Hello - V Late newbie with court hearing tomorrow to set aside CCJ

[Clueless83]

Hello all,

I am very very late to the party here - probably too late for my situation but here goes...

Last August I received a CCJ court form from Howard Cohen/Lowell. At the time (and until this weekend) I wasn't 100% sure what it was related to but suspected an old loan I had defaulted on. The bit that made me unsure was the amount was different to what had been on my credit report.

I looked online for advice when I got the form but stupidly didn't start my own thread and get my own advice. I sent off CPR31.14 request asking for more information. The court papers didn't say who the original company were or have an account number or anything. I didn't hear back from HC within the 7 days so I called them and they said they were gathering it. I didn't realise then that I should have got them to agree to extension. I didn't hear back from them by the date I had to submit my defence so I submitted an embarrassed defence that I'd found online. About a week after the deadline I received a letter from HC saying they were looking for it and agreeing to give me more time once they had found them.

This is where I've really messed up. A directions questionnaire came from the court straight after HC letter and I didn't send it back because I thought it was all on hold. I then received another letter from the court (because obviously it wasn't on hold like I naively thought) ordering me to return the form within 7 days. I had been staying with a friend at the time so by the time I got it I'd missed the deadline by 2 days. I emailed it straight over to the court within an explanation but they awarded the CCJ because I hadn't answered the form.

I applied to have it set aside and gave my reason as explained above. I was hoping to use the fact they still hadn't sent documents and me being clueless to help explain. Then yesterday a recorded delivery envelope came for me from HC saying they would be there in court to oppose my application. Included in the bundle was miraculously the default notice I've been asking for since last August (although a pretty grainy copy) and two letters which to be honest I think they've typed up themselves to put in the pack! There's a letter from 'HFC' informing me they've assigned the debt to Lowell - typed up with no letterhead or anything? And I'm sure the font on the signature is different to the rest of the letter! And there's a letter from Lowell telling me they've bought the debt. I'm pretty sure (although I have no paperwork anymore other than bank statements) that I was paying Capquest for a while after it had defaulted. Does this mean that Capquest must have bought it from HFC and Lowell from Capquest?? So confusing?

So now I really don't know what I should say in court tomorrow! The pack clearly shows it's my default notice for the debt so I think I'm a bit screwed. They've purposely waited until the last minute to give me the documents - although they haven't given all I asked for (no initial agreement). If they had sent this at the beginning I probably would've tried to make a deal with them if possible. This is the last negative thing on my credit report (and the default date is more than 6 years ago so it shouldn't be on there). I'm trying to save up for a mortgage so cannot have a CCJ on my file.

Is the judge likely to just say it stands as you have no valid defence? Will I get another month to pay up and get it removed from the Register? I know this hearing isn't to look at my actual defence but I'm assuming the judge will ask about it before deciding on set aside?

So scared about it. Any words of wisdom will be hugely appreciated!

[Amethyst]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Did they send you the agreement for the loan in all of this?

Yes you are a bit late but we'll try help make sure you're prepared for tmw.

Will need to see the original claim, your defence and your set aside application. also if they have sent the CCA a copy of that, and whether it was received through the cpr request or you also sent a c c a request. Copy and paste, or upload redacted copies to this thread.

Also the date you last made payment or acknowledgement on this debt if you can recall, did you ever contact capquest etc after the default. If it defaulted in 2006 you could be statute barred anyway.

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

No - no loan agreement received.

Original Particulars of Claim:
This claim is for the sum of £XXXX in respect of monies due from the Defendant under a regulated Credit Agreement pursuant to The Consumer Credit Act 1974.

The debt was legally assigned to the Claimant and a notice of such was provided to the Defendant.

The Defendant has failed to make contractual payments in accordance with the terms of the Agreement. A Default Notice has been served upon the Defendant pursuant to Section 87(1) of The Consumer Credit Act 1974.

The Claimant claims the sum of £XXXX which is inclusive of interest.

My Defence:
1.The claimants particulars of claim are vague and fail to
disclose any cause of action, they appear to be an abuse of the
process in that they fail to deal with the basic rules of pleading
in accordance with the CPR.

