Court Caste Lowell/Bryan Carter - Worried sick

[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

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

[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)

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Hi Everyone

Can I get some feedback please? I Want to send these either tonight or first thing in the morning

This is my draft order

2. The claimant shall provide the defendant with all notices and documentation requested on 26^th January under Civil Procedure Rule 31.14 and under s.78 of the Consumer Credit Act by within 7 days of the date of this judgement

Hi

That bit of the draft order is not very clear, you are asking the court to order the claimant to provide you with the documents you'd previously requested within 7 days of the date of what judgment?

This is my draft witness statement

I'm not sure what else I should ask for in my order? Do i request to go back to hearing? Or do I spell out my defence in my witness statement and ask to have the claim struck out on the basis of failure to provide documentation under s.78 CCA and CPR rules?

Any help appreciated

Your defence is a separate document from your witness statement.

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Hi Everyone

Can I get some feedback please? I Want to send these either tonight or first thing in the morning

This is my draft order

IN GATESHEAD COUNTY COURT
CLAIM No: XXXXXXX
BETWEEN

LOWELL PORTFOLIO LTD	Claimant
And
ILLUSTRIOUS MUZ	Defendant

DRAFT ORDER

IT IS ORDERED THAT:


Upon reading the defendants application dated 15/10/2015


It is ordered that:


1. The judgement dated 25^th Septemeber 2015 be set aside



2. The claimant shall provide the defendant with all notices and documentation requested on 26^th January under Civil Procedure Rule 31.14 and under s.78 of the Consumer Credit Act by within 7 days of the date of this judgement


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



4. The claimant has permission to file and serve a reply if so required

This is my draft 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.
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.


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

I'm not sure what else I should ask for in my order? Do i request to go back to hearing? Or do I spell out my defence in my witness statement and ask to have the claim struck out on the basis of failure to provide documentation under s.78 CCA and CPR rules?

Any help appreciated

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I've just got off the phone with the court who have confirmed that the same order that was sent to me was also sent to Bryan Carter on the same date.

Unless it's been lost in the post I find it hard to believe that a court document hasn't been processed and filed by a firm of solicitors.

I'm back on the N244 then but I'll be amending it to try and recoup the cost of the application from Carter's.

It fills me with some hope that they even think their own claim doesn't hold much water when they have to rely on the enforcement of a default judgement

Any advice on what to include in a draft order? My witness statement is easy enough to prepare. Anything else I need to add to my form pack? I think it said I needed to file a defence again?

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I'll give them a call but the last time I called they were far from helpful. They just told me about the N244 and left it at that.

I find it odd that I should receive a copy of the judgement within 4 days but BC say they've heard nothing. I would have thought the notices would have been issued at the same time

[nemesis45]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Yes, in a way.

I wrote to BC to ask if they would agree to set aside on the assumption that they too would know that the judgement against me had been made. I also took your advice and forwarded a copy to Mr.Bartle at Lowell. I heard back yesterday with a letter from BC saying they'd heard nothing about the judgment and were therefore not in a position to agree nor disagree to any set aside application. Should they fail to agree I file the N244

I'm worried they're attempting to get me to delay further and hope to enforce judgement

Call the court ask to speak to the court manager and explain the problem.
The delays within the system may for once work in your favour.

nem

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Yes, in a way.

I wrote to BC to ask if they would agree to set aside on the assumption that they too would know that the judgement against me had been made. I also took your advice and forwarded a copy to Mr.Bartle at Lowell. I heard back yesterday with a letter from BC saying they'd heard nothing about the judgment and were therefore not in a position to agree nor disagree to any set aside application.

The plan was that should they fail to agree I would file the N244

I'm worried they're attempting to get me to delay further and hope to enforce judgement

[nemesis45]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Actually, they say they've not received the judgement order from the court! That's a bit worrying.

I would have hoped that regardless they could have said, we'd agree to the application or not since I've just told them that they've got a default judgement.

I stayed sending the application to set aside, (foolishly), until I'd heard back from them but I'm going to send the forms off now. However, I'm worried about what I have in my draft order - do I want to ask the court to strike out the judgement and go back to proceedings or should I ask to have their claim struck out on the basis that they have failed to meet CCA/CPR obligations?

I am so confused. And at the same time so utterly terrified.

Any help appreciated.

Ok confusing, it seems you were relying on the claimant to inform
the court that they had consented to the judgement being set aside.
( by consent) is this correct.

nem

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

Actually, they say they've not received the judgement order from the court! That's a bit worrying.

I would have hoped that regardless they could have said, we'd agree to the application or not since I've just told them that they've got a default judgement.

I stayed sending the application to set aside, (foolishly), until I'd heard back from them but I'm going to send the forms off now. However, I'm worried about what I have in my draft order - do I want to ask the court to strike out the judgement and go back to proceedings or should I ask to have their claim struck out on the basis that they have failed to meet CCA/CPR obligations?

I am so confused. And at the same time so utterly terrified.

Any help appreciated.

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK So I finally got a response from BC regarding my request for them to agree to the set aside.

They tell me they've not actually heard anything from the court and cannot agree until they hear something? I find it hard to believe that they haven't received any kind of notice. It smells more like their attempt to get me to delay applying for the set aside.

If you've only written to them asking them to agree to the set aside but not actually submitted an application to the court (an N244), they wouldn't have heard from the court because you haven't applied to the court for anything. :mmph:

The idea of writing first is precisely to avoid the cost and hassle of submitting an application in the first place.

- - - Updated - - -

Check with the court yourself, there is a significant backlog within HMCTS.

nem

If illustriousmuz hasn't actually submitted the application, there would be nothing on record with the court. Looks like he started the process by asking them to consent to the set aside before submitting an actual application.

[nemesis45]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK So I finally got a response from BC regarding my request for them to agree to the set aside.

They tell me they've not actually heard anything from the court and cannot agree until they hear something? I find it hard to believe that they haven't received any kind of notice. It smells more like their attempt to get me to delay applying for the set aside.

Check with the court yourself, there is a significant backlog within HMCTS.

nem

[illustriousmuz]

Re: Court Caste Lowell/Bryan Carter - Worried sick

OK So I finally got a response from BC regarding my request for them to agree to the set aside.

They tell me they've not actually heard anything from the court and cannot agree until they hear something? I find it hard to believe that they haven't received any kind of notice. It smells more like their attempt to get me to delay applying for the set aside.

[FlamingParrot]

Re: Court Caste Lowell/Bryan Carter - Worried sick

I've not heard back from Carters/Lowell but I'm filling my application form out now and about to draft my witness statement to attach to it. I have a few questions

In section 3 I have said

An order that the default judgment in this case be set aside under CPR13.3. I was unaware that I needed to submit a witness statment to the court pursuant to an order dated 20th May 2015 and only submitted one after receiving one from the claimaints solicitors on the 18th September 2015

Does that sound OK?

Sounds fine. :thumb:

Question 5 on the form asks "How do you want to have this application dealt with?" I've been reading that you should usually just tick without a hearing. Is this correct?

WHERE have you been reading that?

The demo form flamingParrot linked me to has hearing ticked. Unsure what to do here.

Set aside applications are usually dealt with at a hearing. :juge:

That's why you are paying £155. :ohwell:

If I do tick at a hearing, what level of judge do I need?

A District Judge (DJ).

Also, when I send this off, do i send the £155 payment with it or do I wait until Carter/Lowell agree or disagree to the request?

For your application to be considered, you need to pay the fee or apply for fee remission. See if you qualify: http://hmctsformfinder.justice.gov.u...ex160a-eng.pdf