Help wording defence on N244 for setting aside CCJ on Statute Barred debt

[Polaris]

Hi there

I am struggling to find the correct/best way to word my defense for setting aside a CCJ for a Statute Barred debt on a N244 form.

Specifically section 10 where it states detail your defense.

Any help with this would be much appreciated. The claim form was sent out 7 years from the original default date and I have made no payment in this time.

Thanks!

[R0b]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Reasons for setting aside the application is different to putting forward your defence. What is the reason for setting aside, or are you saying that it should be set aside because it was statute barred? if so, why didn't you attend?

CCJ's only last on file for 6 years, so if it is over that time, not sure why you would want to set aside?

[Diana M]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

When you say "set aside" do you mean you have been given a Default Judgment (CCJ) which you would like to set aside because it was served on the wrong address etc. and your Defence would be the debt was SB if you succeed with your set aside application giving you an opportunity to defend the claim?

Or are you wanting help to file a Defence against a claim for a Statute Barred debt?

Or perhaps a combination of both hence the N244

Di

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Reasons for setting aside the application is different to putting forward your defence. What is the reason for setting aside, or are you saying that it should be set aside because it was statute barred? if so, why didn't you attend?

CCJ's only last on file for 6 years, so if it is over that time, not sure why you would want to set aside?

Sorry R0b should've explained further; Need to set aside as I've had a CCJ registered last month on a debt I believe is already Statute Barred (in 2015 - defaulted in 2009 and made no payments in well over 7 years). I never received the original claim form so the CCJ was registered. So now need to use N244.

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

When you say "set aside" do you mean you have been given a Default Judgment (CCJ) which you would like to set aside because it was served on the wrong address etc. and your Defence would be the debt was SB if you succeed with your set aside application giving you an opportunity to defend the claim?

Or are you wanting help to file a Defence against a claim for a Statute Barred debt?

Or perhaps a combination of both hence the N244

Di

Hi Di So basically like I've said to R0b above I've had a CCJ registered against me for a debt I strongly believe to be Statute Barred. I never recieved the claim for they send prior to registering the CCJ so had no chance to respond. (I only found out via a credit check) So I need to use a N244 to set the CCJ aside stating that its Statute Barred and so should never have had a CCJ registered in the first place.

I'm just struggling to word stating my evidence in section 10 :/

[Diana M]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

I never recieved the claim for they send prior to registering the CCJ so had no chance to respond. (I only found out via a credit check)

The first hurdle will be to convince the court that the claim was improperly served so what was the reason you didn't receive it?

Section 10 of the N244 is about what information you will be relying on to support your application for a set aside of the CCJ.

You can attach a Witness Statement detailing why the Claimant should have known it was the wrong address (or whatever reason you didn't receive the claim).

And attach a Draft Defence setting out why you believe the debt was SB at the time/date the claim was issued so the court can see that it's not a waste of time to give you the opportunity to defend the claim if the CCJ is set aside.

I don't think anyone can provide you with the wording for Section 10 without first knowing the facts which led up to the CCJ.

Who is the Claimant, who are the solicitors, how much is/was the claim, and when was the CCJ granted?

Di

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

The first hurdle will be to convince the court that the claim was improperly served so what was the reason you didn't receive it?

Section 10 of the N244 is about what information you will be relying on to support your application for a set aside of the CCJ.

You can attach a Witness Statement detailing why the Claimant should have known it was the wrong address (or whatever reason you didn't receive the claim).

And attach a Draft Defence setting out why you believe the debt was SB at the time/date the claim was issued so the court can see that it's not a waste of time to give you the opportunity to defend the claim if the CCJ is set aside.

I don't think anyone can provide you with the wording for Section 10 without first knowing the facts which led up to the CCJ.

Who is the Claimant, who are the solicitors, how much is/was the claim, and when was the CCJ granted?

Di

Hi Di

I first found out about the CCJ via a credit check, after contacting the court they confirmed my address and that mail had been sent to me. I never received any mail regards this but I cannot prove that I didnt and apparently its enough (according to a property act in 1925) that the mail is sent regardless of whether it is lost or sent to the wrong address etc. So with that in mind I didn't think I should use it as an argument/in my defense? Although perhaps I could state I never received the claim form?

The Claimant is Hoist Portfolio Holdings 2 Ltd - there are no solicitors involved (apart from Hoists own legal dept - Howard Cohen) - the claim is for 3k (original debt 1k!) and the CCJ was granted in September 2016.

The original default of the debt according to credit file is September 2009 and I have made no payment or acknowledged the debt since this date and maybe a few years prior to that date. So should be SB September 2015.

[R0b]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Not receiving the claim form is reasonable grounds for setting aside the judgment. It is not uncommon for the court service to make numerous errors in sending documents and evidence to claimants/defendants and you should be given the benefit of the doubt.

Setting aside on that basis would be made under CPR 13.3, at the Court's discretion. As Diana has already alluded to, you should set out brief details and facts of the matter, stating whether you received any claim form or other documents pertaining to the case and you only became aware of the CCJ when you/someone else carried out a credit check.

