CCJ set aside advise/ HELP Please.

[ansonlee]

Amethyst

Update after spoke to Experian & M&S.
Experian confirmed no active bank account holding in my old address.
Experian will help me contact BOI & M&S directly to investigate what happen,it will take up to 28 days for the reply.

M&S: i spoke to fraud team this morning regrading application made under my name with my old address,they have confirmed the application has been declined ,because they believe is a Fraud.They said have send a letter to my new address to inform me this application,but i didn't receive it.
They agree to send a letter again to me to explain application was declined because they believe is a Fraud.

New soft Search by Lowell Portfolio 1 Ltd on 16/12/2109 in my old address before they send e-mail on 17/12/2109. Application type Unregistered Enquiry.

I received a email by court to confirmed The Issue Date of original Claim is 22^nd October 2019.

I look back my credit report the "last" hard search before claim date is 06/09/2019 by Insurance Provider under my new address.

Do you have more advice for me ,anything i can still do now?Should i ask Lowell which bank account holding my old address?

Thanks for helping.

[Amethyst]

Interesting... looks like Lowell may have done you a favour in alerting you to these searches. It might be worth having a look at CIFAS protection - https://www.cifas.org.uk/services/identity-protection - in case whoever has been trying to use your identity to obtain credit carrys on trying. It may also help if M&S or BOI put any markers with CIFAS which could affect you adversely in the future. Also worth reporting to Action Fraud to get a crime ref in case anything gets through or a CIFAS marker gets applied.

Doesn't help with the immediate issue of the judgment by default though.

So reply to Lowell along the lines of.... ( with a draft of your application and draft order ) …. it's a bit wordy - I'm not actually sure if you want to defend or try to settle this debt once you do get the judgment set aside so it is just a bit of a idea...



Dear Lowell

Thank you for your letter dated xxxx 2019 in which you decline to consent to a set aside of the default judgment claim ref XXXXXX obtained in November 2019.

I would like to thank you for bringing the information regarding searches on my credit file, using my previous address to my attention. These searches were not due to any applications made by myself and I am now in contact with Experian, Marks & Spencer, Bank of Ireland, CIFAS and Action Fraud in regards to attempted identity fraud against me.

That aside, I do find it strange that despite my having informed you of my change of address, your having written to me at my current address, and reporting the account to the Credit Reference Agencies with my current address that you have decided, on the basis of a couple of searches over a few days in March 2019 for unsuccessful applications made using my previous address, to issue the court claim to that previous address without making any further checks.

I am on the electoral roll at my current address. My current banking accounts are registered at my current address, and are being updated monthly on my file. And of course you, and the assignee of the debt giving rise to the claim, were fully aware of my current address.

Therefore I do intend to continue with my application to the court to setaside the Judgment, and will ask the court to award the costs of the application against you, unless you confirm your intention to consent to the setaside before XXX December 2019. I enclose a copy of my intended application for your reference and consideration.

I did not receive a pre-action letter before claim from you, as required under the pre-action for debt claims protocols, and had I done so I would have responded requesting copies of the documents and a breakdown of the alleged debt. Although I have had a Very account in the past I do not recognise the sums being claimed and have concerns over the terms of the account that may have given rise to such a sum accruing.

To that end I have sent a subject access request to Shop Direct ( who I believe are the original creditors despite your claim particulars only referring to '

VERY - LITTLEWOODS/ADDITIONS DIRECT' ) to try and find out more information.

Once I have the information and details of the account, I am likely to be in a position to come to an agreement, out of court, regarding settlement of any legitimate debt owed. Because I did not receive any pre-action letters nor the claim form I have been denied the opportunity to consider fully my position and respond accordingly, and I believe the court will agree the judgment should be set aside so that I may be returned to the position I would have been in had I received the claim.

xxxxxxx and so on....

[ansonlee]

edited.

[ansonlee]

Amethyst can you help me for final check,please.

[pt2537]

Hi there

Why are you relying on 13.3 ? I ask because what your statement describes is a mandatory set aside under CPR 13.2 where the Court has no discretion whatsoever.

