CCJ Received without knowledge - Help required

[R0b]

Re: CCJ Received without knowledge - Help required

Sorry busy over the weekend, not much of a chance to respond.

First of all, not sure why they would prepare to dismiss the application if they are already consenting to set aside? You should agree but at the end of the day they should be paying your costs, if your application is granted you probably would be entitled to costs of the application anyway, they are just trying to fumble out of paying for your application costs. If you believe it is statute barred then you could explain to them you are confident the application will be set aside because you received no court papers and at the time of the claim being made you know that it was statute barred. where you have proof or evidence to show that your defence has a chance of success the court should grant it and statute barred is a very valid defence. I am not sure why Wright Hassall would want to dismiss an application where the claim was already statute barred and waste further costs.

I've uploaded a template consent order you could fill in and send to them today. The first paragraph says the consent order is in full and final settlement and prevents them from bringing any further claims against you in respect of this matter. The following 3 bullet points are self explanatory but just note point 2, it says the claim shall be withdrawn, this is because when you set aside the judgment it usually gets referred back to court for another hearing.

If you don't wish to use the first paragraph you could just say instead "UPON the Claimant and Defendant having agreed to the following terms". Sign it and email it off to them and see what they say, as I said above if you notify them that you are aware the claim is statute barred which is a reasonable chance of success and to avoid further costs you agree to the consent order attached. You should also inform them that you do not understand why they are agreeing to consent but refusing to pay application fees which are likely to be reclaimed if the application is successful. I expect them to reject the consent order but worth a shot and you should insist on recovering your application fees, but its your choice whether you wish to or not.

Note I am not sure whether you have named yourself as the claimant for the set aside and if you havn't then you will need to change points 2 and 3 to the Defendant.

Or you could agree to their order and suggest you want your application fees back

[jimbo83]

Re: CCJ Received without knowledge - Help required

Hi Rob,

Thanks very much for your reply and the attached template. I will get this filled in and sent off via email today.

If they accept, what do I need to do with regards to the hearing. Do I still have to go or can I just phone and cancel as it's only 48 hours away?

[R0b]

Re: CCJ Received without knowledge - Help required

Send it to them today by email, mark it as urgent in the subject header to whoever you are dealing with. I would put a deadline on it and say if you have not received a signed copy by close of play to day or 12 noon by the latest tomorrow then you will assume that the hearing will go ahead. I would think they will get back to you pretty quickly sometime today on it but just start prepping for the hearing anyway in case they do not agree, you don't want to leave things to the last minute and scupper your chances - if they know there's a good argument of statute barred then they should really consent than fight it in court to dismiss, and that's something you could tell the judge - they agreed to consent but refused to pay app fees and now they also want to dismiss the set aside.


If they do sign it and it is dated, email it to the court and with your claim number in the subject header marked as urgent and in the body just say something like you are writing with reference to the above claim. Please find the attached consent order signed by both parties.

[jimbo83]

Re: CCJ Received without knowledge - Help required

Brilliant. Thanks, Rob. Thanks also to CharityNJW, sorry, I didn't get a notification about your post and missed it until just now. I appreciate everyone who has helped me with this. I will let you know what happens. Fingers crossed.

[jimbo83]

Re: CCJ Received without knowledge - Help required

Their reply to the amended set-aside consent order:

--

We continue to act for the Claimant in the above matter.

Further to your email dated 9 May 2016 we confirm that we do not agree to the terms of your proposed Consent Order attached thereto and will therefore not be signing the same.

We see no good reason why the Claimant ought to pay the costs incurred by you in applying to set aside the Judgment dated 3 March 2016. The Claimant was awarded Judgment as a result of your failure to respond to the claim, something which is entirely outside of our Client’s control. Our proposed Consent Order is a reasonable attempt to consent to your application in order to allow you the opportunity to respond to the claim in a manner which would avoid the disproportionate accumulation of costs for both parties. It is in both part parties’ interests.

For the avoidance ofdoubt we will not be proposing any amendments to our Consent Order. Please note that if you wish to agree to the terms of our Order as attached to our email dated 6 May 2016 then you will need to sign and return the same by 9:00AM on 10 May 2016.

Failure to do so will necessitate the instruction of an Agent who will attend the hearing of your application and highlight your failure to sign our Consent Order to the Court. Please note that we will instruct the Agent to recover their costs of attendance on the basis that you have acted unreasonably.

--

As the only reason I didn't respond to the original claim was that they apparently sent all paperwork to my old address from which I moved three years ago, although nothing was ever forwarded on and other post has been by sent on by the current occupier, I don't see that I could possibly have known about the case, or for it to be deemed that I was being unreasonable. As previously stated, I do have an account with Capital One and that has been in good standing since opened in 2009 until present. I have always kept Capital One informed of my address and they have been aware of my move since 2013, so if they did have a debt to claim they could easily have contacted me.

