Backdoor ccj Carter & Co. - set a side won ...now claim proceeding.

[ohitsonlyme]

Humfff!

Just a year away from SB and bryan carter gained a default ccj at my old address 2 month ago,I only found out after a credit search

 

I intend to apply for a set aside with a defence of not having received docs and original creditor should not have sold as they were in default of cca request and dsa request

What are the prospects of winning set aside

 

Relatively small debt but I still have equity in old address that is now rented

Onlyme again

[ims21]

Thread moved to the Legal Forum

[renegadeimp]

First question. Did carter or the DCA they represented know that you are at your new address?

[ohitsonlyme]

Yes they wrote to me several times over past 12 months last time in July 2012 I didn't reply, so I presume they were trying again at my old address I am also on electoral register at new address

[ims21]

Have you still got the correspondence that they sent to your "correct" address so that you can show that they knew where you lived?

[ohitsonlyme]

Thanks for the reply, yes I still have the correspondence, can I use it as part of the setaside

I am looking for grounds to guarantee it being set aside

Can a failure to supply cca and not supplying me with dsar and so setting account in dispute 4 years ago win itOC should not have sold the account in dispute

Onlyme

[ims21]

Well if they wrote to you at your correct address and fully knew where you were but they issued the claim to a previous address that is looking pretty good for you.

 

Hang fire for the legal guys to get here.

[AndyOrch]

Hi ...some information with regards to setting a side a regular Default Judgment:-

 

Regular Default Judgments

 

If the defendant fails to respond to a claim, which has been issued and served in accordance with the law, the claimant is entitled to apply for a default judgment. A default judgment entered in these circumstances is said to be “regular”.

 

The Law on Applying to Set Aside a Regular Default Judgment

 

If a defendant wants to set aside a default judgment he will have to make an application to the court.(N244 Application Notice) If the claim was not issued in the defendant’s local court the case will be transferred to that court and a hearing of the application will be listed.

 

To have a default judgment set aside the defendant will have to satisfy the following legal test found in Part 13 of the CPR:

 

• He has a defence with a real prospect of success; or,

• The judgment should be set aside for some other good reason;

• The application to set aside the judgment was made promptly.

 

Applying Promptly

 

In deciding whether or not the defendant has acted promptly in making their application the relevant date is usually the date on which the defendant found out about the judgment. Judges have differing views on what constitutes a prompt application. Some say that anything over four weeks shows that the defendant has failed to act promptly – others will entertain applications made many months later.

 

The Merits of the Defence

 

The defendant will also have to convince the judge that he has a defence that has a real prospect of succeeding. It is not enough for the defendant to show merely that he has a defence that would be arguable in law. The defendant should support their application with evidence.

 

Setting Aside Default Judgments on Terms

 

In some circumstances the judge may agree to set the judgment aside provided that certain conditions are met. For example, a judge could order the defendant to pay the amount claimed into court. This might be done in the case of a defendant who is pursuing a tenuous defence simply because he cannot afford to pay the debt.

 

The Defendant Says That He Never Received the Claim Form

 

The law on service of court documents states that:

 

• if the court sends the defendant a claim form at his usual or last known address; and,

• it is subsequently returned to the court as undelivered;

 

the claim form has still been validly served and the claimant is entitled to a regular default judgment.

 

Therefore, even if the defendant can persuade the judge that he never received the claim form, the judgment was still regular as a matter of law. However, it may provide an explanation for the defendant’s failure to respond to the claim.

 

The Judge’s Discretion

 

The law on default judgments provides judges with a wide discretion to set judgment aside. Justice demands that a judgment which has been entered with no, or little, regard to the merits of the claim should be set aside if the defendant has a good defence and made his application promptly. However, there is no point setting aside a default judgment if the defendant has no chance of defending the claim. It would be a waste of time and money because, ultimately, the claimant would simply obtain another judgment. The courts should be slow to deprive the claimant of a valid judgment obtained in accordance with the law.

 

Regards

 

Andy

[ohitsonlyme]

Andy Orch, I need some help to put together a defence and application can you point me in the right direction

The claim and default judgement was made through the northampton bulk centre

 

as usual no details were supplied, such as whether they had the right to pursue, no documentation was supplied to support the claim etc etc

 

I am now 2 months in default of the judgement payment schedule as I only found out last week and i want to avoid further action

 

I spoke to them and over the phone in one conversation they have agreed a full and final of 50% without a lot of trying on my part

 

I urgently need to make a decision whether to settle or fight I am aware if I settle the claim will show for another 6 years on my credit file

 

onlyme

[renegadeimp]

If theyve agreed a F&F of 50% of a judgement, then something isnt right. ESPECIALLY when carter is involved.

