Nip a Cabot claim in the bud

[peterfranks]

Just received a Cabot claim. However the debt they bought from the original creditor in July this year passed the 6 Yr statute limitation in April. (In fact it had fallen off my credit report 4 months ago)

What is the best way to let them know they bought a debt they cannot enforce or are they going to push it all the way to court?

[peterfranks]

Reading this thread it seems they have form in chasing statute barred debt, but I haven't come across a solution as to how best to deal with them

[Celestine]

So long as you are certain of no acknowledgement/payment for six years since expiry of s.87 default notice - you should inform them in writing that you believe the debt to be time barred under the Limitation Act. We even have a template on the right hand side bar. ------>

[peterfranks]

Yes 100% certain.
thanks for the link I will check it out

[KingUnemployed]

make sure you write the line:
"No debt is acknowledged to your company yet you have contacted me regarding the above account." and send it signed for delivery so you can use it in court as they may argue it is acknowledgement

It is an excellent letter, I wish I had done this but I think they would have ignored it as they make so much money on scaremongering.

Be brave and stick to the facts.

[Celestine]

This is the template wording for reference:
Dear Sir/Madam

Re: Account No/Your Ref:

No debt is acknowledged to your company yet you have contacted me regarding the above account.

As I am sure you are aware, under the Limitation Act 1980, s.5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

No correspondence/payment/acknowledgement of this debt has been made within the last six years and accordingly unless you can provide evidence of payment or written contact from me in the relevant period under s.5 of the Limitation Act 1980, I suggest that you are no longer able to take any court action against me to recover any alleged amount claimed.

Furthermore, the FCA Consumer Credit Sourcebook (section 7.15) states that "Notwithstanding that a debt may be recoverable, a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." and that ''A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred.''

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

I look forward to your early reply.



Yours faithfully




(Your signature)
(Your Name)

[Celestine]

It is an excellent letter, I wish I had done this but I think they would have ignored it as they make so much money on scaremongering.

Be brave and stick to the facts.

So long as these steps are followed, it is not possible for debt companies to ignore such communications when things get legal. It is not unusual or even unlawful for them to issue claims on CCA/Limitation claims, which is highly annoying, but in the eyes of the law, enforcement is getting judgment awarded, so a strong defence of any genuinely defendable claim is absolutely essential to guard your own consumer rights.

[pt2537]

Reading this thread it seems they have form in chasing statute barred debt, but I haven't come across a solution as to how best to deal with them

https://consumercreditlitigationandd...nance-matters/ Have a read of that too, may help you out.

[peterfranks]

thanks for the replies.....I was in two minds as to whether or not to contact them immediately or wait (I'm 100% certain of the original date of default and there has been zero communication or any payment since that date.. as I stated earlier the debt dropped off my credit report in April), in the end I sent a slightly modified version of @celestines great template letter the other day. Will obviously update here how it pans out.

[KingUnemployed]

Peter,

My defaulted overdraft dropped off my credit file after HSBC and Metropolitan Collection services agreed to write it off in 2011 but then after Cabot served a notice at a house I had not lived at since the last century, they are now taking me to court despite 3 defences; altered deed for equity only, default barred and failure to serve notice at correct address which I was not aware of, but now I have seen it after starting court action, they are saying it is served and 6 years starts from now.

They are shysters that do everything possible to make money, having a good defence is needed and I would say make sure you get signed for delivery on such letters as that is evidence in court you can use if you need to.

If only we could do what the Americans do and take class action against Cabot

[peterfranks]

They are shysters that do everything possible to make money,

I second that.

Today I got a reply to my modified #Celestine template letter saying that they understood the debt was statue barred and that they would be closing the matter. Yet knowing that they still tried it on with threatening letters.

I am sure they have no guilty conscience but Interestingly they mentioned in their letter that: "whilst we do not consider our actions to have breached any law or regulations your account has been withdrawn from our regular collections process and closed"

Thanks again to Celestine and everyone on legalbegals for helping me 'nip this one in the bud'.

ps.
and good luck in your case #kingunemployed

[Tennessee]

#1 Setting aside a default judgment (detailed version)

17th January 2018, 09:22:AM
This guide is primarily aimed at litigants in person to assist their understanding of the rules and the requirements to set aside a County Court Judgment by default in favour of the claimant. It is an extension of a similar guide which can be found here -> https://legalbeagles.info/library/ho...-judgment-ccj/. Applications to set aside a CCJ will vary depending on the individual facts and circumstances of each case and so this guide is not intended to be exhaustive but what to expect the process to look like. Any further feedback in relation to this guide is welcome. @Amethyst, if you wish to put this somewhere else, feel free to do so.


