how to defend claim once its set aside

[s4mcr0]

i had a claim with Lowell set aside last week but i was only given 21 days to send a defence into court as to why i didn't owe the money . i had it set aside as all the paper work was sent to a previous address and i had no way of defending the claim. i was given advice to set the claim aside with a template defence to adjust accordingly. at the hearing no witness statement was presented by lowell or neither did they have anyone present. ive had to chase the paper work and particulars of the claim direct from the court and this is what they have sent me. is there a template defence to use or can i have some advice on what or how to defend it please. TIA

[Amethyst]

Hiya,

Well done for getting the judgment set aside, and pretty sharpish after you'd received the judgment by default. Good work !

When you made your application to set aside did you include a draft defence or was it set aside simply on the grounds that you hadn't received the claim ?

This is a Littlewoods account opened in 2015 and defaulted with a balance of £390 odd - the POC states terminated only though.

Have you sent CCA request for a copy of the agreement at all ?

Did you have an account with Littlewoods in 2015 that you recall ?

I'm going to see if theres more info on your previous threads...ahhhhhhhh it's that one, don't worry then

Sooooooooooo you could, now it's been removed from your credit file, just get it settled at a discount so that's the end of it, or you could put your defence in and see if they do come up with the agreement ( being 2015, and probably opened online?, it seems likely they will have it )

Here's the CPR / CCA letters, SAR ( which you want to send to littlewoods) and an example defence to adapt to suit... CCA Request
CPR 31.14 Request
Subject Access Request Letter
Example Defence

[s4mcr0]

i put in an edited draft defence i showed you on my previous thread yesterday. i did open an account and it was online yes but i totally forgot about it as i didnt use it for quite a while, and as all the previous correspondence was sent to my old address and obviously escalated. i was then advised to send a debt buyers letter to lowell but obviously didn't have time when judgement was first made. i know that if they dont pay the fee's or respond to the small claims that the account would be rubbed out if you like. but on the chance it doesn't im just curious to my best way of defence a ive never done this before.

[Amethyst]

ahhhh the same as the other one then but the Judge has ordered you file a defence ? Have you got a copy of the order from the court yet pls.

[No. [insert claim no}
B E T W E E N :-
[PUT NAME OF CLAIMANT]
Claimant
- and –
[PUT YOUR NAME]
Defendant

______________________________
DEFENCE
______________________________

1. The Defendant denies that he is indebted to the Claimant whether as alleged at all.
2. The Defendant contends that the Claimant is in breach of Rule 16.4(a) of the Civil Procedure Rules 1998 in that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.
3. The Claimant has failed to identify or plead a date the cause of action allegedly accrued.
4. There are no details as to when the alleged default occurred, the degree of default, the Defendant has made a request under CPR 31.14 for a legible copy of any default notice but the Claimant has not responded. Accordingly the Defendant contends that the pleadings are wholly inadequate and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and Civil Procedure Practice Direction 16.
5. The Claimant has failed to comply with Practice Direction 16 Pre Action Conduct in that it
   • Failed to set out the basis on which the claim is made;
   • Failed to provide a clear summary of the facts on which the claim is based;
   • Failed to detail what the claimant wants from the defendant;
   • Failed, if financial loss is claimed, provide an explanation of how the amount has been calculated;
   • Failed details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.
   • Failed to list those documents upon which the claimant intends to rely;
   • Failed to state the date by which the claimant considers it reasonable for a full response to be provided by the defendant;
   • Failed to afford the Defendant the opportunity of requesting copies of those documents prior to the filing of a Defence
   • Failed, knowing that the Defendant was unrepresented to refer the defendant to this Practice Direction particularly in respect of paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction;
   • Failed to warn the defendant that ignoring the letter before claim will lead to the claimant starting proceedings and may increase the defendant's liability for costs.
6. The Defendant denies receiving a Notice of Assignment pursuant to the Consumer Credit Act 1974 from the claimant for the alleged agreement, and puts the Claimant to strict proof by providing a certified copy of said Notice as referred to in the Particulars of Claim.
7. The Particulars of Claim are lacking detail and do not identify any specific item, service or goods to which the Defendant is allegedly indebted nor do they specify when the alleged agreement was entered.
8. The Claimants claim form fails to adequately or even accurately set out the nature of the claim
9. The Defendant contends that the Claimant has failed to attach any documents to the Claim Form as required.
10. The Defendant demands by reason of the provisions of Civil Procedure Practice Direction 16 para 7.3 that the claimant does provide a certified copy of the alleged executed written Agreement referred to in the particulars of claim, as the Defendant does not recall signing such document.
11. The Defendant reserves the right to replead their Defence should the claimant replead its claim adequately.
12. The Defendant denies being served a Default Notice / Notice of Termination of Agreement pursuant to the Consumer Credit Act 1974 by the original creditor for the alleged agreement and puts the Claimant to strict proof by providing a copy of said Default Notice / Notice of Termination of Agreement as referred to in the Particulars of Claim.
13. Section 87 (1) of the Consumer Credit Act 1974 states as follows:-
    • (1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

