Set aside default judgement hearing.

[Amethyst]

Re: Blake Lapthorn

What on earth !!

It was a post by a Spammer - Enaid has squished them xx

[explorer121]

Re: Blake Lapthorn

Hello Amethyst,

arrived home tonight to a long set of correspondence from Blake Lapthorn which I will summarise and hopefully be able to gain some advice.

Page 1.
Statement of costs amounting to £590 for work by Blake Lapthorn.
Page 2.
Witness statement from Senior Litigation Partner, Commercial recoveries.
Page 3.
on or about 22.6.2004 the defendant entered into agreement with MBNA in respect of credit card.
on or about 22.2.2008 the defendant failed to make minimum monthly payments, a default notice was served as no response the agreement was terminated. The claimants cause of action was duly accrued on 22.22008.
The claimant is a well established debt purchaser. MBNA assigned this debt to Arrow Global .
20.12.2011 the agreement was assigned to the claimant with a purchase balance of £7388.82. Notice of assignment was served on the defendant.
The claimant was provided with the defendants last know address.
Background proceedings.
claimant instructed B.L. solicitors to take legal action to recover. Letter sent to defendant notifying of the transfer of the account to B.L.solicitors.
No response to letter of 13.11.2013 a letter before action sent to provided address 18.11.2013.
No response to before action letter.
The defendant failed to respond to claim form and in absence default judgements was obtained 14.01.2014.
Defendants application to set aside.
the defendant argues that :
proceedings issued to old address.
statue barred.
requested copy of CCA.
Response :
Defendant does not deny entering into agreement or that the balance remains under the agreement.
The claimant has acted in accordance with all CPR provisions. Correspondence sent to provided address. No correspondence returned until after proceedings had been issued. Claimant complied with CPR 6.9 (1)
The matter is statue barred.
defendant has failed to provide evidence in support. As course of action accrued 22.2.2008 at which time defendant had been served with Notice of Default.Therefore not statue barred.
Defendant does not provide sufficient evidence or make it clear the focus of his proposed defence.
Court of appeal burden of proof fall on defendant under CPR 13.3(1) to show there is good reason why judgement should be set aside and defendants action should be dismissed.
The defendant requested copy of CCA.
The defendant wrote to B.L. 23.9.14 enclosing £1 requesting copy of CCA on the same day without giving time for claimant to respond filed an application for set aside.
Where the claimant has already obtained judgement the defendant CCA request does not bar on enforcement action taken by the claimant .
B.L. acknowledged the defendants CCA request 16.10.14 .The requested information will be forwarded to the defendant as soon as it is made available by the originating creditor. Respectfully request judgement upheld as this would clearly prejudice the claimant's position.
Conclusion.
defendants application does not state which CPR provisions he intends to rely on in seeking to set aside judgement.
Defendant can not rely on mandatory provisions under CPR rules 13.2 as claimant has not erred in requesting default judgement against him in the absence of an acknowledgement of service or defence of claim.
B.L. also state that I can not argue the judgement was wrongly entered as per provisions of CPR 13.3.

OK , so after a mammoth type I am now somewhat worried as the hearing is this Thursday and not a lot of time to try and fathom this all out.

First and foremost no copy of the CCA or accounts has been enclosed.
Both my letters deny and Cleary state 'I do not acknowledge any debt to your company in any form'.
My enquiry regarding statue barred is because I haven't lived at this 'papers served address' for 7 years.

[explorer121]

Re: Set aside default judgement hearing.

Hello Amethyst,

arrived home tonight to a long set of correspondence from Blake Lapthorn which I will summarise and hopefully be able to gain some advice.

