aside judgement will take place at (time/date and place).

 

Both documents arriving in the same envelope together.

 

My confusion here is am I writing a draft defence for the whole case or just for the set aside?

 

Thanks in anticipation

 

Scrible

[DonkeyB]

That’s odd. But, in that case, the answer is – both. Separately. Do exactly as the orders ask.

 

Looks like it may all get heard in one, and the judge wants to be sure there’s a reasonable chance of a defence being successful (rather than just granting a set aside because the papers were late).

 

So yes, the set aside arguments are needed, but you also have to outline your defence to the main claim, separately. Within this draft defence you MUST make it clear that it is only a draft and that you will require the use of CPR if and when the set aside is fully granted to fully particularise your case.

[AndyOrch]

The whole case and the set a side same difference.The hearing will determine 2 points

a set a side and if successfully your submission defence will proceed.

 

Regards

 

Andy

[DonkeyB]

Your set aside request is based on not receiving the papers in time, and the fact that you have a reasonable chance of defending.

 

Your defence is based on the fact that you have requested and not received a valid CCA, and that the OC has admitted that no such document exists. Remember, the set aside takes you back only to the point where the original claim was issued – you will still have to enter a full defence, but you will have the benefit of full CPR. This is probably when Restons will recreate a document and start trying to (wrongly) use the Carey judgment against you, but that can be batted away.

[scrible]

Thanks for coming to my aid! So bearing in mind the threads I have read, should I keep the two very simple as donkey suggests or do I elaborate at this stage. This is what I'm really struggling with.

 

Thanks again

 

Scrible

[DonkeyB]

You need to pull all the facts together re dates etc when you did the CCA requests, the responses you got, etc.

 

You are correct not to deny a debt exists, but you must be careful to not appear as evading a debt. Are there charges etc on the account? Was PPI added? You can defend better if you can raise these issues. Can you provide lots more detail about this?

[AndyOrch]

My confusion here is am I writing a draft defence for the whole case or just for the set aside?

Because the DJ as made the order that both will be dealt with at the same hearing, you can encompass both into one defence.

Reasons upon which your defence relies upon should be substantiated as per Donkeys advice and contain factual substance.The content on Set a side is relatively straight forward ie your reasons for not following the process on time.get over that hurdle and then proceed into your reasons for why the claim can and should be defended.

Regards

Andy

 

[scrible]

Once again many thanks for your time and effort.

 

I have redrafted my letter in order to incorporate both the set aside and the draft defence to the Claim. Would you be kind enough to review it and correct if required?

 

DRAFT DEFENCE

 

date 6th November 2010

 

 

Dispute of Claim,

 

The original claim was received by me on Saturday 18th September 2010 and Judgement for the claimant was granted on Sunday 19th September 2010. The claimant had served the Claim at my old address despite having been advised of my new address (attachment 1)and I believe this along with the fact that my post was on redirect delayed my receiving of the Claim. I have available the envelope in which the Claim arrived which bears a barcode presumably confirming the date of posting redirection etc if required..

 

I requested that the case be set aside in order for me to properley defend myself. Clearly given the lateness in receiving the Claim and the fact that judgement was entered against me 1 day after I received the Claim, despite having sent the Acknowledgement of service back the day I received the claim, I was unable to defend.

 

I therefore request that set aside is granted in order for me to defend this claim and my defence will consist of the following draft points:-

 

 

I have no reollection of when, where or how this account was opened and I have no recollection of ever having received an agreement nor what the opening credit was.However, I did utilise a GM account facility and I made regular monthly payments as required.

 

Following a change in my financial circumstances and subsequent conversations with various advice organisations I was advised to request details regarding all my finance accounts (overdrafts, mortgage, loans, credit cards etc) (attachment2).

 

With regard to HFC, I requested a copy of my original agreement along with the terms and conditions in order for me to assess my situation.

HFC have not been able to supply a valid CCA as per my request and instead supplied a blank copy of an application form.I therefore ceased payments inaccordance with the advice I received from various consumer organisations. I have made the same request on many occasions and have received nothing to date.

 

I have subsequently advised HFC and Restons Solicitors that upon receipt of a (true) copy of the original signed agreement I will endeavour to restart payments within my budget as I have with other creditors who have provided copies of the original signed agreements.

