What to include with my application/bundle for a CCJ Set aside?

[MrZ]

I am applying to the court to set aside a default CCJ. I know I need to complete an N244 form. As I intend to send everything by post I would like to know exactly what I need to include so as not to have the application rejected or sent back.

 

Will I complete and send a full defence after the court sets aside, or do I send my full defense at the same time as my application to set aside? Specifically I have an email reply to my SAR from the OC that states they have no record of any account in my name.

 

Just to double check - When I complete the form, I am the defendant and the DCA making the original claim is the claimant, correct?

 

I'm sorry if these questions are answered elsewhere in the forum, but after reading through multiple threads on the subject of CCJ set aside, I have been unable to find any specific information about exactly what needs to be sent with my initial application.

 

Thanks in advance.

 

MrZ

 

Also I forgot to ask in my first post, can I send the application to my local court even though the Default Judgment was issued from the Northampton Bulk Centre, or do I need to send everything to Northampton?

 

I have seen some threads where the person sent the application to Northampton with a covering letter asking for the case to be transferred, but I have seen a thread (cant find now I'm afraid) where the person sent the application to their local court, and upon receiving the application the local court made the transfer.

 

Lastly, regarding the fee, I understand that the fee without a hearing is £45, however if there is a hearing the fee is £80. When I spoke with my local court clerk, he was unable to tell me if a hearing would be required or not and he said the judge would make the decision. Is the any specific reason to request a hearing or not in my set aside application?

 

For what its worth, the judgment was issued by default, I have only recently learned of the judgment, and I have written (email) response from the OC that they have no record of any account in my name. It seems pretty straight forward to me and not sure a hearing is necessary. Is a hearing mandatory for a default CCJ set aside?

 

Can anyone clarify these things for me please? I would like to post the application first thing Tuesday after the Bank Holiday.

[pop_gun]

Hi MrZ. yes, you are the Defendant in this case.

send the N244 (application notice) to your local court who will have the case transfered.

if you want to be ultra safe put the request in writing to the Court Manager.

the cost of the application notice is £40 and no you don't require a hearing.

 

explain in the section "other information" why you believe the CCJ should be set aside.

namely the CCJ was issued to the wrong person (am i correct in that assumption?)

as you've never held an account with the Claimant.

 

 

hope this helps.

[MrZ]

Hi pop_gun,

 

Thanks for that information.

 

I would have to assume it was issued to the wrong person. I have no idea why it was issued to me, as I have no recollection of an account with the original creditor, and apparently neither do they! Nor do I recall ever receiving any correspondence from the debt collector about any debt I supposedly owe to them or the original creditor. The CCJ was issued in 2009. I am only just finding out about it now because of another issue that prompted me to due a search on Experian and registry trust. I intend to keep my application short and sweet as you suggested.

 

1. I never received any summons and was unable to dispute or defend.

2. I have no knowledge of a debt owed to the original creditor or the debt collector.

3. No previous correspondence from the claimant regarding a debt prior to the claim.

4. The claim is based on a debt that was assigned to the claimant, but the assignor referenced in the claim has no record of any account or debt in my name.

5. The assignor has no record of a credit agreement matching the one specified in the claim.

 

As mentioned my supporting evidence will be the initial SAR request and subsequent email reply from the assignor that no record of an account in my name or with the referenced credit agreement number exists.

 

BTW I was very surprised how quickly I was able to determine the debt wasn't owed. I sent an email copy of the SAR with the intention to send a copy recorded delivery with the £10 fee. However, the email was responded to and confirmation that no account exists before I could get the hard copy in the post!!! Saved me the £10 though

 

Do you think that's sufficient to get it set aside?

[paulwlton]

Ask the judgment creditor if they'll agree that judgment be settled and a certificate of satisfaction is requested.

[MrZ]

If I do this, and they agree, wont the CCJ still show on my credit report?

 

The goal is to have the entire claim struck out, so as to completely remove it from my credit report.

As I understand, this can only be done if the CCJ is set aside and I successfully defend the claim.

 

My application to set aside was sent to the court today. For those interested in knowing I did not request a hearing. I am hoping the court will set aside without a hearing based on the facts presented in the application.

 

Now we wait see what happens. Fingers crossed!

[pop_gun]

you're right and it should (and most probably will) be struck out.

[MrZ]

Update:

 

My application was returned to me with a letter saying my local court is unable to deal with the application. The letter says I need to send the application to Bradford, where apparently it was transferred from Northampton who knows when?

