Help with Set Aside -***Claim Struck Out***

[frogster123]

I have a hearing on Tuesday for a set aside for a CCJ from a company called Westcot. They applied for A CCJ last year that I only noticed on my credit report earlier this year.

 

The CCJ was recorded at my old address which I moved out of 6 years ago. My defence is that I never received any paperwork, no court letters or default notices from the original creditor who are called Provident and also that they had access to my credit file so would have known that I moved as my new address had been showing for some time as has my registration on the E Roll.

 

I haven't had time to SAR provident to obtain information so I have nothing pertaining to the debt orthe agreement.

 

Just wanted some advice as to what to expect as I am really nervous I was just going to turn up on my own, no solicitor but don;t know what I need to take to prepare and what questions may I be asked to answer?

 

Will the court look at me less favourably for having the debt? Or will the fact remain that I hadn't received anything?

[Ganymede]

Hi,

 

Two questions,

 

1) Did you notifiy your creditors of your change of address?

 

2) What woul dbe you Defence to the claim?

 

Thanks

[frogster123]

Hi Ganymede,

 

Thanks for your response. I can't remember who I contacted at the time, I can't prove either way, at that time I had lots of issues with a long term relationship breaking down so had to move, I had been diagnosed clinically depressed and put on medication so I pretty much buried my head in the sand. Not an excuse for some I know but at the time things were really not good for me.

 

My defence would be Wescot using an old address that I have not lived at since 2007. I have had no correspondence from Westcot and court claim and associated paperwork has never been received. My current address has been on public record with the credit reference agencies throughout the whole period, so Wescot had access to the correct address information when applying for the court claim. I think they filed it at my old address to gain a default judgement.

 

Cheers

[Ganymede]

Hi, that is a reason to set aside the default judgment but not a legal defence to the claim. You need both elements to succeed.

[frogster123]

Ah, will they be looking at both elements on Tuesday or just the fact that the papers were not served? Will I have to look at a legal defense to the claim if Westcot resubmit?

[Ganymede]

The judge will want to know what your Defence is at the hearing.

[frogster123]

Any advice? I'm a bit lost with it all, or am i doomed?

 

Thanks

[havinastella]

I presume that should you have had a chance to defend it, it would have been Statue barred, (No payment/acknowledgement in over 6 years) or it had loads of charges/ppi amounts on it that you could have counter-claimed for?

[Ganymede]

Any advice? I'm a bit lost with it all, or am i doomed?

 

Thanks

 

 

You need to research the CPR and setting aside judgments.

 

Also search on these forums as there are many exams of Defences and reasons to set aside.

[frogster123]

OK right I undertand now, thanks very much for the direction and advice. I had been researching and completely missed the defence bit as I presumed defense was no papers received. Glad I asked the question. Judgement was obtained July 2012, so probably 6 months short of it becoming SB.

[citizenB]

If no payments had been made for 6 years then your defence would simply be that it was statute barred !

 

When you applied to have the CCJ set aside, did you obtain the paperwork that the original claim was based on ?

[frogster123]

I've just seen the below on the forum, Is my point of defence if they represent the claim or am I still missing it, not with it!

 

Once you make application to set a side there are various options open to the claimant:-

 

The norm is they re present the claim and it starts again...ie you defend.

They object to the set a side the Court can determine.

They accept the set a side and dont represent the claim.

[frogster123]

citizen B, I asked for it on the form but the court sent me nothing back. I haven't had a chance to write to the claimant as the court date came through quite quickly.

[frogster123]

I have a question about SB and dates, would the debt have to have been statute barred BEFORE the date they issued the claim with the court?

[The Mould]

I have a question about SB and dates, would the debt have to have been statute barred BEFORE the date they issued the claim with the court?

 

 

“OK right I undertand now, thanks very much for the directionand advice. I had been researching and completely missed the defence bit as Ipresumed defense was no papers received. Glad I asked the question. Judgementwas obtained July 2012, so probably 6 months short of it becoming SB.”

