Going to court to get Judgement set aside - Cabot

[Jasonm1970]

Hi

I had a CCJ levelled against me in May 2017 at an address I no longer resided in. I didn't realise until Jan 2019 when I received a Warrant of Control from my local court.

At this time, in a blind panic, I filled in the N244 and asked for judgement to be set aside as by 2017 any debt would be Statute Barred (the debt was Coop bank credit card from 2009 when I had been made redundant and they failed to pay out on the ppi I had taken out with them - long story!)

Anyhow, my hearing is scheduled for Monday at 10.30 which I shall attend.

However, I today received the usual letter from Mortimer Clarke informing me that they would agree to Judgement being set aside as long as I made a Full Pleaded Defence within 21 days, no problem, however, they are also asking for a stay of six months for both parties to
reach a settlement.

My question is, is it worth me arguing about this stay, I know full well this debt is Statute Barred and that would have been my defence had I known about the original application for a CCJ and therefore I shouldn't have to be " reaching a settlement" or should I?

I have no paperwork on this, I have moved three times since 2009 and when I rang the Coop they could give me no information.

Finally, is there anything I need to take to court apart from a Draft order.

I know this is last minute, I expected to be facing and arguing a solicitor from Mortimer Clarke.

Thanks in advance.

Jason

[R0b]

Did you submit a witness statement together with a defence as part of your application?

6 months is an awfully long time to try and reach a settlement; why can't settlement negotiations continue whilst the claim remains alive, it means that there is more pressure on them to take settlement offers seriously. suspect its a ploy to delay proceedings so they have time to try and get the paperwork together, can't think of any other reason why they need 6 months to try and reach a settlement, one month at best; it's not a complex issue.

If you are confident the claim is statute barred, I don't see why you would want to settle other than them discontinuing the claim.

Did you pay any fees for the application, and if yes, you should ask for those costs too.

I would also be questioning why they have decided to offer to set aside the judgment at such a late stage, that is unreasonable conduct on their part and if it reaches a hearing monday, you should point that out as part of any costs argument (which if you don't raise in the hearing, you will get bugger all and cant complain about it).

[charitynjw]

This seems to be a common tactic employed by debt purchase firms....a late offer to negotiate in their favour (ie pay up & we'll drop the claim, & Defendant doesn't have to face the ordeal of a hearing.)

A psychological manoeuvre designed to intimidate, imho.

[Jasonm1970]

Hi Rob

Thanks for the reply. The only defence I submitted was on the N244 form, on which I claim that I had moved (I had) and had no idea that I had been awarded a CCJ and therefore, if I had received the original Court papers


I would have prepared a defence, in the fact that the debt was statute barred. I have no original paperwork but I know that I defaulted in Mar 2009 as I was made redundant in the January. I have not in the meantime admitted any liability to this debt. I spoke to the Coop bank but they told me that all their paperwork would have been passed to a debt collector and they could give me no more information.


To complicate matters, my previous partner and I split in 2013 and I moved house three times between Aug 13 and Feb 17, however I registered on the electoral register each time.

My plan for Monday was to ask the judge for 28 days to file a defence (They have demanded 21) and thence to have the stay removed and the hearing to be held at the earliest possible time after my defence is filed. I would then request the CCA from Cabot and formulate my defence.


My assumption is that Cabot will

a)fail to respond

b) respond without a CCA or

c) omit dates.


I think the request for a stay is a standard measure so they can spend the next six months cajoling/threatening me, however, I'm a mature student living on a student loan with two kids, even if they

managed to get a CCJ to stand I have no spare money (hence the court fees are non-applicable) and the debt they are claiming for is £2k, a bunch of which they added themselves. Which is why, when I received the Warrant of Control I immediately asked for the judgement to be set aside, ultimately I have nothing to lose.

Thanks

Jason

[Jasonm1970]

Why is my grammar getting messed up?

[Amethyst]

Think I've fixed it xx. Sometimes happens if you past from word or another site etc as it carries over the coding otherwise I don't know ( should be an edit button bottom right of the post - though if you're on mobile it doesn't always show up )

[Amethyst]

This seems to enable removal of the CCJ, allow you to defend the original claim and have six months ( without a ccj ) to either find out if your defence will succeed, and it is actually statute barred, or save enough to make a f&f settlement offer so that the ccj doesn't get reapplied. Yes six months is a long period however, if, after the judgment is set aside and you've requested documents etc, they just produce all valid documents then you have time to negotiate settlement rather than be straight back to court and a further ccj applied. Swings and Roundabouts. Your priority is to get rid of the CCJ ?

Even though coop have told you they hold nothing on the debt I would still SAR them.

Re statute barred - you think it defaulted in 2009 - it no longer appears on your credit file ? No one made any payments after default - your ex for instance ?

