advice needed for a set-aside

[acerbic]

Hi all,

I've been directed here by Cerberus. I need to know the easiest and cheapest way to get my CCJ from 2005 set aside. The reason for set aside is that I emigrated in 2004. However, the CCJ is for my old UK address and is dated 2005. I never received any documents, (I was not in the country), therefore wasn't able to defend the claim, (which I would have done).

I have recently returned to the UK and found that this CCJ is on my file.

 

It should be straight-forward, but I need to know which form to use at the court.

 

I should add that the original debt would now be statute barred, but I just want to get this CCJ cleared up, as it never should have been granted.

Many thanks

[kbob]

Sub'ing - I'll be in the same boat soon.

[acerbic]

Ok, so I've just found out that I won't have to pay the fee, (it seems I am on a low income according to the National Debtline). I just need to know how to word the N244 so that I get the result I need. Do I simply say, (with proof), that I was resident in a foreign country at the time of the court papers being sent??

 

I need to get this done so that I have peace of mind as I don't want a situation where I am arguing the toss with some Bailliff at my front door because he has an enforcement order due to the CCJ, Bona Fide or otherwise.

 

Can someone please help?

 

In the meantime, I'll keep searching the CAG site for answers.

[The Mould]

I think you want to request that the Court makes an Order to set aside under CPR 27.11 (double check the CPR).

 

Serve your proof attached marked Exhibited hereto (i.e Exhibit TM1) and so on.

 

If you cannot fit all of the information that you will be relying on in para 10 of page 2 of your Application notice, then serve a witness statement attached with all the relevant details - In the (name of Court), Claim no., Claimant's name (including Ref), Defendant's name etc,etc.

 

Up date when you have some info on your case please.

 

Kind Regards

 

The Mould

[acerbic]

Hi Mould,

I've had a look at CPR 27.11, but I can't seem to find the part applicable to my circumstances. Am I being a bit thick.

 

This was a default judgement made in spring 2005. At that I was living in Europe, having emigrated in summer 2004. I didn't give my creditor a forwarding address, but have been told by the site team that this is not a legal requirement. They served court papers on my last address, (which incidentally changed its name after we sold it). I'm just looking for the definitve solution as to what goes on the N244 so that my claim is set aside and it goes back to square one. That way I'll be able to put in a defence with a good chance of succeeding.

 

I can't see what part of the CPR will apply to me. Also the forum talks about the time taken to submit an N244 , saying it should be done in good time. My request for set aside will be five years plus after the judgement.

So I'll need a pretty strong excuse for that.

 

I've just spoken to the court, it seems that I have to get the N244 done straight away. There is a charging order on this now.

 

this is what I'm going to put for Q3

What order are you asking the court to make and why?

 

I am asking the court to set aside the above judgement as the documents were sent to an old address, therefore I never received those documents. I was not resident in the UK at the time of the judgement or subsequent charging order. Had I have been aware of the claim made against me, I would have put in a defence to this claim which would have had a very good chance of success.

 

Do I need to add anything further?

 

Q9 says 'Who should be served with this application?

I assume it will be the original claimant? correct?

Q10 'What information will you be relying on, in support of your application?'

 

I take it that there I attach copies of proof of residency in the country where I was living, i.e tax docs, health cards etc etc.

 

Would it be better if I can show documents for the same time as the original CCJ, i.e spring 2005, shall I get a utility bill from then to show beyond doubt that I wasn't in the UK?

 

Need to get this done asap

 

Many thanks

 

Thanks for your help so far, thanks for looking.

Edited October 21, 2010 by cerberusalert

[cerberusalert]

I've just pasted your other post in the Legal forum into your post above.

[IdaInFife]

http://www.consumeractiongroup.co.uk/forum/showthread.php?268786

 

this link should help especially the links within post number 2

[acerbic]

Thanks Ida, it seems that I have a good chance of success. I just need to know how to word the N244.

 

Any thoughts?

[IdaInFife]

I ain't got a clue for english issues but will call for help

 

Ida x

[gh2008]

Is the property still in your name? if not, how is there a charging order on it??

If it *is* in your name, how did you not receive the documents - surely you would have had some system in place for forwarding important docs if you still owned the property??

 

Just trying to get it straight in my head before I offer my advice.

and IMHO these may well be the questions asked in the DJ's head as well

[foolishgirl]

I should add that the original debt would now be statute barred[/QUOTE]

 

When did you make the last payment i.e. when did it become SB? If this date is recent & you are relying on this for a defence, even supposing you get a SA, you may have a hard job to prove a case for non-enforcement.

 

Before you go firing off apps for the SA etc. you need to know you have a good defence to the original claim.

 

Have you asked the court for a copy of the original POC?

 

Have you got a copy of the agreement, any DNs issued etc?

 

Why do you feel it should be set aside, other than you weren't in the UK to receive the paperwork?

 

 

[acerbic]

The property was sold in 2004, and then we moved abroad leaving no assets here in the UK. So the house was no longer in my name. I have been told by the court that there is a charging order, so I presume it is on the old house, which is now owned by someone else. Last made a payment in Aug 2004, but they obtained a CCJ by default in spring 2005. As I didn't receive any documents, I wasn't able to form a defence. I would have gone down several routes for a defence, i.e default notice, lack of signed agreement etc etc. Now a DCA has bought the debt, but I haven't received any NOA's.

 

All I am looking to do is get the debt back to square one so I can have a fair crack of the whip.

