Urgent help on CCJ - do I have a case for set aside?

[calathea]

Hi there all,

I've reached the end of my tether, and a little lost in the maze of advice I've been seeking. Thanks in advance for any help here, I'm so anxious about what to do.

I checked my credit report lately and it notified me that a CCJ was being filed against me by Lowell Solicitors. I haven't had any paperwork, and after calling the court and paying to see the CCJ register it has been sent to my old address. The action is being taken on a debt (a small student overdraft) that is over ten years old, and has been sold on to Lowells, even when I sent a letter to statute barred the debt in 2013. They claim I made a payment on 23 May 2014, which isn't true as I would not have paid a penny following the statute barred notice in 2013, and each correspondence I have not acknowledged the debt. I've asked them for evidence of payment and they said they can't provide me with this, and that I need to provide evidence I haven't paid (I have a closed coop account that could prove this but I have no idea how to gain access to closed account bank statement).

I'm now over the 30 days for the response, as it took so long to get any response from Lowells on the debt, I can't afford a solicitor and I need to know if it's worth filing an N24 to appear in court to get the CCJ set aside. I can't afford the repayments they've asked for me to make, and I don't think it's fair that they are chasing me on a debt that is over a decade old. I've worked very hard in the last few years to be debt free and this feels like I'm going back to stage one again.

I'm also not sure what to fill out on the N244, aside from that it's statute barred and I didn't receive the paperwork, and they made no efforts to find the correct one.

Please help!

[jaguarsuk]

Hi there all,

I've reached the end of my tether, and a little lost in the maze of advice I've been seeking. Thanks in advance for any help here, I'm so anxious about what to do.

I checked my credit report lately and it notified me that a CCJ was being filed against me by Lowell Solicitors. I haven't had any paperwork, and after calling the court and paying to see the CCJ register it has been sent to my old address. The action is being taken on a debt (a small student overdraft) that is over ten years old, and has been sold on to Lowells, even when I sent a letter to statute barred the debt in 2013. They claim I made a payment on 23 May 2014, which isn't true as I would not have paid a penny following the statute barred notice in 2013, and each correspondence I have not acknowledged the debt. I've asked them for evidence of payment and they said they can't provide me with this, and that I need to provide evidence I haven't paid (I have a closed coop account that could prove this but I have no idea how to gain access to closed account bank statement).

I'm now over the 30 days for the response, as it took so long to get any response from Lowells on the debt, I can't afford a solicitor and I need to know if it's worth filing an N24 to appear in court to get the CCJ set aside. I can't afford the repayments they've asked for me to make, and I don't think it's fair that they are chasing me on a debt that is over a decade old. I've worked very hard in the last few years to be debt free and this feels like I'm going back to stage one again.

I'm also not sure what to fill out on the N244, aside from that it's statute barred and I didn't receive the paperwork, and they made no efforts to find the correct one.

Please help!

Okay, your grounds to set aside are pursuant to CPR 13.2 & 13.3 that you were not served the original claim form, you need to write to Lowell giving them 7 days to consent to set aside or else you will make an application to the court. If they consent the fee to apply will be £100 and if they don't or ignore you it will be £255.

You will seek recovery of those costs from the claimant as part of the application and if successful in set aside they will be granted to you.

You are supposed to apply to the court "promptly" after finding out about the judgement, so all the things you have been doing to date may be seen as not being prompt, therefore it is not a given set aside will be granted.

You will get the opportunity if successful to file a defence, this is where you would argue Stat Barred amongst other things to defend against the claim, we don't want to get too ahead of ourselves, but you should send a Subject Access Request Letter to Co-op for statements around the time they are claiming you made a payment. The reason I am saying this is that Co-op have one month to comply.

It is also worth sending a Subject Access Request Letter to the original holder of the student account for a full history of all information they have on you. This will give an indication of what Lowell might be able to get their hands on if they don't already have the required information to obtain judgement.