[ohitsonlyme]

Totally agree thats why I need help with the setaside

[renegadeimp]

Since they knew you were at a new address, but carter decided to issue on an old one on a bad debt at an old address, the set aside should be relatively straight forward. Carter is a very unscrupulous person. He will do whatever it takes to get a judgement, even on an unenforceable debt. he doesnt care as once a defence is filed, he runs off back under the rock he crawled out from. I'm just amazed he has managed to keep his solicitors licence.

[AndyOrch]

Hi

 

To set a side you complete the N244 application notice and submit your reasons for set a side ..you will have to outline a small synopsis of your intended defence.

 

To make payment arrangements you need to vary the judgment to mthly payment this is done using the N245...complete the I&E and make a proposed monthly payment.

 

If you wish to accept their offer of settlement and are happy to pay the agreed figure you suggest a Consent Order were they set a side the CCJ and then confirm the payment arrangements within the Consent Order.

 

All forms are available in the legal Library.

 

Regards

 

Andy

[ohitsonlyme]

Andy

the consent order looks a good option,

as it means that I can get on with my life without chasing around the courts for a maybe win at a set side

 

from what youve read so far can you suggest setaside grounds and with your experience do you think it could be successful

 

only me

[AndyOrch]

They will set a side for you if you agree their terms by way of a Consent Order...you dont need to make application.

[ohitsonlyme]

If they dont agree to a consent order setting aside to their terms, how good a chance would I have a getting a full setaside with claim served at incorrect address, nomention of assignment or proof of debt on POC, and only a recon to s78 req from OC, also no reply to dsar

[AndyOrch]

Well if you tell them its your intention to set a side and would they like to consider a Consent Order...I would imagine they would go with it after offering 50% discount.

If not your chances are as good as any if it was deemed bad service....you would then have start from the beginning ..enter a defence and if you lose you are back to square one...without the 50% deduction.

[ohitsonlyme]

Update, set aside hearing won with £400 costs awarded to me

Defence submitted, followed by the same old same old consent order route from BC

Hearing date read for 12 September

Witness statement received this weekend with old application in parts illegible plus a statement of default with no default notice

A letter of assignment with no evidence of it

And a current terms and conditions with (EDIT) one heading addressed to my current address which is a compete fabrication

I need a new amendment to my defence

 

They also state that they won't be attending court. I am livid about this because they know that I will win on default notice alone

I need some defence input if anyone can help

Can I ask for costs, still small claims

Onlyme

Edited September 1, 2014 by Andyorch
Removed bad language

[AndyOrch]

Why do you need a new amendment to your defence and why do you need some defence input...you state you have submitted your defence?

 

Andy

[ohitsonlyme]

I don't know the procedure for the hearing.

I need to be able defend the witness statement sent and documents received

I assumed it was amending the defence but I think it will be in the form of a witness statement rebutting theirs

[Ganymede]

What were the Directions after the set aside hearing?

 

Why did you not exchange a witness statement of your own?

 

You're not meant to be defending or rebutting their witness statement, that's what your evidence at trial is for.

[AndyOrch]

Thread title amended to reflect latest developments.

[ohitsonlyme]

What were the Directions after the set aside hearing?

 

Why did you not exchange a witness statement of your own?

 

You're not meant to be defending or rebutting their witness statement, that's what your evidence at trial is for.

 

I am catching up with it a bit

The hearing is an allocation and directions hearing. The purpose of which is to establish the issues and determination of likely issues and length of final trial

 

The set aside hearing judgement set aside the default judgment and ordered a defence to be filed (duly done pretty well asking for documents)

 

Their witness statement now provides the documents listed above

Onlyme

[Ganymede]

Could you please type up or scan the Order following the set aside?

[ohitsonlyme]

setaside judgment:

 

1Default judgment is setaside

2Defendant shall file and serve defence by ..... june

3 The clamant shall pay £400 by ...May

 

General form of Judgment:

1 List for allocation and directions on 12th September

2 All parties or legal reps MUST ATTEND

3 Purpose of hearing is to establish dispute and determining likely length of trial

 

Interestingly they are saying they will not be attending in their letter accompanying the witness statement to my original defence

 

onlyme

Edited September 1, 2014 by ohitsonlyme
pressed enter and loaded in error