CCJ Set Aside Dismissed

[phonique]

Hi,

Yesterday I attended a hearing to present my defence to set aside a CCJ and my case was dismissed.

Backstory:
2010 I took a dongle out for a month and cancelled the subscription. I got charged termination fees which at the time I refused to acknowledge. This was not regulated by CCA and had no contract and did not agree with this work ethic. I refused to pay these guys and eventually they left me alone. That was the last I heard about it.

August 2018 when seeking credit I happen upon that I received a CCJ in 2016! The last time prior to this in seeking credit was also in 2016 shortly before the CCJ so I got the credit.

According to Lowell they took this debt over in 2013 and sent letter to me at the address the CCJ was registered too. I did not receive any letters from them, furthermore I did not receive court papers from them. They sad they applied the CCJ in Sept 2016 and it is registered on the date of 14^th Oct at my last known address. However I had moved from that address in June 2016 and again moved to another address in October 2016. In 2016 I had received one letter from Lowell at the address I moved to in June 2016 which was my parents but it was in December 2016, after I had already got the CCJ. I called them and some glorified debt collector tried to find out how to extract money from me. Was vague providing details and again I told him it’s not a debt I owe and left it there. I did find out who the debtor was from the call, Three mobile, so I followed it up with them who could no longer provide information on this debt or any knowledge of it. So left it there and didn't hear anything from them again.

In August 2018 I received another letter from Lowell at my most recent address and I followed it up again and found that the caller this time informed me I have a county court judgement registered and they can enforce bailiffs etc. Following the call I sought out my credit rating to find I did indeed have one lodged by default.

I applied to set it aside and to prepare my defence. Since this debt was from 2010 I can barely remember it and have no correspondence from it. I prepared my defence which consisted of

1. I did not receive court papers
2. I received no correspondence from Lowell whatsoever.
3. I kept updated public records thus could be found via them ( which they did in 2016 and 2018 when I received letters ) without updating them of new address.
4. I was not living at the address that they served court papers to at the time.
5. The debt might have been statute barred. I know I took this dongle out in 2010 but unsure of the exact date. Might have been August, anyhow I paid only one months subscription before cancelling it which might have put it September (which was the date they put their CCJ claim in to the courts)
6. I provided evidence of a trail of proofs of address

Lowell portfolios witness statement did not provide a shred of paperwork evidence and just really set out that they sent chaser to me in 2014 (which I was living at the address at the time) and they check public records monthly to ensure address is correct. There is no CCA so no paperwork. Additionally unsure if this is an admin error or not but in Lowell’s witness statement they used an incorrect address. For example we sent 6 letters in 2014 to 114…. Actually my address was 144, admin error or ? And that I should of made the claim promptley

The debt was for £280 If I had known about this debt I would of surely paid it off! The bloody set aside cost £255 as is. I 100% did not receive court papers.

My case was dismissed. The CCJ was deemed to be regular and no special circumstances as to why it should be set aside. He said the burden of proof was on my shoulders and since I couldn’t procure any documentation from 2010 in regards to alleged debt I don’t have a reasonable chance to defend the claim. He believed I made it promptly upon finding out about the CCJ and that was it. I feel a little robbed. Was he right? What are my options?

Looks like I’ll also need to pay Lowell’s court fees too.

In need of some advice , reassurance etc. I explained this over the phone to a solicitor who agreed that he believes it should have been but then again it’s difficult to explain over the phone and for the lawyer to follow entirely.

Regards,

[R0b]

Hello

Without seeing what you've prepared for the court, its difficult to know where you stand. Saying that the debt might be time barred probably didn't help you rather you should have said you believed it to be time barred. That ought to have raised the prospect of there being a real prospect of successfully defending the claim on that basis.

Set aside applications are not meant to be a mini trial so you shouldn't have to procure documentation at that stage. Between the set aside and the date of trial it could have been possible to procure some documents to prove your defence.

Did he say the burden rests with you in relation to the set aside or the claim being time barred? If the latter then the judge was wrong because the burden shifts to the claimant to prove that is the case. If the former, then he is right as the burden does rest with you, although the threshold for setting aside a CCJ isn't that high a bar. So I can only assume your drafting and preparation was not good enough to satisfy him on the day, though a little surprising since you raised the time barred argument.

Did Lowell turn up or just submit their witness statement. You could have attacked that statement by saying there is a lack of evidence on their part which confirms they check up on a monthly basis e.g. notes added to your account that checks have been carried out, or evidence of a third party to carry out those public record checks, presumably via Experian

Only option is to appeal really but that's going to set you back a further fee of around £140 to appeal and assuming you didn't request permission to appeal you would have to apply for permission.

[phonique]

Hello

Without seeing what you've prepared for the court, its difficult to know where you stand. Saying that the debt might be time barred probably didn't help you rather you should have said you believed it to be time barred. That ought to have raised the prospect of there being a real prospect of successfully defending the claim on that basis.

Set aside applications are not meant to be a mini trial so you shouldn't have to procure documentation at that stage. Between the set aside and the date of trial it could have been possible to procure some documents to prove your defence.

Did he say the burden rests with you in relation to the set aside or the claim being time barred? If the latter then the judge was wrong because the burden shifts to the claimant to prove that is the case. If the former, then he is right as the burden does rest with you, although the threshold for setting aside a CCJ isn't that high a bar. So I can only assume your drafting and preparation was not good enough to satisfy him on the day, though a little surprising since you raised the time barred argument.

