ccj set aside help

[Les-looking]

Apology I have posted this in new forum but not sure if that was correct so apology for double posting

Hopefully not to long winded and someone can advise please
I received a ccj when I noticed it appeared on my credit report, I had no notification as I have moved, it was also from 2004
so I applied to have it set aside as statute barred and also no notification, I was due to go to court on the 2nd June ( Thursday) then today I have received a letter from claimants (Cabot) solicitor stating
"We have received your application to set aside judgment listed for hearing on 02/06/2016
we have sought our clients instructions and our client is willing to set aside on the condition that you file and serve a fully pleaded defence within 21 days. Our client is further requesting that the matter be stayed for six months in order for the parties to reach a settlement."
so basically I would be grateful if someone could advise me what that means and do I still have to attend court?
there is another page draft order with above conditions and also states registration entry be cancelled, does that mean ccj will be removed from my credit file? Also other condition it states if defendant fails to comply with paragraph 1 ( the 21 days) then judgment be reinstated
many thanks if your able to help as its Thursday it pretty urgent
THANKS

[Les-looking]

Re: ccj set aside help

Was the judgment obtained in 2004? Or is it a typo and it should, perhaps, be 2014?

CCJs only stay on record for six years, if it was from 2004 it should have disappeared off the public records and your credit report in 2010!

Debts subject to a judgment (CCJs) don't go statute barred. For you to use SBd as a defence, the debt should have already been statute barred on the day the claimants issued the claim, that means a clear six year period without any payments or written acknowledgment of the debt up to that point. The clock stopped on the day the claim was issued, it didn't keep running. In the unlikely event the CCJ was from 2004, that would mean no payments or acknowledgments since at least 98, if it was from 2014 then since 2008 at the latest.

If both parties agree to a stay, then the court should be notified and the hearing vacated. A fully pleaded defence is just a list of the arguments you would have used in your defence had you received the court papers for this debt. Statute barred is a very good defence but see above with regards to dates.

A stay means all proceedings are suspended while both parties attempt to settle the issues out of court. If the debt was actually SBd, then there would be nothing to settle.

The CCJ is not just recorded on our credit file but also on a public registry that anyone can check upon payment of a small fee, so it would be removed from that record as well. If you do not provide the defence requested within the 21 day deadline, then the judgment would stay in place.

Many thanks for reply, the debt WAS from 2004 it appeared on my credit file 2016, it was the first I heard of it, I assume they wrote to old address? But I most certainly never received, replied or made any payments, as soon as it appeared I rang Northampton and they informed me the original debt was capital one and was from 2004, so straight away I sent the forms stating I had no knowledge and I believe it was statue barred. It was then moved to a court close to me and then as above I received the letter today.

I originally took advice from your forum to file for set aside, but today's letter as far as I understand is their way of resetting clock. So do I still go to court? As they have made it clear they are not going and have submitted the letter to court for me to do above,

again I have to assume this is a bought debt they are chasing

again thanks for your help

[Les-looking]

Re: ccj set aside help

Sorry also meant to ask if it is statue barred will the judge agree to their request and have me file the defence, or are they just trying in on?

[R0b]

Re: ccj set aside help

I'd be inclined to agree a fully pleaded defence but have 28 days to do so.

The stay of claim is extremely long, it sounds like the claim is statute barred so I would not agree to any stay, or 1 month tops but as stated, if it is SB then there is no need to negotiate or settle. It sounds like they are trying to get you to admit that you owe them the money which will of course reset the clock if you acknowledge the debt is owed.

If you are confident about it being SB, then agree an order to set aside and file a defence within 28 days otherwise press ahead with the application. I would also suggest that you be cheeky and ask for your costs of the application. If they have sent it to the wrong address without taking reasonable steps to ascertain your current whereabouts that is also their fault and to your detriment as you have had no opportunity to receive any claim form and you are having to set aside something at your expense when you shouldn't have needed to in the first place.

[Les-looking]

Re: ccj set aside help

Thank you R0b, so I do have to attend court tomorrow then as I need to point out to the judge this debt is from 2004 and the letter I received yesterday apart from ccj is the first contact I have had from them
Thanks

[R0b]

Re: ccj set aside help

Up to you, you can respond back to them by email and say the above about costs of the application and that it is statute barred and no stay of claim is required but a 28 days to file defence. It is urgent and if no response is made by 3pm today (give you time to sign the order but get them to sign it first not you and you can then notify the court) then you will see them in court tomorrow.

If you do turn up to court refer the judge to what you've already said about not receiving the docs as seems they have failed to conduct any reasonable search as to your current address but your old one meaning you received no paperwork, you
have a real prospect of successfully defending the claim as the claim is statute barred and the Claimant has offered no evidence to the contrary.

In addition you want your costs back as you should never have needed to make the application if the Claimant had done a reasonable search of your whereabouts and the claim would likely have been dismissed anyway because it has been statute barred for some years.

Something along those line would do.

[Les-looking]

Re: ccj set aside help

Thanks again, I have just rung the court and they have sent a draft order agreeing to be set aside as long as I serve a fully pleaded defence within 21 days and I do have to attend, ( they are not attending due to cost) so looks like it will be set aside for the above to happen, to be honest I do not want to make any contact with them so I will go to court and see what happens.

[R0b]

Re: ccj set aside help

Well if they are not turning up due to costs, I reckon you have a better chance of getting what you want.

