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Back in May time i discovered a CCJ on my credit file after a phone call to Northampton Court discovered with was for Lowell Porfolio I and after contacting them to get more information and getting no where they told me basically I was in default to XX amount and must pay them. A discussion followed as I asked what it was for and that if I wanted further information I would need to go back to the court.
So thats what I did using a template found here I applied to have the judgment set aside, last week I got my letter from the court telling me the date.
Today I have had mail from Lowell Solicitors, that reads the following sorry its a little long winded, but wondered now what I should do.
INTRODUCTION
1. I am a Legal Assistant in the employ of Lowell Solicitors Limited, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and am duly authorised by the Claimant to make this statement on the Claimant's behalf. the facts contained in this statement are known to me save as expressly stated and are true to the best of my knowledge, information and belief.
2. This statement is made in response to the Defendant's Application to Set Judgment Aside dated xx August 2017.
BACKGROUND
3. On xx September 2014 the Claimant took assignment from Progressive Credit Limited trading as Aqua Card "the assignor" of the Assignors account number xxx, in respect of a credit card agreement ("the agreement") entered into on xx xx 2010. This account ("the account") was given the Claimant's account number x. Copies of the Agreement, Default Notice and closing statement of Account have been requested of the Assignor and will be produced if received before the hearing. However, the Claimant respectfully reminds the Court that the burden of proof in this Application rests with the Defendant as Applicant.
4. Notices of Assignment were sent to the Defendant by the Assignor and the Claimant on or around xx october 2014 by posting to the address he now confirms to the Court. Reconstituted copies of these are attached at "CCL1".
5. Between serving Notices of Assignment and instructing solicitors who issued the claim, the Claimant sent the defendant seventeen further letters by posting to the same address, in addition to those that will have been sent by external debt recovery agents from time to time instructed including but not limited to the issuing solicitors.
6. No item of correspondence was returned by the Royal Mail undelivered, and the defendant made no response to the Claimant whether to raise any potential defence or other reason for non-payment, or at all. However on the xx January 2015 the Claimant received an inquiry from CallCredit, a Credit Reference Agency to whom a default report had been made by the Claimant replacing one previously made by the Assignor. CallCredit stated they had been contacted by the defendant who stated that he noted the default report on his credit file and did not recognise the Creditor. Reply was made to CallCredit on the same day, confirming that the report related to an Aqua credit card account sold to the claimant, and requesting that the Defendant be asked to contact the Claimant direct to discuss the matter. He did not do so.
7. No payment being made and no response being received from the Defendant, a Claim was issued on xx October 2015 for the assigned balance of £xxxx.xx plus interest limited to the County Court rate rather than any contractual rate and capped at one year, being £xx.xx, plus fixed costs and fees.
8. Judgment in default of a defence was entered on xx xx 2016 in the resultant sum of £xxxx.xx
9. Between entry of Judgment and the Defendant's Application, the Claimant sent the Defendant fiver further letters by posting to the same address. Again no item of Correspondence was returned by the Royal Mail undelivered, and the defendant made no response to the Claimant whether to raise any potential defence or other reason for non-payment, or at all.
10. However on xx September 2016 the Claimant received a further enquiry from CallCredit which had in turn received a further enquiry from the Defendant in the same terms as that attested to at paragraph 6 above. Again the claimant responded on the same day and in the same manner. Again the Defendant made no contact with the Claimant, and continued to ignore the matter and the Claimant unti the date of his Application some eleven months later.
THE APPLICATION
11. The defendant says in his application that he did not receive the claim Form and knew nothing of it. He nevertheless confirms service at the correct address.
12 The Application is silent as to any potential Defence to the Claim save only that the Defendant avers that he has not seen and is entitled to see the Deed of Assignment.
