Ind Claimform - old HSBC Credit Card Debt - got judgement after only 17 days...

[exasperated]

Andy

I will reprint before I take it tomorrow.

Hopefully we can communicate again on a defence for the actual trial meaning we have had success with this.

 

Thanks

[AndyOrch]

Lets hope so

[exasperated]

Andy

Ive been reading a few cases and one alarmingly stated that the circuit judge refused to accept the money wasn't owed and that the defendant was relying on a technicality to avoid what he owed. Have you any idea a question that is raised that could cause me a problem and if so the correct answer/

Thanks

[andydd]

Andy

Ive been reading a few cases and one alarmingly stated that the circuit judge refused to accept the money wasn't owed and that the defendant was relying on a technicality to avoid what he owed. Have you any idea a question that is raised that could cause me a problem and if so the correct answer/

Thanks

 

Some judges are right gits I'm afraid, I never understood the technicality bit, thats the law, if the law says something is not payable, then its not payable, Judges shouldnt be overlooking this..would be grounds for appeal IMO.

[exasperated]

Thanks Andy

I asked the question as I suspect that as IND already have the judgement they will send a legal representative, If that happens he will undoubtedly quoting all kinds of legal sections and I will be just sticking to this:

My account is in dispute and it has not been resolved, if asked by the judge I will state that they have not sent a legally enforceable CCA merely an application form that does not satisfy my request.

Exasp

[AndyOrch]

Set a side hearings are not to argue the merits of a claim/ defence but to look if you/they have reason to set a side and to offer a potential defence..if the DJ is contented he will grant the set a side ...then you will be expected to submit a full particularised defence.

 

If they dont attend you should get your set a side.

[exasperated]

ok Andy

Thanks

[exasperated]

Andy

Just received the claimant IND's defence for the forthcoming hearing. Anything unusual in a claimant issuing a defence? anything you would like to know it contains?

Thanks

Exasp

Edited October 25, 2014 by exasperated
missed a word from the sentence

[AndyOrch]

Its not really a defence but their Witness Statement/Statement of Case in response exasperated

 

I dont know what it contains so cant ask what it contains...do you wish to post it?

[exasperated]

[ATTACH=CONFIG]53941[/ATTACH][ATTACH=CONFIG]53942[/ATTACH][ATTACH=CONFIG]53943[/ATTACH]

 

 

Hello Andy

They will be sending an agent to the case and here is their witness statement above:

 

They mention in point 21 'The debtors conduct amounts to an abuse of process as set out in the case of Nolan V Davenport(2006) EWHC 2025 QB'

Are you familiar with that case

Thanks

Exasp

[AndyOrch]

I cant read your uploads exasp can you convert them to pdf format please.

 

http://www.bailii.org/ew/cases/EWHC/QB/2006/2025.html

[troubledmick]

Welcome Finance new Owners applied for protection from creditors to make the company viable to purchase. This sweet heart deal allows the new owners of Welcome finance to Chase debts with total abandon and not settle The old companies liabilities. Welcome are not even responsible for the PPi payments owed to old customers. FSA sweetheart deal has given Welcome finance the ability to bully and chase debts while seeking protection from cases from customers they owe money too. The ombudsman has informed me that Welcome finance have applied to the court to get clarification that the company has protection from claims brought by old customers . There is no fixed date for the hearing, Welcome told the Ombudsman that its likely to be January 2015. Its my intention to appeal to the court, as a potential creditor from an ongoing complaint. Double standards......

[exasperated]

WITNESS STATEMENT

1. I Emma Williamson of P O BOX 1293 PE2 2NU, will state as follows:-

2. I am a legal assistant employedby IND ltd with authority to make this statement

3. I wish to rely upon CPR33.2(1) (a) of the civil evidence act 1995. I would mention I have no personal knowledge of the conduct of the account before the issue of this claim. The documents lodged with the court speak for themselves

4. This statement is made in relation to the defendants application to set aside judgement dated ------ 2014 received by the court on the ======2014 with hearing listed on ==== 2014.

