Living Abroad: Having CCJ set aside with UK asset

[Rangers123]

Two updates. For the alleged personal loan with Egg, the Judge dealt with my application to have the CCJ set aside at the same hearing that'd been set for the charging order to be made. I hired a solicitor. The outcome of this was that the application and charging order was adjourned for 8 weeks. Judge keen to see if there's any evidence of the agreement, when it went into default, and any evidence I can provide of informing Egg about my change of address. They argued that there was a default notice issued in May 2008, but my argument is that the breach of contract would have been the first missed payment, not the default, which would have been at least 2007.

 

With the second CCJ, relating to an alleged credit card with HSBC, the Judge ordered the application to be listed in about 2 weeks via telephone and that the order not be enforced until then. Claimant to make the telephone arrangements. They contacted me via email for my phone number. Really not sure how to deal with the telephone hearing. Unfortunately I do not have any evidence of informing them of my change of address because it was done by phone for Egg and in person at a branch for HSBC. The debt collectors are clearly going to have been keen not to acknowledge I was abroad, even when it would have been extremely simple to contact me, because of their ability to use the provisions of the CPR if they ignored knowing I was abroad.

[Rangers123]

I've read a lot on these forums that if you're living abroad and have a CCJ entered against you by default,

it's a simple case of filing an application to have the CCJ set aside,

and it's pretty much a given that it will be set aside, if you provide proof that you are actually living abroad.

 

In two recent cases where I've received a CCJ by default,

I've filed my N244's with plenty of evidence that I live in the US,

and have done for a long period,

and they haven't been automatically set aside as most people would have you believe.

 

So what gives?

 

In my case the first hearing was adjourned, pending the creditor producing evidence of the agreement,

and me providing evidence of informing my creditors of my change of address,

but still seemingly being judged on my ability to successfully defend the claim,

and nothing to do with never receiving the paperwork in the first place.

 

The second at a different county court has a hearing set for a couple of weeks.

 

I suppose this one could go differently.

 

I just want to emphasize it appears not to be the automatic process a lot of people would have you believe.

[BankFodder]

You are dead right. It isn't at all automatic.

Not having received the papers and not having had an opportunity to defend the claim is an important element - but if you can't show that if you were given an opportunity to defend that you have a good chance of success - is far more important in my view.

 

An essential requirement (I think) is to include a draft of your proposed defence as part of your setaside application. I think that many people simply go in and rely heavily upon the first element and don't bother to prepare any defence. I think that an application which is presented like that stands a poor chance of succeeding

[BankFodder]

To add - I think that living abroad causes an additional problem because the judge will realise that if you get the setaside, that you will be unlikely to defend anyway

[ozzyboy]

Bank fodder is correct - it is not automatic for a set-aside to be granted.

 

Whilst living abroad is a very strong defence, it is up to the defendant to make their case as convincing as possible

 

As anyone who has had any dealings with the legal system will confirm, a judge, magistrate or whoever can only base their decisions on the arguments presented to the court by both parties.

 

If the case before them is apparently 100% likely to succeed but there is nothing presented in evidence, no matter how much the magistrate might wish find in their favour, their hands will be tied.

 

The issue of set-asides being granted in these circumstances is a grey area. In my dealings with posters on this and other forums, there are usually two distict categories of case.

 

The first is where the poster has moved abroad and informed their creditors of their overseas address at the time. When they later default, the creditor goes for a CCJ based on their last-known UK address even though they have been communicating with them at their overseas address. Whilst this is an abuse of court process and is pretty certain to be set aside, the defendant still has to submit enough supporting eveidence with their N244 for the magistrate to make a decision.

 

At the other end of the scale is the situation where the creditor has left the UK without telling their creditors who then, acting in good faith, apply for a CCJ at what they have to assume is the current and correct address.

 

This is where the magistrate will need proof that the creditor is being completely honest in their assertion that they knew nothing about the pending proceedings and could therefore not have informed the court to tell them that they would be unable to defend the claim in person.

 

In these situations, "the court documents went to my mum's house but her dog ate the letter" isn't likely to impress...

