Pheonix [luxembourg] through brian carter issued claim form, poss sb'ed too - any advice please?

[berniebobs]

yes will do, tonight DonkeyB

[berniebobs]

 

The acknowledgement to the left, the ccj to the right

[berniebobs]

[berniebobs]

Can you view these??

[DonkeyB]

Not really, but I can see that it IS a judgment in default – this means they did not reecive your defence, or did not receive it in time.

 

First job is to call the court and ask if they have any record of receiving your defence. Did you send it recorded?

[berniebobs]

No DonkeyB I didnt, I was in such a flap cos I couldnt log on I needed to get it in the post, (and the post office was closed - new years eve) I know I should have sent it recorded as normally I would have done

[berniebobs]

help please xx

[DonkeyB]

First job is to call the court and ask if they have any record of receiving your defence.

 

We can’t do it for you!

[Jasper1965]

BB I think there are several viewers who have surmised that this result occured because you failed to file the paperwork in time. Your first post was on the 23rd Nov and at best and with an acknowledgment you would have had 28 days from then to get the defence in.

 

Your failure to comply with the strict timescales has now caused you a problem which tbh is going to be tricky to solve.

 

You have a CCJ and the correct procedure was followed so it's going to be very difficult getting this set aside IMO.

 

You can use the agreed with/disagree now criteria I guess stating that you understood that BC were suing you for a debt owed to a company called Littlewoods as this same firm of solicitors were very recently pursuing you for a claimed debt of exactly the same amount on behalf of this different company.

 

And then stating that you are now aware that the debt was not for the Littlewoods account at all but a separate company of whom you have never heard and with whom you have never dealt and to whom there can possibly be no lawful liability.

 

You can also aver that the initial claim was an abuse of process, contained false statements within the POC etc but ultimately all you are left with is throwing yourself on the mercy of the court (at your own expense) to get this overturned.

 

The POC's might represent your best chance of success going back to the claimants rep claiming that the claimant sold and delivered goods when they didn't is nothing more or less than a false statement but how this can be challenged after judgment is beyond me.

 

Hopefully others can be more constructive but set asides aren't something I know much about and I wouldn't want you to be given bad advice or build your hopes up.

 

Sadly there's a good chance that if you had filed that defence BC would have dropped the case and you'd have claimed costs from them. Telling you this now probably wont help but if you are angry about what's happened can I suggest that you contact both the OFT and the Ministry of Justice and lodge a strong complaint about BC being willing to file wholly falsely worded claims against "debtors" and then relying on their lack of knowledge to gain default judgments and dropping claims which are defended with incredible frequency.

This is a systematic abuse of the system being perpetrated and all victims of it whether CCJ'ed or succesfully defended should be making as much noise as possible to the relevant authorities.

[berniebobs]

Thankyou Jasper1965, I understand what you mean, I admit I didnt really know what I was doing and awaiting info and getting the flu, xmas and new year.

 

It states on the form that I should make a payment by the start of feb, should I do this? or would I now follow the 42 mans attachment....

 

You may have a Default Judgment made against you where there was no hearing and you have not sent back the "Acknowledgement of Service" form to say you intend to put in a defence. You may also have a Default Judgment made against you if you have NOT sent in the reply form asking for time to pay within the time limits.

You should not have a Default Judgment if you:

• paid off the whole amount owed.
  

The court must set aside the Default Judgment if you either:

• Sent back the Acknowledgement of Service form within the time limit,
  

OR

• put in a defence within the time limit,
  

OR

• sent in the reply form asking for time to pay within the time limit.
  

The court may agree to set aside the Default judgment if you did not send in a reply form within the time limits if it thinks:

• you have real chance of a successful defence to the claim,
  

OR

• the court thinks you have a "good reason" to set aside the judgment e.g. where you did not get the papers through the post.
  

Can anyone advise on this, as should I apply for a N244 form, is it worth it? Thanks

[postggj]

with the bad reputation on royal mail and christmas post, i would put in the n244 and apply for a set aside and i would feel its £75 well spent

[berniebobs]

thanks Postggj, I am going to do this, would you please keep watch for advise, as I may have to double check Im filling the form in right? I also think I can get the fees cut, but will check that one.

[Jasper1965]

Please be very careful there is enough information on this thread in the public domain here to hang you if it got into the wrong hands.

 

You've publicly admitted that the paperwork wasn't in on time and you're going to blame it on the postal service before a Judge? Hmmmm. Careful.

[berniebobs]

ok thanks Jasper

[berniebobs]

Hi everyone,

 

Update on this post:

 

Im going into court in the next few weeks to get this set aside. Does anyone have any advice for me? Im going in empty handed as I dont know what else to prepare except for the original CCJ papers?

 

(42man, I tried to Pm You with a question but your inbox is full )

 

 

Thanks, B x

[nicklea]

Just replying based on your request on the other thread.

 

What grounds have you put forward to have the CCJ set aside and on what basis have you said that you have a genuine prospect of success?

[berniebobs]

Hi Nicklea

 

Thanks for your response. I have used the defence on this thread as not only is this possibly statute barred when they went for this, I havent had much communication from them with the exception of sticking in the ccj when i moved adresses.