Did Lowell turn up or just submit their witness statement. You could have attacked that statement by saying there is a lack of evidence on their part which confirms they check up on a monthly basis e.g. notes added to your account that checks have been carried out, or evidence of a third party to carry out those public record checks, presumably via Experian

Only option is to appeal really but that's going to set you back a further fee of around £140 to appeal and assuming you didn't request permission to appeal you would have to apply for permission.

I didn't say it is statute barred, only that it might be as from my recollection I took it out in 2010 perhaps somewhere between august-september used for one month and cancelled. If it was before September than it would of been over 6 years before Lowell took legal proceedings. He just asked if I had any evidence which I said at this time no.

I think he meant that the burden of proof lays on me in regards to showing evidence that it could be statute barred i.e contract, evidence that shows the account defaulted before September 2010.

They just submitted a witness statement and did not turn up. Unfortunately I didn't say much about this in court and in hindsight should of attacked it.

I didn't request permission either at the time so it would be something I would need to do. Out of interest to appeal this would cost £140 only? Would it also take several months for there to be another case?

Would it be worthwhile instructing a solicitor and what could the costs be?

Also in addition what I did not mention but that came to me sometime after the hearing is that Three(the assignor) definitely had my email address and phone number as of 2013(I do have emails from them and my phone sim was Three too so they definitely had my number on their record, although I haven't got anything showing that I told them my email or number but I did receive lots of generic emails from Three) however Lowell submitted that I had a different number and was my old number prior to 2013. What bringing this up and the fact that Lowell never made attempts to email me or acquire my phone number from Three?

Anyway now I'm in a position where I'm just considering to pay this damn thing along with their court fees and be over with it despite knowing that these shady cretins will get away with their poor practices.

Regards,

[R0b]

Well then in my view, the judge had erred on the law with respect to that. There is authority from the higher courts that state where the issue of the claim being time-barred is raised by the defendant. the burden shifts to the claimant to prove that it was in fact within time. Again, as the set-aside applications are meant to made promptly, the judge ought to have allowed for the fact that further evidence could have been obtained between the setting aside of the CCJ and the new hearing date.

Can't tell you what solicitor costs would be, you would need to inquire. If you have any legal expenses insurance you could try that route and see if they will take it on. The appeal cost is £140 but you also need to file grounds of appeal and also in an ideal situation, get a transcript of the hearing and judgment at your own expense. So there is costs associated with you, otherwise you will have to pay up and deal with a CCJ sitting on your credit file for however long.

I think in this instance you may have been a little unlucky not to have it set aside, especially with Lowell not turning up and if they only supplied a witness statement without evidence, then appropriate weighting should have been given to that.

Did you put the issue of assignment in your defence? or did you receive notice of the assignment from Lowell at the time?

[Amethyst]

In Lowells Witness Statement did they give a date of the agreement and a date of default / termination and/or last payment ? Any exhibits with their statement showing same ?

If they made positive statements as to the debt not being statute barred and you were unable to counter them that might be why - your discussion of ''maybe taken out August or September 2010 and had it for a month before cancelling'' and the CCJ having been issued Sept 2016 would mean it wouldn't be statute barred, and if that was all your draft defence was, then it's unlikely you'd shown reasonable prospect of success had the judgment been set aside and your defence allowed to proceed.

[phonique]

I made clear to the judge on the day that Three mobile was the assignor and Lowell is the claimant. I don't know when Lowell took over this debt from Three though. (If this is what you mean by issue of assignment). Three only harassed me briefly, perhaps no more than 6 months but after telling them proof I owe them money they went away and I never heard from them again.

Yea that is what the solicitor over the phone said. Need to get court transcript etc.

Seems costly for a £280 judgement. On Friday I will call Lowell and see what extra costs they have added on and will decide then. If I were to take this back to court with an appeal and subsequently win how likely am I to recoup losses trying to get my court fees paid by Lowell and would it also include the appeal or just the initial claim?

Regards,

[phonique]

In Lowells Witness Statement did they give a date of the agreement and a date of default / termination and/or last payment ? Any exhibits with their statement showing same ?

If they made positive statements as to the debt not being statute barred and you were unable to counter them that might be why - your discussion of ''maybe taken out August or September 2010 and had it for a month before cancelling'' and the CCJ having been issued Sept 2016 would mean it wouldn't be statute barred, and if that was all your draft defence was, then it's unlikely you'd shown reasonable prospect of success had the judgment been set aside and your defence allowed to proceed.

If they filed for judgement in Sept 2016 and I defaulted in August 2010 would that put it over 6 years = statute barred?

No exhibits. They said the assignor has informed them it was defaulted on XX day which they put at December 2010 but they did not provide documents. They made no reference to it being statute barred or it not being statute barred.

I suppose in hindsight my defence wasn't that solid. I relied on the fact I never received any court papers(despite keeping accurate public records), that Lowell had never contacted me and that that I don't believe this debt is owed and would push for proof as to why it was and also that it could be statute barred.

[Amethyst]

You need to know when the claim was issued ( not when they got Judgment ) - the claim was likely issued at least 3 weeks before the Judgment date.

A default date of Dec 2010 is likely about right if you opened the account in September - normally theres two missed payments, then a default notice giving at least 14 days before it defaults.

Maybe a copy of your documents you filed for the set-aside and the other sides Witness Statement would help figure out if there might be any grounds to appeal.