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

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  • #16
    Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

    hello i'll take a look some time tonight when I have time fully read it all
    If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

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    • #17
      Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

      Originally posted by R0b View Post
      hello i'll take a look some time tonight when I have time fully read it all
      Hi R0b

      Thanks I appreciate it you've been a great help Its starting to worry me slightly as I think the Warrant of Control is in action.

      Comment


      • #18
        Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

        Morning, I have taken a quick look at your documents and I would comment as follows:

        The Application Form
        Under 3. I think you should be more explicit but you also need to request a stay of the warrant pending the outcome of the application, otherwise the bailiffs could still continue to come around in effect. Your wording should be something along he lines of, 'The Defendant seeks to set aside the claim (Claim No.) pursuant to CPR 13.3 as the Defendant believes there is some other good reason and there is a real prospect of successfully defending the claim. The Defendant also requests that the Warrant of Control (Warrant No.) be stayed pending the outcome of the application.

        Witness Statement
        Your Witness Statement contains some argument for your defence too, which I think you should also seek to put in a draft defence to show the judge that there is a chance of defending the claim should it be set aside - this is where it relates to the statute barred paragraphs. You could also mention a bit more clearer whether or not you received the claim form and perhaps argument that they ought to have taken reasonable steps to ascertain your current whereabouts. If you have updated your electoral roll or credit file details to reflect a change of address this is likely to be sufficient to argue a set aside.

        Draft Order

        Noticed in the order you can remove the bit where it says Counsel for claimant and defendant so it jsut reads, upon hearing the Defendant and Claimant

        As suggested above, a draft defence would help support your claim to set aside. If set aside, then the warrant of control also set aside too and the claim gets relisted for a hearing.
        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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        LEGAL DISCLAIMER
        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

        Comment


        • #19
          Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

          Originally posted by R0b View Post
          Morning, I have taken a quick look at your documents and I would comment as follows:

          The Application Form
          Under 3. I think you should be more explicit but you also need to request a stay of the warrant pending the outcome of the application, otherwise the bailiffs could still continue to come around in effect. Your wording should be something along he lines of, 'The Defendant seeks to set aside the claim (Claim No.) pursuant to CPR 13.3 as the Defendant believes there is some other good reason and there is a real prospect of successfully defending the claim. The Defendant also requests that the Warrant of Control (Warrant No.) be stayed pending the outcome of the application.

          Witness Statement
          Your Witness Statement contains some argument for your defence too, which I think you should also seek to put in a draft defence to show the judge that there is a chance of defending the claim should it be set aside - this is where it relates to the statute barred paragraphs. You could also mention a bit more clearer whether or not you received the claim form and perhaps argument that they ought to have taken reasonable steps to ascertain your current whereabouts. If you have updated your electoral roll or credit file details to reflect a change of address this is likely to be sufficient to argue a set aside.

          Draft Order

          Noticed in the order you can remove the bit where it says Counsel for claimant and defendant so it jsut reads, upon hearing the Defendant and Claimant

          As suggested above, a draft defence would help support your claim to set aside. If set aside, then the warrant of control also set aside too and the claim gets relisted for a hearing.

          Hi R0b thanks for taking the time to advise.

          Regards the claimant knowing my address prior to issuing claim form - they did confirm the address when I contacted them and told me they'd sent numerous mail to my address - which is why I thought it so odd that I never received any mail. So perhaps I should not argue the bolded part above?

          So in effect I'm asking the court to set aside based on - I have a very good chance of defending the claim (Statute Barred). So having the claim completely struck out based on SB would be a separate issue once this judgement is set aside (- the claimant would then have to re-issue claim form as per the The Draft Order? (as below)

          "2. Unless the Claimant re-serves and files at court the Claim Form within 28 days from the date of this order, the Claim shall be struck out.

          3. The Defendant shall within 28 days from service of the Claim Form file and serve a Defence to the claim."


          Should I follow the same layout as the 'Draft Defence' posted here: http://legalbeagles.info/forums/show...lication-notes ?

          Thanks

          Comment


          • #20
            Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

            You could still mention that you did not receive the claim form, and as such had no opportunity to defend yourself.

