CCJ set-aside

[paulwlton]

I have a court order to pay monthly instalments to clear a loan debt which was issued in 1999. I have made two CCA 77 Requests for a copy of the original agreement on both occasions it was stated the agreement cannot be located.

 

Have i got grounds to set the order aside?.

[file_wizzard]

1. did the original agreement form part of the claimants original evidence to the court.

2. have you made any payment towards the order since issue

[paulwlton]

1. did the original agreement form part of the claimants original evidence to the court.

2. have you made any payment towards the order since issue

 

No the original agreement did not form part of the evidence as i've got the POC.

 

Yes i'm still paying the monthly court order.

[Guest Zooman]

none what so ever.

[paulwlton]

none what so ever.

 

The loan agreement may have fallen foul of Wilson this could be the reason why they cannot find the original signed agreement. I have a copy and will seek advice.

[Laiste]

Hi Paul,

 

You have accepted liability for the debt, so you cannot challenge any aspect of it. Zooman is absolutely right. There are very limited grounds for overturning a decision and your situation (from what you've said) does not fit the criteria. That's why you are given an opportunity to file a defence and counter-claim, if you don't (for whatever reason) then you are quite rightly deemed to have accepted responsibility for the debt. There has to be finality with legal proceedings, otherwise you would have the unworkable situation, that legal decisions could be revisited for ever more! You do have my sympathy, for the circumstances that you find yourself in, but you did have a chance to defend the claim brought against you and obviously didn't, and I'm afraid ignorance of the law does not stand up as a defence!

 

Regards,

 

Laiste.

[paulwlton]

I understand what your saying and totally agree but under certain curcumstances Court Orders can be and do get set-aside.

 

I have just applied for a court order to be set-aside from 2000 regarding a Hire Purchase agreement, the reason being although i had payed more than half the total amount payable a clause in the agreement had the effect of all payments becoming payable in the instance of one missed payment, these have been found to be unfair terms by the OFT therefore not legally binding. Although i agreed at the time that the amount was correct i have found new evidence now to dispute the amount.

 

The other Court Order, if having fallen foul of Willson, and i'm awaiting counsel on this, would be good enough reason to have it set-aside on the grounds that it is totally unenforceable and therefore no Legal basis for the Court Order to continue.

 

The reason why i didn't challenge the court orders at the time is because i've only just found out that the agreements were flawed.

 

Paul

[tifo]

i'm in the same situation as you and i completely agree.

 

i will also apply to have my CCJ's set aside for the same reasons.

[Laiste]

Hi Paul,

 

It does not matter that the agreements were flawed! You had the chance to file a defence and counter-claim at the time, to raise that very argument and you didn't! You are using the ignorance of the law defence, which will get you nowhere with a District Judge! He will ask you why didn't respond to the claim at the time, you will advise him you weren't aware of your rights back then. He will tell you that's what solicitor's are for and that you had an opportunity to dispute the claim and that your time has now passed and the debt stands.

 

Of course you will be able to find a solicitor who will happily take your money and plead your case, but you are going to be sorely disappointed! I am just trying to save you the time and expense of doing this. Believe me, when it comes to challenging things, I am the first person to tell others to fight back, it's exactly what I do! I'm afraid however, that you and Tifo are in for a big shock if you think you are going to get anywhere with seeking to have your CCJ's set aside. I understand that these markers on your credit file can blight your life for 6yrs, but your desire to get them removed is clouding your mind as to what's legally possible.

 

I am studying law and I have a stack of legal procedure books that all state the same thing, there are very limited circumstances under which a CCJ will be set aside and your situation as you've described it, isn't one of them. You really are wasting your time, but if you are determined to do it then nothing I or Zooman says will make a jot of difference. That said, it would have been remiss of us not to tell you from our knowledge and experiences what we believe the outcome will be.

 

Best wishes,

 

Laiste.

[fbnts]

Hi, not sure if its of any help but I was in court last week to apply to have my CCJ from capitalOne set aside. I found:

Removal of CCJ's - Valid reasons to have your judgements set aside

and used point 9 "Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?"

 

I belive the amount was based on unlawful charges and therefore no longer agree to the amount of judgement.

 

The judge agreed to set aside the CCJ pending my claim against CapitalOne for unlawful charges. He felt he had to as CapitalOne failed to attend and contend the application.

 

I just have to file a defence which I had done as part of the N244 to have the judgment set aside but I did not have my claim number against CapitalOne so just need to resubmit with the claim number I now have.

