2nd court hearing soon to set-aside CCJ from Cabot Finance - advice please

[doughy1882]

Hi

 

I am due in court soon for the second hearing to have my CCJ set-aside (1st hearing was adjourned). I need some advise please. Here is the info.

 

The debt is statute barred yet Cabot (Morgan Solicitors) were awarded a CCJ when they went to court a year or more ago. I was not made aware of the CCJ hearing at that time. The first I knew about it was when Cabot got a charging order on my house.

 

I read some advice here and decided to request that the CCJ be set-aside so that I could properly defend my case (debt was statute barred).

 

My grounds for setting aside the CCJ were that I was not notified of the court case and that if I had been I would have used the statute barred defence.

 

I received a court date and a pack from Morgan Solicitors. They claimed that the debt was not statute barred as a payment was made on xx.xx.xx

 

I don't believe a payment was made and after reading much about Cabot question the validity of this claim. The payment details they sent me were nothing more than an excel/word style print out with a date and amount. No other payment information or evidence of a payment were given.

 

I have been to court once already and the case was adjourned on the grounds that I needed more time to get bank statements to show I hadn't made a payment. I have now received this statements which clearly show no such payment. This is from the bank account that was used when payments were being made prior to default. As far as I know I wouldn't have made a payment by any other means (as I didn't have any).

 

The judge said that if I produced the bank statements showing payment wasn't made he would consider setting aside the judgement (Morgan were not impressed!)

 

The solicitor from Morgan said she was obligated to provide me with some legal guidance as I was not represented. This is what she said:

 

i. even if i could provide evidence, morgan would simply go for another CCJ. This would incur further legal fees (the figure she gave was £10,000)

ii. that I would then have 2 ccjs on my credit file

iii. the adjourned case would incur more costs but if i dropped the case, morgan would consider waving some costs.

 

So, I guess what I want to know is if it's worth carrying on fighting or getting on the phone to Cabot to sort things out.

 

1. can pushing this any further really incur these sorts of costs? they far outweigh the debt!

2. if i deal with cabot and they offer to settle the debt in full a reduced amount, can they then still chase me for the rest (it's my understanding that they can and will)

 

Thanks in advance. While I wait for a reply, I will carry on reading about everyone else's dealings with cabot to see if i can learn anything from this.

[Jasper1965]

 

The solicitor from Morgan said she was obligated to provide me with some legal guidance as I was not represented. This is what she said:

 

i. even if i could provide evidence, morgan would simply go for another CCJ. This would incur further legal fees (the figure she gave was £10,000)

ii. that I would then have 2 ccjs on my credit file

iii. the adjourned case would incur more costs but if i dropped the case, morgan would consider waving some costs.

 

So, I guess what I want to know is if it's worth carrying on fighting or getting on the phone to Cabot to sort things out.

 

1. can pushing this any further really incur these sorts of costs? they far outweigh the debt!

2. if i deal with cabot and they offer to settle the debt in full a reduced amount, can they then still chase me for the rest (it's my understanding that they can and will)

 

 

 

What a load of tosh!!!

 

Morgans rep should be keelhauled for telling you this.

 

There was no obligation on the rep to provide you with legal guidance they just wanted to bluster you with quasiparalegal guff.

 

Now as to you proving you didn't make a payment when they claim:

 

What a load of tosh and tbh the Judge should know better than asking you as a defendant to prove a negative.

 

As claimant the burden of proof lies with Cabot, they claim YOU made a payment, you deny it. It is for Cabot to prove that:

(i) The payment was made. (Sounds more like an infamous cabot "attempted payment" to me.)

(ii) You made it.

I would not (and you should ensure the judge does not either if it is set aside) accept internal accounting docs for proof, you need to see an incoming entry that is unequivocally identifiable to you on a bank statement. Anything less proves nothing. For Cabot to have received the (attempted) payment there must be some account entry somewhere to correspond, nobody sends them cash in an envelope so it must be easy to prove, one wonders why they're having such trouble?

The payment shows on the internal spreadsheet, surely they just check the bank statement for that day/time huh??

 

They can't just go for another CCJ, it is forbidden and would likely be an abuse of Court process.

How would you then get two CCJ's? They'd only go for the second one (well in lalaland anyway) if the first one was wiped out for whatever reason so do the sums:

 

1CCJ - 1 CCJ = 0 CCJ + 1CCJ = 1CCJ

 

Thing is the second CCJ is never going to happen, you can't get two CCJ's for exactly the same thing and if the first one is wiped out it will be for a good reason ie statute barred!!

 

Once sb'ed it can never become un sb'ed.

 

As for fees.......... yawn yeah right, last ditch attempt at a defence/threat nothing more.

 

Read again what I've quoted from your earlier post and dismantle it logically.

 

Then switch off and enjoy the rest of the festive period without worrying about those bufoons.

 

They've made a claim which is eminently provable, if they now fail to prove it then you win as SB is a complete defence.

 

I suspect that they will seek to withdraw rather than face a judge again over this. Telling porkies in court is a pretty bad thing to do.

 

Maybe you should find a little room to drop the phrase "One of Cabots infamous attempted payments" into a statement somewhere and make it quite clear that you are aware that Cabot often claim to have proof of an "attempted payment" where debts are otherwise sb'ed.

Edited January 2, 2011 by Jasper1965

[caro]

I agree with much of what Jasper said, but the CCJ could be set aside because you didn't know about the case. If you succeed in the set aside then the original claim stands and you can fight the original claim on the grounds of it being SB and anything else you can come up with.

 

In theory Morgans solicitor is correct that you could have costs awarded against you, and you should consider the risk of this when deciding what steps to take. If your claim was vexatious or you had no real prospect of success, or the judge was having an off day, then it is a possibility, but IMHO from what you've said here I'm not convinced and, although costs can mount, I think you'd be very unlucky to lose and have such high costs awarded against you. In fact I'd be inclined to make the court aware that the solicitor had tried to intimidate you with the threat of massive costs.

 

How much is the claim?