1. The Defendant denies signing any agreement with the Claimant and demands the claimant provide a certified copy of the Deed of Assignment signed by the original creditor, the Defendant & the Claimant, as proof they have the right title and interest to pursue the alleged debt.
2. The Defendant demands that in accordance with s.136 (1) of the law of property act 1925, that the claimant do provide proof of absolute assignment, by providing a certified copy of the Deed of Assignment between the original creditor and the Claimant to show proof of complete transfer and ownership (all rights, title, interest, benefits and liabilities) and that they have the power to give good discharge pursuant to s.136 (1) (c) of the Law of Property Act. As referred to in the Particulars of Claim.
3. The Defendant avers that the Claimant’s pleadings are an abuse of process.
4. The Particulars do not identify any cause of action.
5. The Claimant is put to strict proof.

The contents of the Defence are true to the best of my knowledge information and belief.

Dated this day of 2017

Signed……………………………..
[YOUR NAME]
DEFENDANT

[s4mcr0]

ive had trouble getting anything regards it from the court as they say all they have is this ill attach now.

[Amethyst]

No order stating the judgment is set aside ? How do you know you have 21 days to file your defence ?

( prettiest redacting technique I've seen on here btw )

[s4mcr0]

Sorry this is the set aside letter it was the judge who told me to send defence by the 24th september

[Amethyst]

Okay - bloody courts - that should have the defence filing order on. Never mind.

Send a CCA request to Lowell - now there's no judgment it has effect ( presumably that's why section 78 cca isn't in the draft defence) ... And a SAR to Littlewoods.

Any issues with the account as far as you recall ? disputes etc ?

[s4mcr0]

No issues regarding it other than lowell purchased the debt. Excuse my stupidity but whats a cca and whats a sar?

[Amethyst]

I'll grab links for you two secs.... Can I ask where the defence you put in as draft for the set aside application came from ?

was given advice to set the claim aside with a template defence

CCA Request
CPR 31.14 Request
Subject Access Request Letter
Example Defence

couple other links there too

[Amethyst]

Asking cause there's some bits which are odd if you hadn't seen the particulars of claim before filing the application, and wrong if you had .... eg """nor do they specify when the alleged agreement was entered. """"

When the Particulars say """ opened .... on ...26/10/2015 """

[s4mcr0]

I was given them to a friend on fb as he had used them also. I was given guidence on how to edit and fill the draft letter. Like i was saying when i recieved the paticulars today it was the first time id seen them also. I just want to make sure im doing all this right

[Amethyst]

Ahhhhh makes sense. Ok no worries, you've done well getting these set aside

We Might need to check over the other case as the court has just accepted the defence, but hopefully they'll just ditch it without paying the hearing fee and it'll be sorted that way .... this one we need to put the right defence in ... so get a CCA request off and have a read of the link I gave you.

Hate to ask, but had you actually sent a CPR 31.14 request ( in either of the claims?) - if not we need to sort that out.

On just this one - Where do you stand on settling ( either precourt or after judgment if it came to it ) - is priority not having a CCJ against you - or not paying the debt ? ( now you know what this is obviously )

[s4mcr0]

To be honest im on income support at the minute so settling would need to be in an affordable way. Ive no idea what a cpr31.4 is so no ive not sent it

[Amethyst]

Ok - did you read the defence ? Could you please, and then ask anything you don't understand in it so I know where we're at.