 

I have read on the insolvency website that I fall into several categories listed for having a judgement set aside, but I like to know which one of those categories carries the most weight with a judge. I could do a SAR to the original creditor, but then I would have to give my current address, (which they don't have at the moment). If I can get this set aside, I 'd have no problem with them having it, and if the debt is enforceable, then so be it.

 

I didn't know that I could request the original POC from the court. I will do that on monday. Would the POC have a copy of the documents they relied on?

 

Many thanks

[gh2008]

Well, they can't have a CO on a property that had already been sold .......

 

Your stumbling block may be that you didn't inform the creditor of your new address.

 

Get as much info as possible and then it will be easier to help

[acerbic]

I didn't think I had a legal obligation to tell them....

Re the info, should I get the POC from the court first?

I don't want to SAR just yet, do I ?

[foolishgirl]

Well, they can't have a CO on a property that had already been sold

 

Wonder if the present owner knows? Seems as though a lot of people haven't done their homework properly here - claimant, conveyancing sol etc. Not difficult to do a LR search is it?!!

Hope the new owners don't want to sell soon, they're in for a shock.

 

I would have gone down several routes for a defence, i.e default notice, lack of signed agreement etc etc. Now a DCA has bought the debt, but I haven't received any NOA's.

 

Well you wouldn't receive a NOA if they haven't got your new address, would you?!

 

That said, if a CCJ has been issued the claimant cannot sell the debt on without applying to the the court for permission. Your legal obligation is to pay the Claimant & no-one else uless the court tells you otherwise.

 

The other man trap you may have to jump is the compilation of a defence. There is no necessity for the claimant or OC to provide a copy of the agreement under S77/78 once a CCJ has been obtained & after so long, the OC may be unable to provide any copies of DNs etc. Your only option at the moment would be to SAR the OC with a specific request for a copy of the agreement, the DN & statements. You might then be in a more informed position to see how to progress this.

[spamheed]

since you sold the property before the CO was granted, I would say there was a failure on their part with regard to due diligence.

 

How can they legally apply a CO against a property that you do not own? rediculous and completely untenable - there is no lawful requirement to inform a creditor of a change of address and there never has been.

 

they should never have entered the court without 100% proof that you owned (on the date of the hearing) title to the property. proving the date of sale should be 100% defence - set aside should be a formality

[acerbic]

Hi spamheed and foolishgirl

It was the court that told me the CCJ had gone to charging order, so you are right to ask what is the charging order on? I am assuming that its on the old address, but I don't know for sure.

spamheed, you say that the set aside would be a formality, would it just set aside the charging order, or the whole CCJ ? Obviously I'm not too bothered about an order on a property that I don't own, and if they did find my new address, then I'd be informed of any new proceedings via the court in any case?

If I did get a set aside, would a judge not just turn around and put it on our new address? Would they need to re-apply?

Foolishgirl, I think its always going to be a tricky one to explain to a judge why we didn't leave a forwarding address, but I'm sure I'm not the only one to have done it.

What I would like to know is if there have been any cases where the judge has asked this question, and what the response was. I suppose that if it's not a legal requirement, then one would not be obliged to answer? I am still looking for that one.

 

Many thanks

[gh2008]

I didn't think I had a legal obligation to tell them....

 

No obligation, but it can cause problems in the future when it all catches up with you again ........

 

Wonder if the present owner knows? Seems as though a lot of people haven't done their homework properly here - claimant, conveyancing sol etc. Not difficult to do a LR search is it?!!

Hope the new owners don't want to sell soon, they're in for a shock.

 

 

 

Well you wouldn't receive a NOA if they haven't got your new address, would you?!

 

That said, if a CCJ has been issued the claimant cannot sell the debt on without applying to the the court for permission. Your legal obligation is to pay the Claimant & no-one else uless the court tells you otherwise.

 

The other man trap you may have to jump is the compilation of a defence. There is no necessity for the claimant or OC to provide a copy of the agreement under S77/78 once a CCJ has been obtained & after so long, the OC may be unable to provide any copies of DNs etc. Your only option at the moment would be to SAR the OC with a specific request for a copy of the agreement, the DN & statements. You might then be in a more informed position to see how to progress this.

 

I can't believe there was a CO granted against the new owners...... certainly not a final ..... surely??? - may have got an interim and then they would have had the notice and put up a fuss.

 

As FG says, it is not going to be straightforward demonstrating a valid defence on a Judgement debt of this age.

[spamheed]

Certainly the CO should be set aside, although technically speaking, since the property charged against is not yours, it would be down to the legal owners of the property to have it removed and of course seek compensation from the eejits who didn't do their jobs properly. Perhaps a carefully worded note to the new owners, making them aware of the situation (love to be a fly on the wall when they explain that one)

 

As for a judge asking the question "why didn't you tell them etc" my answer would be, I didn't think I was obliged to inform someone who had never even made the slightest attempt to prove their ownership, nor my liability of any changes in my circumstances.

 

Did you at any time have your post redirected? if yes, then you can show that this happened due to their failing and not your deliberate inaction

[acerbic]

Hello all, First off, many many thanks to all that have taken the time to reply to my plight. I have decided not to pursue this matter any further.

A charging order on a property that I don't own is not a worry for me.

A warrant of execution only lasts one year according to HMCS website, so again I'm no longer worried about that as it is two years out of date.

Getting the POC from the court costs money, and I'm not about to give anyone my address as the whole issue revolves around my address not being correct. So I'm going to sit and wait.

I will re-post if I need any more advice,but would like to thank all of you for your help. Donation to CAG on its way.