First time defending myself in court re: default judgement

[Cambio1]

Hi all, the story so far.......

 

2007-2010 i was working out of the country for Disney on Ice (so working generally a week or two in a city or country at a time before moving on.)

 

May 2010 I returned to the UK and looked for job/somewhere to live.

April 2011 - received a letter from Arrow Global Ltd stating "......with effect from 5th November 2010 under a written assignment of the debt you owe to FV-1 Inc, has been sold to Arrow Global Ltd " (Typed up in full on post: search cambio1 arrow global).

Unaware of any previous court action i treat it as a new claim and requested proof of claim via validation.

No reply.

Sent two more letters.........no replies.

3rd October 2011 - Order to attend court for questioning arrives. mentions a CCJ i knew nothing about so I write a letter to the court requesting clarification as to what had been happening in my absence.

16th October - hand deliver my letter (no money for postage) and the court refuses delivery stating that i needed to pay £85 to set the judgement aside.(i didnt have money for this and could not understand why i should have to pay anything when i hadnt done anything wrong and was merely trying to find out what had been happening.)

Around this time I also called the court and requested two things: 1 - a copy of the claim form, and, 2 - a copy of the judgement. I have received neither. i was sent a claim/judgement `spec only` form , which....

Novemeber 2011, sought legal counsel who informed me that even if i was their client they could not do anything with the `spec only` form. Also advised me to apply to set aside ASAP.

December 31st - received the witness statement from the claimants solicitor (confusion.....i was under the impression that a solicitor could not be a witness) which left me new yrs eve, new yrs day, and the Mon and Tues to review everything (baring in mind i was working all four days) before the hearing on the Wednesday 4th January.

 

This is where it got interesting, and any help would be appreciated:

 

Wed 4th January- My app to set aside was based upon the following:

-I did not receive the notice prior to court action (sent to my old address)

-I did not receive the particulars of Claim (sent to my Grandmothers address, used as a c/o add whilst i was away working)

-I could not have acknowledged the claim or filed a defence as i was out of the country and hence out of the jurisdiction

-i feel (but have not yet stated this in the hearing)that there is some degree of excusable neglect on my part.

Excusable neglect : A failure - which the law will excuse - to take some proper step at the proper time (esp. in neglecting to answer a lawsuit) not because of the parties own carelessness, inattention, or willfull disregard of the courts process, but because of some unexpected or unavoidable hinderance or accident because of reliance on the care and vigilence of the party`s counsel or on a promise made by the adverse party

-I would argue that since becoming aware of the matter i have taken great care and attention as to avail myself of proper procedure and due process (even if the court doesnt seem too interested in such things) and to do everything in my power to gain clarification and remedy this matter.

 

-the claimant argued that the court should dismiss my app to set aside based on Nelson and another Vs Clearsprings management ltd. In This case the def`s app to set aside was dismissed on the grounds that the def had no defence.

-I argued that in Fairway Vs Palmer [2006] the app to set aside was allowed bcos the def was out of the jurisdiction

-Judge called a recess to look into it.

-When we re-entered the court [in chambers] the judge then offered an argument for the prosecution, namely the case `City and Country properties Vs Kamali`, stating that in this instance the app to set aside was dismissed even though the def was out of the jurisdiction.Is it just me or was this an example of prejudice and Bias since the judge (referee) was offering arguments for the prosecution. (i think it worth pointing out that the judge knew this was my first ever court appearence and i was up against someone who had been a solicitor for some time). Would it be worth putting the judge on his Oath at the next hearing??? anyone have a suggestion on this.

-As i was voicing my objection to this action of the judge, he interjected stating that he was going to use the discretionary power of the court to file a "Motion for Discovery" and request the claimants to produce the "credit(s) agreement(s)" mentioned in the `spec only` form.

- He gave them 12 days (+2 for delivery) to fulfill this request and at the time of writing i am still waiting.

-So, hes stating that the claimants acted correctly and is allowing the serving of the Doc`s even though i was out of the jurisdiction. (the claimants admit as much in their witness statement when they asserted that i was living with my mother in spain......in which case why didnt they follow CPR with regards to serving out of the jurisdiction)

-After i receive these doc`s i have 2 weeks to file a witness statement and then another hearing will be scheduled.

