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

[citizenB]

If there is no reporting at that time then it does give pause for thought. I would suggest you be reasonably confident when in court, if there is any suggestion of doubt in your mind, then the opposition will pounce !

[frogster123]

I'll try my very best. Thanks again for your help and advice, it's given me a little more to work with and a better understanding. I really appreciate it.

[Ganymede]

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.

 

You're worrying me now.

 

If the payment/acknowledged was in 2007 or after July 2012 then SB is out the window.

[frogster123]

@Ganymede CCJ recorded on file in July 2012, I am 90% certain that no payments were made in 2007 at the very least. Just not certain about 2006. I have copy of credit file from 2011 no mention of anything from Westcot or Provident on there at all. I have never acknowledged debt post 2006/2007. I won't be sure until I contact Provident on Tuesday to check when last payments were recieved by them.

[Ganymede]

@Ganymede CCJ recorded on file in July 2012, I am 90% certain that no payments were made in 2007 at the very least. Just not certain about 2006. I have copy of credit file from 2011 no mention of anything from Westcot or Provident on there at all. I have never acknowledged debt post 2006/2007. I won't be sure until I contact Provident on Tuesday to check when last payments were recieved by them.

 

 

 

Bear in mind that the cliam was likely issued in May/June of 2012. You need to check the Court papers for the exact date of ISSUE of the claim.

[frogster123]

I don't have the original court papers, I requested them but they didn't send them to me. I'll raise this on Tuesday. All hinges on claim date and last payment made both of which I won't have details of by Tuesday. Hopefully they'll set aside for the time being on the basis of non receipt and that I beleive that the debt is SB (if that's possible and if I have understood correctly) and I'll have to collate what I can after that if Westcot reissue the claim (hopefully again if I have undertood correctly the course of action that can be taken)

[Ganymede]

I don't have the original court papers, I requested them but they didn't send them to me. I'll raise this on Tuesday. All hinges on claim date and last payment made both of which I won't have details of by Tuesday. Hopefully they'll set aside for the time being on the basis of non receipt and that I beleive that the debt is SB (if that's possible and if I have understood correctly) and I'll have to collate what I can after that if Westcot reissue the claim (hopefully again if I have undertood correctly the course of action that can be taken)

 

 

I worry that it's all very wishy washy at the moment and the judge won't like that you don't know any dates.

 

When did you find out about the CCJ?

 

Wescott don't "re-issue". A set aside rewinds the existing claim back to the beginning before judgment was entered. The same claim form etc is used.

[frogster123]

I found out in March of this year after I applied for a credit report. I called the court straight away and they advised me to set aside as it was the first I knew about it.

[Ganymede]

I found out in March of this year after I applied for a credit report. I called the court straight away and they advised me to set aside as it was the first I knew about it.

 

 

Why has it taken you nearly 6 months to make the application? Applications to set aside shoul dbe made promtly.

[frogster123]

I made the application straight away, Northampton wrote to me to acknowledge and then notified me of transfer to my local court in April, my local court then wrote to me at the end of April with a court date of August, hence the six months.

[The Mould]

I agree with CB on this matter (no disrespect to any other CAG member posting here)

 

Provident collect on doorstep - yes? Then the would have known that you are not living there.

 

Last payment - more that 6 years ago - put provident to strict proof of last payment received from you, the date and the amount!

 

Default notice; contend (which means argue, politely of course) that no valid default notice was ever served on you by provident pursuant to s.87(1) of CCA 1974 (as amended).

 

Given that provident knew that you no longer resided at the address to which their agent made doorstep collections, you contend/ you believe that provident must have deliberately put this address as address for service of their claim in order to obtain judgment in default, which you consider to be underhand and certainly not civilised. Therefore, no claim served, provident are out of time as regards Limitations Act.

 

Kind regards

 

The Mould

[frogster123]

Thanks all, a little confused but hopeful and more informed! Will post after hearing to advise on outcome. Enjoy the rest of your weekends

[The Mould]

Thanks all, a little confused but hopeful and more informed! Will post after hearing to advise on outcome. Enjoy the rest of your weekends

 

Argue - non-service of claim, no valid statutory default notice served by claimant and that you believe the debt to be statute barred, put the claimant to strict proof on all of the same and contend that the burden of proving to the contrary is on his shoulders.