 

Equally unlikely to be well recieved are cases where the defendant has been dealing with their creditors over a period of time and the threat of legal action is already in the air prior to the unannounced overseas move.

 

Bankfodder's second point about the magistrate's awareness of the consequences for the creditor of a set-aside is also very true.

[Ganymede]

Hi,

 

What was the date of the CCJ?

[ozzyboy]

So to clarify;

 

1. You have 3 CCJs dating from Dec 2012, June 2013 and Feb 2014 but are only seeking to have 2 of them set aside
   
2. You are seeking a set-aside for an alleged loan to Egg on the grounds that it was statute barred when the CCJ was made but Egg disagree about when the 6 year countdown started?
   
3. You are seeking a set-aside for HSBC on the grounds that you were in the USA when the CCJ was made?
   
4. Both Egg and HSBC claim that you did not inform them of your move from the UK but you have no physical evidence to disprove this? You also say that it would have been very easy for them to contact you - surely this would mean that they had your US address or have I missed something?
   

Don't necessarily post it here, but has your solicitor given you any advice?

 

Are you sure it is actually EGG and HSBC who are chasing you and not a DCA who has bought these debts? It seems strange that such relatively small debts would still be on the banks' books some 6+ years after you stopped making payments and with absolutely no contact with you in the meantime.

 

One last point that may or may not be relevant. As I mentioned in an earlier post, when we moved to Aus we informed all of our creditors of our new address but Egg was the only one who did not amend their records simply because their system would not recognise a non-UK address. Might be worth checking to see if this was still the case in 2006/7.

[Rangers123]

3 CCJs, December 2013 and Feb 2014 yes, I am not seeking to have the earlier one set aside as I thought it was from too long ago now (2012).

 

The Egg and HSBC are now indeed owned by DCAs, and it's them who have sought the CCJ and charging orders.

 

My belief is that both accounts were past the 6 years when the CCJ was entered.

 

My solicitor has been useless. £1000 of money badly spent so far.

[Rangers123]

Mid-Feb 2014

[AndyOrch]

I'm only speaking to the claimant's solicitors. Can I ask them if they'd like to agree by consent? Does it need to be a formal letter?

 

I'm looking for advice as to what I should give as my evidence at the telephone hearing. I do not have any evidence myself of the last payment, the credit agreement they're talking about, or anything. I have no paperwork at all. So not sure how to proceed when faced with the phone call which is rapidly approaching.

 

You dont require any evidence if its Statute Barred the burden of proof is on the claimant to prove otherwise.

 

Andy

[DonkeyB]

Was it already SB when the claim was issued (as opposed to when judgment was entered)? Have you sought details of the claim date?

 

In theory the claim could have been issued over a year ago, falling within six years, and the default judgment requested quite some time later.

 

So it may be worth making a further enquiry of the court just to be sure you have the required six year gap.

 

Belt and braces I know, but Sigma have been known to let cases lie for a long time or fall stayed after issuing a claim.

[DonkeyB]

Just to add – as it’s recent, the court should be able to provide some paperwork for you, possibly at a nominal cost.

[ozzyboy]

No doubt someone else will chip in, but if you are up against a DCA, I suggest you stand your ground and maintain that you informed both Egg and HSBC of your move. If they didn't make a note of it then that's their problem and they ought to have disclosed this information when they sold the debts.

 

It will be tough when there is no written proof but it would not be unreasonable for a bank's customer to assume that passing on this information in a phone call or by a visit to one of their branches ought to be enough for them to act upon. Isn't that why they have "Customner Service" desks and helplines? Seems prtettty pointless if they don't act on information they are given...

 

Have you proof of the final payment payment date on the Egg account? The onus is on the DCA since if they cannot show evidence of any payments after this last payment then the stat barred defence should be OK. When Egg issued a default notice is irrelevant.

[Rangers123]

With the telephone hearing set for Tuesday, today I received a Consent Order to sign from the claimant's solicitors, agreeing to the set aside.

[AndyOrch]

With the telephone hearing set for Tuesday, today I received a Consent Order to sign from the claimant's solicitors, agreeing to the set aside.