 

I am aware that i can request various items under the Consumer Credit Act 1974, including proof of loss, invoices, statement of account etc. Could I still send this request or would it not be advisable to do so since the Judge has already filed a motion for discovery?

 

I am considering sending a letter to Northampton CCBC requesting clarification of a few matters. I have heard there are no hearing rooms or judges at the bulk disharge centre. As such it seems hard to imagine how due process/CPR could be followed. There have been rumours of "fraudulant deception" taking place. Not wishing to succomb to hearsay but wishing to ensure my rights to due process, i would like answers to those questions. Additionally I would really like to see a full copy of the judgement that was made, so i can see which judge was presiding and what evidence was presented (bcos i dont believe there was any). Do I have a right to see a full copy of the judgement? Do I have a right to ensure that any judgement passed was done lawfully?

 

Also im a little worried about escalating costs (i earn under £8000 a year). I have been told that as a litigant in person i can claim upto £9.25 an hour but i am unsure how to go about putting in a counterclaim/claim for costs. How do i prove how many hours iv put into this? What costs can I be reimbursed for? legal counsel? My time iv spent researching legislation?

 

Any advice would be greatly appreciated as i feel, in essence that iv got a lot to base a defence upon.....just not entirely sure how to apply what iv learned. Iv been going throught the Bills and Exchange act trying to find which part is relevant with respect to "once a debt is paid said debt is extinguished" which i hear a lot, but would like to find where it says that in the Act.

Also i know the limitation Act of 1980 may apply. How can I find out if this company are trying to enforce a statute barred debt?

 

Iv got about 2 weeks till the next hearing and need to submit my paperwork including a preliminary defence in the meantime. Any help would be greatly appreciated.

[gordies]

Litigant in person rate is £18 from October 2011.

[BankFodder]

It seems as if you have been treated harshly - but the main reason for a setaside is that if you were allowed to defend, that you stand a reasonable chance of success.

 

You have told us nothing about the merits of your case - and maybe you told the judge nothing about the merits either.

 

Also, I don't think that you have done yourself any favours going into the court attempting to win using cases and legal technicalities. You are a litigant in person and you would have been better off simply telling the judge in your own words why you had a good defence to put if only you were given the chance and that by allowing the judgment to stand, it owuld be unjust.

 

If I were you I would concentrate on this in the next hearing. Forget about the non-service of the claim.

 

You have said nothing about your case. What is the value? LIP costs will only be awarded if the case is over £5000 and has been allocated. Your case hasn't even been allocated yet - more importantly, costs won't awarded yet. If you get your setaside, then the question of costs will be decided after you have defended and there is a final result. If you lose then if there are any costs then they will be awarded against you.

 

Stop talking about service.

Talk about whether you are being unfairly sued or not.

[rebel11]

Thread moved to correct forum.

[andydd]

It seems as if you have been treated harshly - but the main reason for a setaside is that if you were allowed to defend, that you stand a reasonable chance of success.

 

You have told us nothing about the merits of your case - and maybe you told the judge nothing about the merits either.

 

Also, I don't think that you have done yourself any favours going into the court attempting to win using cases and legal technicalities. You are a litigant in person and you would have been better off simply telling the judge in your own words why you had a good defence to put if only you were given the chance and that by allowing the judgment to stand, it owuld be unjust.

 

If I were you I would concentrate on this in the next hearing. Forget about the non-service of the claim.

 

You have said nothing about your case. What is the value? LIP costs will only be awarded if the case is over £5000 and has been allocated. Your case hasn't even been allocated yet - more importantly, costs won't awarded yet. If you get your setaside, then the question of costs will be decided after you have defended and there is a final result. If you lose then if there are any costs then they will be awarded against you.

 

Stop talking about service.

Talk about whether you are being unfairly sued or not.

 

I agree the OP has too much rambling and ranting, an application to set aside a default judgement is normally given if you can prove that the original paperwork was not delivered to you AND that you have a resonable chance of defence.

 

Trying to be too clever and referencing various other cases may backfire on you.

 

As someone said in another forum I was just reading, use the KISS principle !

 

The OP may be eligibale for fee-remision and it would be worth investigating Legal Aid help too.

