Court Caste Lowell/Bryan Carter - Worried sick

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Hi sorry, that should be seven days from the date of the judgement to set aside the order. Though I'm not sure I can actually do that.

To be honest, I don't know what tactic I should take. Whether I should attempt to fight to have the claim dismissed on the ground it should have never gone to court in the first place due to their failure to comply with requests for information or if I should request that it go back to a hearing and fight it there. I'll be honest, I don't have a clue what I can and cannot do in this instance.

As for a defence should I not just resubmit the defence I gave when i first responded to the claim? Or is this defence solely about why I failed to provide a witness statement on time.

Also should I make a deal out of the fact that I received my copy of BC's witness statement out of time too? I received it on the 18th and that puts them over the time limit too (though the court have informed me that their copy was submitted on the 16th)

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Hate to bump but any advice on the questions/issues from my last post would be greatly appreciated

[Amethyst]

Re: Court Caste Lowell/Bryan Carter - Worried sick

IN THE COUNTY COURT AT GATESHEAD
CLAIM No: XXXXXXX
BETWEEN

LOWELL PORTFOLIO LTD	Claimant
And
ILLUSTRIOUS MUZ	Defendant

DRAFT ORDER

Upon reading the Defendants application dated 15th October 2015


It is ordered that:


1. The Judgment dated 25^th September 2015 be set aside.


2. The Claimant shall provide the Defendant with all notices and documentation requested by the Defendant by letter/s dated 26^th January within 14 days from the date of this order.


3. The Claimant do pay the Defendants costs of this application to the sum of £155.

The Witness Statement

CLAIM No: XXXXXX
IN THE COUNTY COURT AT GATESHEAD
BETWEEN:

	LOWELL PORTFOLIO LIMITED	CLAIMAINT
	and
	ILLUSTRIOUSMUZ	DEFENDANT

WITNESS STATEMENT OF ILLUSTRIOUSMUZ
I, ILLUSTRIOUSMUZ being the Defendant in this case make the following statement believing it to be true. I am a litigant in person.

1. I make this witness statement in support of the application for an order that the judgment in this case, Claim No. XXXXXX Judgment dated 25^th September 2015 be set aside.


2. CPR 13.3 states (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
a. The defendant has a real prospect of successfully defending the claim; or


b. It appears to the court that there is some other good reason why –


i. The judgement should be set aside or varied; or


ii. The defendant should be allowed to defend the claim


3. I have been responding to and defending this claim since I received the claim form on the 26^th January 2015


4. Although I received notice from the court of a hearing date for for 1^st October 2015, I did not see any further instructions from the court regarding the provision of a Witness Statement by a specific date.


5. On the 18^th September 2015, I received a Witness Statement from the Claimants solicitors. Upon receiving this document, I decided to produce to my own witness statement and submit that to the court.


6. On the 28^th September I submitted my Witness Statement at Gateshead Court in the mailbox outside the main entrance.


7. On the 30^th September 2015 I received notice from the court that default judgment had been entered against me on the 25^th September 2015 because my Witness Statement had not been filed in time. This was a surprise as I had received no order or instruction to file a Witness Statement and was preparing for the hearing to be held of the 1st October.


8. On the 6^th October 2015, I wrote to the claimant and the claimant’s solicitors explaining the situation and requested that they agree to set-aside the judgment and proceed to the hearing.


9. On the 14^th October I received a letter from the claimants solicitors informing me that they had not heard from the court regarding the judgment and were therefore unable to agree or disagree to an application to set aside the judgment. Therefore I make this application to the court to set-aside the Judgment and allow the claim to proceed.

10. The Claimant has failed to provide me with any documentation regarding their claim.

11. On the xxxxxxx I sent a request pursuant to s.78 of the consumer Credit Act 1974 for a copy of the credit agreement.

12. On the xxxxxxxxxxxx I sent a request for copies of documents mentioned in the statement of case namely the agreement the default notice and notice of assignment


etc etc ( nick bits from your original witness statement to put here - as you need to give reason for the second bit of the order you are asking for)

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Awesome stuff! Thank You so much!!!

