Set aside Hearing

[vinghj]

Hi, I need some desperate help please.

1) Received county claim form for Stature barred debt over 10 years now. The date on the claim form was 3 weeks later to when I received.

2) By the time I could respond, I received judgement against me.

3) I have applied for set aside, quoting that debt is statue barred and I did not have time to respond to claim form. I also selected on the set aside application that I want "No hearing"

4) Now my set aside application has been moved from Northampton to Croydon where I live and I have received correspondence from Northampton that I will be invited for hearing at county court.

5) My hearing at Croydon is on the 20th of Feb ( tomorrow). I have not received any correspondence from HOIST PORTFOLIO HOLDING 2 LTD( they are chasing me for this debt) or from their laywyers ever since I applied for asset aside during Dec 2016.

The value of debt claimed is 12 k and with all addl interests charged. the loan is statue barred and I have not responded to anyone in the last 8-9 years, made no payment or acknowledged in any shape or form. What do I do in the hearing please? and what do I do from now?

Please help, my credit rating is good and this judgement has destroyed everything.

Thanks
Vin

[Kati]

Re: Set aside Hearing

tagging [MENTION=87380]Diana M[/MENTION] [MENTION=7765]Joanna C[/MENTION] xx

[Diana M]

Re: Set aside Hearing

A few quick questions (none of them accusatory )

Why didn't you receive the court claim for three weeks after it was issued? Do/did you live at the address on the claim form or do you travel for work etc? Or do/did you no longer live at the address on the claim form?

What is/was the claim Issue Date on the claim form and when did you make your Application to set aside the Default Judgment (CCJ)?

You say you've not received any correspondence from Hoist (the Claimant) so does this mean you've sent them any correspondence which has been ignored (before or after the claim was issued)?

If so what correspondence have you sent? This may have been to/from Robinson Way and/or Howard Cohen solicitors.

Any chance that you've sent them a section 78 CCA Request for a copy of the credit agreement (I can but hope )?

Who was the original creditor and when did you open the account (what year)?

Can you post up (type out) the Particulars of Claim (front page of the claim form) removing any details which could identify you.

Di

[Diana M]

Re: Set aside Hearing

Hi, I need some desperate help please.

You've logged off before seeing my post and answering my questions.

Without knowing the background (or seeing the paperwork) it's hard to comment.

If the DJ is hostile towards your set aside application at tomorrow's hearing maybe you could ask for an adjournment of the hearing in order to take legal advice "in the interests of justice" (that's why I asked you for the timeline of events.)

This claim has the potential to be allocated to the Fast track (it's over £12k?) so I'd like to think that the court will treat your application seriously.

If your Application for a set-aside is dismissed then ask the DJ for permission to appeal his judgment and his reasons for rejecting your request (if he does) before he leaves the room.

Di

[vinghj]

Re: Set aside Hearing

Thank for your reply Diana and apologies for the late reply. Please see my answers in bold below.

Why didn't you receive the court claim for three weeks after it was issued? Do/did you live at the address on the claim form or do you travel for work etc? Or do/did you no longer live at the address on the claim form?l yes I live at the address, the claim form czame through late through the post.

What is/was the claim Issue Date on the claim form and when did you make your Application to set aside the Default Judgment (CCJ)?Issue date is 7th October 2016, CCJ against around first week of November, set aside application by me on the 11th of November 2016

You say you've not received any correspondence from Hoist (the Claimant) so does this mean you've sent them any correspondence which has been ignored (before or after the claim was issued)?I have sent not sent any correspondence at all to any of them ever. (both Hoist or Howard Cohen Solicitors). What I meant was ever since I asked for the claim to be set aside, I have not heard from any of them.

If so what correspondence have you sent? This may have been to/from Robinson Way and/or Howard Cohen solicitors. Please see above, I have not sent any correspondence.

Any chance that you've sent them a section 78 CCA Request for a copy of the credit agreement (I can but hope )?No interaction with them whatsoever as debt is about 10 years old and I did not want any acknowledgement of the fact.

Who was the original creditor and when did you open the account (what year)? Original creditor is HSBC and I think the account for credit was opened around 2006, it was personal loan which got defaulted and the default was removed ages ago from my credit history file. Please see particulars of claim below, they say it is a overdraft, I had no overdraft, this was personal loan.

Can you post up (type out) the Particulars of Claim (front page of the claim form) removing any details which could identify you.