 

Hope this is of help

 

Tom

[paulwlton]

Hi Paul,

 

It does not matter that the agreements were flawed! You had the chance to file a defence and counter-claim at the time, to raise that very argument and you didn't! You are using the ignorance of the law defence, which will get you nowhere with a District Judge! He will ask you why didn't respond to the claim at the time, you will advise him you weren't aware of your rights back then. He will tell you that's what solicitor's are for and that you had an opportunity to dispute the claim and that your time has now passed and the debt stands.

 

Of course you will be able to find a solicitor who will happily take your money and plead your case, but you are going to be sorely disappointed! I am just trying to save you the time and expense of doing this. Believe me, when it comes to challenging things, I am the first person to tell others to fight back, it's exactly what I do! I'm afraid however, that you and Tifo are in for a big shock if you think you are going to get anywhere with seeking to have your CCJ's set aside. I understand that these markers on your credit file can blight your life for 6yrs, but your desire to get them removed is clouding your mind as to what's legally possible.

 

I am studying law and I have a stack of legal procedure books that all state the same thing, there are very limited circumstances under which a CCJ will be set aside and your situation as you've described it, isn't one of them. You really are wasting your time, but if you are determined to do it then nothing I or Zooman says will make a jot of difference. That said, it would have been remiss of us not to tell you from our knowledge and experiences what we believe the outcome will be.

 

Best wishes,

 

Laiste.

 

 

Hi Laiste

 

I'de like to put this to you, the finance company has been unjustly enriched at my expense, i am making payments each month towards thie debt, the terms in the agreement were not legally binding as they have been deemed unfair.

 

As a layperson with no legal training i wasn't in the position to question the validity of the contract.

 

I have a clear credit file now as the CCJ was removed in June 2006, but why should i carry on paying a court order when there's no legal basis

for it to continue.

 

I understand your concerns , but if i was ignorant of the law so was the judge that issued the court order, If their was unfair terms in the agreement why did the judge make a court order.

 

I know you think i'm wasting my time but i've payed the court fee and sent in my skeloton argument, only time will tell.

 

Paul

[Laiste]

I'de like to put this to you, the finance company as been unjustly enriched at my expense, i am making payments each month towards thie debt, the terms in the agreement were not legally binding as they have been deemed unfair.

 

I am not questioning for a moment the fact that there were unfair terms in the agreement that you entered with the finance Company and they have been "unjustly enriched" as a result. You state the terms were not legally binding, as they have been deemed unfair. They were binding on you until you either brought proceedings to challenge them in Court, or as the situation was, you were the subject of legal action, which provided you with the opportunity to challenge the terms as as part of your defence & counter-claim. You did not raise any argument in respect of the debt during proceedings and accepted it in its entirety, that brought the matter to a close. You state that the terms have been deemed unfair. If you are referring to previous precedents, this does not absolve you of the responsibility of proving your case! That point is academic however, as the case has been concluded.

 

Has a layperson with no legal training i wasn't in the position to question the validity of the contract.

 

That's what solicitors are for! No Judge will accept this as a valid argument! You did have a choice and rather than seek legal advice, you opted to accept liability for the debt!

 

I have a clear credit file now as the CCJ was removed in June 2006, but why should i carry on paying a court order when there's no legal basis

for it to continue.

 

Yes there is a legal basis for the Court Order to continue! Try your lack of defence and counter-claim and admission of liability for the debt! No other reasons are required!

 

I understand your concerns , but if i was ignorant of the law so was the judge that issued the court order, If their was unfair terms in the agreement why did the judge make a court order.

 

It is not the Judge's job to conduct your case for you! He is there to make a decision based upon the facts and evidence put before him by both parties, you didn't put any facts before the Judge, you admitted liability and he gave the claimants Judgment against you, based on the evidence before him. You had the chance to argue the toss about unfair terms during the case, you didn't do anything, which is why you ended up with a CCJ. If you don't counter-claim or turn up to Court to argue your case, you can hardly blame the Judge for your decisions, whether its a lack of knowledge of the law or some other spurious reason for your failure to act!

 

What you are doing is a glorious waste of time and money. There is an enforceable debt owing because you didn't challenge it and accepted liability, it's as simple as that.

 

Laiste.

[tifo]

Hi, not sure if its of any help but I was in court last week to apply to have my CCJ from capitalOne set aside. I found:

Removal of CCJ's - Valid reasons to have your judgements set aside

and used point 9 "Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?"

 

I would also use point 3 "If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons".

 

I may have been in receipt of a default notice from the bank but NOT from the debt agency who bought the account and have the CCJ in their name as claimant.

 

Good work, could be useful.