And have you reclaimed the ppi ( as it wasn't suitable considering you tried to claim on it and it didn't cover you) ?
If not, get that complaint in to coop.

[Jasonm1970]

Hi Amethyst,
I know I defaulted on this in 2009, my ex certainly wouldn't pay anything. It does not appear on my credit file, I have no defaults at all for the past 6 uears, however, the CCJ is from May 2017 so I now rely on their info when I get it.
So would you advise that I leave the six month stay in place? I would still ask for 28 days to give my defence as I need to get their file and I suspect they will drag their heels.
As for a settlement, I have two toddlers (I started late in life) and the ability to save on £10k a year is nigh on impossible so I doubt any settlement I could offer would be acceptable.

Jay

[Amethyst]

The six months is only acceptable if the CCJ is set aside immediately. Soon as set aside tell the claimant it is stat barred, put them to strict proof of the alternative and invite them to withdraw. If they don't, then enter your defence in the statute barred grounds ( along with any cca issues that you have ) and then if it is stayed it doesn't affect you, negotiating settlement will be them saying 'you owe x' and you saying ' it's statute barred' so be all quite pointless. Ask court for 28 days to defence ( because claimant hadn't provided any information, the claim is stat barred and onus of proof is on claimant to show otherwise and you need to do SAR to coop and cca request etc which takes time to respond ) And a months stay thereafter for any potential negotiation ( however as you know the debt is long since statute barred this seems unlikely to result in anything but withdrawal ) - and you want costs of application .... in the original particulars of claim did the claimant state default or termination date ? If so then say with reasonable enquiries the claimant should have know it was stat barred before issuing and thus concerned the claim issue without effort to issue to current adddress seems to be an abuse of the court process.

Have you put in your application to set aside that the debt was statute barred before they issued the claim ?

[Jasonm1970]

The six months is only acceptable if the CCJ is set aside immediately. Soon as set aside tell the claimant it is stat barred, put them to strict proof of the alternative and invite them to withdraw. If they don't, then enter your defence in the statute barred grounds ( along with any cca issues that you have ) and then if it is stayed it doesn't affect you, negotiating settlement will be them saying 'you owe x' and you saying ' it's statute barred' so be all quite pointless. Ask court for 28 days to defence ( because claimant hadn't provided any information, the claim is stat barred and onus of proof is on claimant to show otherwise and you need to do SAR to coop and cca request etc which takes time to respond ) And a months stay thereafter for any potential negotiation ( however as you know the debt is long since statute barred this seems unlikely to result in anything but withdrawal ) - and you want costs of application .... in the original particulars of claim did the claimant state default or termination date ? If so then say with reasonable enquiries the claimant should have know it was stat barred before issuing and thus concerned the claim issue without effort to issue to current adddress seems to be an abuse of the court process.

Have you put in your application to set aside that the debt was statute barred before they issued the claim ?

I wrote on the N244 that I believe the claim was Statute barred under the Limitation act etc. I'm assuming that Cabot do this a lot with people that don't reply because it is the easy route for them to recoup at least some money?
I received a letter to the court from MC on Friday which states;

"The Claimant consents to the judgement dated 11/05/2017 being set aside and asks that the defendent files and serves a fully pleaded defence within 21 days. The claimant further asks that the matter be stayed for six months in order for the parties to reach a settlement."

They have put in a draft order to the same effect. However, I am unclear as to whether the fully pleaded defence 21 day deadline starts on the day the letter was sent, received or the date I attend court.

Do I prepare a draft order to ask for 28 days, and if so, do I ask to remove the six month stay?
I would think that, if they have already been awarded a CCJ against me then they will have all the paperwork ready to re-file, why would they need a stay?
Also, I may be reading too much in to this, but surely if they had the correct paperwork the first time around they would dispute my attempt to have judgement set aside?

Jason

[Amethyst]

The 21 days will start on the day order is made - so when /if the judge agrees and writes the order.

I do think you maybe reading too much into it - it's a pretty standard response to a set aside app when it won't go much further. Have they included notice to the court that they won't be attending ? You should of course, unless court informs otherwise, attend, and you can discuss the proposed draft order with the judge on the day. Be wise to call court before setting off to check it is still listed.

[R0b]

I still think 6 months is far too long for something like this and I have never in my experience seen parties agree a 6 month stay to negotiate a settlement, usually it is more like 3 months.

Agreeing a stay for that length of time can be a double edged sword. If you are confident that the agreement is statute barred, why would you agree a stay in the first place? As I mentioned in my previous post, once the set aside is granted both sides will have at least a couple of months if not longer to negotiate a settlement.

Put it this way, the consent order only states that you agree to stay in order to pursue a settlement, but there's no obligation on Cabot to settle. They could, for example, choose not to enter in much (if any) settlement negotiations until month 4 or 5 and utilise those months on obtaining the relevant documents they need to pursue you for the full amount. If they do manage to obtain that documentation, and if they can prove it wasn't statute barred, then they have you over a barrel.