Particulars of claim:

"The claim is for the sum of £7952 in respect of monies owing to pursuant to an overdraft facility under bank account no XXXXXXX. the debt was leagally assigned by MKDP LLP (Ex HSBC) to the Claimant and notice has been served. The Defendant has failed to pay the overdrawn sums owing under the terms and conditions of the bank account. The claimant claims sum of £7952 and interest pursuant S69 of county court act 1984 from 7/10/10 to the date here of 2188 days is the sum of £3813.47"


Di[/QUOTE]

[Diana M]

Re: Set aside Hearing

You have two tasks in front of you today.

Firstly to convince the court that the claim form arrived three weeks late. Do you have any evidence to support that? Do you live in a property with no number so it was delivered to a neighbour etc?

You do seem to have made a prompt application to set aside the CCJ which helps.

Secondly you need to persuade the DJ that if the CCJ were to be set aside you would have a likely chance of success with your Defence if you were given the opportunity to present it.

When you made your application for the set aside did you file a WS setting out your reason for not responding to the claim before the AOS deadline (which is 19 days from the claim Issue Date) and also a Draft Defence i.e. what you'd be arguing in court given the chance? If not you'll be doing that verbally in court today.

If you've not heard from the Claimant since you made the application I'm guessing they've not filed a WS to contest your application. They probably intend to do that at the hearing.

The POC say you had an overdraft. You say you had a loan not an overdraft. The Claimant has to prove their case but you've not challenged them to do that so you need to tell the court that you catagorically deny that you ever had an overdraft with HSBC.

Could it have been an HSBC Flexiloan which was a product whereby you had a loan with a chequebook with regular pre-agreed monthly repayments?

Does the account number on the POC match your loan number?

What you want to avoid today is the DJ taking the view that you owe the money regardless of any dispute over its 'title' (i.e. loan not overdraft). If you sense the DJ is not bothered about the reason for the debt then make it clear that the debt is Statute Barred in any event.

There are no dates in the POC to say when the account was opened, defaulted or assigned to MKDP. They do seem to be claiming interest from 2010 for some reason.

Try to persuade the DJ to make an Order to set aside the CCJ and also order the Claimant to produce the credit agreement, Default Notice and the Notice of Assignment (all mentioned or referred to in the POC) within 14 days so you will be in a better position to plead your Defence 14 days after that.

Good Luck

Di

[vinghj]

Re: Set aside Hearing

You have two tasks in front of you today.

Hi Di, Answers in bold again

Firstly to convince the court that the claim form arrived three weeks late. Do you have any evidence to support that?Unfortunately No. Do you live in a property with no number so it was delivered to a neighbour etc? NA

You do seem to have made a prompt application to set aside the CCJ which helps.

Secondly you need to persuade the DJ that if the CCJ were to be set aside you would have a likely chance of success with your Defence if you were given the opportunity to present it.

When you made your application for the set aside did you file a WS setting out your reason for not responding to the claim before the AOS deadline (which is 19 days from the claim Issue Date) and also a Draft Defence i.e. what you'd be arguing in court given the chance? Yes on the set aside application, I did mention that claim form arrived late and I was in a state of shock to respond immediately and I also said that the debt is statute barred and I have never acknowledged the same. If not you'll be doing that verbally in court today.

If you've not heard from the Claimant since you made the application I'm guessing they've not filed a WS to contest your application. They probably intend to do that at the hearing. Can they do this at the hearing? I though they need to do this 7 days before the hearing?

The POC say you had an overdraft. You say you had a loan not an overdraft. The Claimant has to prove their case but you've not challenged them to do that so you need to tell the court that you catagorically deny that you ever had an overdraft with HSBC.

Could it have been an HSBC Flexiloan which was a product whereby you had a loan with a chequebook with regular pre-agreed monthly repayments?

Does the account number on the POC match your loan number? I don't know , this goes back long time back.

What you want to avoid today is the DJ taking the view that you owe the money regardless of any dispute over its 'title' (i.e. loan not overdraft). If you sense the DJ is not bothered about the reason for the debt then make it clear that the debt is Statute Barred in any event.I am not going to bring up overdraft, just going say to the judge that it is statute barred and I can provide a defence, if judge questions my line of defence I will then talk about the fact that I had no overdraft. is that ok?

