Urgent Help needed

[tycam49]

Hi Guys,

Just wondering if anyone can help me with my current situation.

To cut a long story short I received a claim form from Howard Cohen/Hoist in regards to an overdraft.

I was advised to log a holding defence which I did. The claim was stayed for a year.

They finally managed to send me the default notice, notice of Allocation, statement copy etc this year.

I then received an allocation questionnaire and the case was moved to the local court.

The next letter received from the court in February advised that the judge had not looked at the case but would the case would be stayed until 20 April at which time he would advise the claimant to contact me for mediation.

No contact was ever made by Hoist or Howard Cohen. Fast forward to last week I received a letter saying that an order of judgment had been granted??

I called the court the following day and was advised it was a mistake and that the claimant had only requested for the stay to be lifted. She said the case file would be sent up to the judge to be reviewed again.

On Wednesday of this week I received a copy of the order of judgment stating I would need to log a n244 to have the judgment set aside??? slightly confused as to my knowledge no judgment should have been granted??

Please help!!!

[tycam49]

Re: Urgent Help needed

Hi Guys,

Just wondering if anyone can help me with my current situation.

To cut a long story short I received a claim form from Howard Cohen/Hoist in regards to an overdraft.

I was advised to log a holding defence which I did. The claim was stayed for a year.

They finally managed to send me the default notice, notice of Allocation, statement copy etc this year.

I then received an allocation questionnaire and the case was moved to the local court.

The next letter received from the court in February advised that the judge had not looked at the case but would the case would be stayed until 20 April at which time he would advise the claimant to contact me for mediation.

No contact was ever made by Hoist or Howard Cohen. Fast forward to last week I received a letter saying that an order of judgment had been granted??

I called the court the following day and was advised it was a mistake and that the claimant had only requested for the stay to be lifted. She said the case file would be sent up to the judge to be reviewed again.

On Wednesday of this week I received a copy of the order of judgment stating I would need to log a n244 to have the judgment set aside??? slightly confused as to my knowledge no judgment should have been granted??

Please help!!!

Anybody there???

[R0b]

Re: Urgent Help needed

Well first things first is to contact the court asking why judgment was given in favour of the claimant when the case was stayed and you had no right to defend this at trial.

Subject to what the Court says it could be a court error or the Claimant has done something to warrant judgment in their favour. Either way you may have to set it aside and if thats the case I would suggest that they consent to the set aside as it is cheaper but if they refuse then you should seek costs of the application against them but that cost of application is higher without consent at £255.

Call the court and get more information so you know what is to be done

[CLL1]

Re: Urgent Help needed

An application to have the judgment set aside cannot lose in this situation, by virtue of Part 13 CPR.

Put other side on notice as to costs - "if you don't consent, I'll seek my costs from you".

[tycam49]

Re: Urgent Help needed

ok so the judge has given judgement as he believes it will be wasting the courts time to proceed based on my holding defence? I wanted to defend the claim based on a non compliant default notice. Do I use this as my reasoning for setting the judgment aside?

Many thanks for the replies.

[tycam49]

Re: Urgent Help needed

[MENTION=551]pt2537[/MENTION] Hi have been told you are an expert at these cases... can you offer any advice on getting this set aside? or the claim in general?

[tycam49]

Re: Urgent Help needed

Anyone?

[tycam49]

Re: Urgent Help needed

Somebody please help really need assistance with this set aside application..

[R0b]

Re: Urgent Help needed

Hello,

So your holding defence was based on what, non compliance of default notice?

Why do you believe the default notice is non-compliant? I've tagged [MENTION=55034]nemesis45[/MENTION] to assist you, I can help with the set aside application but default notices are not my forte so might be better to hear a response from nemesis once you've given us your reasons for non compliance

[tycam49]

Re: Urgent Help needed

Hello,

So your holding defence was based on what, non compliance of default notice?

Why do you believe the default notice is non-compliant? I've tagged @nemesis45 to assist you, I can help with the set aside application but default notices are not my forte so might be better to hear a response from nemesis once you've given us your reasons for non compliance

Nope my holding defence was based on having no documents. I was advised by another site that would be sufficient. I received the documents but thought that the court would advise me when to do my new defence. Instead they gave judgment to hoist. I have now done research and found that santanders/abbey's default notices are not compliant and think that would probably be my best shot at getting the CCJ set aside.

I have done the set aside form but I need to do a draft defence and draft order? the judgement was granted a few weeks ago and I would like to get the application in as soon as.

[R0b]

Re: Urgent Help needed

The court won't advise you to do a new defence because there is no such thing as a holding defence. Your defence is your arguments that you will use to defend the claim - if you do not include something then you need to make an application for amended defence.

The other problem you have is that the claim was stayed for so long and you did nothing about it, they now have the documents to take it to court. You should have really applied for a strike out based on the fact they have no documents and the claim was stayed for over a year.

Can you paste up your application or just Section 3, the bit about what order you are wanting the court to make and why. The draft order will be relatively simple, its your defence you will need to work on and make sure it is concrete. Have you looked at the templates used on here as a starting point for your defence? If you have not done so already you will need to include in your defence the Default Notice is non-compliant pursuant to section 87/88 (I think) and also this http://www.legislation.gov.uk/uksi/1...chedule/2/made which also states what else should be contained in the Default Notice.

You could also add to your defence the case of Woodchester Lease Management Services v Swain & Co. 1998 - Court of Appeal. Held that Default Notices must contain the correct prescribed terms and if it does not then the Default Notice is held invalid.

Unable to help too much on the debt side as it is not an area I have much knowledge about but Nemesis could help on that front.

[nemesis45]

Re: Urgent Help needed

Good morning

You say you received the documents, what were these the "agreement" notice of assignment, Final Demand for payment,? There is no " default notice" as required by the CCA 1974 for overdrafts.

nem

[tycam49]

Re: Urgent Help needed

In section 3 I have so far:

An order( a draft of which is attached) to set aside.

I believe I have a complete defense. I have also discovered that the claimant has sent documents to my old address. Is that sufficient?

I spoke to Howard Cohen yesterday and discovered that they have sent documents to my old address - I have proof they have been notified of my new address as my credit record shows the day hoist were notified under linked address. The judgment was given as the judge previously made an order for the claimant to contact me to mediate - they sent a letter to my old address and it came back as returned post. They then used this to say they had contacted me to get judgment I believe.

[tycam49]

Re: Urgent Help needed

Good morning

You say you received the documents, what were these the "agreement" notice of assignment, Final Demand for payment,? There is no " default notice" as required by the CCA 1974 for overdrafts.

nem

good morning yes a termination notice but it has been served as a default notice under section 87??

[R0b]

Re: Urgent Help needed

To set aside you need to have a reasonable prospect of successfully defending the case - the wording in your application will need to be a bit more specific than that but as Nem has pointed out, if there is no DN required for an overdraft and this is what you are relying on to set aside and you do not have any other arguments as a defence, then your application may likely be refused if the other side argue that point.