claim form IND/Heggarty on old Lloyds (5 and a half years) credit card debt***Claim Dismissed***

[Miscreant]

There is too much information to fit in box 3 on the form.

 

Also the information gets pushed to the top of the box after it's entered. It looks very untidy.

[AndyOrch]

Type in 3 " see separate sheet attached "

[Miscreant]

This is what I have put for box 10.

Do you think it is ok?

Could I add anything else?

 

1) The defendant aknowledged service and submitted a defence on 07/10/2014.

This was subsequently filed on 08/10/2014.

This has been confirmed over the telephone by CCBC on 17/07/2018 and further confirmed through corresponance over the telephone on 09/08/2018 and 21/08/2018.

 

Advisors at CCBC could not explain why the order for judgement in default of a defence was able to be attained when a defence was clearly visible on file and initially requested that the matter be investigated internally but subsequently responded to me on 21/08/2018 via email informing me that I must apply via this current process if I feel the judgement was entered incorrectly.

 

2) The claimant made contact by letter, dated 24/04/2018, making reference to the defence that was submitted, therefore proving that the claimant was issued with a copy of the defence. A copy of this letter is included.

 

3) A statement in response to the claimants application dated 12/07/2018 without hearing was submitted to Northampton CCBC which was totally disregarded.

The request within was that judgment cannot be entered in default of a defence.

A copy of this staement is included.

[Miscreant]

I was also informed over the phone that a previous attempt to enter judgement was made by IND and was declined, presumably due to there being a defence on record.

Should I include this in my evidence too?

[AndyOrch]

Yes include that also

[Miscreant]

4) I was informed by CCBC over the telephone that a previous attempt was made by the claimant to have the stay lifted and judgement entered was made and was declined, presumably due to there being a defence on record.

 

If this is true then the circumstances at the time of the judgement made on 07/08/2018 remain the same and as such the application should have also been declined.

 

Are these 4 points, along with the included documents mentioned sufficient for me to submit this form?

 

Do I have to pay the fee first or shall I email the form over and pay the fee tomorrow?

 

Something that is bugging me here.

 

The letter sent to me on 24th April 2018 was an attempt at a point by point rebuttal of my defence.

 

I was not asked to respond to this letter but I'm wondering if this letter was presented to the judge and used to dismiss my defence and allow them to proceed to judgement in default of a defence.

 

The subsequent paperwork claiming I did not file a defence do not sound like this is the case but as I do not know what was stated by IND in their claim for judgement I do know if this could have been the case.

 

Is this a possibility or would I have been asked to make a new defence in response to their reply or more likely I would have been asked to attend a hearing where I could update my defence and have an opportunity to rebut the points that they made?

Edited November 10, 2018 by dx100uk
merge

[AndyOrch]

Try not to turn the application into a defence...you are adding too many points...it must be succinct.

 

Add the letter of 24t April ...that is proof there was a defence submitted and that MCOL had recieved it.

They did not include any evidence with their application...just the N244 requesting the stay be lifted and judgment in default of no defence.

 

MCOL would not let them select judgment 5 years ago because a defence had been submitted...if there hadnt been a defence it would have allowed them and they would have had a default judgment.

 

Normal procedure here would have been for the claimant to make application and request your defence be struck out /and or summary judgment with supporting evidence (witness statement+ exhibits) with a hearing.

[Miscreant]

I was informed that they attempted to have a judgement made earlier in July of this year and it was refused.

 

I can get the exact date from CCBC over the phone tomorrow.

 

They were not referring to an attempt made in 2014, but I will double check this.

 

You say I am making too many points.

 

Should I edit or remove some of points 1-3. I felt that the information within was valid and relevant.

 

The second paragraph of the first point is explaining why my application is essentially being entered late.

 

I'd this is not necessary I can remove it but CCBC told me that the court are unaware of my correspondence over the phone.

 

I would not like my application to be dismissed on the grounds of it being submitted too late.

Edited November 9, 2018 by dx100uk
Spacing

[AndyOrch]

But they should of requested judgment in 2014...given that they say you didnt submit a defence...thats the whole point of why we are where we are now.