Contents
1. Introduction
2. What circumstances can a CCJ be set aside?
3. Procedure for settings aside a CCJ
4. Costs: What if I win, what if I lose?
5. Final Points to note
6. Frequently Asked Questions


1. Introduction
Quite often, people end up with a County Court Judgment (referred to as a CCJ) that they did not know about. This could be for a number of reasons, either because you moved house or failed to update your personal details such as the DVLA, electoral roll, credit file etc. or perhaps the claimant did not follow the correct rules or procedures. It is a common occurrence that people realise for the first time that there is a CCJ against their name when they apply for credit, check their credit file or other instances like when they receive a letter from bailiffs.

You might ask yourself, is it lawful for the claimant to do this without hearing my side of the story? The simple answer is yes they can. A claimant will have at some point issued a claim against you (often to the wrong address) and you will be expected to adhere to the court’s strict deadlines in responding to the claim. If you fail to acknowledge the claim or file a defence by the required deadline, the claimant is entitled to request the court to grant a judgment by default. The courts will not look at the merits of the claim and is very much a paper exercise which means that default judgments can be given despite the fact that you might have a valid defence to the claim.

2. What circumstances can a CCJ be set aside?
In order to set aside a CCJ, you need to have reasonable grounds for doing so. These grounds are set out in the Civil Procedure Rules (CPR) under Part 13 (click here for link) and there are two grounds in which the court may consider setting aside a CCJ; mandatory and discretionary grounds.

Mandatory grounds
The court must set aside a judgment in default which was wrongly entered and it is irrelevant if the defendant has any reasonable prospects of defending the claim or whether he/she was prompt in making the application to set aside. The reasons for the judgment being wrongly entered are strictly limited to circumstances where, at the time the judgment was entered:

* the time for acknowledging the claim form or the filing of a defence had not expired;

* there is a pending summary judgment or strike out application; or

* the defendant has satisfied the whole of the claim.

Discretionary grounds
If the CCJ cannot be set aside as of right under the mandatory grounds, the court does have discretion to set it aside. Applications to set aside on discretionary grounds must be supported by evidence. A court will set aside the CCJ provided that:

1. there is a reasonable prospect of successfully defending the claim; or
2. there 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.

Real prospect of successfully defending the claim
If you are relying on this particular ground to set aside the CCJ, it is important to note that the quality of your defence must be more than arguable. A judge considering the application will look at several elements such as the nature of the defence, if the application was made promptly after discovering the CCJ, what (if any) prejudice the defendant may suffer if the CCJ is not set aside and the overriding objective under Part 1 of the CPR (click here for link). Therefore, it is sensible to include a draft defence within your application if you believe that you have a reasonable prospect of success as it will show the judge that your claim is more than speculative.

There is some other good reason that the CCJ should be set aside
The courts give the words ‘some other goods reason’ a wide meaning. The burden of proof rests on the defendant to show that there is ‘some other good reason’ to set aside the CCJ. The following examples have been considered by the courts as some other good reason to exercise its discretion to set aside the CCJ:

* non-receipt of the claim form;

* where the defendant should be afforded the opportunity to pay the claimant without having an embarrassing CCJ on their record; or

* where a claimant knows that he is entitled to request for judgment in default on a technicality but that the defendant has a real prospect of successfully defending the claim, then the claimant should not, as a general rule, request judgment in default. If he does so, then he faces a possible costs sanction as a result.

3. Procedure for setting aside the CCJ
There is no prescribed time limit for setting aside the CCJ however, the rules do explicitly state that an application must be made promptly upon becoming aware and the court will take each case on its own merits. The meaning of ‘prompt’ will differ between judges but as general guideline, if you’ve not made an application within 2 weeks of becoming aware of it then you may need a very good explanation as to why the application took so long. For example, in one High Court case the judge said that a delay of 30 days while the applicant sought legal representation was ‘dangerously close’ of not being prompt.

Step one: contact the court
As soon you become aware of the CCJ, you should contact the court to obtain some information about the claim itself. Many claims are issued by Money Claims Online and so you will need to contact the Northampton County Court Business Centre and you will need to provide them with a Claim Number. If you have zero information about the claim, then you may need to carry out a search on the register of judgments managed by the Registry Trust. You can do this by going to https://www.trustonline.org.uk/search-yourself although there is a small fee (which you should look to recover if your application to set aside is successful). The basic information you will need to obtain from the court is:

* the name of the claimant;

* the claim number;

* the claim form;

* the Particulars of Claim (if detailed particulars have been submitted separately); and

* the Order granting Default Judgment.

