Set aside the judgement, what's next?

[vul3ck6]

To members

I have set aside the judgement, as I understand that the case will go back to the claim stage. I used a firm to fight my case but it also put a lot of pressure on my finance. I don't know if I am able to afford my solicitor anymore. Especially I have to sign up another fixed fees agreement with them. By the way, do read the terms and conditions of so called fixed fees solicitor. I thought my fixed fee will bring me to the end of the case including attending the hearing, but it's not the case for me, I have to pay for a barrister to attend the hearing and it's very expensive. I appreciate my solicitor has succeeded setting aside the judgement but now I have to pay even more especially I did not get the cost back from the hearing which my solicitor told me that I should get it back before.

Anyway, now I have a month to file a defence, do I need to pay for anther £255 to file the defence?

Any suggestion and advice please?

[Amethyst]

No you shouldn't have to pay anything else now, unless you go on to lose the case of course. Well done for getting the set aside.... you'll next need to file your defence to the claim - what did the court order in that regard ? Seems no costs order - did the judge refuse to order the claimant pay the application fee ? ( depends why the set aside was needed - if it was a case of wrong address then mostly the application fee is awarded to the defendant )

Is the background to this on here already? (I'll have a look )

Is it this one https://legalbeagles.info/forums/for...eyclaim-online ? about a personal guarantee ?

Have you got a copy of the particulars of claim now?

[vul3ck6]

No you shouldn't have to pay anything else now, unless you go on to lose the case of course. Well done for getting the set aside.... you'll next need to file your defence to the claim - what did the court order in that regard ? Seems no costs order - did the judge refuse to order the claimant pay the application fee ? ( depends why the set aside was needed - if it was a case of wrong address then mostly the application fee is awarded to the defendant )

Is the background to this on here already? (I'll have a look )

Is it this one https://legalbeagles.info/forums/for...eyclaim-online ? about a personal guarantee ?

Have you got a copy of the particulars of claim now?

Yes, that's my case, and I have received the court letter today, detail as follow;

1. Judgement entered on 27th January 2017 is set asdie.
2. The Defendant shall by 4.00pm 7 November 2018 file and serve an amended defence if he so intends. Time shall be of the essence.
3. Upon the filing of the amended defence or expiration of the time allowed therefore, directions questionnaires be filed by both parties no later than 16 November 2018.
4. Claimant's cost in the cause.
5. The Claimant to remove forthwith all entries at the Land registry entered pursuant to the Judgement set aside by this order.

I am not too sure about my cost. This is part of the email from my solicitor;

"In relation to costs, your Barrister applied for our costs but the District Judge said that he was minded to give the Claimant their costs in the case as usually happens and that he was not aware of any correspondence asking the Claimant to consent to the application. Your Barrister confirmed that they were certainly on notice of the fact we would be applying."

To be honest, I have no idea what it means....anyone can explain it in plain English please?

I really want to know what their intention is from the other side, shall I email them to ask if they still want to pursuit the case? Especially I really have no confidence that I will get my cost back if I fight till the end even I do believe my case is very strong. I just want to stop here if they agree to drop the case.

I appreciate any advice and suggestion.

[Amethyst]

Hmm okay.

Well the Claimant was awarded costs so no you haven't been awarded your costs of the application. It seems strange if you were using a Solicitor that consent wasn't at least requested from the Judgment holder before making the application - seems like your Barrister confirmed they were on notice of the application, but weren't given opportunity to consent. I don't know how much it would be but likely costs to date and for the attendance at the hearing. If nothing was agreed at the hearing then they may be calculated as the case goes forward. ( It isn't normal for costs to be awarded to claimant unless it was the applicants fault that the situation arose a set aside was required - so if that's the case AND they weren't asked to consent then seems right they obtain their costs - not sure if that should include the Charge application / LR fees etc though - maybe your Solicitor will be able to give you an idea how much it's likely to be? and when you'd have to pay it )

Good news that they have been ordered to remove the charge from your house at the Land Registry.

So you have to file and serve your defence by 4pm on 7th November ( a few days earlier would be best so there's no chance of being late as 'time is of the essence' )

It does say 'Amended Defence' so had you previously filed a defence / a draft defence with the set aside application ? If so will need a copy of that pls.

I'll go read your previous thread properly now I know that's the right one. Are you wanting to fully defend the case, or now you have sidestepped the CCJ and charging order you want to come to some kind of a settlement ?