[Amethyst]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Paste up when you've put some bits in from your witness statement about s.78 etc and I'll go through it again for you xxx

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK I've put in the pertinent information from my original witness statement. This is what it reads like now

CLAIM No: XXXXXX
IN THE COUNTY COURT AT GATESHEAD
BETWEEN:

	LOWELL PORTFOLIO LIMITED	CLAIMAINT
	and
	ILLUSTRIOUSMUZ	DEFENDANT

WITNESS STATEMENT OF ILLUSTRIOUSMUZ
I, IllustriousMuz, being the Defendant in this case make the following statement believing it to be true. I am a litigant in person

1. I make this witness statement in support of the application for an order that the judgment in this case, Claim No. XXXXXX Judgment dated 25^th September 2015 be set aside


2. CPR 13.3 states (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
a. The defendant has a real prospect of successfully defending the claim; or


b. It appears to the court that there is some other good reason why –


i. The judgement should be set aside or varied; or


ii. The defendant should be allowed to defend the claim


3. I have been responding to and defending this claim since I received a claims form on the 26^th January 2015


4. Although I received notice from the court of a hearing date, due for 1^st October 2015, I did not see any further instructions from the court regarding the provision of a Witness Statement by a specific date


5. On the 18^th September 2015, I received a Witness Statement from the Claimants solicitors. Upon receiving this document, I decided to produce to my own witness statement and submit that to the court.


6. On the 28^th September I submitted my Witness Statement at Gateshead Court in the mailbox outside the main entrance.


7. On the 30^th September 2015 I received notice from the court that default judgment had been entered against me on the 25^th September 2015 because my Witness Statement had not been filed in time


8. On the 6^th October 2015, I wrote to the claimant and the claimant’s solicitors explaining the situation and requested that they agree to set-aside the judgment and proceed back to a hearing.


9. On the 14^th October I received a letter from the claimants solicitors informing me that they had not heard from the court regarding the judgment and were therefore unable to agree or disagree to an application to set aside the judgment


10. On 26^th January 2015 I made a formal, written request to the Claimants solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of the case [EXHIBIT A], pursuant to Civil Procedure Rule 31.14


11. On the 26^th January 2015 I sent a formal request for the copy of the original agreement to the claimant [EXHIBIT B], pursuant to s.78 of the Consumer Credit Act 1974 along with a postal order for the statutory £1 fee.


12. I am still awaiting the claimant to comply with s.78(1) of the Consumer Credit Act 1974 and by virtue of s.78(6) of the Consumer Credit Act 1974 cannot enforce the agreement until they have complied with requests for all pertinent documentation.


13. Civil Procedure Rule 31.15 requires documents are provided within 7 days from receipt of a written request. The claimant has failed to provide any of the documents I have requested.


14. Around the beginning of May 2015, I telephoned the Claimants solicitors to try and resolve matters. I mentioned the failure to comply with my requests for documentation to be told by the lady I was speaking to that they don’t respond to those requests on the grounds that the original creditor should have provided the information. They made no representation to me that they had not received the requests but were simply ignoring them


15. On the 18^th September 2015 I received a Witness Statement from the Claimants solicitors.


16. The Claimants Witness Statement denies having received any documentation from me. This is the first time that I have been made aware of this despite speaking on the telephone to the Claimants solicitors.


17. The Claimants Witness Statement contains a purported Notice of Assignment, dated 15^th October 2013. This is the first time I have seen this document and deny receiving any such document.


18. The Claimants Witness Statement contains a purported letter from the original creditor, also dated 15^th October 2013, notifying me of the assignment. This is the first time I have seen this document and deny receiving any such document.


19. The Claimants Witness Statement, Paragraph 6, declares that the account “Fell into default 2^nd October 2013” and that “A default notice would have been sent to the defendant at the time”. I deny receiving a Default Notice.


20. The Claimants Witness Statement, Paragraph 7, declares “the debt was assigned to the claimant on or around 4^th October 2013. However, under s.87 of the Consumer Credit Act 1974, a default notice should be issued giving the debtor at least 14 days to remedy the breach from when the notice is served and cannot be assigned until the 14 days have elapsed.


21. 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 by providing pertinent documentation which has yet to be delivered to me.


22. The Defendant submits that the Claimant does not have a valid claim because the Claimant has failed to meet all obligations under Civil Procedure Rule 16.5(4) and failed to comply with Civil Procedure Rule 31.14


23. The Defendant submits that the Claimant does not have a valid claim because the Claimant has failed to comply with s.78(1)/s.78(6) of the Consumer Credit Act


24. The Defendant submits that the Claimant does not have a valid claim because the Claimant and the Original creditor have, by their own admission, breached s.87 of the Consumer Credit Act by assigning the debt before any statutory default notice period has elapsed.

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Paste up when you've put some bits in from your witness statement about s.78 etc and I'll go through it again for you xxx

Wouldn't those bits go into his draft defence or do you think they should be in both the WS and draft defence?

[Amethyst]

Re: Court Caste Lowell/Bryan Carter - Worried sick

The draft defence, would be the original defence, so you could send a copy of that with the application too, as the defence hasn't changed. The WS is basically saying why the judgment should be set aside, and as the order also asks for an order to produce it should spell out why. I'd attach the original Defence, original Witness statement as exhibits to the new, set aside, Witness statement.