Under Rule 5.4B, Part 5 of the CPR (click here for link), parties to proceedings are entitled to request the above documents however the court may apply a fee as they will consider the documents to have already been provided (though you might be able to politely argue that they were sent to an address where you no longer reside and were never received to get around paying the fee). The current prescribed fees as of 6 March 2017 are:

* £10 for copies of documents between one and ten pages and then 50p per page thereafter; or

* a flat rate of £10 if the documents are requested in an electronic format i.e. by email or computer disk.

In the event that you have to pay for these documents, this should be included as part of your costs when you make the set aside application - you can always check the latest court fees by searching online for the ‘EX50 Form’ (click here for a direct link). If you have paid the prescribed fee but not yet received the documents, you should contact the court daily to get an update and in the meantime, continue with step two below but include the basic information such as the claim number and the date of the default judgment.

Step two: write to the claimant and seek their consent to set aside
Once you have sufficient information and received the relevant documents from the court, you should promptly write or email the claimant and ask them to consent to set aside the CCJ. As you are working to a very tight schedule, it might be prudent to explain that you require a response within 7 days. It is not uncommon for the claimant to not respond to you in time and in which case you simply press on with submitting your application to the court. Sometimes a claimant may refuse to consent although they should set out their reasons for their refusal. Failing to provide any explanation as to why the claimant objects to the setting aside of the CCJ may run the risk of the court making an adverse costs order against them. Other reasons why claimant might refuse consent is where it is clear on the face of it that there is no reasonable prospect of successfully defending the claim.

Step three: submit your application to the court
If you have not heard from the Claimant and the deadline to respond has passed, you should immediately look to submitting your application to the court, irrespective of the limited information you might have. I have seen on several occasions that defendants will sit and wait around expecting a response from the claimant before they begin drafting their application. I would caution against this. You should be looking to draft your application to the court as soon as you have written to the claimant and many people often underestimate how long it takes to prepare your application and supporting evidence. Remember, this is your chance to set aside the CCJ and have it removed from your record and so you need to ensure that your application is carefully prepared and not rushed.

4. Costs: what if I win, what if I lose?
Unlike cases heard under the small claims track where costs are extremely limited, the normal costs rules apply to set aside applications. In other words, you need to be aware there is a possibility that you may be at risk to some costs awarded against you. The court will always have discretion as to whether one party should pay costs to the other as well as the amount and when the costs should be paid.

If your application is successful
If the court agrees to set aside the CCJ, you should always ask the court to make an order for the other side to pay your application fees and other associated costs incurred. There is a general rule that the successful part should be entitled to their application fees and costs in connection with the application (see Rule 44.2(2)(a), Part 44 CPR - click here for link). When a court considers making an order for costs, it will take into account a number of factors such as whether the costs are reasonable and proportionate.

In certain circumstances, the court may decide to deviate from the general rule and make a different order (Rule 44.2(2)(b), Part 44 CPR - click here for link). This usually happens if the court considers one or more parties to have behaved unreasonably such as failing to co-operate, causing unnecessary delays or failing to comply with any orders by the court. If one of these instances applies, the court may consider reducing the claimant’s costs or even no costs at all. Where you believe the claimant’s behaviour to have been unreasonable or below the standard expected, your arguments for supporting a costs order in your favour might include:

* where the claimant has completely failed to engage with you and thus forcing you to make the application; or

* the claimant failing to attend the hearing and without notifying the court of their non-attendance.

The above are examples of what the court might consider as unreasonable conduct and worthy of making a costs order. It is unlikely that a court will award unreasonable conduct costs where the breach is small or trivial though a combination of breaches is more likely to attract this type of costs order.

However, do be aware that the court may choose reserve costs until the final hearing. Where the court makes this type of order, you should consider asking that the claimant also pay your costs in the event that it chooses to discontinue the claim (this might occur following the set aside of the CCJ and the claimant knows its case is weak and wants to avoid any additional costs). Finally, don’t automatically expect to be given your application fees or costs if you are successful in setting the CCJ aside. It is down to you to raise this with the court at the end of the hearing but don’t be disheartened if you don’t get any of your fees back, it probably beats having a CCJ on your record for the next six years!