 

Hope that makes sense? b x

[berniebobs]

1. The defendant has no knowledge of entering into any form of purchase agreement with the claimant and is embarrassed by the lack of detail supplied within the claim. Having no knowledge of any sales/purchase agreement for "goods" supplied and delivered to the defendant by the claimant the claimant is unable to either admit or deny anything which is not expressly denied within this defence.
   
2. 1) The defendant denies ever purchasing goods from the claimant.
   2) The defendant denies ever receiving goods from the claimant.
   3) The defendant puts the claimant to strict proof of the following:
   (i) That the defendant purchased goods from the claimant.
   (ii) The date(s) of any such alleged purchases.
   (iii) The delivery times of these alleged purchases.
   (iv) The delivery addresses of these alleged purchases.
   (v) Proof of a purchase/sales contract between the defendant and the claimant.
   
3. Prima facie the Claimant knows or ought to know that there is no contract between the Defendant and the Claimant for the supply of goods as pleaded, therefore the Claimants claim is speculative and furthermore amounts to an absolute abuse of the process. Accordingly the Defendant avers the Claim ought to be struck out as an abuse as the Claimant holds no cause of action and therefore the Claimants conduct is unreasonable in bring a claim without foundation.
   
4. The Defendant seeks the Claimants claim to be dismissed with an order as to costs thrown away in favour of the Defendant.
   

This is the defence that I am using, can anyone help?? please?? B x

[UnitedFront]

Ok, firstly I am obviously still a student. I know this information is in my signature, but I have to be sure it has been read:

I am NOT an expert in law and nothing I say should be taken as advice, directly or otherwise.

 

Now, you seem to have used the original defence as your reason to have this judgment in default set aside which, in my mind, is less than ideal. Hopefully the court will have some mercy because you are a litigant in person.

 

I would take two copies of the following to court, one for you and, just in case, one for the judge:

1) Copy of the claim form you received.

2) Copy of the CPR Request you sent to Carter.

3) Copy of the Judgment in Default.

4) Copy of the N244 you filed with the court.

 

The basic rule is that a judgment in default may be set aside if you can show that you had a reasonable chance of a successful defense.

 

I'm not sure what else you can take with you, to be honest.

 

What you must do, however, is get your head around the terms because at the moment you're getting them somewhat confused.

 

In this hearing that you will attend, you are the applicant. You are applying to have a judgment in default set aside.

Carter etc are the respondent.

 

You are not using a defense in this hearing. Because as above, you are not a defendant in this hearing.

 

At this point in time, with all the paperwork submitted and the hearing listed, I think you just have to go in and see what happens. If you have a decent judge you may be ok, if not you wont. Are you aware if Carter etc have responded to your application to set aside in any way?

 

Sorry I can't be of more help.

 

Cheers

UF

[berniebobs]

Thanks Unitedfront for your thorough reply, its much appreciated. Im sure youve had a look through this thread as it it got quite confusing for many of us, especially me.

 

I would take two copies of the following to court, one for you and, just in case, one for the judge:

1) Copy of the claim form you received. I can do that, as I have that

2) Copy of the CPR Request you sent to Carter. I havent sent a CPR request to them as I wasnt advised to do so, I dont think I could get one to them and back before the hearing, any suggestions?

3) Copy of the Judgment in Default. ?? Sorry, I dont know what this is?

4) Copy of the N244 you filed with the court. Basically all I put on this was that I didnt feel I had enough time to produce a defense and added the previous defense that is two posts ago

 

The basic rule is that a judgment in default may be set aside if you can show that you had a reasonable chance of a successful defense.

 

I'm not sure what else you can take with you, to be honest.

 

What you must do, however, is get your head around the terms because at the moment you're getting them somewhat confused.

 

In this hearing that you will attend, you are the applicant. You are applying to have a judgment in default set aside.

Carter etc are the respondent.

 

You are not using a defense in this hearing. Because as above, you are not a defendant in this hearing.

 

At this point in time, with all the paperwork submitted and the hearing listed, I think you just have to go in and see what happens. If you have a decent judge you may be ok, if not you wont. Are you aware if Carter etc have responded to your application to set aside in any way?

I havent heard a thing from Carter. I appreciate you adding this about what may happen at the hearing as I didnt know what to expect. Would you start a CPR? I didnt do it as i wasnt advised to or have i missed it in this thread?.

The root of the issue is, I think this debt is statute barred anyway. On the claim form from Carter they said they were supplying goods as late as 2009, which is certainly not the truth, plus I have never had goods from Phoenix/carter. When i moved house I immediately got the cliam form from carter, i then acknowledged it online, I then was waiting on advice was ill etc. couldnt get online as the HMRC wouldnt let me on, posted my defence which went amiss, then they were awarded the claim as i missed the deadline.

Hope you can advise further unitedfront. B x

[berniebobs]

Hi Guys

 

Update.. I got the CCJ setaside, so waiting on round two, if they respond? No-one turned up from the oppostition?

[nicklea]

Congratulations

[berniebobs]

thanks Nicklea x

[berniebobs]

:-D I WON!

 

Received a 'notice of discontinuance of proceedings' from Bryan Carter! They didnt even put any kisses on it!

 

Thanks to you all for your help xx

[nicklea]

Great news, I'm sure that the mods will get this moved to the success thread