            You can follow the same layout as the defence yes
            If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
            - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
            LEGAL DISCLAIMER
            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

            Comment


            • #21
              Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

              Ok I've now drafted all documents. A couple of things I'm unsure of:

              Does the Draft Defence sound right for a statute barred defence? Should I mention dates of the original default (not sure if its from last payment made or the default date that the 6 years starts)?

              Should I quote a case and insert the rule as per point 5. in the Witness Statement? All else ok?
              Attached Files

              Comment


              • #22
                Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                ??BMW v Hart??
                http://www.lexology.com/library/deta...7-21b6701a273e
                CAVEAT LECTOR

                This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

                You and I do not see things as they are. We see things as we are.
                Cohen, Herb


                There is danger when a man throws his tongue into high gear before he
                gets his brain a-going.
                Phelps, C. C.


                "They couldn't hit an elephant at this distance!"
                The last words of John Sedgwick

                Comment


                • #23
                  Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                  I can't really comment on your WS or Draft Defence without seeing all the paperwork.

                  What I will say is that in order for your application to be set aside you need to convince the court that the summons was incorrectly served (wrong address) or not received for some reason if it was correctly served (right address).

                  Royal Mail admits to losing 500,000 letters per week (that's not a typo ) but be prepared to answer the question "did you not receive the Default Judgment (CCJ)" which would also have been sent to the same address shortly afterwards.

                  If you didn't get that CCJ (and I know you say you didn't) then Royal Mail will have messed up twice in one month to the same address which is statistically possible or maybe the court didn't send either?

                  You may need to spell it out a bit such as do you live in a flat with a communal hall for post, or do you live in a property with no number etc.

                  The Draft WS needs to be enough to let the court know that you have an arguable case with prospects of success if you're given the opportunity to file a proper comprehensive Defence once/if the CCJ has been set aside. Have you got any evidence which you could attach which would prove your last payment was in 2009?

                  Di

                  Comment


                  • #24
                    Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                    Originally posted by Polaris View Post
                    The Claimant is Hoist Portfolio Holdings 2 Ltd - there are no solicitors involved (apart from Hoists own legal dept - Howard Cohen)
                    I would approach Howard Cohen (solicitors acting for Hoist) to see if they will consent to the set-aside without the need for a hearing.

                    Enclose a copy of your (draft) Application for the set-aside with your WS and Draft Defence so they know you mean business. Also enclose a Draft Consent Order agreeing to the set-aside for them to sign

                    (And I don't mean the Draft Order which you have upload in post # 21 seeking a strike out etc.)

                    Give them a deadline for their response and tell them that if they don't consent you'll be making the Application and asking the court to order costs against them (if you're successful).

                    You can take the same opportunity to ask them to call off the dogs (they've started enforcement proceedings using bailiffs). They can stop the Warrant of Control if they want to.

                    Their decision will be based on a balance between knowing that they didn't serve the claim incorrectly (assuming it's Royal Mail's fault) and knowing (which they should) that the debt was SB before they issued the claim.

                    Di

                    Comment


                    • #25
                      Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                      Originally posted by Diana M View Post
                      I can't really comment on your WS or Draft Defence without seeing all the paperwork.

                      What I will say is that in order for your application to be set aside you need to convince the court that the summons was incorrectly served (wrong address) or not received for some reason if it was correctly served (right address).

                      Royal Mail admits to losing 500,000 letters per week (that's not a typo ) but be prepared to answer the question "did you not receive the Default Judgment (CCJ)" which would also have been sent to the same address shortly afterwards.

                      If you didn't get that CCJ (and I know you say you didn't) then Royal Mail will have messed up twice in one month to the same address which is statistically possible or maybe the court didn't send either?

                      You may need to spell it out a bit such as do you live in a flat with a communal hall for post, or do you live in a property with no number etc.

                      The Draft WS needs to be enough to let the court know that you have an arguable case with prospects of success if you're given the opportunity to file a proper comprehensive Defence once/if the CCJ has been set aside. Have you got any evidence which you could attach which would prove your last payment was in 2009?