CPR 13.3 should be the fall back position but i would always lead under 13.2

Theres a good case on the parties duties, the case is Sajid v Nuur where the Court ruled that the creditor has a duty under CPR 6.9(3) to make reasonable enquiries as to the defendants address for service, especially where you told them you had moved, so i cannot see how you cannot argue under 13.2 that the judgment must as a matter of right be set aside.

If you go under 13.3 you have to show you have acted promptly and that you have a real prospect of defending the claim, 13.2 has none of these requirement

[pt2537]

Here is the case i referred to.

Just to expand my reasoning, if the claim form is not served on the Defendants address for service, then the sands of time dont start to run, your 14 days dont start ticking. Therefore, if the 14 days to acknowledge the claim havent expired the Claimant has no right to judgment.

This is why the Judgment MUST as opposed to MAY be set aside. The Court has no discretion, once the facts are accepted the outcome must follow, this is clear from CPR 13.2.

13.3 however leaves you open to the mercy of the judge, it places a burden on you, you must show a real prospect of success, the whitebook is clear you should also file a defence even in draft which shows you have a good prospect of defending the claim.

To put it bluntly, CPR 13.2 you just need to run a 100 meters, CPR 13.3 you have to climb the Himalayas and then cross the Sahara before you get home

The two are strikingly different, i know which i would go for.

[pt2537]

Paragraphs 40 to 44 are helpful

[ansonlee]

Amethyst pt2537
I am only looking to have it set aside, I am not intending to file a defence now.

Do you think my evidence is strong enough to go through CPR 13.2 ?

I didn't informed Lowell (Claimant ) of my chance of address,because i don't know they take over my account until 5th March 2019 i received "Pre-Legal Assessment" letter by them to my current address. (This is only letter Lowell send to me).
My address changed in Nov 2015, and which time I informed the Shop direct (original creditor) by telephone and update current address in my online account.
Account Opened:23 Mar 2013. First Defaulted date:12 Dec 2018.

Rule 6.9(2) of the Civil Procedure Rules provides that the claim should be served at the Defendant's usual or last known residence.
evidence:
1.Account statement by shop direct dated 05/ 2018 post to my current address.
2.Pre-Legal Assessment letter by Lowell Financial Ltd dated 05/03/2019 send to my current address.
3.Experian Credit Report : LOWELL PORTFOLIO I LTD with my current address.


Rule 6.9(3) of the Civil Procedure Rules. provides that the Claimant must take reasonable steps to ascertain the Defendant’s current address.

evidence:
1.Experian Credit Report : LOWELL PORTFOLIO I LTD with my current address.
Last updated:24 Nov 2019
2.Electoral roll:March 2018 - Present,April 2016 - March 2018.
3.All active bank account holding in my current address.
(The Issue Date of original Claim is 22nd October 2019.)
4.Experian credit report show the "last" hard search before claim date is 06/09/2019 by Insurance Provider under my current address.

The reason Lowell not consent to setting aside the judgement.
"We can confirm that as per records held on Experian, our Trace team has found a record of an application made in March 2019 for a credit card and for holding a bank account at the address of xxxxxx (my old address). This information is sufficient proof that you were registered to the address that legal proceedings were issued at therefore, Judgment was obtained correctly.

Evidence:
Rule 6.9(2)
These searches were not due to any applications made by myself,the search in March 2019 for unsuccessful application made using my previous address, to issue the court claim to that previous address without making any further checks.
I am on the electoral roll at my current address. My current banking accounts are registered at my current address, and are being updated monthly on my file.

Thanks for any help

[ansonlee]

In case I am expected to digress on the subject, what section of CPR 13.2 does my case fall in to in arguement to get my ccj set aside??

[ansonlee]

Amethyst pt2537 can you help me have a check,please.
OK, so here's the updated version of the complete WS!
WITNESS STATEMENT OF XXX

I , XXX of XXX , being the Applicant and Defendant in this case will state as follows;
1:I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXXXXXXX Judgment dated 19th November 2019) be set aside pursuant to CPR 13.2.