Once you have sent the letter off tell us which numbered parts of the N244 you need help with and we'll be able to help you prepare to apply.

[calathea]

I think the statute barred might not apply, I’ve just re-read the letter and overdrafts don’t count, as it starts from the default registered. This is from the email Lowell sent me:

“We note that you believe the account to be statute barred, and as such, you consider that our client should not pursue the debt any further. Our client’s position is that this debt is not statute barred.

The relevant provisions are found in section 5 of the Limitation Act 1980 which provides that “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

The date the cause of action accrues in matters which are regulated by the Consumer Credit Act 1974, is the date on which the creditor is entitled to terminate the agreement and seek payment of all sums due under it. This is the date when the period set out in the Default notice required by s87 (1) expires, or the date of the last payment or written acknowledgement of the debt, whichever is the later.

In this case, we are instructed that your last payment was made on 23 May 2014 and would therefore have expired no earlier than 14 days later on 6 June 2014. Therefore any action must be brought within six years of this date. As we are still within the six-year period, the debt is not statute barred and the provisions of Chapter 7 of the FCA Consumer Credit Sourcebook (CONC) do not apply.”

I have no knowledge at all of the payment. I’ll send an Adar to Lowell and Halifax but I know that takes 40 days and that’s far to late for the court to think I’m responding promptly.

Should I write to Lowell’s to ask consent for a set-aside by email or by post? Sorry to ask a lot of questions but I’m very worried that things will get worse.

[calathea]

*SAR not Adar. And thank you!

[Amethyst]

SAR is one month now rather than 40 days ( and free) - example here https://legalbeagles.info/library/gu...ccess-request/
and you can submit a SAR by webform to Halifax. Here -> https://www.halifax.co.uk/securityan...acy-notice/#11...saves a stamp

The onus of proof is on the claimant - have they said when the default date actually was ?

This bit

when the period set out in the Default notice required by s87 (1) expires, or the date of the last payment or written acknowledgement of the debt, whichever is the later.

seems to contradict this bit

we are instructed that your last payment was made on 23 May 2014 and would therefore have expired no earlier than 14 days later on 6 June 2014.

as last payment is not a default notice... and they can't have it both ways , so that needs clarifying .... particularly if it was already time barred before that alleged payment in 2014.

[calathea]

Hi all,

Thanks for your advice, I'm submitted a request to Halifax, and I'll do one to Coop too, as well as Lowell. They haven't given me a default date actually, I've had a look and nothing has been mentioned. I'll notify Lowells today of the intention to set-aside and ask for their consent - is there a template I can use for this? I'll start getting the N244 paperwork ready, and run my final witness statement past this group. Thank you again!

[calathea]

Okay, your grounds to set aside are pursuant to CPR 13.2 & 13.3 that you were not served the original claim form, you need to write to Lowell giving them 7 days to consent to set aside or else you will make an application to the court. If they consent the fee to apply will be £100 and if they don't or ignore you it will be £255.

You will seek recovery of those costs from the claimant as part of the application and if successful in set aside they will be granted to you.

You are supposed to apply to the court "promptly" after finding out about the judgement, so all the things you have been doing to date may be seen as not being prompt, therefore it is not a given set aside will be granted.

You will get the opportunity if successful to file a defence, this is where you would argue Stat Barred amongst other things to defend against the claim, we don't want to get too ahead of ourselves, but you should send a Subject Access Request Letter to Co-op for statements around the time they are claiming you made a payment. The reason I am saying this is that Co-op have one month to comply.

It is also worth sending a Subject Access Request Letter to the original holder of the student account for a full history of all information they have on you. This will give an indication of what Lowell might be able to get their hands on if they don't already have the required information to obtain judgement.

Once you have sent the letter off tell us which numbered parts of the N244 you need help with and we'll be able to help you prepare to apply.