 

Andy

[Geordie911]

Thread moved to correct forum.

 

And what thread is thatrebel11

 

A link would be very helpful....

[Cambio1]

Hi, thanks for the replies .....and sorry for rambling....it was quite late at the time of writing.

 

I guess im just a little bemused because i didnt even know what the matter was about until October and since then it feels like iv ben coerced into some matter that i know nothing about and everyone seems unwilling to comment on or provide any details of.....yet theyre claiming it involves ME.

 

I thought going into court, explaining id been away working and that since id become aware of the matter (as demonstrated by my correspondence) id tried to deal with it correctly. The claimants or the court did not provide any clarification when requested (hence the delays in setting aside etc) and to this day i still havent received a copy of the CA, the judgement or the claim form.......how am i meant to prepare a defence??? (baring in mind the solicitor i did see said she would be unable to do anything until they sent the judgement and a copy of the claim form)

Additionally, if i were to try to prepare a defence from what i have, i couldnt because the dates iv been given (with regards to the assignment of the debt to different companies) are all mixed up and the different parties, nor the courts seem to be able to clarify any of this even though iv mentioned it.

 

In court i stated that my defence would in part, obviously depend upon what these items of paperwork reflected upon, and so in the meantime i was aware of some legislation that might apply (limitation act, bills of exchange......absence of credit agreement, terms and conditions) but couldnt be sure until i knew the details.

I thought it would have been quite straight forward once the judge heard this. Set aside judgement, obtain the particulars of claim, credit agreement, copy of the judgement, and then hand in a defence......do what we would have done if id been around at the time.

 

Obviously when the judge stated that the claimants request the app to set aside be dismissed on the grounds of Nelson and another Vs Clearsprings management and did i have anything to add, it made sense to outline what i knew of that case and provide something that supported an argument for the application bcos of being out of the jurisdiction....didnt think i was being clever....just tried to be prepared.

What i didnt expect was the judge supplying an argument for the prosecution and arranging an adjournment. Just seemed to me that the judge and prosecution were very.......cosy. Bit worried there gonna try and drag the case out to get more money.

 

So i dont know what is meant by "merits of the case", if :-

-being out of the country,

-not receiving any paperwork,

-any notice,

-being unaware of any action having taken place until october gone,

-showing that iv gone out of my way to try to follow court procedure,

-pointed out reasons covering excusable neglect with regards to delay in filing app,

-requested proof of there claim,

-still havent received the proper paperwork(re: judgement, particulars of claim),

-pointed out that it may be a statute barred (dont know till i see the details but 2003.....def more than six yrs)

-Bills and exchange act(need more details on this but if this debts been passed around several companies then surely its been extinguished)

-not really related but: under an assignment for the benefit of creditors, the debt is rarely discharged after being paid (according to blacks 2008)....so how would this help the nations debt if the publics share isnt being discharged after payment (at least under these sorts of assignments)

 

So im unsure what is meant by "merits of the case". You say dont go in for technicalities....would that include pointing out faults in their witness testimony? some of which seems to be pure fabrication.

 

This company is also getting their share in interest and although i havent mentioned it there is a stubbs audio script (or was...il let u know where wen i find it again) discussing the setting aside of judgements where it is said that if the plaintiffs were adding interest to the amount then the judgement should be set aside as this would constitute an act of prejudice towards the defendant. Is this worth mentioning in court?

 

Suppose i didnt think there would be any conflict in setting aside a judgement thinking it would just be a matter of re-issuing the paperwork in full or even just allowing me to discuss the matter with the claimants/original creditor before engaging the courts at all. The only allowance theyve given for that is to pay the sum in full........they dont seem inclined to want to send any proofs, contracts, signatures.....and what is somewhat more unsettling is that neither does the courts?

[cymruambyth]

By 'merits of the case' people are trying to find out if there is likely to be a case which could be defended, not the administrative failing of this case.

Do you know what the debt was for? How much and when was it taken out? You mention that it could be SB, how did you use to pay, was it through your b/ac and could you check statements?