Do you mind me asking how much the fixed fee was that you paid ? ( and did it include the court fee of £255 or was that on top ) ( we're working on transparency of fees for law firms at the moment so every little bit of info is useful )

Back shortly once I've had a read of your other thread

[Amethyst]

Right

The original CCJ notice from Claimant was issued on the 8th January 2016 and I filed the defence and acknowledgement to the Money Claim online, then the CCJ was stayed after no reply from the Claimant. Then I have moved from the flat to the new place I bought in March 2016 (my flat was on the market way before receiving the CCJ notice), but I have forwarded the post for 6 months till 26th September 2016 (got a copy of the receipt). To cut the story short, a CCJ was granted on the 27th January 2017 and of course I have no idea because I have moved, also have not heard anything back from the Claimant for this long, I thought they gave up.

With the claim stayed then the onus was on you to inform the claimant when you changed address. They didn't know ( presumably ) so when they applied to lift the stay and proceed with the claim, probably applied for summary judgment ?, they continued using your old address.

Have you got copies now of that application?

You found out about it when you received the interim charge app, which you defended ( and as you found out you should have made the app to set aside at that point )

So need a copy of your original defence please.

Maybe I should explain the CCJ detail, the claimant is chasing me solely depending on joint Guarantee document (my late partner and myself) which I did not signed nor have any knowledge of this credit agreement, also after asking the claimant many times to provide the credit agreement, the claimant has admitted the credit agreement document is no longer in existence due the the age of the documentation (October 2008), so I have asked them to certify the guarantee document is a true copy and provide me with lender's guarantee policy and witnessing of security forms aide memoire on my last letter which they did not reply to me. The guarantee document was allegedly signed by my late partner and myself (not my signature) at the unknown location (c/o bank name) and the witness signed all the dates, also without any copy of photo id to proof the identification of the person signed the document, basically anyone could have signed it.

Has the claimant provided a copy of the guarantee now? If so could you post a redacted copy pls.
What was the guarantee for originally ? Business loan ? or personal loan to your partner you acted as guarantor on?
Are you still convinced you did not sign the guarantee ?
Is the Witness someone from the bank or someone you know?

[vul3ck6]

Hmm okay.

Well the Claimant was awarded costs so no you haven't been awarded your costs of the application. It seems strange if you were using a Solicitor that consent wasn't at least requested from the Judgment holder before making the application - seems like your Barrister confirmed they were on notice of the application, but weren't given opportunity to consent. I don't know how much it would be but likely costs to date and for the attendance at the hearing. If nothing was agreed at the hearing then they may be calculated as the case goes forward. ( It isn't normal for costs to be awarded to claimant unless it was the applicants fault that the situation arose a set aside was required - so if that's the case AND they weren't asked to consent then seems right they obtain their costs - not sure if that should include the Charge application / LR fees etc though - maybe your Solicitor will be able to give you an idea how much it's likely to be? and when you'd have to pay it )

Good news that they have been ordered to remove the charge from your house at the Land Registry.

So you have to file and serve your defence by 4pm on 7th November ( a few days earlier would be best so there's no chance of being late as 'time is of the essence' )

It does say 'Amended Defence' so had you previously filed a defence / a draft defence with the set aside application ? If so will need a copy of that pls.

I'll go read your previous thread properly now I know that's the right one. Are you wanting to fully defend the case, or now you have sidestepped the CCJ and charging order you want to come to some kind of a settlement ?

Do you mind me asking how much the fixed fee was that you paid ? ( and did it include the court fee of £255 or was that on top ) ( we're working on transparency of fees for law firms at the moment so every little bit of info is useful )

Back shortly once I've had a read of your other thread

Thanks for your replies, really appreciate it.

The fixed fee is £1200 plus £1500 barrister fee to attend the hearing which I did not expect the cost and I think they are chasing me the £255 court fee now even they said they would waive it due to my financial situation. The only reason I say that, because they want me to sign a new fixed fee agreement £900 plus £255 court charge (WHY? maybe someone can explain it please?) to file the defence.

I am not looking for a settlement, just want the debt collector to drop the case due to incomplete documents (they lost the original credit agreement, and only have guarantor document without a copy of ID/passport from guarantors to prove the witness was present, also it was at an unknown location).

This is my original defence in 2016 which claimant did not reply for six months, so the judgement was set aside. I copied and pasted a lot of legal terms from a website forum and adapted it to my version. This defence was filed before I know they lost the credit agreement.