Hi there, I'm attaching a draft to send as a witness statement, based on a template from here. How does this sound? I've received no reply from Lowells asking for them to provide details on the date of default (not the default from the alleged payment) or the transaction history.

For a draft email to Lowells, it goes as follows:

Dear Lowell,

I am writing this email in order to seek your consent for a set-aside order for CCJ ref XXX, as I believe I am able to defend this in court. Please reply within 7 days of your decision.

Very best,
XXX

I couldn't find a template and wanted to keep it as simple as possible. If they agree to set it aside will I have to pay them?

[calathea]

Hi all,

I really need your help, here's the reply from Lowell. I haven't lived at my previous address since September 2017:

Thank you for your recent email.

We have requested a copy of the default notice and statement of account. These will be forwarded to you upon receipt.

Please note that letters were sent to you in December 2018 and April 2019 to the address xxx, Manchester Mxxx prior to any legal action being taken. As we received no response from you our client instructed us to issue a County Court Claim, which we are entitled to do at your last known address. As such we will not be providing consent for the Judgment to be set aside as we are satisfied it has been entered correctly.

Should you wish to dispute the matter further you are able to seek your own independent legal advice. We note that you will also be submitting a Subject Access Request and we look forward to receiving this.

We ask that you contact us to confirm your intentions. Failure to contact us could result in further action being taken, which would add extra costs to the balance.

If you wish to speak with a member of our team, please telephone us between 8:00am and 8:00pm Monday to Friday or between 8:00am and 2:00pm Saturday on 0113 335 3334.

Yours sincerely,

Lowell Solicitors

My previous post had my witness statement, does this read right? Amethyst jaguarsuk I'd really appreciate your guidance, I'm a little worried!

[jaguarsuk]

Hi all,

I really need your help, here's the reply from Lowell. I haven't lived at my previous address since September 2017:

Thank you for your recent email.

We have requested a copy of the default notice and statement of account. These will be forwarded to you upon receipt.

Please note that letters were sent to you in December 2018 and April 2019 to the address xxx, Manchester Mxxx prior to any legal action being taken. As we received no response from you our client instructed us to issue a County Court Claim, which we are entitled to do at your last known address. As such we will not be providing consent for the Judgment to be set aside as we are satisfied it has been entered correctly.

Should you wish to dispute the matter further you are able to seek your own independent legal advice. We note that you will also be submitting a Subject Access Request and we look forward to receiving this.

We ask that you contact us to confirm your intentions. Failure to contact us could result in further action being taken, which would add extra costs to the balance.

If you wish to speak with a member of our team, please telephone us between 8:00am and 8:00pm Monday to Friday or between 8:00am and 2:00pm Saturday on 0113 335 3334.

Yours sincerely,

Lowell Solicitors

My previous post had my witness statement, does this read right? Amethyst jaguarsuk I'd really appreciate your guidance, I'm a little worried!

You need to make an application without consent then, this will cost £255 and should be sent to Northampton CCBC, who will then transfer the claim to your local court. I would advise a cover letter with application and state in which is your local county court along with it being the "Defendants Home Court pursuant to CPR 26.2A(3)."

Your witness statement is not a defence, you only need to state why the judgement should be set aside and as such:

Remove para 7 & 8.

Add new para 7: On XX/XX/2019 I wrote to the claimant to inform them of deficient service of the claim form and request their consent to set aside the judgement. Enclosed and marked C1 is that request.

Add Para 8: On XX/XX/2019 I received their refusal and as such am making this application without consent. Enclosed and marked C2 is that refusal.

Amed Para 9: I believe that the judgement dated 01/07/2019 should be set aside pursuant to CPR 13.3 (1)(b), in that due to deficient service of the claim form by the claimant I was not afforded the opportunity to defend the claim which I believe represents good reason why the judgement should be set aside.

Add Para 10: I respectfully request that the claimant be ordered to pay me the sum of £255 wasted costs occasioned in bringing this application to the court and that directions be given as to the filing of my defence with the court.

