Help with defence for successful set aside judgement

[Babynoahsmum]

Bummer!!
pretty shite that they blocked his debit card ect in June/July And yet because they didn’t actually close the account until December it’s not statue barred.
I mean what are the chances of having a sympathetic judge? Would they even take into account things like him been unemployed on JSA at the time of the highest overdraft increase? Or are all those things none relevant to Arrow globals claim?
TBH I can think of nothing worse than settling, I don’t want him to pay them a penny, I suppose I should actually ask him what he wants to do before making a decision but if we even had a small chance of winning I would want to continue.
What do you think I should do? I definaly want to write a letter to Lloyd’s, nothing to lose there and you never know they might offer a good will gesture.
Arrow already have all the details I have I assume as it was all emailed over to them in August, although there hasn’t been been any contact on their side for a while, why have they not pushed this along if they have all the proof they need?

[Babynoahsmum]

It might not have been statute barred when they obtained The default judgment but now that's been set aside the clock continued running and it is now statute barred ( assuming no payments since default) - and yes the onus is on them to evidence otherwise.

You should, as back up, send a CCA request for the agreement and terms, and probably a cpr request for documents mentioned in their vague particulars of claim... although - Do you know what the actual original debt was? They only say 'contract' - credit card or overdraft or loan?
They also don't say it was defaulted/terminated. Just assigned to them.
Presumably it no longer appears on your credit file?

I am really clinging onto this at the moment, I know you said more recently that, that isnt actually the case, but why not? If something is set aside then it should start the clock back off ticking, it takes the ccj away so shouldnt it also take their original default judgement away?

[Babynoahsmum]

haha well, I do think we should ask for copies of docs first.... as they have only given very limited information and their POC is extremely vague. There's nothing wrong in being timely but you don't want to get ahead of yourself. If you send a 7 day reply letter today you can use it in the defence... while you're posting a SAR to Lloyds I think maybe write to Arrow for clarification as well.... its unlikely they'll send documents but you can include that you asked for the docs and they didn't respond/failed to provide in your defence so something like.....



Dear Arrow/Restons,

Claim xxxxxxxxx Arrow Global v babynoahsmum
REQUEST FOR COPIES OF DOCUMENTS

Thank you for providing me with a copy of your original particulars of claim as ordered by District Judge xxxxxxxxxxxxxxxxx. I am sure you will realise that there is not a great deal of information within those particulars, which are extremely vague, and it would be appreciated, to assist in my investigations and in order to fully plead my case, if you could provide me with copies of the documents on which you intend to rely in court, and on which the claim is based.

I understand the claim is for an alleged outstanding balance from an overdraft on a Lloyds current account, however this is not stated in the statement of case, and the amount claimed is simply referred to as arising from 'a contact'. I would therefore be grateful if you can provide a copy of this contract pursuant to CPR 31.14 ( documents mentioned in a statement of case ).

There is very little else 'mentioned' however in previous correspondance you have discussed a default date and notice of 06/12/2011, and a notice of assignment dated 06/12/2013. I'd be grateful if copies of these documents could be provided.

As I have previously stated it is my contention that any overdue balance would now be statute barred pursuant to the Limitations Act 1980. To that end if you could provide me with the transaction lists from the time leading up to the date of default and afterwards up to the date of your claim, and a full breakdown of the amount that you are claiming, so I may see how the sums claimed have arisen.

I'd appreciate a response with copies of the requested documents before 10th October in order that I may file my defence with the court, or indeed, consider whether a settlement proposal may be more appropriate, to further the overriding objective and save further court time and costs.

I look forward to hearing from you within 7 days.

Kind regards

Mr babynoahsmum.

Also I sent this letter to arrow quite a while back and they never actually provided me with any of the documents which we know they requested from the bank and will be relying on in court, Is that acceptable? Can they withhold the evidence from me that we only know they have because of my SAR request?

[Babynoahsmum]

Bump

[Babynoahsmum]

Received this today, from reading im assuming it’s just protocol and we will know if the date the court requested for their fee to be paid, wether or not they are going to be continuing? Says claimant must pay £115 by the 6/12/18 to continue. So should I just sit tight till then? If I don’t hear anything ring the court on the 7th?

[Amethyst]

Yes indeed, just confirming the case is in small claims and that witness statements and documents need to be filed and served 14 days before the hearing.

When's the hearing ?

2018-11-27 17_23_04-Start.png

Says claimant must pay £115 by the 6/12/18 to continue. So should I just sit tight till then? If I don’t hear anything ring the court on the 7th?