RESPONSE TO APPLICATION
13. The defendant neither suggests nor has any basis for suggesting that any mandatory ground for setting aside judgment in accordance with CPR 13.2, applies. In particular, the Defendant confirms as correct, the address at which proceedings were issued and to which all prior correspondence was sent. Accordingly the Defendant does not and cannot allege or show any basis for alleging improper service, and offers no excuse or explanation for his failure to respond.
14. The claimant therefore submits that judgment is regular and there is no mandatory ground for setting it aside.
15. In order for judgment to be set aside on discretionary grounds, the Defendant must satisy the Court both that a discretionary ground applies in accordance with CPR 13.3 and that it should be just and equitable for the Court to exercise that discretion in all circumstances.
16. The grounds at CPR13.3(1) are that:
(a) the defendant has a real prospect of defending the claim, or
(b) it appears to the court that this is some other good reason why -
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
17. The defendants application does not deny and is completely silent as to the original Agreement and the debt arising thereunder.
18. Paragraph 12 above is herein repeated and the Defendants application does not deny receipt of Notices of Assignment, merely asserting that he has seen no copy of the Deed of Assignment. The Deed of Assignment is a confidential commercially sensitive document which can in no way provide, assist or be relevant to any purported Defence to the Claim. The Defendant cites Denning MR in Van Lyn-v-Pelias in support of his assertion that he is entitled to see the same, neglects to mention that the cited sentence was entirely obiter in a case not concerned with this issue but rather with what constituted proper Notice of Assignment, but correctly goes on to cite Dennings MR's next words, to the effect that such entitlement would be for the purpose of satisfying a debtor that an assignee could give proper discharge. This is not required or relevant in a case such as this, where the assignor, as well as the Assignee, has served Notice of Assignment.
19. The defendant is otherwise completely silent as to what his Defence may be even in the most general terms. Paragraphs 4 to 10 above are herein repeated and the Claimant submits that it is simply not credible either that the Defendant received none of the correspondence therein attested to including that forwarded by CallCredit in response to his enquiry, nor that in receipt of the same and having any honest belief in any Defence now relied upon, he made no attempt to raise the same with the Claimant prior to issue of the Claim.
20. The claimant therefore submits that the Defendant has shown no defence with any prospect of success, nor any other reason why judgment should be set aside.
21. If the court is nevertheless satisfied that its discretion applies in this case, CPR 13.3(2) requires that in considering whether to exercise it, the Court must take into consideration whether the applicant has made the application promptly.
22. The application does not make clear when or how the Defendant says the judgment came to his attention. However it suggests no reason why it would not have come promptly to his attention and confirms the address to which both Judgment and all post-judgment correspondence was sent, in any event, paragraph 10 above is herein repeated and the Claimant avers that the defendant must have been aware of Judgment no later than xx September 2016, the date on which CallCredit, having received his further enquiry showing that he had again reviewed his credit file whih would then have shown Judgment as well as default, passed that query to the Claimant.
23. The defendant gives no explanation for the excessive delay in making the Application, and the claimant submits that in the circumstances the Application cannot be said to have been made promptly or within any reasonable period.
24. The claimant avers that in the event Judgment were now set aside it would be particularly prejudiced by that the delay, as this was an assigned debt and the Claimant cannot reasonably expected the Assignor to have retained records this long after not only assignment but also judgment, which would have been requested immediately had any reply been made to the claim or had application been made promptly after judgment.
ORDER REQUESTED
25. The claimant submits that the Defendant has established no grounds for having the judgment set aside and requests that the Defendants application is dismissed, and the defendant pay the claimants costs of attendance, to be confirmed by the advocate attending but not expected to exceed £120.
DIRECTIONS IN THE ALTERNATIVE.
26. If, notwithstanding the above, the Court is minded to set judgment aside, the Claimant requests that it does so conditional upon the defendant paying the Claimants costs within 14 days, and filing and serving a fully particularised defence supported by the documentary evidence of the facts upon which it relies, also within 14 days.