5. The debt is in relation to a current account agreement entered into between the the bank of scotland and the defendant. The credit card account number is **** **** **** **** Please find at EVW1 a copy of the agreement. The agreement was terminated upon the defendants failure to comply with the terms of the agreement. The default notice was issued on the 10 dec 2008

[exasperated]

Sorry Andy

Here is the full version:

 

WITNESS STATEMENT

1. I Emma Williamson of P O BOX 1293 PE2 2NU, will state as follows:-

2. I am a legal assistant employedby IND ltd with authority to make this statement

3. I wish to rely upon CPR33.2(1) (a) of the civil evidence act 1995. I would mention I have no personal knowledge of the conduct of the account before the issue of this claim. The documents lodged with the court speak for themselves

4. This statement is made in relation to the defendants application to set aside judgement dated ------ 2014 received by the court on the ======2014 with hearing listed on ==== 2014.

5. The debt is in relation to a current account agreement entered into between the the bank of scotland and the defendant. The credit card account number is **** **** **** **** Please find at EVW1 a copy of the agreement. The agreement was terminated upon the defendants failure to comply with the terms of the agreement. The default notice was issued on the 10 dec 2008 and the balance was £******

6. Please find at EVW2 a copy of the statements

7. The claimant can confirm that in 2001 BOS merged with the Halifax to form HBOS plc In January 2009 HBOS plc was aquired by Lloyds TSB. The claimant was assigned the debt by the Bank of Scotland who had control over the debt. No notice of assignment between the banks was needed as they are all part of the same company

8.The rights of the Bank Of Scotland passed to the claimant pursuant to an assignment dated 07.07.2011

9.On 31 August Lloyds TSB sent to the defandant correspondence notifying him that the debt had been sold to the claimant on the 07.07.2011The total balance was 3****,**. Please find a copy of this letter at EVW3

10. On 31 August Lloyds TSB sent to the defandant correspondence notifying him that the Bank of Scotland had assigned to IND the full amount owed under the agreement. Please find a copy of this letter at EVW4

11.On ** Jan 2014 a letter before action (hereafter known as LBA) was sent to the defendant at his lastknown address. A copy of the LBA is exhibited at EVW5

12. On the ** JAN 2014 the claimant sent the defendant a copy of the agreement and terms and conditions cover letter attached at EVW6

13. The defendant wrote to the claimant on the ** Jan 2014 received on the ** Feb 2014. He requested a copy of the agreement and statement of account pursuant to s77/78 of the consumer credit act. The claimant replied on the ** Feb 2014 to inform the agreement had already been sent to him and the statements had been requested from the original debt owner and would be forwarded onc ethe claimant was in receipt. A copy of this letter is exhibited at EVW7 on the ** march 2014 the claimant wrote to the defendant to enclose a copy of the assignment notices and the statement of account. A copy of this letter is exhibited at EVW8.

14. The claimant failed to receive a satisfactory response to the LBA. As a consequence on ** Aug 2014 the claimant IND isssued proceedings in the Northampton County Bulk Centre to recover the outstanding amount.

15.The claimant considers the claim was deemed served as per the provisions set out in 6.9 of the civil procedure rules

16. The defendant failed to file a defence to the claim. As a result judgement was requested to be entered. The judgement date was ** Sept 2014

17. The defendant states in his application to set aside that default judgement was entered as he working away. The defendant has provided no evidence to confirm his comment. The defendant states that he posted the acknowledgement of service on the ** aug 2014, the claimant has not been provided with a copy of the same.

18. The defendant states that he has prospects of success but has not provided a defence to the claim

19. The claimant has provided evidence as above to responding to the defendants CCA request. No action was taken whilst the reqwuest had not been responded to.

