Help with defence for successful set aside judgement

[Amethyst]

Okay, sorry haven't been about much over weekend.

In the SAR are there any further bits after the formal demand that state default notice, notice of termination etc ? I think arguing last payment/acknowledgement to begin with though, the formal demand is a little bit close to the 6 years and it would have had a 7 or 14 day period included in it.

They say they haven't got copies of the original letters for the SAR response, so the claimant will rely on the screennotes and template letters that would have been used at the time. So if there is an entry in the screennotes saying Default / Termination Notice you'll be basically arguing against that being the statute barred date.

So re your husband being unable to attend due to work being a nightmare, you'll need him to write to the court ( at least 7 days in advance of the hearing ) and say he can't attend and why, and respectfully request the court hears the case on the papers, and enclose his witness statement with that.

27.9

(1) If a party who does not attend a final hearing–

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.

(2) If a claimant does not –

(a) attend the hearing; and

(b) give the notice referred to in paragraph (1),

the court may strike out^(GL) the claim.

(3) If –

(a) a defendant does not –

(i) attend the hearing; or

(ii) give the notice referred to in paragraph (1); and

(b) the claimant either –

(i) does attend the hearing; or

(ii) gives the notice referred to in paragraph (1),

the court may decide the claim on the basis of the evidence of the claimant alone.

(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.

[Amethyst]

Ignore my post about formal demand, I was working it out from the date judgement was gained rather than the date they brought the case Hense why in my witness statement I used the enforcement notice and debit card block as the cause of action

lol,

yes, stick with last payment/acknoweldgement.

Having read through the WS now.

[Babynoahsmum]

Just four more pages after the ones I’m using as evidence, no mention of default or termination only a another formal demand and then the account closure, that I can see, uploaded for you to have a look.

so as far as the witness statement goes does it look acceptable to send?

[Amethyst]

Okay you probably want to leave out the 'account closed on 1st December' part as that does give a definitive cause of action to take SB from, and the claimant hasn't pleaded that date, so in the absence of evidence from the claimant against your statement in the defence that the debt is statute barred, I'd keep it at 'last payment'. they're using the 6th Dec 2011 as the default date, but so far there is absolutely no evidence for that - they appear to be relying on the credit reference agencies reporting, which is not evidence of the default date, just the date when the debt was reported as defaulted to the CRA, and although data reported should be accurate, it is only updated monthly so a Default being dated on the 6th could mean it defaulted any time in the previous month ( or even before ) - Have they provided any evidence of a default notice as yet ? Anything at all in the screen notes from Lloyds of anything happening on 6th Dec ?

Just thinking your Witness Statements will be due for exchange 14 days before the hearing, so what you can do, IF the claimant does plead otherwise in their witness statements, is argue against it in a supplementary witness statement which you can file with the ' I can't attend the hearing' letter.

[Amethyst]

6th Dec

2018-12-10 20_30_57-Microsoft Edge.png
No mention of default.

[Babynoahsmum]

The account closure one is in that last lot I posted yeah? Those ones are not part of my evidence so that’s okay.

Default notice is none existent, same with any sort of contract or overdraft terms ect. All I have received is the notice of assignment and the documents or any mention of them are also missing from the dsar so pretty confident that they won’t be able to produce them.

I have managed to pursue the husband to at least try and get his shift covered so fingers crossed as I would prefer to attend.

so would you leave witness statement as is? It’s acceptable?

[Amethyst]

Your arguments make sense in the WS but I think I'd mention that you require the terms and overdraft facilities letter from each increase/reduction to enable you to check whether the overdraft charges were fairly applied as per the terms of the agreement and where you mention the increase in overdraft, have you mentioned that the increase was turned down twice because it appeared to be being increased solely to cater for the bank to take charges from the account and the only way to stop the bank taking all your income ( benefits ) in charges was to stop using the account. ( cycle of debt / unfair relationship ).

Make more of the lack of default notice in the WS too.

[Babynoahsmum]

Yes, if I write that about declined overdrafts I will need to evidence what I am saying too?

[Babynoahsmum]

Should I be holding off to closer to the 20th to submit to court and arrow or can I just get it done ASAP? And you say I can respond to their witness statement when I inform the courts I can’t attend?

[Babynoahsmum]

Do you think looking at this that they’ll have access to all the same documents I do?

[Amethyst]

I'd assume they do - although that only appears to say transaction lists have been provided.

WS's are meant to be exchanged, so neither party sees the others before they send theirs … so I'd hang on till 15th maybe to file and serve to account for Christmas post delays.

Then when you write giving the 7 days notice of non attendance ( if you do that ) you can file a supplementary witness statement in response to theirs ( otherwise you just can do anyway if there are corrections or additions you need to make.

Once you receive theirs you'll have a much better idea of whether you want to risk going through the hearing and potentially getting the CCJ reapplied, or whether to try negotiate payments under a tomlin/consent order. This is always the horrible bit waiting to see what their case will be. You know it's very very tight on the 6 years... they seem to be sticking on the 6th Dec date, which there's absolutely no evidence for being the cause of action date other than that being the date on the credit reference agency record - and no default or termination notice ….if they argue no requirement for either then they can't rely on default date for cause of action - you have last payment and at a push formal demand to argue.

[Babynoahsmum]

Hi amethyst, it’s now 14 days until the hearing, haven’t received anything yet from arrow, what do I do if nothing arrives today?

[Amethyst]

You could give the court a call tomorrow to see if they have received something - I believe there will be some leaway given with Christmas Post getting the blame for delays so tbh it may not even be worth the waiting on hold effort tomorrow and just wait to see if anything has been filed/served by the 28th.

[Babynoahsmum]

Merry Christmas and a happy new year

thank you so much for all your help!! Although I don’t have much I would like to make a donation to the site if you can direct me how to do that. ❣️