                      Di
                      Hi Di thanks for your posts.

                      You see this is the sticking point - I never received anything including the claim form or the default judgement itself. Yet once I found out I had a CCJ via a credit check I called the CCBC and they confirmed my current address and that numerous mail had been sent out to my address.

                      I also called Howard Cohen and they confirmed my address and said the mail had been sent out. I also advised its Statute Barred but they obviously claimed it is not saying there was a payment made in 2011 - which I know is definitely not true! So they are lying.

                      I thought it was up to the Claimant to prove that it isnt statute barred as they have initiated the claim? (Once I make that apart of my defence in the Draft Defence/WS)

                      I could go back to the original creditor and ask for statements etc but usually that takes quite a bit of time? And was advised because the Warrant of Control is in action I should immediately progress to N244.

                      Correct me if I'm wrong but I was always under the impression that it being statute barred was the stronger argument. If the claimant cannot prove its isnt SB then shouldnt it be struck off/set aside anyway?

                      Its something that I was unsure about - whether the it being SB is a separate issue - once it was set aside I'd then defend the claim based on this.

                      I'm a little unsure of the direction to go now as I dont think I have a strong case for setting aside based on didnt receive documents. I thought CPR 13.3 gave defendant benefit to the defendant as I have promptly responded via N244 and willing to pay the fee.

                      Comment


                      • #26
                        Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                        Originally posted by Diana M View Post
                        I would approach Howard Cohen (solicitors acting for Hoist) to see if they will consent to the set-aside without the need for a hearing.

                        Enclose a copy of your (draft) Application for the set-aside with your WS and Draft Defence so they know you mean business. Also enclose a Draft Consent Order agreeing to the set-aside for them to sign

                        (And I don't mean the Draft Order which you have upload in post # 21 seeking a strike out etc.)

                        Give them a deadline for their response and tell them that if they don't consent you'll be making the Application and asking the court to order costs against them (if you're successful).

                        You can take the same opportunity to ask them to call off the dogs (they've started enforcement proceedings using bailiffs). They can stop the Warrant of Control if they want to.

                        Their decision will be based on a balance between knowing that they didn't serve the claim incorrectly (assuming it's Royal Mail's fault) and knowing (which they should) that the debt was SB before they issued the claim.

                        Di
                        This was one of the first things I did and unfortunately they were not interested and said you'll need to apply via N244.

                        What worries me slightly is that the warrant of control is in action (im having to park my car 3 streets away). but at the same time I dont want to rush a defence and make a mistake. I could send the above to the claimant but as they've said verbally they wont look to set aside themselves I worry it would be a waste of time and in the mean time the WOC still is in action.

                        Thanks for your advice its much appreciated!

                        Comment


                        • #27
                          Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                          Originally posted by Polaris View Post
                          I also called Howard Cohen and they confirmed my address and said the mail had been sent out. I also advised its Statute Barred but they obviously claimed it is not saying there was a payment made in 2011 - which I know is definitely not true! So they are lying.

                          I thought it was up to the Claimant to prove that it isnt statute barred as they have initiated the claim?
                          Have you asked Howard Cohen for details of the alleged payment in 2011?

                          It it is up to the Claimant to prove the debt wasn't SB when the claim was issued, but they only have to do that after you've pleaded it is SB in your Defence.

                          Your request to consent to a set aside appears to have have been made in a random phone call not in writing (correct me if I'm wrong).

                          My suggestion was to write to them with supporting documents so that they know to take you seriously. Give them a short deadline and then make your application stating you want the application to be dealt with by a hearing not on paper.

                          It may take a while for the hearing to be listed since the courts are busy in the run up to Christmas. If you are requesting a hearing the case will be transferred to your local county court before listing. It all takes time. Once it's listed you can approach HC again to see if they'll consent. Keep up the pressure.

                          If Howard Cohen say they wrote to you (more than once?) at your address before the claim was issued, And maybe Hoist and Robinson Way did too (?) yet none of this mail reached you then there may be a postal delivery blip your end.

                          However you did say that the Warrant of Control letter sent by NCCBC arrived safely.