27. The Claimant further requests that in default of the Defendants compliance, judgment shall stand, but that if the defendant complies, the matter be allocated to the small claims track and Directions Questionaires dispensed with. In this event the Claimant confirms willingness to mediate.
So thats what I did using a template found here I applied to have the judgment set aside, last week I got my letter from the court telling me the date.
Today I have had mail from Lowell Solicitors, that reads the following sorry its a little long winded, but wondered now what I should do.
INTRODUCTION
1. I am a Legal Assistant in the employ of Lowell Solicitors Limited, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and am duly authorised by the Claimant to make this statement on the Claimant's behalf. the facts contained in this statement are known to me save as expressly stated and are true to the best of my knowledge, information and belief.
2. This statement is made in response to the Defendant's Application to Set Judgment Aside dated xx August 2017.
BACKGROUND
3. On xx September 2014 the Claimant took assignment from Progressive Credit Limited trading as Aqua Card "the assignor" of the Assignors account number xxx, in respect of a credit card agreement ("the agreement") entered into on xx xx 2010. This account ("the account") was given the Claimant's account number x. Copies of the Agreement, Default Notice and closing statement of Account have been requested of the Assignor and will be produced if received before the hearing. However, the Claimant respectfully reminds the Court that the burden of proof in this Application rests with the Defendant as Applicant.
4. Notices of Assignment were sent to the Defendant by the Assignor and the Claimant on or around xx october 2014 by posting to the address he now confirms to the Court. Reconstituted copies of these are attached at "CCL1".
5. Between serving Notices of Assignment and instructing solicitors who issued the claim, the Claimant sent the defendant seventeen further letters by posting to the same address, in addition to those that will have been sent by external debt recovery agents from time to time instructed including but not limited to the issuing solicitors.
6. No item of correspondence was returned by the Royal Mail undelivered, and the defendant made no response to the Claimant whether to raise any potential defence or other reason for non-payment, or at all. However on the xx January 2015 the Claimant received an inquiry from CallCredit, a Credit Reference Agency to whom a default report had been made by the Claimant replacing one previously made by the Assignor. CallCredit stated they had been contacted by the defendant who stated that he noted the default report on his credit file and did not recognise the Creditor. Reply was made to CallCredit on the same day, confirming that the report related to an Aqua credit card account sold to the claimant, and requesting that the Defendant be asked to contact the Claimant direct to discuss the matter. He did not do so.
7. No payment being made and no response being received from the Defendant, a Claim was issued on xx October 2015 for the assigned balance of £xxxx.xx plus interest limited to the County Court rate rather than any contractual rate and capped at one year, being £xx.xx, plus fixed costs and fees.
8. Judgment in default of a defence was entered on xx xx 2016 in the resultant sum of £xxxx.xx
9. Between entry of Judgment and the Defendant's Application, the Claimant sent the Defendant fiver further letters by posting to the same address. Again no item of Correspondence was returned by the Royal Mail undelivered, and the defendant made no response to the Claimant whether to raise any potential defence or other reason for non-payment, or at all.
10. However on xx September 2016 the Claimant received a further enquiry from CallCredit which had in turn received a further enquiry from the Defendant in the same terms as that attested to at paragraph 6 above. Again the claimant responded on the same day and in the same manner. Again the Defendant made no contact with the Claimant, and continued to ignore the matter and the Claimant unti the date of his Application some eleven months later.
THE APPLICATION
11. The defendant says in his application that he did not receive the claim Form and knew nothing of it. He nevertheless confirms service at the correct address.
12 The Application is silent as to any potential Defence to the Claim save only that the Defendant avers that he has not seen and is entitled to see the Deed of Assignment.
RESPONSE TO APPLICATION
13. The defendant neither suggests nor has any basis for suggesting that any mandatory ground for setting aside judgment in accordance with CPR 13.2, applies. In particular, the Defendant confirms as correct, the address at which proceedings were issued and to which all prior correspondence was sent. Accordingly the Defendant does not and cannot allege or show any basis for alleging improper service, and offers no excuse or explanation for his failure to respond.