 

Draw the Court's attention to the fact that provident collect payments on the doorstep and that they would have known that you were no longer at the address which they placed for service on the claim form and therefore, they obtained default judgment against you in an underhand manner, placing an address for service of their claim on the claim form, which they knew that you no longer resided at is misleading to the Court. Therefore, you believe that default judgment has been obtained by claimant by misleading the Court as to service of his claim and that claimant has not provided any evidence of service of a valid statutory default notice served on you at any time and that in the absence of such, he is not entitled to have commenced enforcement and not entitled to the judgment obtained against you. You contend that you believe debt to be statute bared and put claimant to the strictest proof in proving otherwise.

 

 

 

Kind regards

 

The Mould

[frogster123]

Many Thanks @The Mould.

[Ganymede]

 

Draw the Court's attention to the fact that provident collect payments on the doorstep and that they would have known that you were no longer at the address which they placed for service on the claim form and therefore, they obtained default judgment against you in an underhand manner, placing an address for service of their claim on the claim form, which they knew that you no longer resided at is misleading to the Court. Therefore, you believe that default judgment has been obtained by claimant by misleading the Court as to service of his claim and that claimant has not provided any evidence of service of a valid statutory default notice served on you at any time and that in the absence of such, he is not entitled to have commenced enforcement and not entitled to the judgment obtained against you. You contend that you believe debt to be statute bared and put claimant to the strictest proof in proving otherwise.

 

 

 

 

I think that whole door step collection argument is very weak, especially as service can be effective at the Defendant's last known address.

 

Even if the Defendant satisfies the DJ that service was invalid when asked what his Defence would be to say that at the time the claim from was issued the debt was statute barred when the Defendant himself thinks it isn't is not going to wash.

 

I have never heard of a debt being SB when it was issued in time because the CCJ has been set aside.

[caro]

Others more knowledgeable than me may be able to advise better, but have you seen the original POC? If not I suggest that it would be unreasonable for a judge to request a defence at the same time as setting aside judgment, or at least it would be a good reason to request adjournment.

 

If there is no defence I wonder if its wise to proceed with the set aside.

[The Mould]

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

Yourcredit report should show last date of payment against this account – what doesit say?

Kindregards

TheMould

Edited August 26, 2013 by ims21

[frogster123]

@Caro, no I haven't seen any details of their claim. I asked the court to send me what they had, but they haven't sent anything to me.

 

@ The Mould Current credit report shows nothing. I also have a credit report printed out from early 2011, there is nothing on there at all either that mentiones Westcot or Provident.

[caro]

@Caro, no I haven't seen any details of their claim. I asked the court to send me what they had, but they haven't sent anything to me.

 

@ The Mould Current credit report shows nothing. I also have a credit report printed out from early 2011, there is nothing on there at all either that mentiones Westcot or Provident.

 

Prepare yourself a list of bullet points with the reasons for the set aside, information you need for a defence, and questions to ask, including an adjournment if necessary.

 

You could just keep this for yourself as an aide memoir or you could take a copy for the judge too.

[frogster123]

Will do, thanks

[citizenB]

Hope all goes well today - please update us, whatever happens !

[frogster123]

Thanks CB, as a side I just called Provident and they checked DOB, addresses, NI numbers etc and have nothing on file for me at all.

[citizenB]

You must let the Judge know this

[frogster123]

Hi, Just an update on today.

 

Westcot were not at the hearing.

 

The judge set aside the CCJ but said that I would need to write into the court and to Westcot confirming my SB defence within 3 weeks. In absence of any copies of any agreements and with Provident having no details for me at al, any suggestions?

 

I am pretty confident now that no payments were made within the six year period, just need provident to find me to confirm...

 

The judge gave me details of the claim which was submitted 11 June 2012 and in their statement Westcot actually said that they had made the claim at my new address which makes no sense as the CCJ is logged at my old address.

 

Thanks again for all your help, it wasn't as bad as I thought

Edited August 27, 2013 by frogster123

[unclebulgaria67]

Did the Judge actually set aside or just adjourn ? It just seems a little odd for a set aside to be granted and then for you to have to provide the court with your SB defence in 3 weeks, so that Wescot can check on this. I would have thought it would have been easier to adjourn and then consider the set aside at the next hearing, hopefully with more information. Not an expert on court procedures, so hopefully someone else will comment on this.

 

Perhaps when you do your SB defence, in the letter to Wescot you should state that Provident did not have any details when you called them and you are confident that the debt was statute barred at the time they issued the court claim on 11/6/13. Ask them to provide details of the last payment that you made to Provident, with full details of payment method, card number or bank details used.