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

[Polaris]

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

You say this was a bank account overdraft so the SB date may/may not relate to the last payment into the account or necessarily be dictated by the default date recorded on your CRA file.

Do you know the date of the Final Demand or even if you were served with a Final Demand? If you were served with a Final Demand do you know the deadline given?

Di

Hi Di
I see so it could go back earlier than 2009.. No I dont remember a final demand although it was that long ago there could have been one. I know I stopped using the account at least a year before the default date.

[charitynjw]

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

What worries me slightly is that the warrant of control is in action (im having to park my car 3 streets away)

ANPR?

[Diana M]

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

Hi Di
I see so it could go back earlier than 2009.. No I dont remember a final demand although it was that long ago there could have been one. I know I stopped using the account at least a year before the default date.

No I was meaning the opposite.

The SB date could be later since a current account (with an OD facility) doesn't have a monthly contractual payment obligation which could trigger a breach of Ts and Cs if not paid on time leading to a Default.

A bank account can sit there for years without any money being paid into it. Things may only change when/if it goes over any agreed OD limit etc. That's why I asked you about being issued with a Final Demand and the expirey date of that.

And that's why I suggested you should send a SAR to the original creditor (who was that?).

Was it a joint bank account by any chance?

Finally you really do need to know on what basis Howard Cohen claim a payment was made in 2011. You say they are lying but have you asked them for proof of how much was paid, on what date, and by what payment method?

Di

[Polaris]

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

No I was meaning the opposite.

The SB date could be later since a current account (with an OD facility) doesn't have a monthly contractual payment obligation which could trigger a breach of Ts and Cs if not paid on time leading to a Default.

A bank account can sit there for years without any money being paid into it. Things may only change when/if it goes over any agreed OD limit etc. That's why I asked you about being issued with a Final Demand and the expirey date of that.

And that's why I suggested you should send a SAR to the original creditor (who was that?).

Was it a joint bank account by any chance?

Finally you really do need to know on what basis Howard Cohen claim a payment was made in 2011. You say they are lying but have you asked them for proof of how much was paid, on what date, and by what payment method?

Di

Ok I see. So expirey of final demand would turn it into a debt.

The account was with HSBC and then went on to be collected by MKDP LLP. The default was registered by MKDP LLP. If they are a debt collection agency then this would mean the debt was sold on prior to the default date?

I am proceeding with a SAR.

It wasnt a joint account. I will call HC now and ask them now.

[Diana M]

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

I will call HC now and ask them now.

Always write, never call when it comes to litigation.

You need a paper trail for evidence.

Di

[Diana M]

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

So expirey of final demand would turn it into a debt.

The account was with HSBC and then went on to be collected by MKDP LLP. The default was registered by MKDP LLP. If they are a debt collection agency then this would mean the debt was sold on prior to the default date?.

That's not what I said either.

The difficulty is you're understandably in a hurry to get rid of the bailiff issue. But you've only got one shot at this set aside application so it has to be right.

To do that you need to be in possession of as many facts as possible as well as anticipating what the other side may throw into the mix to thwart your application.

At the moment you're planning to put all your eggs in one basket with a draft Defence of SB. If HC blow that legal argument out of the water (they may not) then what else have you got to fall back on?

MKDP was not a debt collection agency, they were a debt purchaser which in turn was bought by a Hoist who would have to prove that they have/had the right to collect the debt regardless of whether it was SB or not.

I cannot give legal advice without having seen the paperwork, but the advice I can give is 'more haste less speed'.

R0b has helped you to draft documents to file and serve, all I'm doing is throwing out ideas for you to consider in case any of those documents need a tweak before submitting them to the court

Di

[Polaris]

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

That's not what I said either.

The difficulty is you're understandably in a hurry to get rid of the bailiff issue. But you've only got one shot at this set aside application so it has to be right.

To do that you need to be in possession of as many facts as possible as well as anticipating what the other side may throw into the mix to thwart your application.