Yes. ( Unless the hearing is before 21st December in which case you'd need to file & serve your WS before the hearing fee needs to be paid )

[Babynoahsmum]

Sorry don’t have the papers in front atm but it’s early January maybe the 3rd. So realistically what’s the latest point I would have to try and make a repayment plan? Even if we do decide we have no choice but to settle I would like to play chicken for as long as possible, without it actually costing us anything, in the hope they might pull out. Wishful thinking I’m sure haha

[Babynoahsmum]

When you get chance could you advise thanks

[MIKE770]

read #81 above - be serious as to what you want to do? you are throwing different needs so how can anybody advise when there is no clear requirement?

[Babynoahsmum]

I want to fight it but lack legal knowledge and don’t want to go forward when my defence has no chance of success and don’t want to carry it on to a point where I end up being responsible for more costs.

What I really want to do is claim statue barred on the basis that the original judgement was set aside and thus deeming the original claim invalid and none existant. Therefore the debt was statue barred upon me actually receiving the court ordered particulars of claim.

Is that a defense I would even have a chance of succeeding with? Could anyone point me to some reading materials on the subject?

thanks

[MIKE770]

statute barred date is the original date i.e. case set aside then reverts to original time line - when was the last payment/.acknowledgement to any reference other than the set aside case? read threads on the subject , no one case fits all>

[MIKE770]

Example Defence

[Amethyst]

This is the defence currently in play

1:The Claimants Particulars of Claim are vague. The Claimant states their claim is for a contract between myself and Lloyds bank entered into in 2004 and assigned to the Claimant in November 2013.

2: The Claimant has stated in previous correspondence that the claim is for an overdraft facility attached to a current account held at Lloyds Bank. The account is regulated by the Consumer Credit Act 1974.

3:I have held a bank account with Lloyds Bank in the past however as it has been over 6 years, I have no information in my own records regarding any balance which may have been left outstanding. I do not recognise the account number given nor the sum being claimed.

4:It is my contention that the sum claimed is statute barred pursuant to section 5 of the Limitations Act 1980 in that no acknowledgement or payment has been made for over 6 years.

5:I have sent a request for copies of documents and for further information relating to the claim to the Claimant in a letter dated 2nd October 2018, however I am yet to receive a response. I have requested a copy of the contract, terms, transaction lists, default notice and notice of assignment.

6:The Claimant has stated previously that the account was defaulted in December 2011. It is denied that Lloyds Bank served any Default notice pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

7:The Claimant has not provided any breakdown of the amount claimed. As I do not recognise the amount claimed, I have concerns that the sum may have been inflated by unfair charges and other fees which may have created an unfair relationship pursuant to s.140a Consumer Credit Act 1974. I have requested a copy of transactions from the period prior to the account's closure and default in order to assess how the sum claimed has arisen and the terms of the agreement underwhich such sums may have been applied.

8:Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

9:I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

10:In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

11:It is denied that the Claimant is entitled to the relief as claimed or at all.

[Amethyst]

The only documents you have had relating to the claim have come from your Lloyds SAR.

Arrow have sent nothing yet have they? They will have to provide all the information in their witness statement. In my view, until they pay the hearing fee and file their witness statement (when you can reassess ) you carry on. If they evidence their claim at that point ( which isn't sounding very likely as they've already apparently ditched it off to ARC ) then you could negotiate settlement under a Tomlin. You do of course risk them proceeding to try and get a judgment regardless so you have to take that into account.

You now know ( from the SAR ) that the account stopped being used because they cancelled his cards etc in June 2011. Then defaulted the account in Dec 2011.

The claim was issued originally in Nov 17. However it was issued to the wrong address and set aside in September 2018 - so there is an argument that the 'clock' shouldn't stop until when you were actually served with the claim. I'm having a dig for some references to back that up. There's also the argument that the cause of action was when they stopped use of the account ( so June 2011) which would have made it SB before the original claim was issued. It's a hairy area at the moment - there's a case going through the appeal process on the issue as to whether SB on consumer credit is taken from Default Notice expiry ( you still haven't been provided with a Default notice either - and there wasn't one in the SAR? was there?) - or from last payment / acknowledgement date. pt2537 might know what the position with that is at the moment.

. I have requested a copy of the contract, terms, transaction lists, default notice and notice of assignment.

no acknowledgement or payment has been made for over 6 years.

I have requested a copy of transactions from the period prior to the account's closure and default in order to assess how the sum claimed has arisen and the terms of the agreement underwhich such sums may have been applied.

[Babynoahsmum]

Thank you very much for breaking it down for me, Your post explains exactly what I wanted to know. Grey area ect is fine that can be worked with! I just didn’t want to be going into court and claiming this and the other which would just make me look like an idiot.

Also just in preparation would I be able to represent my husband? Would make things a lot easier if I could.