Attaching a defence is a good way for the judge determining your case as to whether you have a real prospect of successfully defending the claim, as it will likely be relisted again if set aside. Of course a SB defence is a good defence to have but also, you may want to send a SAR request to the original creditor to see what documents they hold on you and when the last activity occurred on your account. If they don't have the documents available anymore its unlikely that Howard Cohen are going to be able to produce the relevant credit agreement, default notice and possibly the notice of assignment (or at least it could be defective).

A case that you can use to support your non-receipt of documents is Godwin v Swindon Borough Council [2001] EWCA Civ 1478:

Rule 13.3(1)(b) has a disjunctive alternative, so that the court may setaside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so."

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Not receiving the claim form is reasonable grounds for setting aside the judgment. It is not uncommon for the court service to make numerous errors in sending documents and evidence to claimants/defendants and you should be given the benefit of the doubt.

Setting aside on that basis would be made under CPR 13.3, at the Court's discretion. As Diana has already alluded to, you should set out brief details and facts of the matter, stating whether you received any claim form or other documents pertaining to the case and you only became aware of the CCJ when you/someone else carried out a credit check.

Attaching a defence is a good way for the judge determining your case as to whether you have a real prospect of successfully defending the claim, as it will likely be relisted again if set aside. Of course a SB defence is a good defence to have but also, you may want to send a SAR request to the original creditor to see what documents they hold on you and when the last activity occurred on your account. If they don't have the documents available anymore its unlikely that Howard Cohen are going to be able to produce the relevant credit agreement, default notice and possibly the notice of assignment (or at least it could be defective).

A case that you can use to support your non-receipt of documents is Godwin v Swindon Borough Council [2001] EWCA Civ 1478:

Rule 13.3(1)(b) has a disjunctive alternative, so that the court may setaside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so."

Hi Rob

Thanks for the detailed reply - good information!

Ok so perhaps I'm jumping the gun slightly with going straight to N244? I should send a SAR request first?

A SAR request would at least give me much more confidence in progressing because at the minute even though I'm 99% sure no payments were made to the debt in over 6 years - there's always that element of doubt.

So not receiving the claim form would strengthen my defence even though the court and Howard Cohen have my correct and current address... Interesting. and with the case you referenced it looks likely I would be given the benefit of the doubt.

One thing that concerns me slightly is that since confirming my address with the court early last week I received some mail from them! A Warranty of Control letter. Action commences today (2/12/2016). I called the court immediately and said I'm applying to set aside but until the the application has been received and processed they cannot halt the action by the bailiff. I contacted the bailiff and he was extremely rude and hung up on me and then wouldnt answer after I said I'm applying to set aside. I worry as I have a car parked on the drive and thought maybe they can Levy this?

[R0b]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Setting aside applications are to be made promptly and waiting for a SAR response is probably not a good enough excuse to wait. Based on what you have said you should run with the statute barred defence as that still falls within the 'some other good reason' heading because you could also argue that either Howard Cohen knew or ought to have been aware that the claim was statute barred yet proceeded to issue a claim anyway (either they have the documents or they don't like most debt collectors, but if they didn't then a further argument arises in that they shouldn't have brought the claim in the first place until they could verify there was a right to claim the debt).

Your set aside application should consist of two things: Set aside under CPR 13.3 no claim form received and attach draft defence. I say draft because you may want to amend it at a later date and if you also attach a draft order you could incorporate this too. The second part is to stay the warrant of control pending the outcome of the application.

As for the car, is it financed or privately owned? And was this Warrant of Control letter from the Court or the bailiff? I believe they have to give you 7 days notice before they come out, so you don't have much time to get your application in, but equally you shouldn't rush it either.

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Ok so for example on the N244 form - section 3 (what order are you asking the court to make and why) I would say; To set aside the County Court Judgment under CPR 13.3 no claim form received. Is this correct?

Under section 10 I would tick - Attached witness statement and then attach a draft defence stating debt is Statute Barred - giving dates of default and date of claim form sent. Or would I state CPR 13.3 in this section and separately attach a draft defence?

My car is privately owned and the letter was from the County Court business Centre. Unfortunately the 7 days is up today 2/12 so I desperately need to get the application in although like you say I dont want to rush it and make mistakes! I've going round in circles all week I'm glad I found this forum just in time!

[R0b]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

I would suggest you take a read through this thread which was successful in setting aside the CCJ - http://legalbeagles.info/forums/show...et-aside-a-CCJ

Of course it is not the same as yours but some of it you could take from i.e. there's a draft witness statement at post #15 and a draft order at post#17 along with typical wording on the application form.

I would suggest you have a look through that and then if you post up your documents here, we can take a look and provide some feedback.

If it is a notice from the Court, then the bailiffs would need to post a letter giving 7 days warning before they can take any further action, otherwise they will be non-compliant.

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Ok thanks for the link - I will read through thoroughly this evening and then draft my own and post first draft here.

I'm not actually sure the Warranty of Control is a notice from the court...? I've attached it to this post

Thanks for your help

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Hi

I've drafted a witness statement and included all the information I thought was relevant. I've tried to word it as best I could, I wasn't sure which I should give priority in the statement, either Statute or CPR 13.3.

Would you be able to take a look to see if there is anything I should add or remove?

I've attached the N244 and Witness Statement. Thanks for your help!!

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Hi there

Sorry I forgot to add the Draft Order (ref post #17 in the other thread). I'm not sure that the orders listed best relate to my case?