Help wording defence on N244 for setting aside CCJ on Statute Barred debt

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Thanks for your advice Rob it's greatly appreciated.

Yes I had that feeling as I left the hearing, I felt like I should've got more out of it, so whilst I achieved the aim of set aside I felt a little frustrated at my inexperience. Like you say a learning curve for the future.

So the claim has been put back into a position before the judgement was issued. You make a great point about using the costs hearing as leverage to discontinue the claim, I shall write to them this week. In hindsight I didn't know whether I should've requested a separate hearing for my costs as it is quite a stressful and inconvenient attending hearings and I was also worried that it may backfire and I'd end up paying their costs.

Yes I have all the documentation and statements of the bank account including a letter of cause of first action when they removed the overdraft and requested funds in full (dated July 2009).

I've attached the first draft of my defense. What do you think? Anything I should add or remove?

Thanks!!

[R0b]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Like you say, its a learning curve and ultimately you are always looking for the best possible outcome but if you are not experienced enough you won't know what to say or do until after the hearing has concluded.

Well, if you've got all the documents from your SAR and it is clear that the overdraft was removed in 2009 and around the same time a demand for the sums was made, then it looks like you might be in a strong position to win, especially once each side discloses their documents they rely on.

In your documentation, was there any default notice or notice of assignment stating that the debt had been assigned to the current Claimant? If not, that may also boost the strength of your defence.

As for the hearing of costs, you can always withdraw from it if you wish but if you have paid money then you should at least give it a go if it you are able to. At the end of the day you were successful in setting aside the claim and the normal rule is that the successful party is entitled to their costs back e.g. costs of the application (if any) plus the Claimant's behaviour in this case could also warrant unreasonable conduct since they suggested in an email that they would only agree to set aside if no costs were awarded yet they didn't even turn up at court. This is a case where you might want to seek your costs on an indemnity basis such as travel costs, any reasonable amount of time spent working on the case at a rate of £19 p/h (or if self-employed and can prove loss of work instead) by providing a statement of costs to the court and the Claimant.

Court can be stressful but I think in these circumstances, costs are very unlikely to be awarded against you under the set aside application. At least you can prepare yourself if that hearing does take place

I'll have a quick look at your defence later tonight or maybe tomorrow morning, but I think you may be in a good position to write to the Claimant and at least invite them to discontinue now, they'll either ignore you or accept that they have a weak position - If the case is clearly SB then it might be worth supplying a copy of the demand for money to the Claimant and putting them on notice they don't have a chance, though I am not au fait with overdrafts as its not particularly my area so I've tagged @Diana M, @nemesis45 and @Amethyst to see if they can give any guidance, as well as comments to your defence.

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Well, if you've got all the documents from your SAR and it is clear that the overdraft was removed in 2009 and around the same time a demand for the sums was made, then it looks like you might be in a strong position to win, especially once each side discloses their documents they rely on.

In your documentation, was there any default notice or notice of assignment stating that the debt had been assigned to the current Claimant? If not, that may also boost the strength of your defence.

I'll have a quick look at your defence later tonight or maybe tomorrow morning, but I think you may be in a good position to write to the Claimant and at least invite them to discontinue now, they'll either ignore you or accept that they have a weak position - If the case is clearly SB then it might be worth supplying a copy of the demand for money to the Claimant and putting them on notice they don't have a chance, though I am not au fait with overdrafts as its not particularly my area so I've tagged @Diana M, @nemesis45 and @Amethyst to see if they can give any guidance, as well as comments to your defence.

OK thanks for looking into it Rob, like you say I am in a strong position so maybe there are points I could better present in my defence to re-affirm this.

I have a signed document stating exactly when the overdraft was removed and the money requested in full. There is also no notice or letter in my documents stating that the debt had been assigned to the current Claimant - I will double check this again to make sure.

[R0b]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

I've taken a look at your draft defence, the contents is quite brief and only relates to the SB issue. I would always suggest having more than one line of argument because if they can somehow get round it, then your defence falls away and you will ultimately be held liable. It is not uncommon to argue up to 3 strong points in any defence (though sometimes more depending on the nature and complexity of the issue) but you shouldn't spell out every defence point as it can be seen as though your throwing in everything including the kitchen sink which can do more harm than good.

Always start with your strongest legal argument which in this case is the SB argument. Other lines of argument for a typical case like this which can also hurt the Claimant is the fact that no default notice has been served on you, and neither was there a notice of assignment (though the claimant can serve this on you, and perhaps you may wish to send a SAR to them to uncover any truth in whether an assignment notice was given, though it may not be necessary in this case).

I can't remember but if you haven't sent a request for a copy of the credit agreement then you may wish to do that also. It comes at a cost of £1 which is a statutory right and if they fail to comply within the 12 working day period then they cannot enforce the agreement - Again, that can be put down in your defence saying you have sent a request for payment under the relevant section yet the Claimant has so far yet to provide a copy (see link for more info on this - http://legalbeagles.info/forums/show...y-of-Agreement)

So there's 3 or 4 strong arguments already that you can bolster your defence with. So if one line of argument falls away they will still need to hurdle over the other arguments. Generally from what I see on here is that debt purchaser fail quite often on the issue of assignment and default notice and also providing a re-constituted agreement.

I would also suggest you look at the Defence example for some guidance on what to include and not to include in yours - http://legalbeagles.info/forums/show...t-Court-Claims

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

Ok thanks Rob. I do have a copy of the credit agreement that they sent to me, I also have the notice of assignment which I did not receive when the debt was originally assigned to them but that they have since sent to me. I do not have a copy of the default notice though - which was registered with another debt company at the time. (I could see this on my credit file). So I have the 1 very strong SB defence and perhaps a 2nd point of no default notice received either.

As my set aside was successful due to the strong SB case should anything that happened during that case/hearings be stated within this defence? For example Claimant failing to provide the court further evidence of any payments made in the SB period.

[Polaris]

Re: Help wording defence on N244 for setting aside CCJ on Statute Barred debt

I've filed my Defence and served the Claimant now as well as writing to the Claimant as per Rob's advice.
[MENTION=71570]R0b[/MENTION] - In hindsight should I have submitted a Witness Statement and Draft Order as well as my defence?
I've stated I seek to have the claim dismissed within the defence and I guess there's not a lot more I can state in a witness statement if its statue barred - I'd just be repeating myself.