I will reply more to your questions later.
Defence

1. I am the Defendant in this case.
2. On 8/1/16 the Claimant submitted a claim to Northampton County
Court Business Centre stating their particulars of claim which I
have never received any letter directly from the Claimant nor
Claimant’s Legal Representative ASCENT LEGAL before.
3. I returned the Acknowledgement of Service on 11/1/16.
4. On 18/1/2016 the Defendant wrote to the Claimant by 1st class
recorded delivery, signed by Mark on the 19/1/2016, requesting
Verification of the alleged debt and of their alleged assignment
by providing following information:
i. A copy of the Original Signed Consumer Credit Agreement
ii. Statements of the Account
iii. Details of each and every Default Charge
iv. Default Notice from the original owners
v. A copy of the Legal / Absolute Assignment of the Agreement,
vi. In accordance with Section 196 of the Law of Property Act
1925, certified Copies of how I was served with the Alleged Legal
Assignment.
vii. A copy of the Alleged Notice of Assignment sent by the
original creditor to the Defendant
5. The Defendant sent out a CPR31.14 request for further
information letter on 28/1/16 sent 1st class recorded delivery,
signed for by Craig on the 1/2/16. Asking for the following
information to be Sent to me in verification of their Particulars
of Claim:
i. The contract / agreement (including original terms and
conditions said amended)
ii. The deed of assignment.
iii. The notice of assignment
iv. The default warning letter
v. The default notice
To date I have not received any acknowledgement to the first and
second letter, nor does it appear any of the requested information
is or will be forthcoming.
6. The Defendant denies monies are owed to the Claimant as alleged
in the Particulars of Claim and does not recognise the assertion
that any debt has been Legally / Absolutely Assigned to the
Claimant and as such the Claimant is put to the strictest of
proof, including but not limited to:
i. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974)
the Original Signed Consumer Credit Agreement, along with a copy
of the original Terms & Conditions and any subsequent changes in
said Terms & Conditions (referred to as the ‘Regulated Agreement’
within the Particulars of Claim) and show how the Defendant has
entered into an agreement.
ii. Show how the Claimant has reached the amount claimed by
proving a full Statement of the Account referred to, including
details of all payments made and calculation of how interest was
charged against each item listed, leading to the Alleged Debt of
£21837.38.
iii. Also, as this is an Alleged Debt, I believe Penalty Charges
may have been applied to the Account and as such may be unlawful
under the Unfair Consumer Contract Terms Regulations 1999.
Therefore, I would request details of each and every Penalty
Charge applied to the Account along with details of their
lawfulness (i.e. if the charge is stated as being for
‘Administration’ what Administration was undertaken to support the
Penalty Charge being applied) along with details of any Interest
imposed against each Penalty Charge applied.
iv. Show how and when the agreement was breached and provide
notice by way of Notice of Sums in Arrears served by the Original
Owners along with a copy of the Default Notice from the original
owners of the Alleged Debt and Certified Copies of how this was
served upon the Defendant.
v. Show how the Claimant has the legal right, either under
statute or equity to issue a claim by providing the following:
a) A copy of the Default Notice and Certified Copies of how this
was served upon the Defendant.
b) As the Claimant has not sent the Defendant any information of
alleged debts, the Defendant does not know if the stated debt was
assigned to the Claimant or from the Claimant. Therefore, if the
debt was assigned to the Claimant, a copy of the Legal / Absolute
Assignment (as per Section 136 of the Law of Property Act 1925),
including, but not limited to, a copy of the Deed of Assignment
and / or Deed of Tripartite Novation, duly executed in accordance
with Sections 74 (as amended) of the Law of Property Act 1925.
c) If the debt was assigned to the Claimant, a copy of how the
Defendant was served with the aforementioned Legal / Absolute
Assignment.
d) If the debt was assigned to the Claimant, a copy of the Alleged
Notice of Assignment sent by the original creditor to the
Defendant and details of how this was Served upon the Defendant.
e) If the debt was assigned to the Claimant, details of the costs
paid by the Claimant to the Original Owner for the Alleged
Assignment of the Agreement.
vi. As per Civil Procedure rules 16.5(4), it is expected that the
Claimant prove the allegation (as set out in the Particulars of
Claim) that the money is owed.
vii. As per Civil Procedure Rule 39A (3.3) any documents upon
which the Claimant intends to rely are brought to any subsequent
hearing for examination.
viii. Also, should any amount be inclusive of interest, the
Defendant denies interest is payable in accordance with Section 69
of County Courts Act 1984 and again the Claimant is put to the
Strictest of Proof as to the amount in full they allege to have
paid for this alleged debt.
7. In my defence, firstly the timing of this claim is suspicious,
as I received the claim only after I have inherited a small flat
in July 2015. Secondly, if I was the alleged guarantor, why did I
not receive any letter from the Claimant before? Also, I have
serious questions about how they obtained the information about my
inheritance and other personal information legally and through
what platform? Thirdly, I am not a Solicitor and after having read
the Particular of Claim I cannot see any legislation has been
quoted in support of the Claimant’s claim against me, which leaves
me unsure under which Statutory Instrument this Claim has been
brought. Therefore, again to be able to properly defend this claim
I would request full details of the actual legislation the
Claimant believes gives them a right to make this claim, as surely
no claim can succeed without this being quoted in the Particulars
of Claim?
Also, there has been non-compliance with a pre-action protocol or
this Practice Direction by failure to provide sufficient
information and warning to the Defendant directly from the
Claimant or Claimant’s Legal Representative. Therefore, it is my
firm intention, should the claimant fail to provide the required
documentation to verify any alleged debt, to enter Form N244 to
have the claimant's claim struck out with prejudice.
Statement of Truth I believe the facts stated within this Defence
to be true