At the moment you're planning to put all your eggs in one basket with a draft Defence of SB. If HC blow that legal argument out of the water (they may not) then what else have you got to fall back on?

MKDP was not a debt collection agency, they were a debt purchaser which in turn was bought by a Hoist who would have to prove that they have/had the right to collect the debt regardless of whether it was SB or not.

I cannot give legal advice without having seen the paperwork, but the advice I can give is 'more haste less speed'.

R0b has drafted you documents to file and serve, all I'm doing is throwing out ideas for you to consider in case any of those documents need a tweak before submitting them to the court

Di

Sorry if I sound a little naive I've never dealt with anything legal before and I fear making a mistake. Thanks for being patient with me.

Yes I guess I am in a bit of a hurry, its constantly on my mind day and night with the threat of the bailiff especially with xmas around the corner. I know ultimately its my fault.

So Hoist having to prove they have the right to collect could also be part of the draft defence (as well as SB)?

OR would you suggest waiting until I have the information from the SAR before I apply for set aside?

[R0b]

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

It would be wise to take into account what Di has said, set aside applications vary depending on the circumstances and the thread I provided to you is entirely differnt to yours. Credit Card disputes are not my forte and Di is also right in that you shouldn't just rely on one Defence if there is the possibility of multiple defences that could strengthen your case. That doesn't mean you throw every Defence in possible but the ones that have some substance to them. It is not uncommon to have 2-4 Defence arguments (strongest Ines) though anymore than that tends to look a bit more desperate and unappealing to the judge.

I assume when Di refers to HC having the right to pursue the debt she is talking about assignment. For another debt purchaser to have a legal right to recover, they must have notified the debtor in writing that the debt has been assigned from one party to another, failing which they have no legal right to sue.

It is not mandatory to supply a Defence with the set aside application but it does help to show the judge you have a reasonable prospect of success. Even if you don't submit a Defence the judge could require you to provide a Defence before he/she is satisfied that the CCJ should be set aside.

The Draft Order from the other thread was an example of what can be ordered and in that case the judge agreed but you may not always be lucky to get something as generous.

At the end of the day it is up to you as to whether you want to proceed, you could potentially amend your Defence at a later stage but you could incur further costs from the other side who may have to respond.

You have to balance up the risk of waiting for what you need to do now against what you might want to add to your Defence or potentially have no Defence to the claim. Again if you omit the draft Defence you would probably need to beef up your witness statement to say that you believe the claim to be statute barred and or questions as to whether HC have title to sue but in order to prepare a Defence you need to see the Claim form and all relevant documents - hence the wording of the draft order.

[Polaris]

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

It would be wise to take into account what Di has said, set aside applications vary depending on the circumstances and the thread I provided to you is entirely differnt to yours. Credit Card disputes are not my forte and Di is also right in that you shouldn't just rely on one Defence if there is the possibility of multiple defences that could strengthen your case. That doesn't mean you throw every Defence in possible but the ones that have some substance to them. It is not uncommon to have 2-4 Defence arguments (strongest Ines) though anymore than that tends to look a bit more desperate and unappealing to the judge.

I assume when Di refers to HC having the right to pursue the debt she is talking about assignment. For another debt purchaser to have a legal right to recover, they must have notified the debtor in writing that the debt has been assigned from one party to another, failing which they have no legal right to sue.

It is not mandatory to supply a Defence with the set aside application but it does help to show the judge you have a reasonable prospect of success. Even if you don't submit a Defence the judge could require you to provide a Defence before he/she is satisfied that the CCJ should be set aside.

The Draft Order from the other thread was an example of what can be ordered and in that case the judge agreed but you may not always be lucky to get something as generous.

At the end of the day it is up to you as to whether you want to proceed, you could potentially amend your Defence at a later stage but you could incur further costs from the other side who may have to respond.

You have to balance up the risk of waiting for what you need to do now against what you might want to add to your Defence or potentially have no Defence to the claim. Again if you omit the draft Defence you would probably need to beef up your witness statement to say that you believe the claim to be statute barred and or questions as to whether HC have title to sue but in order to prepare a Defence you need to see the Claim form and all relevant documents - hence the wording of the draft order.