[calathea]

Thanks jaguarsuk, I really appreciate your comments. Apologies for the late one, I've been chasing and chasing trying to get information about the original default date of the account. I can't find anything on my credit report, and haven't received information from Halifax yet on the original debt.

I've just paid my n244 fees, and I wanted to run my forms by you all before I send them, as I really don't want to get them wrong. I'm arguing the form wasn't received, and that the original debt is statute-barred as I can find no records of payment and it's not on my credit report, or settled accounts, and Lowell have gone quiet after they said they would forward details on the original debt to me. I've only found that I opened the account in 2006, and that the last check that was run by Halifax on the address was in 2012, which is roughly when I closed the account.


Please do let me know if I'm completely wrong in anything, I'm a little worried time is ticking away! Thank you very very much in advance

Natalie

[jaguarsuk]

9 and 10 in the witness statement are points for the defence and not the WS in support of an application to set aside.

In your draft defence you should not solely rely on the one legal point, if they are able to prove this to be wrong then there is no good reason to set the judgement aside, if you must file a draft defence it should be a complete defence of all possible deficiencies such as closed account with nothing owing, not served a default notice, no notice of assignment from the bank, no letter before action and no evidence from the claimant to support their claim .

[calathea]

9 and 10 in the witness statement are points for the defence and not the WS in support of an application to set aside.

In your draft defence you should not solely rely on the one legal point, if they are able to prove this to be wrong then there is no good reason to set the judgement aside, if you must file a draft defence it should be a complete defence of all possible deficiencies such as closed account with nothing owing, not served a default notice, no notice of assignment from the bank, no letter before action and no evidence from the claimant to support their claim .

Thanks jaguarsuk , I've amended my witness statement to reflect this. Should I not draft a defense in that case? I'm just worried I won't get a chance to explain why it should be set aside if it's just a case of the letter not being sent to me. I was advised by the LB N244 guide to file a defence, but if you think I should wait I'll wait. Should I also mention that I have not lived at the address in question in two years, which is before the dates Lowell posted the letters (I have been on the electoral register this entire time)?

I've just attached a newer draft defense.

[jaguarsuk]

Thanks jaguarsuk , I've amended my witness statement to reflect this. Should I not draft a defense in that case? I'm just worried I won't get a chance to explain why it should be set aside if it's just a case of the letter not being sent to me. I was advised by the LB N244 guide to file a defence, but if you think I should wait I'll wait. Should I also mention that I have not lived at the address in question in two years, which is before the dates Lowell posted the letters (I have been on the electoral register this entire time)?

I've just attached a newer draft defense.

The reason you are asking for the set aside isn't because you have a good prospect of defending the claim, it's as of right because you didn't have a chance to defend the claim. A Draft Defence won't hurt, but you can't just rely on one legal position and therefore should be redrafted based on the Example Defence to include all the possible legal points you can.

[jaguarsuk]

The reason you are asking for the set aside isn't because you have a good prospect of defending the claim, it's as of right because you didn't have a chance to defend the claim. A Draft Defence won't hurt, but you can't just rely on one legal position and therefore should be redrafted based on the Example Defence to include all the possible legal points you can.

Sorry, I should say you can just rely on one, but that would be a risky strategy to take.

[calathea]

The reason you are asking for the set aside isn't because you have a good prospect of defending the claim, it's as of right because you didn't have a chance to defend the claim. A Draft Defence won't hurt, but you can't just rely on one legal position and therefore should be redrafted based on the Example Defence to include all the possible legal points you can.

OK, great, thank you for clarifying jaguarsuk, and please forgive my ignorance, I definitely feel like I'm wading through all of this. I'm also a little frustrated that I've not been supplied with a date of default for the original debt, so it makes it harder to argue statute-barred. As I'm waiting for that information and I want to be certain of all the facts, shall I wait to submit a defence until I get confirmation of a hearing?