[paulwlton]

I am not questioning for a moment the fact that there were unfair terms in the agreement that you entered with the finance Company and they have been "unjustly enriched" as a result. You state the terms were not legally binding, as they have been deemed unfair. They were binding on you until you either brought proceedings to challenge them in Court, or as the situation was, you were the subject of legal action,

 

You say the terms were legally binding the law clearly states a consumer is not bound by a standard term in a contract with a seller or supplier if that term is unfair. Why are you so adamant that i shouldn't have the right to challenge this. The judge may say that my oportunity to challenge this descision as long gone but i shall argue my point nether the less.

[paulwlton]

I am not questioning for a moment the fact that there were unfair terms in the agreement that you entered with the finance Company and they have been "unjustly enriched" as a result. You state the terms were not legally binding, as they have been deemed unfair. They were binding on you until you either brought proceedings to challenge them in Court, or as the situation was, you were the subject of legal action,

 

You say the terms were legally binding the law clearly states a consumer is not bound by a standard term in a contract with a seller or supplier if that term is unfair. Why are you so adamant that i shouldn't have the right to challenge this. The judge may say that my oportunity to challenge this descision as long gone but i shall argue my point nether the less.

[Laiste]

Paul,

 

Last night you posted a message and invited me to respond to particular issues you had raised, I have done exactly that. The only thing I am adamant about is the legal position here. What decision you ultimately take is entirely a matter for you. You are under no obligation whatsoever to take my advice! I have given you my opinion based upon my knowledge of the law, if you think I'm talking nonsense, then please feel free to disregard in entirety what I've said.

 

On the issue of unfair terms in standard form contracts, I am fully conversant with the legislation in this area and yes, standard terms deemed unfair are not binding on the consumer. That was not the point I was making last night. What I was explaining to you is that because you did not challenge the fairness of the contract at the time, through a defence and counter-claim, the Court found against you, which meant that however unfair the terms were, or even if the amount claimed was in excess of what you owed, because you didn't question anything at that time, during proceedings, you gave up your legal right to challenge any aspect of the debt or the contractual terms. Most contracts made between Companies and consumers contain unfair terms, however, it is down to you, during proceedings to prove your case to the Judge through your arguments that said terms are unfair. Knowing something is unfair and proving it, are two entirely different things!

 

How can a Judge agree with you that the terms in the contract are unfair, if you have failed to file a defence and c/c and present your case in Court?

 

To illustrate by example, most catalogue debts are unenforceable as they never provide a credit agreement. That hasn't stopped Companies getting CCJ's against people! The reason this happens is people not defending claims! If these sorts of claims were defended, the Company would quickly withdraw from the case!

 

The Courts are there to give you the opportunity to defend yourself against any claim brought by a person/Company. If you choose not to defend yourself, then unfortunately, there are consequences.

 

Laiste.

[paulwlton]

Paul,

 

Last night you posted a message and invited me to respond to particular issues you had raised, I have done exactly that. The only thing I am adamant about is the legal position here. What decision you ultimately take is entirely a matter for you. You are under no obligation whatsoever to take my advice! I have given you my opinion based upon my knowledge of the law, if you think I'm talking nonsense, then please feel free to disregard in entirety what I've said.

 

On the issue of unfair terms in standard form contracts, I am fully conversant with the legislation in this area and yes, standard terms deemed unfair are not binding on the consumer. That was not the point I was making last night. What I was explaining to you is that because you did not challenge the fairness of the contract at the time, through a defence and counter-claim, the Court found against you, which meant that however unfair the terms were, or even if the amount claimed was in excess of what you owed, because you didn't question anything at that time, during proceedings, you gave up your legal right to challenge any aspect of the debt or the contractual terms. Most contracts made between Companies and consumers contain unfair terms, however, it is down to you, during proceedings to prove your case to the Judge through your arguments that said terms are unfair. Knowing something is unfair and proving it, are two entirely different things!

 

How can a Judge agree with you that the terms in the contract are unfair, if you have failed to file a defence and c/c and present your case in Court?

 

To illustrate by example, most catalogue debts are unenforceable as they never provide a credit agreement. That hasn't stopped Companies getting CCJ's against people! The reason this happens is people not defending claims! If these sorts of claims were defended, the Company would quickly withdraw from the case!

 

The Courts are there to give you the opportunity to defend yourself against any claim brought by a person/Company. If you choose not to defend yourself, then unfortunately, there are consequences.

 

Laiste.

 

Hi Laiste

 

It is obvious you know what your talking about and i fully respect your opinion but my set-aside application as been issued on the grounds i agreed to the amount at the time but new evidence as come to light and i'm seeking a right to defend.

 

I know it will be hard to convince a judge, and the finance company may well use the Doctrine of Latches defence, but the injustice of it compels me to have a go.

 

Paul

[Laiste]

Hi Paul,

 

I wish you well with your case.