I'll go through it in a little bit Muz xx

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK So this morning I received another letter from Bryan Carter

This time it's asking if I received the court order dated the 20th May 2015, This would be the order that stated to provide a witness statement. I do have a letter from the 20th May but all it says is notice of hearing and it's bundled with a document labeled EX730

Does this mean they're possibly willing to agree to the set aside?

I'm unsure whether to go ahead and just send the N244 form off with payment or if I should wait for another response from BC

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I'm about to post a reply to this letter but I'm aware of the time constraints approacing - I only have until the 23rd before this becomes enforceable

I'm wondering if, for speed, I send a response to BC in an email? That should be trackable and would definitely be quicker than a regular letter. Of course, i'm basing this on the assumption that they're going to be agreeable to the application to set aside

Another part of me is just thinking I should fire off the N244 application to the court

What do you guys think? Does it sound like they might set aside? Or does it sound like they're stalling for time until they can apply to enforce?

[Amethyst]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK So this morning I received another letter from Bryan Carter

This time it's asking if I received the court order dated the 20th May 2015, This would be the order that stated to provide a witness statement. I do have a letter from the 20th May but all it says is notice of hearing and it's bundled with a document labeled EX730

Does this mean they're possibly willing to agree to the set aside?

I'm unsure whether to go ahead and just send the N244 form off with payment or if I should wait for another response from BC

I think it may do. If you just received a single page with the hearing date, and the EX730 Mediation document then you have not been informed of the requirement for a witness statement. Yes I think emailing them in response and see if you get a response in the next day or two before filing your N244.

Of course they could say you should have known a hearing notice meant a WS should be filed, and refuse consent. But worth a shot, will mean paying out only £50 rather than £155 for the application as it will be with consent and no need for a hearing.

( apologies btw I meant to go through it for you - see what they come back with on that first I think)

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK So i've fired an email off to Bryan Carter - I'm hoping they'll respond quickly.

The issue here is the court says that the order to provide the witness statement was in the same bundle of documents that the hearing date and mediation document was in. However, I've been fairly good at keeping all of my paperwork together and in this case I only have those two documents from that date.

Whether this is an oversight on the part of the clerk at the court to put the paperwork into the envelope or if I genuinely have misplaced that portion I really could not say, (though i'm 99.9% certain I'd have kept and read the order had one been there)

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Hi Everyone,

Looking for a little advice. I received a response to my email that I sent off on Monday from Bryan Carters. For context I'll put what I sent and their response here

Dear Sirs

In response to your letter dated xxxx, I am writing to you by email to confirm that I have not received an order dated 20th May 2015

If you could please let me have a response to my letter of the 6th October 2015 I would be most grateful

Regards

IllustriousMz

This morning, this arrived in my inbox

Dear Mr Muz

Thank you for your email.

Before we can seek further instructions from our client please can you confirm if the court has informed you that the order of 20 May 2015 was sent to you and if it was sent to your current address.

Yours Sincerely

Bryan Carter Solicitors LLP

The fact is, I simply don't trust this lot and I'm worried that they're just playing for time. I've already indicated that I have not got an order so it would be prudent to assume that if I don't have the order, it's either been lost or was not included in the letter I did receive on the 20th May with information on the court hearing. I have of course spoken to the court and they believe the order was sent on the 20th May with the hearing letter but like I said earlier, I do not have that document in my posession and I certainly don't recall reading anything other than the hearing information and the pamphlet that came with it; I've kept and responded to everything else the court has sent to me. The court clearly believe the document was sent. This sounds like them trying to set me up for something.

How do you think I should respond?

[Amethyst]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Dear Mr Carter

Thank you for your response. I can confirm I received an order from the court issued on 20th May 2015. The documents received were the hearing date and an booklet regarding mediation. I did not receive any order or information relating to submitting documents or witness statements to the court. My witness statement was submitted on xxx in response to your clients witness statement. I have since researched the matter and can only assume the court failed to include the additional documents with the hearing date order.

Can you confirm if you have now received the judgment order from the court and if your client's are willing to consent to my set-aside request. If not, I shall proceed with making an application to the court and request a hearing for the matter to be decided upon.

Regards

Muz

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Perfect, Thank You!

I've just fired that off to BC and hopefully I'll get a response today. The fact is, my dealings with this crowd have so far given me no inclination to believe that anything they do or say is done without some ulterior motive. Hopefully they'll agree to the set aside and it will be a much cheaper option than applying for a hearing.

My only concern is that their own fear of being told off about failing to respond to requests for information, (perhaps ultimately costing them a judgment), might force their hand to stick with the default order.

There's a lot of stress with all of this i tell you