Page 1.
Statement of costs amounting to £590 for work by Blake Lapthorn.
Page 2.
Witness statement from Senior Litigation Partner, Commercial recoveries.
Page 3.
on or about 22.6.2004 the defendant entered into agreement with MBNA in respect of credit card.
on or about 22.2.2008 the defendant failed to make minimum monthly payments, a default notice was served as no response the agreement was terminated. The claimants cause of action was duly accrued on 22.22008.
The claimant is a well established debt purchaser. MBNA assigned this debt to Arrow Global .
20.12.2011 the agreement was assigned to the claimant with a purchase balance of £7388.82. Notice of assignment was served on the defendant.
The claimant was provided with the defendants last know address.
Background proceedings.
claimant instructed B.L. solicitors to take legal action to recover. Letter sent to defendant notifying of the transfer of the account to B.L.solicitors.
No response to letter of 13.11.2013 a letter before action sent to provided address 18.11.2013.
No response to before action letter.
The defendant failed to respond to claim form and in absence default judgements was obtained 14.01.2014.
Defendants application to set aside.
the defendant argues that :
proceedings issued to old address.
statue barred.
requested copy of CCA.
Response :
Defendant does not deny entering into agreement or that the balance remains under the agreement.
The claimant has acted in accordance with all CPR provisions. Correspondence sent to provided address. No correspondence returned until after proceedings had been issued. Claimant complied with CPR 6.9 (1)
The matter is statue barred.
defendant has failed to provide evidence in support. As course of action accrued 22.2.2008 at which time defendant had been served with Notice of Default.Therefore not statue barred.
Defendant does not provide sufficient evidence or make it clear the focus of his proposed defence.
Court of appeal burden of proof fall on defendant under CPR 13.3(1) to show there is good reason why judgement should be set aside and defendants action should be dismissed.
The defendant requested copy of CCA.
The defendant wrote to B.L. 23.9.14 enclosing £1 requesting copy of CCA on the same day without giving time for claimant to respond filed an application for set aside.
Where the claimant has already obtained judgement the defendant CCA request does not bar on enforcement action taken by the claimant .
B.L. acknowledged the defendants CCA request 16.10.14 .The requested information will be forwarded to the defendant as soon as it is made available by the originating creditor. Respectfully request judgement upheld as this would clearly prejudice the claimant's position.
Conclusion.
defendants application does not state which CPR provisions he intends to rely on in seeking to set aside judgement.
Defendant can not rely on mandatory provisions under CPR rules 13.2 as claimant has not erred in requesting default judgement against him in the absence of an acknowledgement of service or defence of claim.
B.L. also state that I can not argue the judgement was wrongly entered as per provisions of CPR 13.3.

OK , so after a mammoth type I am now somewhat worried as the hearing is this Thursday and not a lot of time to try and fathom this all out.

First and foremost no copy of the CCA or accounts has been enclosed.
Both my letters deny and Cleary state 'I do not acknowledge any debt to your company in any form'.
My enquiry regarding statue barred is because I haven't lived at this 'papers served address' for 7 years.
No copies of CCA, accounts or original papers supplies apart from letter dated 13.11.2013 to 7 year old address from Arrow Global stating Notification of account transfer.
In the absence of original CCA request and supporting papers and no proof that the debt is mine plus the underhand way this has been done I am asking for the judgement to be dismissed.

Am I on the right lines ?
Your help would be much appreciated

[explorer121]

Re: Blake Lapthorn

Hi Amethyst,

this is my defence after showing my documentation which is all supported by recorded delivery.
"I acknowledge no debt with this creditor, Arrow Global.
When
I received this Court Claim, I immediately applied to the Creditor's
Solicitors, Blake Lapthorn, for copies of the Credit Agreement,
Statements and Associated Paperwork.
Under the law (consumer credit
act 1974 s77 and 78), it states that the creditor has 12 working days
from receipt of my request to provide this information.
The
creditors solicitors, Blake Lapthorn acknowledged my request but has
failed to produce any evidence and the 12 days have now elapsed and
still no documentation has been forthcoming.
According to the law
(Consumer credit act 1974), after 12 working days have elapsed, and no
evidence is provided, then the creditor is in “default”.
The law
(Consumer credit act 1974) states that a Creditor cannot take
enforcement action if they are in default or if they do not have correct
and proper documentation.
So in essence, they are trying to force repayment of a debt that they can’t show to be mine."