[Cambio1]

Well i guess im unsure of the merits of the case as i havent been told very much. The `spec only form` states the following:

" The Claimant claims for sums due under a/various Credit Agreement(s) entered into between HSBC plc and the defendant. The rights of HSBC plc passed to the Claimant persuant to an assignment dated 22/12/06 between HSBC plc and the Claimant. The agreement(s) was/were terminated upon the Defendant failure to comply with the terms of the Agreement(s) and or the Statutory Notice of Default served by HSBC plc. And the Claimant claims : Credit Card Account ################ balance of 603.58 as of 02/04/03. Interest under s69 of the County Court Act 1984 at the rate of 8% a year from the Default Date(s) to 31/12/07 of 229.39 and also interest at the same rate up to the date of Judgement or earlier payment at a daily rate of 0.13 AND costs."

-So from this, I cant tell if theres one or more credit agreements (which they havent sent anyway as the judge told them to).

-They state the "Claimants" who are named on the same `spec only` form as ArrowGlobal, were passed the rights of the debt on 22/12/06.....yet on the one and only letter i received from Arrow Global in April 2010 it states "This letter is to inform you that with effect from 5th November 2010 under a written assignment the debt you owe to FV-1 inc has been sold to Arrow Global".

...so again.....im trying to make some kind of chronological sense out of whats been going on, and i cant with what iv been given..........Hence why i would really like to see a true copy of the judgement...in full....not just a paragraph that doesnt match up with the other paperwork iv got.

 

As for paying it....I dont know if I ever have (or have ever needed to) and i dont know what bank i was with in 2003 if im totally honest.

 

They say its from 2003.....if thats true then surely if its older than six yrs i thought that made it statute barred anyway so i dont know why theyd come to me with it unless theyre just trying their luck.

 

So as it now stands: - The claimants have not sent the Credit Agreement, they were told to do so on the 4th January by the judge. Its now the 21st so i guess their time is up on that. Should i send a letter/notice of default to the claimants? (i ask bcos the judge told them to send me it.....not me...so am i still allowed to send notice of default.....silly question i know).

 

I have to write a witness statement for the court in response to what theyve sent me.......since they havent sent me anything i imagine its going to be a pretty short statement (dont really know what to write really, other than - thay havent sent me anything, and i guess persuant to the CCA 1974 that makes this an unenforcable agreement).

 

You think it may still be worth requesting a true copy of the judgement from Northampton CCBC and a copy of the terms and conditions/credit agreement from the claimants?

 

Surely if the claimants dont have any material evidence/agreement then there is no Foundation Evidence and hence the claim is to some extent erroneous and somewhat dubious.

[Cambio1]

Well thought id give an update on events.

 

Had my first hearing (more details on the "first time defending myself in court" thread) which was interesting and the judge ordered the claimants to produce the evidence i requested ie-CA.

 

They havent sent anything.

 

So under normal circumstances, if this was before any judgment had been passed, then they wouldnt be able to get a court to enforce it? Yes .....or i am i wrong on that?

 

Since the judgment was passed some time ago, and they have been asked to present the evidence, and they havent/cant present it...........what does that mean now?

 

From where im standing (and please correct me on this) it looks as though Arrow Global misled the court some time ago and possibly misrepresented some of the facts to obtain this judgement. Also since iv been requestingg a true copy of that judgement and a copy of the particulars of claim (to review what happened way back when) for some time now and still have received nothing im beginning to wonder whether or not it even exists!!

 

Partly bcos of bits of information coming out about he CCBC being a seperate entity to the court without any court rooms which brings into question how due process and CPR can be followed.........

And also because of my hearing (which shoulld have taken place on 02/02/2012) being cancelled. Iv been sent a letter saying it is now going to happen in March, but also subject to cancellation. Im not saying that im dubious because its been cancelled due to the court being busy.........but in this instance I cant understand why the court would put off my case when the claimants havent provided any evidence, failing in a court ordered motion for discovery, which as far as I currently understand it means i should be straight in and out.....No evidence = No claim.

 

Am i right in my thinking here......it is up to the claimant to prove their claim, and they havent.

 

Or is it still possible for the court/claimants to drop a nasty surprise on me such as some re-constituted/forged (whats the difference) agreement? Or is it still possible for the court to simply dismiss my app to set aside and enforce summary judgement anyway?

 

Any suggestions?