[vul3ck6]

Right


With the claim stayed then the onus was on you to inform the claimant when you changed address. They didn't know ( presumably ) so when they applied to lift the stay and proceed with the claim, probably applied for summary judgment ?, they continued using your old address.

Have you got copies now of that application?

You found out about it when you received the interim charge app, which you defended ( and as you found out you should have made the app to set aside at that point )

So need a copy of your original defence please.



Has the claimant provided a copy of the guarantee now? If so could you post a redacted copy pls.
What was the guarantee for originally ? Business loan ? or personal loan to your partner you acted as guarantor on?
Are you still convinced you did not sign the guarantee ?
Is the Witness someone from the bank or someone you know?

It's a business loan that my late partner borrowed without my knowledge, I certainly did not sign anything with a witness present at an unknown location. Also, I wasn't even a British citizen at that time, god knows how I can be a guarantor with no income and asset. I have no idea who the witness is, and I have asked the Ascent Legal the same question about the witness but they did not answer.

[Amethyst]

Thanks for that Yes your defence will need some work - as you haven't really actually said what the issue was.

I have no idea what the further £255 would be for - there's no court fee for you to pay to defend the claim - unless they were proposing to do an application of some kind as well.

Have you ever sent a subject access request to the original lender ? Made a complaint ? Reported the suspected fraud ?

Are ascent legal the claimant ? Ah no, they are acting for the claimant - who is the claimant ? As you discuss assignment a lot in the defence presumably it's not the original lender.

The alleged debt is around £22k.

Any discussion of an expert report on the signature?

Was a draft defence filed with the application or were the solicitors happy to rely to rely on that you had already entered?

Ill come back in the morning anyway xxx

[vul3ck6]

Thanks for that Yes your defence will need some work - as you haven't really actually said what the issue was.

I have no idea what the further £255 would be for - there's no court fee for you to pay to defend the claim - unless they were proposing to do an application of some kind as well.

Have you ever sent a subject access request to the original lender ? Made a complaint ? Reported the suspected fraud ?

Are ascent legal the claimant ? Ah no, they are acting for the claimant - who is the claimant ? As you discuss assignment a lot in the defence presumably it's not the original lender.

The alleged debt is around £22k.

Any discussion of an expert report on the signature?

Was a draft defence filed with the application or were the solicitors happy to rely to rely on that you had already entered?

Ill come back in the morning anyway xxx

Thanks for the reply, I have sent some information to your inbox.

[vul3ck6]

Thanks for that Yes your defence will need some work - as you haven't really actually said what the issue was.

I have no idea what the further £255 would be for - there's no court fee for you to pay to defend the claim - unless they were proposing to do an application of some kind as well.

Have you ever sent a subject access request to the original lender ? Made a complaint ? Reported the suspected fraud ?

Are ascent legal the claimant ? Ah no, they are acting for the claimant - who is the claimant ? As you discuss assignment a lot in the defence presumably it's not the original lender.

The alleged debt is around £22k.

Any discussion of an expert report on the signature?

Was a draft defence filed with the application or were the solicitors happy to rely to rely on that you had already entered?

Ill come back in the morning anyway xxx

I have sent more information to your inbox.