Hi Rob

Thanks for your reply.

Yes I think I need to balance the risk. Unfortunately the risk is quite high as I have a car worth more than the value of the debt. Ideally I'd wait for the outcome of the SAR prior to filing for set aside as it would help clarify my defence which would more than likely provide a stronger case with all bases covered. As I'm confident it is SB and with the situation as it is, I think i'll proceed without and add/pose question in the Witness Statement of whether they have title to sue.

Posing the question on whether they have the right to sue - should I add this to the draft defence or just keep it in my statement?

Would there be any good reason to omit the draft defence?

I appreciate all the advise and feedback - I really do. Its been a great help.

[Polaris]

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

ANPR?

I don't think this is such a problem as I don't live in a city.. Although people are little more inquisitive as to the reason I'm parked outside their house. Currently its off my driveway and parked outside on the road.

[Polaris]

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

I've sent a SAR to original creditor but apparently takes at least 40 days arrive.

I've also sent a CPR request for disclosure of the following:
The Notice of Assignment
The Default Notice
The credit agreement - even though a bank account apparently they call it this.

As much as I'd like to wait for all the above I feel the risk is too high with a Warrant of Control in action. If I was in someway able to suspend the enforcement until I have more information I would as I realise it would help clarify my defence.

I've gone ahead and asked for the above information anyway as its available and with a hearing date possibly taking a 4-6 weeks perhaps I could alter my defence if required.

I have drafted all documents and made made alterations where advised in this thread (thanks R0b and Di). Before I send could someone perhaps do a final check to make sure I'm not making a fool of myself or have worded incorrectly?

My draft defence currently is solely based on Statute Barred - Should I add not receiving 'Notice of Agreement' into the defence or just question in the Witness Statement? Or should I omit the draft defence entirely based on current lack of information?

Thanks
P

[Diana M]

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

I have drafted all documents and made made alterations where advised in this thread (thanks R0b and Di).

I haven't 'advised' you, I simply try to point people in the right direction.

I've suggested that you file a Draft Defence together with your application for a set aside of the CCJ because that's the way my firm does things.

If that sounds like a good idea to you then you'll be filing a Draft Defence not a full Defence. You will not have to 'amend' it as has been suggested in post # 38. If the CCJ is set aside then you'll be in a position to file your 'real' Defence. No charge and no permission needed.

The object of the exercise is to give the Court a solid indication that if the CCJ were to be set aside it wouldn't be a waste of their time.

At the moment you may need to beef up your reasons for not receiving the claim (Royal Mail or court error) in order to get the set aside.

Have you done enough research into this aspect?

You say the Warrant of Control was only issued after you confirmed your address to the court. Do you actually have a copy of the claim (Form N1) to show that it was sent (albeit not received) to the correct address?

Di

[Polaris]

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

I haven't 'advised' you, I simply try to point people in the right direction.

I've suggested that you file a Draft Defence together with your application for a set aside of the CCJ because that's the way my firm does things.

If that sounds like a good idea to you then you'll be filing a Draft Defence not a full Defence. You will not have to 'amend' it as has been suggested in post # 38. If the CCJ is set aside then you'll be in a position to file your 'real' Defence. No charge and no permission needed.

The object of the exercise is to give the Court a solid indication that if the CCJ were to be set aside it wouldn't be a waste of their time.

At the moment you may need to beef up your reasons for not receiving the claim (Royal Mail or court error) in order to get the set aside.

Have you done enough research into this aspect?

You say the Warrant of Control was only issued after you confirmed your address to the court. Do you actually have a copy of the claim (Form N1) to show that it was sent (albeit not received) to the correct address?

Di

Hi Di
Sorry yes you pointed me in the right direction which I am grateful for

As I have no way to prove that I didnt receive the mail other than me saying I didnt receive it I really didnt know how to beef it up. Apparently 500k of mail go missing a week but the likelihood of it happening half a dozen times seems too much of a stretch.