14. The claimant therefore submits that judgment is regular and there is no mandatory ground for setting it aside.
15. In order for judgment to be set aside on discretionary grounds, the Defendant must satisy the Court both that a discretionary ground applies in accordance with CPR 13.3 and that it should be just and equitable for the Court to exercise that discretion in all circumstances.
16. The grounds at CPR13.3(1) are that:
(a) the defendant has a real prospect of defending the claim, or
(b) it appears to the court that this is some other good reason why -
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
17. The defendants application does not deny and is completely silent as to the original Agreement and the debt arising thereunder.
18. Paragraph 12 above is herein repeated and the Defendants application does not deny receipt of Notices of Assignment, merely asserting that he has seen no copy of the Deed of Assignment. The Deed of Assignment is a confidential commercially sensitive document which can in no way provide, assist or be relevant to any purported Defence to the Claim. The Defendant cites Denning MR in Van Lyn-v-Pelias in support of his assertion that he is entitled to see the same, neglects to mention that the cited sentence was entirely obiter in a case not concerned with this issue but rather with what constituted proper Notice of Assignment, but correctly goes on to cite Dennings MR's next words, to the effect that such entitlement would be for the purpose of satisfying a debtor that an assignee could give proper discharge. This is not required or relevant in a case such as this, where the assignor, as well as the Assignee, has served Notice of Assignment.
19. The defendant is otherwise completely silent as to what his Defence may be even in the most general terms. Paragraphs 4 to 10 above are herein repeated and the Claimant submits that it is simply not credible either that the Defendant received none of the correspondence therein attested to including that forwarded by CallCredit in response to his enquiry, nor that in receipt of the same and having any honest belief in any Defence now relied upon, he made no attempt to raise the same with the Claimant prior to issue of the Claim.
20. The claimant therefore submits that the Defendant has shown no defence with any prospect of success, nor any other reason why judgment should be set aside.
21. If the court is nevertheless satisfied that its discretion applies in this case, CPR 13.3(2) requires that in considering whether to exercise it, the Court must take into consideration whether the applicant has made the application promptly.
22. The application does not make clear when or how the Defendant says the judgment came to his attention. However it suggests no reason why it would not have come promptly to his attention and confirms the address to which both Judgment and all post-judgment correspondence was sent, in any event, paragraph 10 above is herein repeated and the Claimant avers that the defendant must have been aware of Judgment no later than xx September 2016, the date on which CallCredit, having received his further enquiry showing that he had again reviewed his credit file whih would then have shown Judgment as well as default, passed that query to the Claimant.
23. The defendant gives no explanation for the excessive delay in making the Application, and the claimant submits that in the circumstances the Application cannot be said to have been made promptly or within any reasonable period.
24. The claimant avers that in the event Judgment were now set aside it would be particularly prejudiced by that the delay, as this was an assigned debt and the Claimant cannot reasonably expected the Assignor to have retained records this long after not only assignment but also judgment, which would have been requested immediately had any reply been made to the claim or had application been made promptly after judgment.
ORDER REQUESTED
25. The claimant submits that the Defendant has established no grounds for having the judgment set aside and requests that the Defendants application is dismissed, and the defendant pay the claimants costs of attendance, to be confirmed by the advocate attending but not expected to exceed £120.
DIRECTIONS IN THE ALTERNATIVE.
26. If, notwithstanding the above, the Court is minded to set judgment aside, the Claimant requests that it does so conditional upon the defendant paying the Claimants costs within 14 days, and filing and serving a fully particularised defence supported by the documentary evidence of the facts upon which it relies, also within 14 days.
27. The Claimant further requests that in default of the Defendants compliance, judgment shall stand, but that if the defendant complies, the matter be allocated to the small claims track and Directions Questionaires dispensed with. In this event the Claimant confirms willingness to mediate.
Comment