I therefore ask for the judgement to be dismissed and my costs awarded.


Would be grateful for you comments, thanking you in advance.

[explorer121]

Re: Set aside default judgement hearing.

Good morning to all,
would anyone be able to help as time is running out.
Thanking in advance.

[Amethyst]

Re: Set aside default judgement hearing.

Hi explorer, sorry that your posts have gotten missed I'll have a read xx

( have merged threads so I can read back )

[Amethyst]

Re: Blake Lapthorn

Okay you didn't do a witness statement with the application did you, just the copy of the letter sent to BL - I don't think you did a draft defence either did you?

So, the address issue is the main part for the set aside. You have the right argument in place for that.

We do need to do a response to that witness statement from BL by way of a Witness Statement to get over to the judge today ready for the hearing tmw.

Also costs .... you should be in small claims track as the judgment is for £8k isn't it ?

Can you tell me what the original debt was.

BL are correct with regards the CCA request btw as they have judgment, however once it is set aside it does come back into play.

[explorer121]

Re: Set aside default judgement hearing.

Hi Amethyst,
No witness statement or draft defence.
The judgements was for less than £8000.
I do not know what the original debt was for as no papers have been supplied

Hope this helps and sorry to be so vague but I have no papers or replies regarding my enquiry for CCA or copy of together with statement etc,
ook forward to hearing from you and thank you.

[Amethyst]

Re: Set aside default judgement hearing.

So the witness statement they sent you is the first time you've found out its an MBNA credit card. You can say that in your Witness Statement.

Do you remember anything about this credit card ?

[explorer121]

Re: Set aside default judgement hearing.

Hi,
first time I have seen witness statement and I have no recollection of this credit card.
I have also read that a WS should be submitted before hand and any exhibits.
Have I shot myself in the foot ?
The only way I can get a WS to the court is by email tonight as am at work.
Many thanks.

[explorer121]

Re: Set aside default judgement hearing.

Hi Amethyst,

I have written my witness statement as follows :
The facts in this statement come from my personal knowledge.
"I acknowledge no debt with this creditor, Arrow Global.
When I received this Court Claim I immediately applied to the Creditor's Solicitors, Blake Lapthorn, for copies of the Credit Agreement, Statements and Associated Paperwork. My recorded delivery letter dated 23.9.14 refers, copy available and submitted with form N244.
Under the law (consumer credit act 1974 s77 and 78), it states that the creditor has 12 working days from receipt of my request to provide this information.
The creditors solicitors, Blake Lapthorn acknowledged my request, only after a second recorded delivery letter was sent on the 9.10.14, but have failed to produce any evidence and the 12 days have now elapsed and still no documentation has been forthcoming.
According to the law (Consumer credit act 1974), after 12 working days have elapsed, and no evidence is provided, then the creditor is in “default”. The law (Consumer credit act 1974) states that a Creditor cannot take enforcement action if they are in default or if they do not have correct and proper documentation.
So in essence, they are trying to force repayment of a debt that they can’t show to be mine."
As the judgment is set aside the request for a copy of the Consumer Credit Agreement is still valid.
I therefore ask, in the absence of any supporting copy of the Consumer Credit Agreement proving that I owe this money, credit card statements or copies thereof, that the judgment be dismissed and my costs of £155 be awarded.

I believe the facts contained in this witness statement are true.


As I am now out of time and the hearing is 11.35 tomorrow I am hopefully as informed as I can be.

Thank you for your help and I will let you know the outcome.

[explorer121]

Re: Set aside default judgement hearing.