2: CPR 13.2 states that the court must set aside a judgment entered under Part 12 if (a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. CPR 12.1 explains that ‘default judgment’ means judgment without trial where a defendant (a) has failed to file an acknowledgment of service. 12.3(1) goes on to say:
12.3(1) The claimant may obtain judgment in default of an acknowledgement of service only if:-
(a) the defendant has not filed an acknowledgement of service or a defence to the claim; and
(b) the relevant time for doing so has expired.
3. I first learnt of the existence of the Judgment on the 6th December 2019 when I checked my Credit File following receipt of an alert by Experian Credit report email on 3th December 2019. (see Evidence A: email )
4:I understand that the Claimant obtained a Judgment in Default on 19th November 2019. However, this claim form was not served on me at my current address, XXXXXXX, despite the Claimant having previously been made aware of that address. The claim was issued to a previous address, XXX. (see Evidence B: Letter by Lowell)
5.Rule 6.9(2) of the Civil Procedure Rules provides that the claim should be served at the Defendant's usual or last known residence.
6.My address changed in November 2015,at which time i informed the shop direct (Original creditor) by telephone and update current address in my online account.The Claimant having written to me at my current address,and reporting the account to the Credit Reference Agencies with my current address. Therefore the "last know residence" was my current address of (XXX).Instead the Claimant used a previous address,(XXX).(See EVIDENCE C:shop direct paper statement dated 05/2018,letter by Lowell dated 03/2019,credit report attached. )
7.Rule 6.9(3) of the Civil Procedure Rules. provides that the Claimant must take reasonable steps to ascertain the Defendant’s current address.
8.My credit file has my current address, xxx and I am on the electoral roll at my current address.My current banking account are registered at my current address,and are being updated monthly on my file.There is no reason that the Claimant couldn't have issued the claim to my current address had they undertaken minimal due diligence. (see Evidence D : Credit report)
9.Since the Claimant failed to comply with CPR 6.9, service of the claim form was defective and therefore invalid. The time for acknowledging the claim form cannot begin until the claim has been properly served. It therefore follows that, contrary to CPR 12.3(1), the relevant time for acknowledging service did not expire. As such, the judgment was wrongly entered and the default judgment must be set aside.

10.Considering the above I was unable to respond to or defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.
11. On 10th December 2019 I made a written and email request to the Claimant and their Solicitors inviting them to consent to set aside the judgment due to the reasons set out above. (See Evidence E: Email )
12. The Solicitors has respond by email on 17th December 2019 would not consent to setting aside the judgement because We can confirm that as per records held on Experian, our Trace team has found a record of an application made in March 2019 for a credit card and for holding a bank account at the address of xxxxxx (my old address). This information is sufficient proof that you were registered to the address that legal proceedings were issued at therefore, Judgment was obtained correctly. (See Evidence F: Email)
13. These searches were not due to any applications made by myself and I am now in contact with Experian, Marks & Spencer in regards to attempted identity fraud against me.That aside, I do find it strange that despite my having informed original creditor of my change of address, the claimant having written to me at my current address, and reporting the account to the Credit Reference Agencies with my current address that you have decided, on the basis of a couple of searches over a few days in March 2019 for unsuccessful applications made using my previous address, to issue the court claim to that previous address without making any further checks.I am on the electoral roll at my current address. My current banking accounts are registered at my current address, and are being updated monthly on my file.
14.There are also grounds for setting aside the default judgement under CPR 13.3. Where no claim form is received, the Court has discretion to set aside the default judgment as explained by May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478 (at para. 49):
Rule 13.3(1)(b) has a disjunctive alternative, so that the court may set aside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so.

15.As I did not receive the claim form, the court should set aside the default judgment as per May LJ in Godwin v Swindon Borough Council.

16.I also respectfully request the Court orders the Claimant pay the costs of this application, being the £255 court application fee.

[ansonlee]

Amethyst afterpt2537*suggestion,i updated version of the WS,can yoh help me have a check ,please. sorry Im not really good for writting. I appreciate your help.
*

[ansonlee]

anyone can help to check my WS,PLEASE.

[ansonlee]

Amethyst* can you help? Thanks

[cho11]

Amethyst

[ansonlee]

HI Amethyst
I have send a WS to admin@legalbeagles.info
Sorry to be a pest but my statement is due and I would really appreciate feedback please to see if it's correct.
Please,Please when you have time can you let me know if that’s ok.


Any help would be appreciated