2.Even making allowance for the Northampton Bulk Regime the claim
fails to disclose sufficient information as required by the CPR,
there is no reference to any account number, no date of alleged
agreement, no date of alleged default or details of any default
notice served in accordance with s87 (1) Consumer Credit Act 1974,
the claim is missing vital information.

3. Without admission that any cause of action is shown by the
Claimant it is denied that the Claimant has a claim whether as
pleaded or at all.

4. No documents supporting the claims in the particulars have been
offered which the defendant needs to establish what agreement it
is that this action is based upon

5. Without clarification of the claimants claim, the defendant is
extremely disadvantaged and the claimant’s claim appears without
merit

6.Further to above the defendant is unable to plead effectively or
at all. The defendant is embarrassed


Set Aside:
I just handwrote on the form that I failed to send back the DQ as I was under the impression from the Claimant that the case was on hold until they had complied with my CPR request. I did mention that I was away from home when the General Order came & emailed it across as soon as I received it.

I didn't make a C.C.A. request. They didn't send the CCA even though I had requested it in my CPR. As soon as judgement was given I received a letter from HC saying that they no longer had to provide me with the information I'd requested as a CCJ had been issued. They've only sent me these documents now as part of their opposition to my set aside application.

Thanks

[pt2537]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Hello all,

I am very very late to the party here - probably too late for my situation but here goes...

Last August I received a CCJ court form from Howard Cohen/Lowell. At the time (and until this weekend) I wasn't 100% sure what it was related to but suspected an old loan I had defaulted on. The bit that made me unsure was the amount was different to what had been on my credit report.

I looked online for advice when I got the form but stupidly didn't start my own thread and get my own advice. I sent off CPR31.14 request asking for more information. The court papers didn't say who the original company were or have an account number or anything. I didn't hear back from HC within the 7 days so I called them and they said they were gathering it. I didn't realise then that I should have got them to agree to extension. I didn't hear back from them by the date I had to submit my defence so I submitted an embarrassed defence that I'd found online. About a week after the deadline I received a letter from HC saying they were looking for it and agreeing to give me more time once they had found them.

This is where I've really messed up. A directions questionnaire came from the court straight after HC letter and I didn't send it back because I thought it was all on hold. I then received another letter from the court (because obviously it wasn't on hold like I naively thought) ordering me to return the form within 7 days. I had been staying with a friend at the time so by the time I got it I'd missed the deadline by 2 days. I emailed it straight over to the court within an explanation but they awarded the CCJ because I hadn't answered the form.

I applied to have it set aside and gave my reason as explained above. I was hoping to use the fact they still hadn't sent documents and me being clueless to help explain. Then yesterday a recorded delivery envelope came for me from HC saying they would be there in court to oppose my application. Included in the bundle was miraculously the default notice I've been asking for since last August (although a pretty grainy copy) and two letters which to be honest I think they've typed up themselves to put in the pack! There's a letter from 'HFC' informing me they've assigned the debt to Lowell - typed up with no letterhead or anything? And I'm sure the font on the signature is different to the rest of the letter! And there's a letter from Lowell telling me they've bought the debt. I'm pretty sure (although I have no paperwork anymore other than bank statements) that I was paying Capquest for a while after it had defaulted. Does this mean that Capquest must have bought it from HFC and Lowell from Capquest?? So confusing?

So now I really don't know what I should say in court tomorrow! The pack clearly shows it's my default notice for the debt so I think I'm a bit screwed. They've purposely waited until the last minute to give me the documents - although they haven't given all I asked for (no initial agreement). If they had sent this at the beginning I probably would've tried to make a deal with them if possible. This is the last negative thing on my credit report (and the default date is more than 6 years ago so it shouldn't be on there). I'm trying to save up for a mortgage so cannot have a CCJ on my file.

Is the judge likely to just say it stands as you have no valid defence? Will I get another month to pay up and get it removed from the Register? I know this hearing isn't to look at my actual defence but I'm assuming the judge will ask about it before deciding on set aside?