Hi Amethyst,

I have written my witness statement as follows :
The facts in this statement come from my personal knowledge.
"I acknowledge no debt with this creditor, Arrow Global.
When I received this Court Claim I immediately applied to the Creditor's Solicitors, Blake Lapthorn, for copies of the Credit Agreement, Statements and Associated Paperwork. My recorded delivery letter dated 23.9.14 refers, copy available and submitted with form N244.
Under the law (consumer credit act 1974 s77 and 78), it states that the creditor has 12 working days from receipt of my request to provide this information.
The creditors solicitors, Blake Lapthorn acknowledged my request, only after a second recorded delivery letter was sent on the 9.10.14, but have failed to produce any evidence and the 12 days have now elapsed and still no documentation has been forthcoming.
According to the law (Consumer credit act 1974), after 12 working days have elapsed, and no evidence is provided, then the creditor is in “default”. The law (Consumer credit act 1974) states that a Creditor cannot take enforcement action if they are in default or if they do not have correct and proper documentation.
So in essence, they are trying to force repayment of a debt that they can’t show to be mine."
As the judgment is set aside the request for a copy of the Consumer Credit Agreement is still valid.
I therefore ask, in the absence of any supporting copy of the Consumer Credit Agreement proving that I owe this money, credit card statements or copies thereof, that the judgment be dismissed and my costs of £155 be awarded.

I believe the facts contained in this witness statement are true.


As I am now out of time and the hearing is 11.35 tomorrow I am hopefully as informed as I can be.

Thank you for your help and I will let you know the outcome.

[explorer121]

Re: Set aside default judgement hearing.

Hello,
have been to the hearing today to set aside the judgement and have successfully done so. The case is now going to trial with the fast track small claims on the 27.11.14.
For the benefit of all, my argument to the judge was on two points.
1. The correspondence was served on an old address and the first I'd ever heard about it was 23.10.14 when I received an application for attachment of earnings after a default judgment had been made by Arrow Global. Arrow Global, who were in attendance, had in fact served the correct papers and the judge was satisfied they had done so within the law.
2.The second point was I had repeatedly asked for a CCA, account statements etc. from Arrow Global but had received nothing to prove I even owed the money. The judge questioned AG as to why they had not supplied them and the answer was given that they would be hard to obtain after 10 years. I pointed out that they had had 7 weeks so far and nothing had been produced nor was it likely to be.
AG argued that they could not have obtained a judgement without the correct documentation relating to the debt. I intervened and pointed out that Northampton is a bulk processing centre and a single truth statement can encompass several applications and more importantly I had a legal right to see the papers requested under the CCA 1974.
The judge also noted that she did not have a witness statement from Blake Lapthorn/AG but did have one from me. I informed her I had a copy from BL and only received it two days before the hearing.
The judge agreed and awarded set aside with a fast track trial in two weeks.
To cap it all the AG rep asked for costs for his time there, the judge rather curtly dismissed him !

Incidentally, whilst I was waiting for the hearing I was approached by the AG rep and he asked to have a chat with me. We moved to a meeting room and he proceeded to tell me I had little chance of success for setting aside the judgment because it was not statue barred and legally correct. I told him in no uncertain terms he was not the judge and certainly not in a position to intimidate me prior to a hearing. END OF MEETING.

So I am now a further stage down the line to hopefully getting this dismissed through lack of proof regarding the debt.

Further post to follow.

[Amethyst]

Re: Set aside default judgement hearing.

Absolutely brilliant. Well done today you sound like you have exactly the right result and have a good chance of this going your way.

Love this bit...

Incidentally, whilst I was waiting for the hearing I was approached by the AG rep and he asked to have a chat with me. We moved to a meeting room and he proceeded to tell me I had little chance of success for setting aside the judgment because it was not statue barred and legally correct. I told him in no uncertain terms he was not the judge and certainly not in a position to intimidate me prior to a hearing. END OF MEETING.

So do you need to put a full defence in before the hearing ?

btw, it's always ok to report your own post or pm someone to have a look at your thread if it gets missed.

[explorer121]

Re: Set aside default judgement hearing.

Hi,
thanks to you and others on here. Will now wait to hear from the CC.
Thanks again.