 

Given that set aside is granted I wish to challege Restons under CPR to divulge to me and the court the documents upon which they are relying and to which I have no memory nor true copy of.

 

 

Thankyou

 

Scrible

[scrible]

hi

 

I really appreciate all your help and guidance in this matter but I am beginning to panic. My replies need to be submitted to the court tomorrow .

Please could you cast your eye over my reworked defense and let me have your feedback

 

Burning the midnight oil tonight I think.

 

thanks in anticipation

 

Scrible

[scrible]

ok well the draft defence and the set aside request have gone in today. Restons have in the meantime obtained an Iterim Carging Oreder over my property for the amount owed, and the cort official indicated that all 3 matters will be reviewed at the hearing on the 25th November. So I guess I just have to wait. In the meantime I will endeavour to put a better and more specific case together in the event that set aside is granted and the charging order thrown out. Once again thanks to everyone for their assistance.

 

cheers

scrible.

[scrible]

hi

I have this morning received from Restons a 'reconstituted credit agreement'. It is basically a blank 'priority application form' with my name and address at the time they say I opened the account hand written on the form. There are no employment details or any other sections of the form completed and none of the signature boxes have been filled in

what is this??

[scrible]

Any help appreciated. Is a reconstituted agreement acceptable in court?

[DonkeyB]

No.

 

But the judge lottery could be an issue... get your ducks in a row on Carey v HSBC.

[scrible]

Thanks donkey. Will do. Go to court on the 23rd November.

[Bigdebtor]

Scrible

 

Not sure about the wisdom of posting up your defence document as you did above? Restons can simply check who they are up against on the date you have kindly given them. It might be worth removing that post if not already too late? I think it's always better to not mention specifics - OC, DCA, exact dates and amounts owed/claimed etc. You don't want to make their jobs easier for them - especially a nasty lot like Restons! You can always pm exact data to those who can help if it's needed.

 

Good luck next week!

 

BD

[scrible]

Can somebody please clarify for me if it is normal to receive 2 DN's for one account.

[Bigdebtor]

Did you "satisfy" the first DN? If not, did they go ahead and issue a TN after the first DN?

 

We can give more specific answers if you post up both DN's and any TN - with all traceable info - exact amounts, dates etc. omitted.

 

BD

[scrible]

Quick answer No 1st was not satisfied, there then followed a second which was not satisfied. I cannot find any TN at the moment. Will scan asap.

 

thanks

Scribble

[scrible]

Right sorry. Struggling with scanning and uploading but as usual finally got there, at leat I think I have!!

 

First the two default notices:-

 

DN1.pdf

DN1 2.pdf

DN2.pdf

DN2 2.pdf

 

I hope these display correctly.

 

Furthermore I do not have a termination letter, howeverI do have a letter stating 'Card Revoked' dated 3 April 2009. I will upload that seperatley due to only being able to upload 5 attachments at any one time.

 

cheers

Scrible

[scrible]

Now this letter states Card Revoked, along with GMs' reasons for not providing a copy of the original agreement. Not sure how this will stand in court.

 

GM letter.pdf

GM letter2.pdf

Edited November 18, 2010 by scrible
duplicate

[scrible]

Finally I have the agreement(priority application form) along with the terms & conditions sent by Restons just the other day!! According to Restons this is a reconstituted agreement with only my name and address entered onto it. They say that these 2 documents plus recent statements of account along with their Statement of costs are the documents 'upon which they will rely'

 

priority app form.pdf

terms & conditions.pdf

 

 

Hope somebody can give me some pointers.

 

thanks

 

scrible

Edited November 18, 2010 by scrible
duplicate

[Bigdebtor]

Scrible

 

You need to look at some other threads (including the one linked below and others incluing the now-closed Invalid Default Notices, Consumer Credit Act Agreements etc. ) which are dealing with this type of issue and ask for help from people like diddydicky, m2ae, PriorityOne etc. who are all very well versed in all of this.

 

The two DN's look quite different - strange - and they say "may" on page 1 and "will" on page 2 for further action - so confusing at very least.

 

Can you confirm the dates on the two DN's - to see if the 14 days required were observed?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?173201-why-you-shouldnt-use-section-77-78-CCA-1974-if-you-want-the-signed-agreement&p=3193881&viewfull=1#post3193881

[DonkeyB]

The second DN is not really a DN as it is asking for the whole amount, not simply arrears. Bit naughty that.