Asno Court papers received, the judgment obtained is null and void, therefore,as stated by CB , your Defence for the upcominghearing is debt claimed is statute barred and no service of original claim wasever received as you had moved address, this is clearly proven by your creditreference files which show your change of address (xyz years ago), whichClaimant had full access to in respect of the debt claimed and he would,therefore, had known my address for service of his said claim as it is recordedtherein. (bring three copies of your CRA Files to Court for the hearing insupport of your argument – one copy for Court, one for Claimant and one for you– refer to same and contend that Claimant clearly knew of your new address andhas no valid reason for not placing the same on his claim)

Setaside is – statute barred debt and non-service of claim.

Kindregards

TheMould

[Guest]

I have a question about SB and dates, would the debt have to have been statute barred BEFORE the date they issued the claim with the court?

 

yes claim issue stops the clock.

Edited August 24, 2013 by Ford

[Ganymede]

“OK right I undertand now, thanks very much for the directionand advice. I had been researching and completely missed the defence bit as Ipresumed defense was no papers received. Glad I asked the question. Judgementwas obtained July 2012, so probably 6 months short of it becoming SB.”

Asno Court papers received, the judgment obtained is null and void, therefore,as stated by CB , your Defence for the upcominghearing is debt claimed is statute barred and no service of original claim wasever received as you had moved address, this is clearly proven by your creditreference files which show your change of address (xyz years ago), whichClaimant had full access to in respect of the debt claimed and he would,therefore, had known my address for service of his said claim as it is recordedtherein. (bring three copies of your CRA Files to Court for the hearing insupport of your argument – one copy for Court, one for Claimant and one for you– refer to same and contend that Claimant clearly knew of your new address andhas no valid reason for not placing the same on his claim)

Setaside is – statute barred debt and non-service of claim.

Kindregards

TheMould

 

 

 

 

With respect the OP said that the claim was issued before it became SB so there is no defence there as the SB clock stops on issue.

 

Service on a last known address is still good service, I'm not sure a Judge would expect a credit search on every debtor before issuing a claim. If no notification of a change of address then how was the creditor to know the OP had moved?

[frogster123]

I'm actually not 100% sure when it would have been SB as I have no paperwork , I know I moved out the end of May 2007 but unsure of how soon before that anything was paid/acknowleged. Judgement is dated July 2012 so it's not looking like it's going in my favour. I will have to SAR provident as I genuinely have no recollection.

 

Some contradictory views, I'll go with worse case scenario and present as much as can, I guess it could just depend on the judge on the day?

[Ganymede]

You really need to find out when your last payment towards the debt or last written acknowledgement of the debt was.

[frogster123]

I am putting together an SAR now, I read that you have to be careful that they don't take that as a payment towards the debt. I'll say on Tuesday that I have requested the information from Provident to prove the SB in my favour, as I don't want to cancel the court date at such short notice. Stressed!!!! Thank you

[Ganymede]

What is the date of the CCJ?

 

Doesn't matter if they take the SAR fee at this point.

[frogster123]

Date of CCJ is July 2012.

[citizenB]

What time is the hearing on Tuesday ?

 

Will you have time to telephone the Provident before the hearing and ask the question. Please confirm to me the last date any payment was made to this account ?

 

If you are not able to get through or the provident cant say for sure.. when you get to the court, you could say that you believe the account was statute barred at or before the issuing of the original claim papers and that this would have been your defence.

[citizenB]

Some statute barred information for you.

Many DCAs will argue that limitation accrues from the time when the "default notice" is issued. It does not.

Limitation clock starts ticking from when the payment is due and not paid not when they send a default notice.

We see often that CRA entries will date 5 or 6 months ahead of when the payment was missed.

People need to be sure that they aren’t being hoodwinked and that the DCA is extending limitation so they can sue when they are not allowed to.

 

You are advising that you have never received any Default Notice, requests for payments, letter before action, etc. Any of these sent by mail would most likely have been returned to them if you were no longer living at the address they had for you aside from which - Provident collect on the doorstep, so that should also have alerted them to the fact that you had moved. So it makes no sense that they then issue a claim at an address they must have know you didn't live at.

[frogster123]

Hearing is at 12pm, so yes I will have time to call them. I just have no clue when payment was last made, at a guess a few months before I moved out in 2007 or it could have been 2006, so frustrating, I was on anti depressants at the time and that period is a bit of a blur for me. I have a copy of a credit report from 2011 and there is nothing on there relating to Provident or Westcot, I would have expected to have seen a default on there leading up to the CCJ but there is nothing.