                          I believe you, but it's not me you have to convince, it's the DJ.

                          Meanwhile HC is likely to contest your application and if they did send numerous letters then they may produce these as evidence (plus letters from Hoist and/or Robinson Way) to undermine your argument.

                          I'm not intending to be a party pooper, I just want you to realise that the stronger your WS the better your chances of getting the CCJ set aside.

                          I'd still send a SAR to the original creditor in case it comes back prior to the set aside hearing.

                          My apologies for not reading back through your thread, but was this a credit card, loan or overdraft? The SB date can vary according to the nature of the 'product'

                          Di

                          Comment


                          • #28
                            Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                            Originally posted by Polaris View Post
                            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.
                            ^ ^ ^ ^ Could you clarify something you posted earlier.

                            If the account was defaulted in September 2009 then the whole file entry will have been removed from the CRA files in September 2015 (that happens six years from the day it was reported).

                            So when did you last check your credit report to see that entry (which must have been over a year ago)?

                            Di

                            Comment


                            • #29
                              Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

                              Originally posted by Diana M View Post
                              Have you asked Howard Cohen for details of the alleged payment in 2011?

                              It it is up to the Claimant to prove the debt wasn't SB when the claim was issued, but they only have to do that after you've pleaded it is SB in your Defence.

                              Your request to consent to a set aside appears to have have been made in a random phone call not in writing (correct me if I'm wrong).
                              No you are right - just a phone call

                              My suggestion was to write to them with supporting documents so that they know to take you seriously. Give them a short deadline and then make your application stating you want the application to be dealt with by a hearing not on paper.
                              Ok so I would do this prior to apply via N244 and see if I get a response?

                              It may take a while for the hearing to be listed since the courts are busy in the run up to Christmas. If you are requesting a hearing the case will be transferred to your local county court before listing. It all takes time. Once it's listed you can approach HC again to see if they'll consent. Keep up the pressure.

                              If Howard Cohen say they wrote to you (more than once?) at your address before the claim was issued, And maybe Hoist and Robinson Way did too (?) yet none of this mail reached you then there may be a postal delivery blip your end.
                              However you did say that the Warrant of Control letter sent by NCCBC arrived safely.
                              Well apparently Howard Cohen are the legal part of Hoist and they said Hoist wrote to me numerous times. I've never received anything from a Robinson Way either. Funnily enough as soon as I confirmed my address with the CCBC I received the Warrant of Control! I've also moved around a fair bit over the years and havent been on the electoral role until recently.

                              I believe you, but it's not me you have to convince, it's the DJ.
                              Yes this is why I originally thought the Statute Barred argument would take priority - I didnt think I has a strong argument because they apparently had my address on file.

                              Meanwhile HC is likely to contest your application and if they did send numerous letters then they may produce these as evidence (plus letters from Hoist and/or Robinson Way) to undermine your argument.
                              It's so frustrating as I'm almost 100% sure they never ought to have filed the claim in the first place.. I'm certain it's SB. I guess my intent to act promptly once I was made aware via the credit file and pay a fee strengthens my argument in that I didnt receive the claim form.

                              I'm not intending to be a party pooper, I just want you to realise that the stronger your WS the better your chances of getting the CCJ set aside.

                              I'd still send a SAR to the original creditor in case it comes back prior to the set aside hearing.
                              Ok I'll do this now.

                              My apologies for not reading back through your thread, but was this a credit card, loan or overdraft? The SB date can vary according to the nature of the 'product'
                              Its an Overdraft. Original debt of £1100 and now its £3000.

                              Di
                              Thanks for your response and helping me out.

                              - - - Updated - - -

                              Originally posted by Diana M View Post
                              ^ ^ ^ ^ Could you clarify something you posted earlier.

                              If the account was defaulted in September 2009 then the whole file entry will have been removed from the CRA files in September 2015 (that happens six years from the day it was reported).

                              So when did you last check your credit report to see that entry (which must have been over a year ago)?

                              Di
                              You're exactly right. The credit file showing the default was from and old check I did back in 2014.

                              Comment


                              • #30
                                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

                                Comment

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