20. The claimant has attempted to enforce judgement since it was entered

21. The claimant believes that the defendant is now making this set aside application as the claimant is seeking to enforce the judgement.The debtors conduct amounts to an abuse of process as set out in the case of Nolan V Davenport (2006) EWHC 2025 QB.

22. In accordance with CPR13.3(1)(a) CPR1the defendant is required to demontrate that there is a real prospect of sucessfully defending the claim for the judgement to be set aside. The defendant has failed to do this.

23. The claimant would ask that the defednats application be dismissed and the costs of the claimant arranging an agent to attend the hearing be added to the judgement debt the sum of £102

[AndyOrch]

Thank you.......

 

Okay my initial response...this is an irregular judgment as the the 33 days had not expired at the date they requested judgment IE 5th Sept claim issued 14th August

therefore the court must set a side.

 

Irregular Default Judgments

 

The law distinguishes between two types of default judgments: “regular” and “irregular” judgments. A default judgment will be irregular if it has been entered when:

• The defendant has filed an acknowledgement of service or a defence;

• The time for filing the acknowledgement or defence has not yet expired;

• The defendant has made an application to strike out the claim or for summary judgment;

• The defendant paid off the whole claim, including any costs and interest, before judgment was entered;

• The defendant has filed an admission to the debt and asked for time to pay.

 

A default judgment entered in any of these circumstances is not valid in law and the court must set it aside.

 

 

I assume you posted your acknowledgement to CCBC...have you ever received conformation ? checked if they ever received it?

 

In the above WS they state that they have attempted to enforce judgement since it was entered...is that true?

[exasperated]

Hi Andy

They did send an attachment of earnings order other than that what could be construed as enforcement?

Exasp

[exasperated]

Andy

BTW yes they did receve the acknowledgement of service, and the set aside application was stamped the 12th Sept so even that was within the 33 days

[AndyOrch]

Hi Andy

They did send an attachment of earnings order other than that what could be construed as enforcement? Thats fine just checking

Exasp

 

Andy

BTW yes they did receve the acknowledgement of service, and the set aside application was stamped the 12th Sept so even that was within the 33 days

 

17. The defendant states in his application to set aside that default judgement was entered as he working away. The defendant has provided no evidence to confirm his comment. The defendant states that he posted the acknowledgement of service on the ** aug 2014, the claimant has not been provided with a copy of the same.

 

Why would CCBC not inform them that you had acknowleded service?

[exasperated]

Andy

I have already submitted my defence as we agreed earlier in the thread. Do I need to to add to it or respond to their witness statement?

[AndyOrch]

Thats what Im doing now...questioning their points and asking you for clarification.

[exasperated]

Ok Andy

One last thing, it states in the witness statement that they sent terms and conditions for the credit card agreement(though it was an application form). The terms and conditions clearly state that they are from the Halifax yet they didnt merge with BOS( by ther own admission until 2001) but the application form is dated 2000?

[AndyOrch]

Ignore all that guff for now ...this is to determine whether you have a valid application to set a side...we are only looking at the detail of your " Acknowledgement of Service "

 

Ill ask again.....

 

17. The defendant states in his application to set aside that default judgement was entered as he working away. The defendant has provided no evidence to confirm his comment. The defendant states that he posted the acknowledgement of service on the ** aug 2014, the claimant has not been provided with a copy of the same.

 

Why would CCBC not inform them that you had acknowleded service???

[AndyOrch]

31st August was a Sunday evening...you didnt use MCOL you didnt email CCBC...so I assume you posted it Monday 1st Sept......you will need proof of postage and proof CCBC received the acknowledgment.

 

You will also need proof that you was working away 2 weeks prior to the 31st August...that with the defence you have submitted is all that you need to rely on for the application to succeed.

 

Copy my post #90 and take that along with you also.

 

Andy

[exasperated]

Andy

I dont know the answer to that,sorry

[AndyOrch]

Andy

I dont know the answer to that,sorry

 

Post #97 or #98?