There are no dates in the POC to say when the account was opened, defaulted or assigned to MKDP. They do seem to be claiming interest from 2010 for some reason I think it is cos it goes back 6 years exact from Oct 2016.

Try to persuade the DJ to make an Order to set aside the CCJ and also order the Claimant to produce the credit agreement, Default Notice and the Notice of Assignment (all mentioned or referred to in the POC) within 14 days so you will be in a better position to plead your Defence 14 days after that.

[Diana M]

Re: Set aside Hearing

Do you mean that you think they're claiming interest from 7th October 2010 because that was the date the account was defaulted ?

That is the same date (October 7th) as this claim was issued six years later according to your earlier post.

This means they may try to argue the debt is not SB since the default may be seen as the Cause of Action and the SB clock stops ticking when a claim is issued.

That's one reason why they need to produce the Default Notice if they intend to dispute your argument (potential Defence) that the debt is SB.

The hearing will be recorded so make sure you raise all your legal arguments (not just the SB one) and if the DJ rejects them one by one then ask him politely to explain why. Don't challenge or question him, just act like a dumb LIP so he spells it out.

That way if you do need to appeal his decision you can obtain a transcript of the hearing to support your appeal if the DJ put a foot wrong.

Fingers crossed for you today.

Di

[vinghj]

Re: Set aside Hearing

Thanks. No the dafault date was 2006 i think and it diappeared from my credit file years ago. thanks for yuor help. i will let u know.

[Diana M]

Re: Set aside Hearing

the dafault date was 2006 i think and it diappeared from my credit file years ago.

Do you have an old copy of your CRA report which shows the Default date? If you've been accessing your CRA file online you may be able to login and download an old report (PDF).

If it was defaulted in 2006 the account entry on your CRA file will have been removed in 2012.

Di

[Diana M]

Re: Set aside Hearing

Do you have anything to prove your last payment such as an old bank statement?

Preferably not an HSBC bank account statement

At the moment they are claiming an overdraft debt. You say you've never had an overdraft. So it's difficult to say the debt is SB at the same time as saying the debt doesn't exist. (If you follow my logic.)

This is why I asked you if the account number on the POC matches the loan you had in case they're referring to that (albeit they haven't pleaded it's a loan).

How much was your loan with HSBC?

Di

[vinghj]

Re: Set aside Hearing

No I have requested one from Experian through post today. Experian told me that the account (personal loan) was deliquent on 2007 and it was removed from credit file 2013. they are sending info through post.

[Diana M]

Re: Set aside Hearing

Hi Di, Answers in bold again

What you want to avoid today is the DJ taking the view that you owe the money regardless of any dispute over its 'title' (i.e. loan not overdraft). If you sense the DJ is not bothered about the reason for the debt then make it clear that the debt is Statute Barred in any event.I am not going to bring up overdraft, just going say to the judge that it is statute barred and I can provide a defence, if judge questions my line of defence I will then talk about the fact that I had no overdraft. is that ok?

My suggestion was to do it the other way round (although I haven't seen any paperwork). They are claiming an overdraft which you deny ever existed (so it can't be SB can it?)

If they convince the DJ that your loan was really an overdraft (if it was a Flexiloan) then you argue that it (the loan) is SB in any event.

Di

[Diana M]

Re: Set aside Hearing

No I have requested one from Experian through post today. Experian told me that the account (personal loan) was deliquent on 2007 and it was removed from credit file 2013. they are sending info through post.

If you win today then send a Subject Access Request to HSBC to get the full history of your account.

HSBC sometimes amalgamate accounts (loan + current account) before they sell them.

How much was your loan and how much is the balance outstanding? Hopefully Experian did or can tell you that. If the sum outstanding matches the sum being claimed that could give you a clue.

Di

[Diana M]

Re: Set aside Hearing

When you arrive at the court ask the clerk on the desk if the Claimant has filed a Witness Statement with the court. It's always possible that they have done that but failed to serve it on you.

You say you asked for a paper hearing but you've been given a hearing in court so maybe the Claimant has told the court that they intend to contest your Application.

If they have filed a WS (but not served it on you) then you should seek an adjournment in order to take legal advice especially if they've provided Exhibits (disclosure).

Don't get into any conversation with the other side before the hearing in case they fish for information. They will try to unsettle you by saying you haven't got a legal leg to stand on.

You can ask them if they are willing to consent to your application though

Di