MKDP notice of judgement recd - but no POC recd, help re set asideE !!

[CleverClogs]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

If the documents provided by the creditor are illegible, then they do not comply with the Consumer Credit (Agreements) Regulations 1983, Regulation 6(2) of which (link) states that the prescribed terms must be easily legible.

Consequently, the creditor cannot have complied with the request made under s.78(1) of the Consumer Credit Act 1974 and, until/unless the creditor does comply with that request, the agreement remains unenforceable.

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Hi CC,

Thanks for you input .... would you suggest that I scrap hubbys current defence, and just base it on CCA83 6(2), (I promise I will scan up today so you can see if yourself) , or add this on to what we ALREADY have.

As although we cant actually read the body of the 2 paragrpahs that are there, its obv that there are no prescribed terms, as the paras (and agreement heading) are in slightly larger bold text (meaning we could read them !), "use of key information" and "credit ref and fraud protection clauses". Then followed by only the signature box and your right to cancel statement.

Thank you for any help you can give us .... !!

P xx

[pt2537]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

If you are applying to set aside Judgment, then you would be prudent to supply a draft defence which has clear merit. A District Judge (DJ) will look at the application to set aside and will want to ensure that if he or she does set aside the judgment, then it is not just prolonging the inevitable and you wont be back in 6 weeks time before another DJ with an application for summary judgment.

It is therefore prudent to show the Court that you did not recieve the claim form, and it would be prudent to check with the Court the exact address the Claim was sent to, and when. It would be helpful to aslo check the local area to see that there are not any addresses similar to yours where the Claim could have been sent.

From there, id suggest that you prepare a properly pleaded defence in accordance CPR 16.5

You must address all the issues within the Defence, if you cannot plead a Defence that has prospect of success at trial then you may well be at risk and the DJ may refuse to set aside.

Also dont forget the costs implications too. If you fail the general rule is the loser pays the winners costs.

Perhaps it may be prudent to speak to the Claimant and see if they will consent to setting aside. I tend to send them a draft defence and invite them to consent to set aside. This also is protective on costs too.

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Thanks PT for your input,

How does a defendant prove (other than their word) that didn't receive it, given that they aren't sent by any trackable or gted delivery method ? Plus the fact that all Hubbys prev corres to both Nwide and DCAs (between 2008 and 2010) has provided full details of the dispute regarding the non-enforceable CCA provided - which I hope would/should demonstrate that he wouldn't have any probs in responding to any claim that was recd If he had recd it of course.

There is an address v similar to ours (its actually the next road), it has the same road name, but just has "south" in front of it .... eg say we are orchard road, they are south orchard road - and we do sometimes receive each others post in error, but that hasn't happend for a while, and I would expect them or any neighbour to post the letter through when they realised it had been wrongly delivered - but who knows !.#

Anyhoo, I note your direction ...

From there, id suggest that you prepare a properly pleaded defence in accordance CPR 16.5

Thanks PT, so I am right assuming from this (and before looking at CPR 16.5) that the format of current defence I've constructed isn't compliant or just not very good ?

What about the nuts and bolts of the defence - are they valid points of defence re the agreement itself ie No DN recd, Agreement fails to have a compliant and pescribed heading, Agreement contains no prescribed terms ?

If you can give me a few tips on the N244 and once I've tinkered with it its ok in your opinion, I'll get hubby to call the claimant and discuss re setting aside.

But I'm a bit worried that in referring to them etc is taking up time, and the longer it is before Hubby actually submits his N244 to the court (as I read that its imperative to get an N244 in pretty sharpish after judgement), that it may prejudice the judge's review/opinion - how much time from receipt of the N244 papers, do the courts consider it a reasonable time for the set aside request to be recd ?

Hope you can help

P xx

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Would it be better to first see what evidence MKDP have based their claim on, and then decide whether N244 would be worthwhile ?

I have completed a draft cpr31.13, which I know is usually pre- judgement, but given that we didn't receive the POC, I have jiggled it a little to fit, and basically asking them for evidence of the documents they cited their original claim under.

Would this be the better initial route ?