 

Its up to you what you put in box 10 to assist and support your application Im just saying keep it succinct.If it gets too complicated the court would expect a witness statement to be attached to the application.

 

I have already stated to include the statement I drafted in July ....I think that explains everything what has gone wrong in the claim.

[Miscreant]

This is what I have done.

I ticked the boxes for witness statement and for evidence listed below.

 

Point 3 explains the previous witness statement, which is included.

 

Thanks again for all of your help Andy.

 

This whole business is causing rather a lot of stress within my household so I just want to make sure that I deal with this as best as I can.

 

Once this is sent and paid for tomorrow, hopefully I can breathe for a while as I await the result.

[AndyOrch]

To be sent by email

With the Subject heading

Send to email address

 

All Fee paid Applications (N244, draft orders etc)

Applications

[email protected]

[Miscreant]

I have sent the application and received acknowledgement. In the acknowledgement it states that if my claim requires the attention of a district judge that this may take between 4-8 weeks for an order to be made.

 

In the meantime IND have sent a request for me to give account details for payment due to the Judgement being made and want this returned by 3rd September.

 

I am concerned that they may attempt recovery action if I do not reply.

 

Should I write to them now or just wait to see what action the Judge decides to take. The address is my parent's address and I do not want to cause them stress by enforcement officers visiting while I am not there.

[AndyOrch]

The court will serve a copy of the application on them....you requested Deputy J or District J...shouldn't take that length of time.... if you inform them....by way of a copy of the N244,.....but as you say you may be tipping them off and speed up execution ?

[Miscreant]

It all suddenly came together very fast.

 

I was given a hearing date of Tuesday 6th! This coming Tuesday for my set aside.

 

Yesterday I received this witness statement from IND claiming my defence has no merit.

 

They also claim to include a deed of assignment but the document is not titled as a deed and my name does not appear on the signed document, instead appearing on a schedule on the following page. The schedule is not signed or certified in any way.

 

They have also included the reconstituted CCA with the same errors as before.

 

They offer no real explanation for the 3 year and 7 month stay of the court.

 

They also included photocopies of the alleged notices of assignment from both them and Lloyds as well as a copy of their "Last letter before legal proceedings" all of which I was not previously in receipt of though they claim they were sent.

 

I have already justified through my application why the judgement has been made in error as the was no default of a defence. IND confirm this but now claim my defence has no merit and that the judgement should remain.

 

It is a 30 minute hearing.

 

Their witness statement doesn't directly reference the fact they they claimed I had not submitted a defence and claim it as an oversight.

The witness statement is by the same person who authored the previous witness statement where they claim an administrative error for not filing for judgement in 2014.

 

It is obvious that they failed to file in 2014 due to not having any evidence. -abuse of process

This is because the claim was issued without any evidence of copies of any agreements required. -abuse of process

They failed to reply to a CCA request for 3 and a half years.

The one provided has no signature and is a agreement from 2000, also address details are provably incorrect.

They provided a statement of account showing payments within the 6 year period for limitations though this account has no identifiable numbers or information at all that links it to me. The default date that is repeatedly referred to falls outside of the 6 years.

 

They ordered to lift the stay and enter judgement in default of a defence yet there was no default - abuse of process.

They claim to provide a copy of the deed but what they have provided is not a deed.

 

I think I need to request to amend my defence and am in the process of putting that together as I need to demonstrate that I have a reasonable chance of success and at present they can potentially over rule my statute barred point with their statement even though the default date referred to is more 6 years before the claim.

 

I want to put that at strict proof of providing any agreement between them and me. Any agreement between the original creditor, themselves and me. A copy of the true deed of assignment.

 

Any ideas on anything else I can use?

 

The first paragraph states that they will rely on hearsay evidence. Something I can use here?

WS .pdf

Edited November 4, 2018 by Miscreant
mis type

[AndyOrch]

With regards to their point 3 they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

With regards to the rest of the statement its simply regurgitated from their previous statement...to which you have have already responded in your statement of support for your N244 application.