So scared about it. Any words of wisdom will be hugely appreciated!

Hi There

Im sorry but sadly the Courts are now taking a stern approach with people who forget or delay or miss court deadlines set down in an order.

The case of Mitchell v News Group Newspapers (Court of Appeal) made it clear that the culture of delay and ignoring court orders must stop.

Now the good thing is you have been prompt in applying, and any delay can be explained. Yopu must ensure that you have evidence before the Court when the application to set aside is heard to show the reasons for your error. A witness statement would be suitable.

You will also need to read CPR rule 13 as this sets down where when and how the Court must progress an application to set aside.

You really need to make sure you have a viable defence, if you dont then you may also wish to seek leave to amend your defence, again assuming that you have a arguable defence to amend.

You will have the burden of showing the Court that you have a real prospect of successfully defending the claim and that there is a compelling reason why there should be a trial. If you cannot satisfy the Court then the CCJ will remain.

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Any advice from anyone on this?? Please?

Thanks

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Sorry just refreshed!

[Amethyst]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Ok, bit late now to send the CCA (tho if you get the CCJ set aside tmw you should send one immediately) Basically in court then you will have to rely on not being sure what the debt was and only having a suspicion it was related to the loan, and as such were not in a position to defend or admit the claim as it was poorly particularised and didn't even mention who the agreement was with, and you have never had any agreement with Lowell or Howard Cohen.

PT is perfectly correct about the court being strict with deadlines so it will be a matter of winging it a little and hoping the Judge is nice. The issues you have bought up in your defence are fine.

If possible it might be wise to write up a witness statement to take with you. Even if the judge won't accept it as a submission it will ensure you have all your facts straight and in order and easily referrable and can read from it if nerves overtake you.


This would be something along the lines of


1: On XXX JANUARY 2014 I received a court claim Number XXXXXXX from XXXXXXX solicitors on behalf of Lowell

2: I have never had any agreement with Lowell etc and was uncertain to what the claim related as I have a few debts in my past etc etc

3: On XXXXXXXXXXXXX I sent a request for information to XXXXXXXXXX under CPR r31.14 asking for copies of the agreement etc etc relied on in their statement of case to enable me to accurately defend or admit the claim.

4: On xxxxxxxxxxxxxxx I received................

5: On XXXXXXXXXXXXXXXXX I spoke to the Claimants solcitors by telephone and they stated xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

etc etc


Hopefully you see what I mean, and doing that will help us pick up any particular issues there may be within the claim that might be of use to you.


In addition to that I would sort out your income and expenditure sheet in case the judge isn't up for the set aside, although it is more likely that you may have to apply for a variation of the judgment order.

[pt2537]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Ok, heres the template draft order i use for starting my applications to set aside judgment




This is my precedent witness statement which i use. It sets out the matters which you need to address within making such an application

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

My defence was (up until yesterday) that I can't defend myself against a claim if I don't know what it's about hence CPR 31.14 request. Now that they've sent default notice copy can I still say they haven't proved the debt is mine as they haven't provided copy of original agreement as requested? Or is this pushing it?

I'm most worried about having CCJ on record. If my defence had been judged not good enough & CCJ ordered I would've found the money (somehow!!) within the month so record would be cleared. I applied to set aside with the hope my defence would get a chance in court but now they've sent half the paperwork requested (although I'm really dubious about how accurate it is!) do I need to just go to court & say I no longer have a defence can I have the original month to pay please? Or do I still try to get it set aside? Don't want to annoy the judge by trying for something I'm not going to get!

I've read through CPR rule 13 (& 12) thanks for tip! just not sure now whether my defence of "you've ignored my CPR request" is a viable defence? Part of me thinks they don't have original credit agreement or it would be in this pack but is statement of account & default notice enough evidence against me?

[pt2537]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

My defence was (up until yesterday) that I can't defend myself against a claim if I don't know what it's about hence CPR 31.14 request. Now that they've sent default notice copy can I still say they haven't proved the debt is mine as they haven't provided copy of original agreement as requested? Or is this pushing it?

