Some Success at hearing for Judgement to be set aside

[Kelzwa85]

Hi,
I have requested that a judgement be set aside for a debt relating to unauthorised overdraft from Santander that was sold on to hoist portfolio.

I have a hearing coming up 14/08/17. My original defense was that I hadn't received past correspondence or claim form. I now wish to add that the charges Santander have made are unfair under s 140 a of the credit consumers act 1974.

Can an I add an additional defense or not?

Kind regards

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

Hi,
I have requested that a judgement be set aside for a debt relating to unauthorised overdraft from Santander that was sold on to hoist portfolio.

I have a hearing coming up 14/08/17. My original defense was that I hadn't received past correspondence or claim form. I now wish to add that the charges Santander have made are unfair under s 140 a of the credit consumers act 1974.

Can an I add an additional defense or not?

Kind regards

How was judgment entered against you? Was it a default judgment? or was judgment entered at trial? and if so, did you attend trial?

[Kelzwa85]

Re: Change of Defense before a hearing to have a judgement set aside

It was a default judgement I believe

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

It isnt unusual for a party to lodge a defence to a claim alongside an application to set aside the Judgment, in fact it is procedurally the correct thing to do.

However, it seems to me that as there is a Judgment in place, there are no obvious restrictions on you reserving an amended defence. Pleading the s140 points can be tricky, and i think you should also look at Oliver Foster Burnell v Lloyds TSB which will also give you an idea of the alternate argument for challenging the charges under the Unfair Terms in Consumer Contract Regulations 1999

I cannot see any reason why you cant amend the Defence but you must ensure you serve a copy on the opponents as well as the Court

[Kelzwa85]

Re: Change of Defense before a hearing to have a judgement set aside

It isnt unusual for a party to lodge a defence to a claim alongside an application to set aside the Judgment, in fact it is procedurally the correct thing to do.

However, it seems to me that as there is a Judgment in place, there are no obvious restrictions on you reserving an amended defence. Pleading the s140 points can be tricky, and i think you should also look at Oliver Foster Burnell v Lloyds TSB which will also give you an idea of the alternate argument for challenging the charges under the Unfair Terms in Consumer Contract Regulations 1999

I cannot see any reason why you cant amend the Defence but you must ensure you serve a copy on the opponents as well as the Court

with the hearing scheduled for 14/08 which is only on Monday, will it be acceptable to email my additional defense to both the court and Claimant?

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

with the hearing scheduled for 14/08 which is only on Monday, will it be acceptable to email my additional defense to both the court and Claimant?

It wouldnt be an additional defence, there is no such thing, it would be an amended version, and yes email it to the Court and Claimant and make sure you have had copies of the document at Court to hand to the judge and Claimants solicitor / barister

How did the judgment get entered against you, is there a story behind this? such as was the claim sent to an old adress?

[Kelzwa85]

Re: Change of Defense before a hearing to have a judgement set aside

Hoist are saying that they have sent previous letters including notice of assignment regarding the debt incurred from Santander and that it needed to be paid. I received no such letter and was only aware of this debt upon receiving the claim form from court. Back in 2012 when I first went overdrawn, I write a letter to Santander explain that I had no income at present and wanted to close my account and sort these arrears once my benefits were sorted. I received no reply. Instead, it's appears I have incurred snowballing charges and debit card payments still going out despite in being clear over the 11 month period that there was no incomings to the bank account. After 12 months of snowballing charges, the debt was sold to Hoist

[Amethyst]

Re: Change of Defense before a hearing to have a judgement set aside

On what grounds are you asking to set aside the judgment - as from what you have just said you did receive the court claim form ?

was only aware of this debt upon receiving the claim form from court

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

On what grounds are you asking to set aside the judgment - as from what you have just said you did receive the court claim form ?

yes the two positions seem to contradict one another, either you didnt get the claim form or you did, it cannot be both, please clarify as its hard to give you pointers without knowing what the position is

[Kelzwa85]

Re: Change of Defense before a hearing to have a judgement set aside

I haven't received a claim form just a notice of judgement. In my defense I stated I had not received the claim form despite it been sent to my correct address. Sorry for the confusion

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

I haven't received a claim form just a notice of judgement. In my defense I stated I had not received the claim form despite it been sent to my correct address. Sorry for the confusion

Have you spoken to the Court, to find out the following

1) What address was the Claim form sent to?
2) When did the Court get notice that your address had changed and who gave them that notice


Also, have you checked your credit report lately to see if any searches had been carried out by hoist or Robinson way?

this would provide you would some helpful evidence if they did a CRA search before the Claim was issued and the claim sent to the wrong address even though they would hav known you lived elsewhere

[Kelzwa85]

Re: Change of Defense before a hearing to have a judgement set aside

No I have not looked at my credit file recently. I shall do this now . The court have said the claim for was issued to my correct address and that had been provided by Howard Cohen

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

No I have not looked at my credit file recently. I shall do this now . The court have said the claim for was issued to my correct address and that had been provided by Howard Cohen

So do you have the Claim form now? and does it have your address on it?

I ask because it is not unusual for claims to be issued against old addresses

have you offered Hoists lawyers the option to set the judgment aside by consent and you pay their costs of entering judgment? they may well agree to this if you were to offer them it

[Kelzwa85]

Re: Change of Defense before a hearing to have a judgement set aside

No I still have no claim form. Just the notice of judgement which obviously has my correct address. I haven't been in contact with Howard and Cohen no. How would I request the judgement to be set aside by consent and what costs are involved?

[pt2537]

Re: Change of Defense before a hearing to have a judgement set aside

Hi

I dont know what costs HC would want to set aside the judgment or even if that is something they would consent to, but it is something i normally enquire about when i am challenging an opponent in a case such as this.

Im not sure what you know about the rules for setting aside judgments, but you can set aside a judgment either by application to the Court or by consent of the parties. It is not unusual for the party making such an application to be ordered to pay the costs of and occasioned by the application, especially if you are unable to establish that service of the claim form was defective

You only have one bite of the cherry here, if you fail then the judgment will stand unless there is score to appeal, so its important that you have all the Ts crossed and Is dotted