 

So now I will re-address everything, repackage it and send it off to Bradford. Apparently the fee is £85.00 regardless if you want a hearing or not. This is not what I was told by the court the first time...oh well what can you do right?

 

After sending emails and letters to the Bradford court and receiving no response, I phoned the Bradford court.

 

I spoke to a very friendly gentleman who informed me that the case was transferred to my local court electronically, and hard copies were also posted. He further stated that my local court CAN do this themselves i.e. they can initiate the request for transfer upon receipt of an application. He was confused as to why this did not happen. He also said he will put a copy of all docs in first class post for me today.

 

In all honesty I think it just really depends on who ends up dealing with a particular request and how helpful or unhelpful they wish to be. Luck of the draw I suppose.

 

At any rate, I can now put my application back into the post to my local court. This simple task of transfer has wasted a week in the process. However a lesson learned for future reference

[pop_gun]

i know how you feel. it's so frustrating. yet, as you say it's another lessoned learned.

[Gaston Grimsdyke]

Applications to set aside judgment will never be dealt with without a hearing, other than where there has been a procedural error by the court (e.g. where they entered a default judgment when a defence had been filed). Once the application has been listed, if the defence is as cast iron as you believe, would be worth inviting the other side to consent to the judgment being set aside. The CCJ will be removed once judgment is set aside and not once the claim as a whole is decided.

[MrZ]

Thanks Gaston,

 

This is very helpful information!

[Charlie1988]

As the claim was issued through Northampton this is a bulk centre for large companies that issue many summons. It was set up to free up the local courts, and as such the claimant gets discounted rates. The claimant will be able to set aside the judgment for £45.00 instead of the £85.00 that you will be charged which is not recoverable from the claimant unless you request costs in your application. They may do it for you if you pay them the fee for setting judgment aside if wrongly entered by themselves. A set aside request would not automatically go to a hearing unless requested or the claimant objects to the application. Once you file your N244 a copy of your application will be sent by the court to the claimant and they will then be given the opportunity to object if they wish to do so. If it is a genuine error I would request costs for your outlay in making the application if you decide to do it yourself

[MrZ]

Just updating to say I am still waiting on the court. Still no decision to set aside, and still no hearing on whether to set aside. I spoke to the local court clerk who stated the case still hasnt been before a judge for consideration. He said anywhere from 5 to 8 weeks from the time of filing my application before a judge sees it.

[MrZ]

I finally got a hearing date. I made my weekly phone call to the court and learnt that the hearing was finally scheduled today for mid August. The court has ordered that the creditor file a copy of the credit agreement 14 days prior to the hearing. Lets see if the creditor will be willing to set aside and then withdraw the claim. Fingers crossed!

[MrZ]

I received a packet of paperwork from the Debt Collector today. There is a cover letter explaining that they have enclosed copies of letters from themselves as well as letters from their solicitors prior to the application for the CCJ. It goes on to say that because they sent so many letters, that whilst ocassionally items go astray in the post it is impossible that I didnt receive their letters. They then say the court takes a very dim view of people making a statement of truth of things that arent true...the cheek!

 

Enclosed are various template letters of various dates. A template notice of assignment, and other copies of their templated collection letters.

 

Their cover letter also states that they have requested copies of the agreement from the original creditor, and that they will forward it once they have it.

 

I will need to take some time to review everything, but I see nothing in what they have provided as evidence that I owe the debt they are claiming.

 

I will update this thread as needed.

[MrZ]

I am due in court on Friday. One question I still have is, when can I/should I file a copy of my defence for the claim? The application to set aside will be sought in part on the fact that I have a real prospect of defending the claim. In order to show this I would need to reveal my defence to the other side. I dont want to reveal too much and give them a chance to rectify their mistakes. Can I file my defence before the hearing takes place? Assuming I do this and the Judugment is set aside, is that defence then considered filed an serverd in respect to the main claim, or will I need to file another defense after the order to set aside is given?

[paulwlton]

IMO. You will need to submit evidence (witness statement, including any documents you intend relying upon) which will convince the court that any defence subsequently submitted as a good prospect of success.

 

I would send any evidence to the other side at least seven days before the setaside hearing.

 

Paul

[MrZ]

So the hearing took place on Friday. I had a female judge who seemed to have little interest in my witness statement, my response to the other parties witness statement, or my skeleton argument. In fact she read to the second paragraph of my statement and then stopped.