 

Andy

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part33#33.2

[Miscreant]

OK.

 

I do not have a witness statement accompanying my defence as I have not had an opportunity to present one at a hearing.

 

With regards to statute barred it is a my word against their word situation.

In light of this the judge could side with them over it, weakening my defence.

 

For Judgement to be set aside I must demonstrate that I have a reasonable chance of successfully defending the claim.

 

With the addition of new evidence from the claimant at such a late stage while the claim is stayed and then the claim moving from stayed to a CCJ being issued amending my defence should be a reasonable request no?

 

Personally I see the way that IND have managed the claim to be an abuse of process from beginning to end and it be just cause for the judge to dismiss the claim.

 

I just want to make sure that I am in the most powerful position possible on Tuesday.

 

So does any part of that witness statement constitute notice of intention to rely on hearsay evidence?

[dx100uk]

don't tell me the WS was be email?

[Miscreant]

No. The WS was sent to me through the post along with photocopies of the documents they are relying on for their defence.

[dx100uk]

exactly 7 days before the hearing...ind pulling their clever stunts again.

[Miscreant]

The N244 request was lost in the email system in Northampton as I made a typo in the email header. It was neither processed or returned.

As a result IND proceeded to enforce at my local court and I was given a summons for 14th November.

 

I queried Northampton as it had been 8 weeks since my application. They told me I must deal with my local court now. I contacted the court and re-sent the N244. I received notice of the hearing last week with the date of 6th November.

 

There is still a hearing scheduled for the 14th to assess means by which I can pay.

 

The hearing for set aside has been fast tracked in front of this hearing. IND will have been informed last week, as I was, and this is their response.

 

It is however, the first time I have been privy to a witness statement is support of their defence.

 

The whole thing has been a debacle as far as IND and Northampton are concerned but now the decision on how the claim proceeds is in the hands of the judge at my local court.

 

I have very limited time to prepare everything.

 

It must have been the decision of the judge to place this hearing for set aside so soon. What bearing this makes on things I do not know.

 

I just want to be in the strongest position possible on Tuesday.

[AndyOrch]

If its only a hearing to determine set a side...then statements are not required...there was enough information in your application and draft order to determine a set a side........if successful you will then be given directions to comply with by date......such as submitting a statement and disclosures....and the claim proceeds.

 

Not sure why the claimant has sent you the above.

 

" So does any part of that witness statement constitute notice of intention to rely on hearsay evidence? "

 

Already answered in post #192....but as stated the claimant shouldn't be submitting a statement/evidence for a set a side hearing...they would if it was an application for strike out or summary judgment.

 

Andy

[Miscreant]

In accordance with CPR 13.3(1)(a) the defendant must demonstrate that there is a real prospect of successfully defending the claim for the judgement to be set aside.

 

They claim I have no prospect of winning and therefore the judgement should remain.

 

An amended defence could rectify this.

 

It feels they are doing everything they can to deny me the opportunity to defend against their claim and instead forcing their judgement through.

I only hope that a judge can see it for what it is.

[AndyOrch]

CPR 13.3(1)(a) is quite correct and you would normally submit a short synopsis statement with your application to support your application and show you have grounds and a defence with merit.

 

But in this instance..you are setting a side because there has been a procedural error somewhere along the line and therefore...

 

CPR 13.2 (a&b) would prevail.

 

Cases where the court must set aside judgment entered under Part 12

 

13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–

 

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied;

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

 

Which is what you put in your application and wish to rely on.....and in line with the statememt I prepared at post # 146 ?

 

There is no harm preparing a short statement on which your defence will rely on...bullet points but your application was not based on CPR 13.3(1)(a)

[Miscreant]

Should I have included a copy of their application for judgement in default with my N244 or will the judge have access to that?

 

It proves their abuse of process without me highlighting it.

[AndyOrch]

Should I have included a copy of their application for judgement in default with my N244 or will the judge have access to that?

 

They could only get a default judgment if you failed to AoS and submit a defence...which you did .....so its obviously a procedural error.