Either way, you are putting Cabot in the driving seat when it should be you driving this. I've seen on a number of occasions people post on here and say proceedings have been stayed, hear nothing back from claimant thinking it is done with until they suddenly appear some months down the line and say, hey we have the documents now and we are going to pursue you if you don't pay up the full amount.

Cabot have agreed to consent at the last minute, that is unreasonable conduct on their part. They would have known from becoming aware of the application whether they wanted to object to the set aside. If you've paid any fees I would also be asking for those to be included either as part of the consent order or at the hearing. The general rule is that the successful party is entitled to their costs and, coupled with the last minute offer by Cabot wasting everyone's time, the judge should not displace that presumption.

If it were me, I would reject their offer to consent and take the risk with the judge. If the default judgment is set aside, I would be asking the judge to make an unless order to file and serve the following: detailed particulars of claim, the credit agreement, default notice, notice of assignment and anything else relevant and, that the documents should be provided within 30 days of the order if not the claim is dismissed. Upon receiving those documents, you then have 14 days to file a defence.

Worst case, the judge rejects all of the above and sets aside the default judgment and the hearing continues. Both sides can then consent to a stay of proceedings (you should do that at Cabot's own cost) if necessary. As I said though, if Cabot had the intention of good faith negotiations with a view to settling, then they would be doing that now and there is nothing stopping them.

Obviously I take a different stance to Amethyst but at least you have something to think about. As it's your case you will need to decide how you go about it and I would definitely be turning up to court, because they should not be vacating the hearing unless they received confirmation of that consent order.

[Jasonm1970]

I

Cabot have agreed to consent at the last minute, that is unreasonable conduct on their part. They would have known from becoming aware of the application whether they wanted to object to the set aside. If you've paid any fees I would also be asking for those to be included either as part of the consent order or at the hearing. The general rule is that the successful party is entitled to their costs and, coupled with the last minute offer by Cabot wasting everyone's time, the judge should not displace that presumption.

If it were me, I would reject their offer to consent and take the risk with the judge. If the default judgment is set aside, I would be asking the judge to make an unless order to file and serve the following: detailed particulars of claim, the credit agreement, default notice, notice of assignment and anything else relevant and, that the documents should be provided within 30 days of the order if not the claim is dismissed. Upon receiving those documents, you then have 14 days to file a defence.

Worst case, the judge rejects all of the above and sets aside the default judgment and the hearing continues. Both sides can then consent to a stay of proceedings (you should do that at Cabot's own cost) if necessary. As I said though, if Cabot had the intention of good faith negotiations with a view to settling, then they would be doing that now and there is nothing stopping them.

.

Thanks for the reply Rob.
I didn't particularly want the stay and to the best of my knowledge the Debt was statute barred, I have however heard that they can be pretty underhand (i.e forging documents/ making fake payments) whether that's true or not I don't know. I do know that the last time I made a payment was March 09.
So, Questions.
If I reject the offer of consent can the judge refuse to set the CCJ aside?
If I accept the offer of consent can I ask for the stay to be removed and an unless order to be filed?
Is it common practice to consent at the last minute?

My plan was to ask for the stay to be removed and for 28 days to mount a defence, so I could apply for the CCA/CPR SAR etc.
I am of the opinion that because I didn't reply to the original letters (how could I?) they just went ahead with the CCJ. Do they have to supply evidence to Northampton or is the Judgement just given because a defence isn't mounted?

Thanks for your patience.

Jason

[Jasonm1970]

Hi All,

I had the judgement set aside and the Fully Pleaded Defence extended to 28 days, however the judge wouldn't budge on the 6 month stay.
I have written to Cabot for the CCA and sent it special delivery, which has been signed for.
Do I need to send MC the CPR 31.14 and if so how do I word that as I would be asking for the original information used for the CCJ back in May 2017.

As there is a six month stay, does the whole process start again after that, i.e do they have to issue court proceedings etc or does the CCJ just get reinstated etc?

Many Thanks

Jason

[Amethyst]

Just treat it as you would if the case was newly issued and send the standard CPR request - asking for the documents mentioned in the particulars of claim ( possibly agreement, terms, default and assignment notices )

Your main defence at the moment is that the debt is statute barred ( and was so in May 2017 ) so it may be worth adding that into your CPR letter to MC as well and asking them if their client would discontinue the claim to save further time/costs etc.

Did you get your application costs awarded ?

The case carries on, once you defend, it is simply put on hold for both sides to sort out settlement.... if nothing then the stay is automatically lifted after the six months and directions then issued to take the case forward - so witness statements then hearing etc....the CCJ isn't just repplied at all - they have to win first. I'd fully expect it to be discontinued well before then IF you are correct on your dates for statute barring xxx