 

She then asked the local solicitor acting on behalf of the creditor, what their argument was. The local solicitor went on about about how its implausible that I knew nothing of the debt or judgment, blah blah blah.

 

The judge then turned to me and said, "You have heard what the other side has to to say, how do you respond?" I replied, "Their claim says I owe a debt to ABC company, however the alleged agreement they have submitted is for a company called XYZ". The judge interrupted me from saying anything else and then directed her attention back to the solicitor for the other side.

 

The judge said, "I am not going to decide this case today. You have 14 days to file and serve a fully particularised claim which complies with CPR 16. At which time, the defendant will have 14 days to file and serve a draft defence. Thereafter, another hearing will be scheduled."

 

The solicitor then said, "We have served a schedule of costs for todays proceedings..." The judge interrupted and said "The defendant is unable to contemplate a defence in this case as you have failed to file and serve a claim fully compliant with CPR 16, therefore costs are reserved."

 

The judge then turned and said to me, "The other party ha been instructed to file and serve a claim that meets the standard of part 16, and particularly 16.4, you are also required to file a defence which satisfies CPR 16, and in particular 16.5"

 

That was the end of the hearing.

 

In essence, they tried to get away with submitting an application form for a "linked" credit card. This was not the application or agreement for the "parent" account on which their claim is based.

 

No such agreement exists. Its my intention to write their solicitors and say something like, "As you are aware the court has adjourned, and has given you 14 days to file and serve a POC together with the original agreement. As you have been unable to provide the agreement, it is very likely the court will be minded to set aside the judgment. I ask that you consent that the judgment be set aside, at which point I will be willing to enter into without prejudice discussions with a view to save further unnecessary costs to both parties".

 

They know there is no agreement, and to date, the costs incurred in legal fees are more than the original debt itself. Cant hurt to ask I suppose.

Edited August 6, 2011 by MrZ

[citizenB]

The court will look with favour on your attempts to settle this out of court.. so certainly no harm in making the attempt. Do make sure you have everything ready to file in the event they refuse.

 

As this looks almost certain for you to win in any case, keep a record of all your costs and make sure that removal of any adverse entries on your credit record is part of the deal

[MrZ]

I definitely will. I am a bit miffed that I they were given another 14 days to try to come up with an agreement, and to submit a new POC, especially considering the court had already ordered that they submit a copy of the agreement...which they didnt do.

 

At any rate, I am confident this will be set aside and then stricken out as there is zero evidence of any debt, no agreement, no statements, no payment history, nada.

 

I'll update the thread again after I send them a letter asking them to consent.

[citizenB]

Sadly, banks / creditors do seem to get more leeway than LiPs..

 

Best of luck

[MrZ]

I wrote the letter I proposed in an earlier post.  I said, you know the court ordered you file a full POC with a copy of the agreement. You also know that no such agreement exists, and you will be unable to comply. I asked them to consent to the set aside and in return I would be willing to enter into possible settlement discussions. The letter was sent via email and recorded delivery. They signed for the letter.

 

No acknowledgement or reply from them.

 

The order stated thay "...must file with the court, and serve on the defendant, a fully particularised particulars of claim complying with CPR 16.4 in particular PD16.7.3 by 19 August 2011."

 

The post has come today...nada from them.

[AndyOrch]

Hi Mr Z

 

Ok in light of non compliance with a Court Order consider making application to strike out their claim.

 

 

An application for strike out is usually on the grounds of non-compliance with or breach of a rule, practice direction or court order will not be granted if other remedies are available, such as costs penalties, payments into court and interest at a penalty rate or conversely, loss of interest. Only in the most serious cases of non-compliance will strike out be suitable.

 

Regards

 

Andy

[MrZ]

Thanks Andy,

 

I just spoke to the court, and the clerk said that because the order has already been made, and since the matter has already been scheduled for hearing, that i can simply fax over a letter stating they have not complied with the order (this is the second order they havent complied with btw), and given the hearing sate has been scheduled etc, the judge used will see it straight away.

 

He also suggested that as this is the second order they have not complied with, the judge may set aside the judgment and strike out the claim without further notice to either party.

 

Fingers crossed!

[AndyOrch]

Excellent, looking favorable then and saves you £45.Word of caution though some DJs wont accept a letter and insist on an application, irrespective of what the Court Staff advise.Maybe attach your letter to an N244 but don't include payment?

 

Andy

Edited August 19, 2011 by Andyorch

[MrZ]

It couldnt hurt. I'll update as soon as I hear anything one way or the other.