If your application is unsuccessful
If your application is dismissed, it follows that you might be liable for costs and as previously mentioned, this will be at the discretion of the judge. It is therefore important to ensure that you make a strong application with good reasons to set aside the CCJ to avoid disappointment.

5. Final points to note

1. BE PROMPT. Do not wait around once you have become aware of the CCJ. The courts are becoming much stricter when considering applications to set aside default judgments and although failure to make the application promptly is not fatal to getting the CCJ set aside, it will be taken into consideration when looking at the whole of the circumstances.

2. If you are writing to the claimant seeking their consent to set aside the CCJ, it would be sensible to correspond by email (always keep a paper trail wherever possible). As already mentioned previously, you should expect a response to your email no later than 7 days, allowing the claimant sufficient time to consider your proposal but also giving you time to prepare your application and supporting documents. Quite often however, claimants or their solicitors are not the quickest to respond and as time is not on your side, you might wish to consider following up your email pretty quickly (I would suggest calling if you have heard nothing back within 48 hours). You may also come across one of the following scenarios:

a. The claimant refers you on to their solicitors to deal with the matter. You should politely explain that it is up to the claimant to instruct their solicitors and if they are instructed to deal with the set aside application then the solicitors should contact you direct and as a matter of urgency. You should also refer them to your email and reiterate that their failure to respond within the required timescale will mean that an application will be submitted without further notice and you will seek costs of the application plus reasonable time spent preparing it, at an hourly rate of £19 per hour (this is the hourly rate a litigant in person can claim). Remember, it is not up to you to do the claimant’s job and chase around. If they don’t comply or ignore you then that is their prerogative, all you need to do is submit your application.

b. The claimant consents to setting aside the CCJ on the condition that you pay the alleged debt and/or their legal fees. This is not unusual and you should consider whether or not to agree to their conditions, particularly if you think your defence is not as strong as you had hoped it might be. You may be able to negotiate this point but the decision is ultimately yours as to whether you think this is appropriate. You are free to reject their offer and make a counter offer although do be conscious of time and if nothing seems forthcoming, notify the claimant/solicitor that you will be submitting your application to the court as no agreement has been reached.

If you reach an agreement with the claimant and they provided you with a Consent Order to sign, take extra care before putting your name to it as the Consent Order might be favoured towards the claimant. More importantly, if you don’t understand the wording or what something means, get the claimant or their solicitor to clarify it in writing. Always make sure the terms of the consent order reflect what has been agreed because once you sign and it is approved by the court, you won’t be able to change your mind.

6. Frequently Asked Questions

What happens after I submit my application?
Once your application has been submitted to the court, you will receive an acknowledgment of receipt and the application will be processed. Depending on how busy the courts are, it may take up to 4-6 weeks or longer for the court to provide you with a hearing date. Once a court date is set, the application will normally be transferred to your local County Court for the hearing.

Do I need to attend court?
It is possible for you to not attend court but in order to do this you will need to write to the court and the claimant at least 7 days in advance and explain that you will not be attending. A hearing may still go ahead in your absence or the claimant may agree for the court to make a decision without a hearing.

It is recommended that you attend the hearing in person as this will afford you the best opportunity of having the CCJ set aside as you will be in a position to explain the situation and the judge can also assess your credibility. What you should never do is fail to attend without to notify the court unless exceptional circumstances arise that prevents you from contacting the court. If this happens, then the court will more than likely have reason to dismiss your application and the CCJ will stand.

How much will it cost to make my application?
The cost for a set aside application is currently £255. However, if the claimant consents to setting aside the CCJ and the terms of the consent are agreed, the cost of the application will be reduced to £100.

What happens if the court agrees to set aside the CCJ?
If the court agrees to set aside the CCJ then any record of it will be removed but this is not the end of the claim and the judge will give directions as to what the next steps will be. If you filed a draft defence as part of your application, the judge may accept that defence and proceed to allocating the claim and setting a date for the claim to be heard. Alternatively, you may have filed a draft defence along with a draft order which sets out the sort of order you want the court to make e.g. requesting that the claimant provide detailed Particulars of Claim so that you are able to know what case you have to meet and file a proper defence thereafter. In this case a judge will consider your draft order and either agree with the contents or amend it as he or she thinks fit.

[Tennessee]

I used this against Lowells who stated 02 wanted their money for phone and useage charges. I was sent that and followed it to the tee, won my case against Lowells and received an order from Judge for discontinuance of debt.