Is it worth responding again, or should I just accept that this is now going to go to the hearing?

[R0b]

Re: CCJ Received without knowledge - Help required

Your choice really, whether you want to take a hit and focus on your defence of statute barred if that is what you are going for. Equally if they did not take reasonable steps to ascertain your whereabouts and the fact that maybe no response was given by you should have prompted them to make reasonable inquiries, you could argue that it is in fact theirs or their client's fault which gave you no hope of being able to defend the case.

Obviously if you failed to update your address on the electoral roll promptly then you could also be said to be at fault.

Up to you, at the end of the day, if you can show reasonable prospects of success and the application set aside then it will be judges discretion as to what costs are given out. I don't believe that the agent will be able to recover their fees (assuming its a small claims) so any set aside application costs will generally be treated as being made in the small claims court so the only fees will be what's set out under the civil procedure rules which is the fixed costs and nothing more.

The successful person is generally entitled to their application fees so is really up to you but the judge can overrule this in certain circumstances. You could argue no unreasonable behaviour because you feel that the claimant has deliberately sent the correspondence and failed to take reasonable inquiries to ascertain your whereabouts for service and resulting in them obtaining a default judgment- so it is they who have acted unreasonably.

[jimbo83]

Re: CCJ Received without knowledge - Help required

I've sent the solicitor another email based on what you said as I updated my electoral role details within a month or two of moving house.

If it does go to a court hearing, what would I need to prove that the debt would be statute-barred?

All I have at the moment is bank statements showing that no payment was made at the time they said it was. I also have a credit report showing that I had no other bank accounts from which to pay.

Any other tips that you might give to help me build a solid defence?

Thanks again for your help. I really do appreciate it!

[R0b]

Re: CCJ Received without knowledge - Help required

I've tagged [MENTION=55034]nemesis45[/MENTION], [MENTION=6]Amethyst[/MENTION] for the defence side of things. For a set aside you need to show a reasonable prospect of success and a statute barred defence would fall within that category. Not receiving the claim is also grounds for having it set aside too. The set aside is not a substantive hearing but to judge whether you will have grounds to defend the claim and if you can prove that bank statements show no record payment at the time then you should have valid grounds of defence and it should go to a hearing for the claimant to show this was not the case.

The claim against you could be on a whim that you don't respond and accept the CCJ but it sounds like you could have a defence. You could possibly argue and counterclaim for wasted costs on the basis that if they offer no evidence to support their grounds that a payment was made and your bank statement is clear evidence that it was not then it sounds like a pretty vexatious claim to me - That is just an option and I think one step at a time which is to get the claim set aside first.

See what they respond back with first and go from there.

[nemesis45]

Re: CCJ Received without knowledge - Help required

Thank R0b,
Jimbo,

Please give me your reasons in detail as to why you believe the alleged debt is statute barred dates e.g. default date, termination date , last payment.

SB= 6 clear years with no payment or written acknowledgment of the debt being made to any party.
The debt must be statute barred when ( exact date) the claim was issued.

nem

[jimbo83]

Re: CCJ Received without knowledge - Help required

Hi Nemesis,

I don't have any paperwork relating to the alleged account and therefore, I am working from what their solicitors have told me.
They said the last payment I made to the account in question was on 10/02/2010
I have bank statements to prove that is not the case. I can see no payments to them in Jan or Feb of 2010 I haven't looked at any other dates, but I don't remember ever making a payment to the claimant.
The CCJ was issued on the 3rd March 2016 and apparently they started the process for it on 18/02/2016

Is that the info you needed? Thanks for your help

[jimbo83]

Re: CCJ Received without knowledge - Help required

I've not acknowledged the debt, or made any payments in the interim either as I wasn't aware of the alleged debt until I saw the CCJ on my credit file online.

[nemesis45]

Re: CCJ Received without knowledge - Help required

Hi Nemesis,

I don't have any paperwork relating to the alleged account and therefore, I am working from what their solicitors have told me.
They said the last payment I made to the account in question was on 10/02/2010
I have bank statements to prove that is not the case. I can see no payments to them in Jan or Feb of 2010 I haven't looked at any other dates, but I don't remember ever making a payment to the claimant.
The CCJ was issued on the 3rd March 2016 and apparently they started the process for it on 18/02/2016

Is that the info you needed? Thanks for your help

I would check at least 1 moth either side of the date of the alleged payment allocation of a payment may have been late.

nem

[jimbo83]

Re: CCJ Received without knowledge - Help required

I've checked a month either side and still no payments.

[nemesis45]

Re: CCJ Received without knowledge - Help required

I've checked a month either side and still no payments.

Has the amount of the alleged payment been mentioned.

nem

[jimbo83]

Re: CCJ Received without knowledge - Help required

Yes the payment they claim I made is for £5.00