 

Regards,

 

Laiste.

[The Lantana]

I'm only a newbie on this site and I'm learning as I go along. It strikes me that as the CCJ (1999) is off your CRA file having the CCJ set aside doesn't achieve much.

 

Surely a better approach is simply to claim back the illegal charges and then use all or part of that to settle the outstanding amount. You could suggest setting aside the CCJ as part of the overall deal with the creditor, if the CCJ matters that much to you.

 

If you succeed in having the CCJ set aside it is open to the creditor to apply again, and if the creditor is successful then you've got another CCJ for six years.

 

Decide what you really want here.

[fbnts]

Hi,

 

I have recieved confirmation today that the CCJ is set aside.

 

I do have to submit a defence to the origional claim but that shouldn't be too dificult.

 

I have drafted this from the POC against CapitalOne:

The Defendant had a Credit Card Account, number 5460 9753 0788 2816 with Capital One Bank Plc which was governed by the Claimants’s Terms and Conditions.

 

During the period in which the Account had been operating the Claimant had added numerous charges to the Account in respect of purported breaches of contract in regards to “Late Payments”, “Over Credit Limit”, etc.. on the part of the Defendant and also charged interest on the charges once applied.

 

The Defendant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Claimant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to Account defaults.

 

The Defendant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.

 

The defendant thus contends that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Claimant;

iii) exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant;

iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

b) Further to a) the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Defendant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

 

The Defendant seeks permission to proceed with the defence under section 32 (1)(b) Limitation Act 1980 on the grounds that the Defendant could not reasonably have discovered the Claimant's deliberate concealment of the facts relevant to the Defendant's right of action before the OFT’s report was published on 5th April 2006. The facts relevant to the Defendant's right of action are that the Claimant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Claimant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Claimant can be seen to have been operating without Accountability to its customers, and to have consciously concealed the facts. The Claimant is clearly in a privileged position to have a direct means of charging monies to the Defendant's Account. The Defendant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Claimant will always conduct itself with integrity.

 

A claim has already been instigated against Capital One Bank Plc based on the above defence. The claim number is 7CD00228 which was issued in the Chesterfield County Court on 14th February 2007 for a total amount of £811.52

 

 

Hope it may be of use.

 

Tom

[tifo]

thanks ...

 

but mine is against a DCA who only bought the debt, so how can i change this?

[paulwlton]

Hi,

 

I have recieved confirmation today that the CCJ is set aside.

 

I do have to submit a defence to the origional claim but that shouldn't be too dificult.

 

I have drafted this from the POC against CapitalOne:

 

 

 

Hope it may be of use.

 

Tom

 

Great news on your set-aside, and good luck.

[paulwlton]

I'm only a newbie on this site and I'm learning as I go along. It strikes me that as the CCJ (1999) is off your CRA file having the CCJ set aside doesn't achieve much.

 

Surely a better approach is simply to claim back the illegal charges and then use all or part of that to settle the outstanding amount. You could suggest setting aside the CCJ as part of the overall deal with the creditor, if the CCJ matters that much to you.

 

If you succeed in having the CCJ set aside it is open to the creditor to apply again, and if the creditor is successful then you've got another CCJ for six years.

 

Decide what you really want here.

 

Hi Lantana

 

I don't think you understand the CCJ was removed from my credit file in 2005 but i'm still paying the court order monthly, this is why i'm seeking the set-aside.

[conar686]

To illustrate by example, most catalogue debts are unenforceable as they never provide a credit agreement. Laiste.

 

Laiste I'm v interested in the above statement I'm currently in an IVA part of which we tagged on my Wifes catologues. Are you saying I can have a portion of my debt written off as unenforceable, if so how? if not why not?

[thereshope!]

Paul , any more on your set-aside ?

 

I was in court yesterday for a final charging order hearing and the judge has given me a further 28 days to seek ' strong legal advice'

 

 

The judge told me his hands were tied as I had admitted the debt,despite explaining that I had admitted to the debt before I was made aware that penalty charges were unlawful.

 

I also mentioned that as the creditor had failed to supply me with documents under a sar and cca request that the amount of the debt was in dispute,and the creditor had committed an offence by not responding to my request in the prescribed time frame.

 

The judge said the onus was on me to prove the balance of the debt !

 

Its a real catch 22 situation. The debt is in dispute due to non-compliance issues by creditor,therefore you dont know the outstanding balance amount,the judge say it is up to you to prove the debt,so you cca and sar creditor- and round and round we go !

 

I also need to apply for a set aside of the CCJ so that I can stop the charging order being made final, but Laiste seems pretty sure that its pointless

 

I was feeling hopeful but on a bit of a downer now....

 

Hope xx