Its a real weak point in my defence isnt it I will get the court to re-send me the claim form to check the address.

It seems if people go abroad or travelling and 'miss' the mail that would make a better defence.

There is a very similar address on my road that I've had items wrongly delivered to but I checked with them and they'd had none of my mail. So that would be a stretch too.

[Polaris]

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

****CASE WON****

After two hearings and the Claimant failing to provide further evidence to support the apparent payments I made towards the debt which would nullify the statute barred defense I have had the judgement set aside.

In the first hearing the Claimant submitted a number of payments via a sheet of paper without a heading or without where these payments originated from, this was to refute the SB defense. The judge decided to give the Claimant the benefit of doubt and give them 3 weeks to provide further evidence to support these payments. They failed to do this and then never turned up to the 2nd hearing instead sending over an email stating they would agree to the set aside on the basis my costs are not paid.

The judge then reviewed the case file and set the judgement aside anyway and asked me if I wanted a separate hearing over my costs - which I agreed to.

The judge advised I now have 14 days to file and serve a defense... So I guess this means file a defense against the original claim? Is this what happens usually after a judgement has been set aside? I originally thought the Claimant would need to re-issue the claim within 28 days.

Thanks for the help you have given me, it set me on the path to successfully getting this judgement set aside.

[R0b]

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

First of all well done on getting the set aside, eventually.

Have you received the order from the court yet? Just to confirm the judge will arrange for a separate hearing on the costs of the set aside application?

1. If it were me, I would have not only pushed for the set aside but also for the judge to consider an application for summary judgment on the grounds that you have argued the claim is SB, the Claimant has failed to provide the necessary evidence to show the claim is not SB after having been given an extra 3 weeks to provide further information. In addition the Claimant also failed to show up to the hearing altogether. The claim itself has already taken up valuable court resources and in order to give effect to the overriding objective, consideration of summary judgment would be appropriate. In this case, if the Claimant has not offered up evidence to prove the debt was not SB following an adjournment and has not indicated that it requires additional time to seek the evidence it needs, then on balance the claim is unlikely to have any real prospect of success at trial, other than to waste further court resources.

2. If the judge disagreed, your next best option would be asking the judge to make an unless order. Here, you could say that in order to prepare your defence, you require sight of the Particulars of Claim since you never received it. Therefore given the Claimant's current conduct in this hearing, unless the Claimant re-filed and re-served the Particulars within 14/28 days (and if complied with you have a further 14 days to file a defence), otherwise the claim will be struck out.

As always with hindsight, you may have been able to get a lot more out of the set aside hearing than what you already have, though I appreciate you don't have the necessary experience but perhaps some of the above may assist you in any future case similar to this one.

The judge advised I now have 14 days to file and serve a defense... So I guess this means file a defense against the original claim? Is this what happens usually after a judgement has been set aside? I originally thought the Claimant would need to re-issue the claim within 28 days.

A set aside of the CCJ puts the parties back in the position before the default judgment and means the next step is a hearing date following the filing of a defence. It is not mandatory for the Claimant to re-issue the Particulars unless you specifically request it (at the judge's discretion) - it is not expected for Claimants to do this.

What's happening with your SAR request? Have you received any documents? It's been way over the 40 day period for them to comply.

As for your next steps, you will need to file a defence yes. However, that does not prevent you from writing to the Claimant and making them aware that following the hearing, the judge has ordered a separate costs hearing in respect of the set aside, particularly as to their conduct of failing to turn up and wasting court time. You could therefore invite them to withdraw their claim in light of their failure to supply the necessary evidence to back up their claim and if they pursue the claim, you will also consider seeking further costs from them if they choose to discontinue the claim at a later stage.

To add a bit of a sweetener, you could suggest that if they agree to discontinue the claim against you immediately (subject to you receiving the discontinuance notice), you will agree to the withdrawal of the costs hearing in relation to the set aside application.

In the meantime, you do need to get cracking with your defence, you can't wait around.