- Point to the judge CPR 3.8 (print this rule if you wish to show) that parties can agree extension of 28 days to file defence. You require the full 28 days to properly plead your defence and also obtain further advice on the matter.
- Perhaps get the judge to make part of his order that the trial hearing take place as soon as a date becomes available following filing of the defence so that there is a guarantee that the claim will proceed to trial and not stayed at some point by the Claimant.
- Reference to SB and prospect of defending the case
- Reference to Claimant paying your application costs. If judge declines to do this, then suggest the judge to order costs in the case - this means whoever successful at trial will pay the costs. If it is SB and they have no evidence they will probably want to discontinue the claim at which point you can write to the court and reject as they discontinued you should be entitled to your costs of the set aside.

You could even draft up an order of your own to the above effect and hand it to the judge tomorrow, then the judge only needs to sign it off.

[Les-looking]

Re: ccj set aside help

Well if they are not turning up due to costs, I reckon you have a better chance of getting what you want.

- Point to the judge CPR 3.8 (print this rule if you wish to show) that parties can agree extension of 28 days to file defence. You require the full 28 days to properly plead your defence and also obtain further advice on the matter.
- Perhaps get the judge to make part of his order that the trial hearing take place as soon as a date becomes available following filing of the defence so that there is a guarantee that the claim will proceed to trial and not stayed at some point by the Claimant.
- Reference to SB and prospect of defending the case
- Reference to Claimant paying your application costs. If judge declines to do this, then suggest the judge to order costs in the case - this means whoever successful at trial will pay the costs. If it is SB and they have no evidence they will probably want to discontinue the claim at which point you can write to the court and reject as they discontinued you should be entitled to your costs of the set aside.

You could even draft up an order of your own to the above effect and hand it to the judge tomorrow, then the judge only needs to sign it off.

Good idea I will knock together a draft order, re costs up to now I have none as I was exempt from paying the fee, at the end of THEIR draft order item 5 no order to costs, so as you say maybe a good move to add that I want costs adding, thanks again for your help I shall let you know how I get on.

[R0b]

Re: ccj set aside help

Just to make your life a little easier, I've attached a simple draft order which I used some time ago. You will need to fill in the gaps of the brackets and suggest leaving the name of the judge blank in case you suddenly get a different one.
If no costs of the application, then costs of travelling there and time spend on the application £19 per hour. Realistically should be more than a few hours for the application to claim back.

Print two copies of the Order, one for you and one for the court, both signed by the judge get them stamped by the front desk if you can and keep one copy for yourself, which you can forward onto the Claimants

[Les-looking]

Re: ccj set aside help

Thank you ever so much R0b will certainly help me much appreciated

[Les-looking]

Re: ccj set aside help

Been to court I did take my own draft report, judge agreed to 28 days instead of their 21, I also asked for 1 month stayed but he said it would be in my interests to have longer in case they dragged the reply out so settled on 3 months, also asked entry on register to be removed, and he also agreed to set aside, so thanks for all advice up to now all looks well.

Next thing any ideas on wording on defence? My defence is to be statue barred and I have never had any communication about this debt, I moved from the address in question in 2010 but was defaulted well before that, I moved to my sons for a SHORT time, then moved to my current address, my son has also moved to a different address, and it was my sons address that was given on ccj, so as I say do I try and contact capital one for any information or write directly to Cabot with my defence and if so any ideas please.

Just to add any mail that would have been sent to my sons address would have been returned not at this address, as my son enquired about a log book to current owners and they said they received a bit of mail which they put back in the post box Thanks.

[R0b]

Re: ccj set aside help

Well it is a start, there are some example draft defences you can look at in the green box at the top of this page. I'll tag [MENTION=55034]nemesis45[/MENTION] so he is aware.

Did you ask about costs for the application e.g. expenses or not get onto that point? Personally, if they have no documents I would have objected to any stay because you want the trial over and done with as quick as possible so they have no time to find the documentation they need. The pressure is now less on them given the 3 month stay but if that's what you have agreed it's your choice.

The defence from the sound of it will be SB amongst any other defences you might have.

[nemesis45]

Re: ccj set aside help

OK,
What type of account was this, credit card, loan, bank account/overdraft. HP?

You can now send a CCA request if this is a credit card/loan regulated by CCA 1974.

Use the time to gather every bit of " evidence " to support your statute barred defence, and as [MENTION=71570]R0b[/MENTION] has said anything else you have in defence of the claim and take a look at the drafts!

Make a rough draft when ready post it here and we can go through it with you.

nem

[Les-looking]

Re: ccj set aside help

No R0b didn't mention costs, the judge was so agreeable I would have felt a bit embarrassed asking for costs at the moment lol, as I said I did put in my draft about a month but again I took his advice when he said it would probably be in my interest for longer but he did agree 6 months was to long, so again thanks for your advice re the draft order was a good idea!

I shall look later when I return for the drafts you mention thanks again for your advice:goodjob:

- - - Updated - - -

OK,
What type of account was this, credit card, loan, bank account/overdraft. HP?

You can now send a CCA request if this is a credit card/loan regulated by CCA 1974.

Use the time to gather every bit of " evidence " to support your statute barred defence, and as @R0b has said anything else you have in defence of the claim and take a look at the drafts!

Make a rough draft when ready post it here and we can go through it with you.

nem

It was a capital one credit card so will do as you advise, off out for a few hours so again will check on my return Thank You!