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

[scrible]

Hi, it was suggested that I start this post off as a new topic. I have searched for but have not found, though I'm sure it will be here, advice regarding a County Court Claim form that I received after the 5 + 14 day. The dates concerned were the Issue date 27th August 2010 and date of receipt 18th September. I used moneyclaim to send an acknowledgement of service on the day I received the claim ie the 18th September. I called the court office in Northampton who stated that as my AoS was received after 19 days judgement had been entered against me and that it was an issue for me and the Post Office, perhaps true but not very helpful. My post is on redirect by the way but I'm led to believe that this should not cause a significant delay.

 

I am about to prepare a form N244 but require assistance from those more experienced with regard to my response. Is it sufficient just to state on the N244 that the claim form arrived late? I'm sure many people reply late either for many and various reasons but it does seem a rather lame excuse. I'm happy to add particulars of my defense as well but am unsure whether or not it's necessary at this stage. I have the envelope in which it arrived but there appears to be nothing on it that would indicate a date.

 

Any assistance would be gratefully appreciated.

 

Scrible

[Bigdebtor]

There will be a bar code - which probably ahs the date hidden in it if it becomes a real issue. As I said on the other thread redirection should only add 1 day delay to the normal postal time - if it seems much longer then you should ask Royal Mail to explain - perhaps they can decipher the bar code and confirm actual date of posting?

 

Did they not know of your current address in any case? It seems to be a common ploy for some OC's and DCA's to deliberately send cpourt papers to an old address and get judgement by default. Which OC/DCA is it?

 

Good luck

 

BD

[scrible]

BD - thanks , actually there is a bar code on the letter. Its a brown letter with a very faint light red bar code on the front. I would have missed it ordinarily. Regarding the new address yes they are aware of it but always send to my old address, it seems to have worked in their favour upto now. Its HFC/Restons.

cheers

Scrible

[Bigdebtor]

Can you prove they knew your current address - any correspondence actually set to it?

 

Restons are well known on CAG - and have had a few bloody noses too from memory!

 

BD

[scrible]

I have dealt with Restons before and they will deny it. Clerical error or something they will say. HFC are no better.

[Bigdebtor]

But can you prove they knew - by showing any correspondence sent by them to your new address?

 

BD

[scrible]

No, they have never used my new address. Simples!

[scrible]

Any advice please, I'm really quite stuck.

[scrible]

Anybody?? I need need to complete my N224 and have no idea what to put. Is there a link perhaps?

Thanks in anticipation

[scrible]

Anybody?? I need need to complete my N224 and have no idea what to put. Is there a link perhaps?

Thanks in anticipation

[AndyOrch]

Hi Scrible

 

You simply state that you wish to make application to set a side the judgment dated xxxxxx.The summons dated xxxxxx was AoS with an intention to defend dated xxxxx.The Claimant even though informed continually is insistent on using a previous address.

Had the Claimant posted the summons to the correct address as informed I would have received the claim on time and defended such claim.

 

Regards

 

Andy

 

PS make application without an hearing

[scrible]

sorry I posted twice

thanks Andy very grateful

so its fine just to ask for a set aside due to the delay in the post?

scrible

[AndyOrch]

I didn't say that Scribe I told you what reason to use.

 

Andy

[Bigdebtor]

I agree with Andy - better to claim they ignored your change of address - uisng his words above.

 

BD

[scrible]

sorry Andy - misread your post - end of a bad day

BD - thanks

 

really appreciate everyone's help and support - makes getting through this situation a whole lot easier

[Bigdebtor]

No problem - but this just shows how important it is to keep your wits about you at all times - and choose your words carefully. One slip and they've won. If in any doubt, run your exact words past us on your thread - but missing out anything that could identify you - no point giving them extra ammo!

 

Good luck!

 

BD-

[scrible]

Thanks guys . I have just sent N244 off today using Andys' form of wording. I will keep you posted re developments.

Scrible

[scrible]

Hi all.

It's been a while but I finally received a judgement regarding the set aside request. It states that I need to file at Court and serve on the Claimant a draft defence setting out in full why I dispute the claim..... Surely this is what I did with my N244 in the first place, or are they after more particulars/ evidence?

[spamheed]

The N244 was simply to have the judgement set aside, this does not act as or replace a formal defence, the setting aside of the judgement simply means it's as if the judgement were never ordered. you need to now to defend against their claim.

 

I am not an expert in this area, so please accept my help as general guidance rather than gospel

 

Look at their Particulars of their claim, do they fully disclose a reason and legal right to bring a claim against you?

 

Have they proven that they have a lawful assignment of your account?

Have theym proven that the amount they are claiming is correct

are there any charges or PPI included in the claim amount?

[DonkeyB]

Can you post the particulars of claim?

[scrible]

I hope this is what you mean :-

 

The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 20/09/1994 in the sum of XXXX inclusive of interest to the date of this summons at 19.8% per annum from to.

 

PARTICULARS a/c no xxxxxxxx

DATE 11/08/2010

ITEM Default Balance

VALUE xxxxxxxx

Post Refrl Cr NIL

 

26/08/2010 Interest xxxxx

TOTAL xxxxxx

 

Together with:-

interest pursuat to contract at the rate of 643.68 pence per day to the date of Judgement or sooner payment.

 

Thanks for your help donkey.

 

ps HFC have confirmed that they are unable to supply me with a copy of their legal agreement.

 

scrible

[DonkeyB]

“The overdue balance”.

 

Are they claiming the whole amount?

 

You are now effectively starting from scratch.

 

Time to use CPR. Have a look here...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

Get yourself up to speed on the use of CPR, then tell us a bit more about the history of the account as suggested, ie. did you receive default notices, when was it defaulted, how long since you made a payment, and previous correspondence etc.

[scrible]

Thanks donkey, I have read the two threads but need a little time to digest and perhaps re read. My next hurdle is to supply the judge with a draft defence, setting out why I dispute the claim, 14 days prior to a hearing to determine if set aside can be obtained. Is this normal as I understood that the completion of the N244 was sufficient to grant set aside or not as the case maybe?

 

tia

scrible

[DonkeyB]

By asking for evidence, that effectively is a set aside, I would aver.

[scrible]

Hi guys

have read the cpr threads etc and am today trying to pull a defence together. For your info I did receive a default notice dated 11.08.2009 this would appear from what I can tell to be in order apart from how they have arrived at the either the credit limit or how the credit limit has been exceeded. The text of my draft is as follows

'I do not recall when or where I opened this GM credit card account. I do not recall receiving an agreement or what the opening credit limit was

However, I did utilise the 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)

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

HFC/Restons/GM Card etc are unable to provide this and I therefore ceased payments inaccordance with the advice I received from various consumer organisations

Subsequently they(HFC/Restons/GM) have been advised 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. Todate they have been unable to provide the document

Therefore I request that the judgement be setaside until such time that a true copy of original signed agreement is produced.'

 

Can someone please review this - its my first draft and I need to know if I am heading in the right direction or not.

Edited November 7, 2010 by scrible