I'm most worried about having CCJ on record. If my defence had been judged not good enough & CCJ ordered I would've found the money (somehow!!) within the month so record would be cleared. I applied to set aside with the hope my defence would get a chance in court but now they've sent half the paperwork requested (although I'm really dubious about how accurate it is!) do I need to just go to court & say I no longer have a defence can I have the original month to pay please? Or do I still try to get it set aside? Don't want to annoy the judge by trying for something I'm not going to get!

I've read through CPR rule 13 (& 12) thanks for tip! just not sure now whether my defence of "you've ignored my CPR request" is a viable defence? Part of me thinks they don't have original credit agreement or it would be in this pack but is statement of account & default notice enough evidence against me?

no a defence as you suggest is not suitable.

However, what you need to look at is the following

1) when did they give you these documents? if they handed them over on Friday afternoon then you are placed in a position of prejudice. If however youve had then for a week, then your defence should now be to plead to the claim.

2) If you have applied to set aside, then you need to look at the facts of the case now. If the loan is bad, if the default is bad, if theres a breach of s77 Consumer Credit Act etc, then you should be able to focus on that.

The Court may accept that (if the docs are late in being provided) that you are a litigant in person and could have formulated a defence to the claim if you had the documents in time.

However you will need to show the judge there is a prima facie case that may succeed to get the judgment disposed of.

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

I received the documents yesterday morning!! Not even a working day before the hearing!


I haven't made CCA request as advice I initially followed from online said make CPR first as with CCA you're acknowledging debt?? Could I say to judge tomorrow that had I received this information back in August when I asked for it, I would have been able to make a CCA request?

There is a breach of s77 in that they haven't provided signed copy of agreement but can I say that if I haven't applied under CCA for it? I did request copy as part of my CPR r31.14 letter though?

HC sending this pack yesterday has really thrown me (which is presumably what it was meant to do). I was just going to go court and say I still don't know what this about but now I have this pack of information I obviously do know what it's about - just too late to do anything about it!

[Amethyst]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Can you scan or photograph the documents you have, remove personal info, and post them on the thread if possible.

As PT mentioned ''The Court may accept that (if the docs are late in being provided) that you are a litigant in person and could have formulated a defence to the claim if you had the documents in time.

However you will need to show the judge there is a prima facie case that may succeed to get the judgment disposed of.''

[Amethyst]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

"with CCA you're acknowledging debt''. : that is not the case

If you thought the debt was statute barred that would have been an absolute defence - where do you stand on that, ?

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Just trying to scan in docs now.

I thought it was statute barred as default was Sept 2007 but I then started making payments to Capquest so last payment is Dec 09. Just been going through emails to copy dates of correspondence and think I've found something that might be my downfall! I contacted Lowell in April last year (3 months before court proceedings started) because default date on my credit report had changed to 2011. It had originally dropped off report but then was back on with diff default date.

I'm guessing my contacting them about it is what prompted court proceedings in the first place. I've admitted it's my debt in that email so think I'm best to just go to court tomorrow & say I wasn't 100% sure it was related to this debt so that's why I requested documents via CPR and hope judge takes pity on late arrival of docs. Maybe I should just admit that if docs had come earlier I would have just admitted & tried to pay up but it's only got this far because they refused to send docs?

[Clueless83]

Re: Hello - V Late newbie with court hearing tomorrow to set aside CCJ

Just trying to scan in docs now.

I thought it was statute barred as default was Sept 2007 but I then started making payments to Capquest so last payment is Dec 09. Just been going through emails to copy dates of correspondence and think I've found something that might be my downfall! I contacted Lowell in April last year (3 months before court proceedings started) because default date on my credit report had changed to 2011. It had originally dropped off report but then was back on with diff default date.

I'm guessing my contacting them about it is what prompted court proceedings in the first place. I've admitted it's my debt in that email so think I'm best to just go to court tomorrow & say I wasn't 100% sure it was related to this debt so that's why I requested documents via CPR and hope judge takes pity on late arrival of docs. Maybe I should just admit that if docs had come earlier I would have just admitted & tried to pay up but it's only got this far because they refused to send docs?