I need really help with this, as I've no experience of judgements etc, and hoping the good and wise here have the kindness to give me a leg up with this one .... :doggieyes:

[pt2537]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Thanks PT for your input,

How does a defendant prove (other than their word) that didn't receive it, given that they aren't sent by any trackable or gted delivery method ? Plus the fact that all Hubbys prev corres to both Nwide and DCAs (between 2008 and 2010) has provided full details of the dispute regarding the non-enforceable CCA provided - which I hope would/should demonstrate that he wouldn't have any probs in responding to any claim that was recd If he had recd it of course.

There is an address v similar to ours (its actually the next road), it has the same road name, but just has "south" in front of it .... eg say we are orchard road, they are south orchard road - and we do sometimes receive each others post in error, but that hasn't happend for a while, and I would expect them or any neighbour to post the letter through when they realised it had been wrongly delivered - but who knows !.#

Anyhoo, I note your direction ...

From there, id suggest that you prepare a properly pleaded defence in accordance CPR 16.5

Thanks PT, so I am right assuming from this (and before looking at CPR 16.5) that the format of current defence I've constructed isn't compliant or just not very good ?

What about the nuts and bolts of the defence - are they valid points of defence re the agreement itself ie No DN recd, Agreement fails to have a compliant and pescribed heading, Agreement contains no prescribed terms ?

If you can give me a few tips on the N244 and once I've tinkered with it its ok in your opinion, I'll get hubby to call the claimant and discuss re setting aside.

But I'm a bit worried that in referring to them etc is taking up time, and the longer it is before Hubby actually submits his N244 to the court (as I read that its imperative to get an N244 in pretty sharpish after judgement), that it may prejudice the judge's review/opinion - how much time from receipt of the N244 papers, do the courts consider it a reasonable time for the set aside request to be recd ?

Hope you can help

P xx

I think you rather answered your own question, perhaps without knowing that you did.

If there is a street near you with the same name, perhaps my point above may help. Check with the Court, see where the Claim was addressed. If it was wrongly addressed then the Claim is not served correctly and judgment MUST be set aside. The basis is that due to non service the time for filing the acknowledgment of service has not expired

I would point out in any application that there is a road named the same near by and on the balance of probabilities the Court can be satisfied that the Claim was delivered to the wrong address

I would also reiterate my point, perhaps the Claimant would agree to set aside the judgment, perhaps asking them would be an idea.

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Thanks PT for your input, i know you're super busy, and I appreciate any help you can give x

I'll get my hubby to call the court tomorrow to clarify the address for the POC.

If they confirm it was to our home address, which is likely given that we recd both the default judgement and N244 form & encs and they were correctly addressed, then do i re-adjust my N244 in any event to base his defence on non-service ? And cite that this is due to the likely hood that it was delivered to my neighbouring road ie south orchard road (but may the court say, well wouldn't they have passed it on to you and reject hubbys set aside claim ?)

Or, what do you think about my CPR 31.14 approach and if they don't or can't provide any of the docs cited in their original POC, I could then ask them to set aside the CCJ, given he would have submitted this request if he had recd the POC, and that this will form part of hubbys N244 defence submission ?

Or if they refuse to set aside voluntarily, refer to this within the N244 defence submitted to the court ? (ie the claimant has based their claim on documents that they aren't in possession of, and can't provide to me under a CPR 31.14 request in order to prove their case).

Many thanks again for all your help, and apologies for any inconvenience caused by my (what will probably seem to you and experienced bods) silly qs I'm reading what I can, and trying to learn as quickly as possible !!

P xxxx

[pandora]

Re: MKDP notice of judgement recd - but no POC recd, help re set asideE !!

Hi,

Letter recd today from Keynes Collections.

Letter reads ...

"We write to remind you that Judgment was entered against you on 23 December 2013. A copy of the judgment has been sent to you under separate cover by the court.

Please note that if you pay your Counrty Court Judgment in full within one month of the judgment date, it will be removed from the register, the credit reference agencies will be notified and they will remove details of the CCJ from your record.

To contact us and discuss your account please call us on xxxxxxxx. Our opening times are, blah blah ".

And thats it, should hubby initially go down the CPR 31.14 route, and send them the above letter I've posted for comment ?

P xx