set aside advice please

[echat11]

Hi echat11
Thanks for your reply. Just wondering is it the local court I send it too as it has been transferred there.
Thanks

Yes, if it's been transferred. Make sure you have confirmation that they have received it. So call them in a weeks time from the date you send it.

[eire13]

Hi echat11
Thanks for your reply. Just wondering is it the local court I send it too as it has been transferred there.
Thanks

[echat11]

Send a copy of the Defence to the Court, make sure you get Proof of Postage.
Send a copy of your defence to the Creditors solicitors, make sure you get Proof of Postage.
Just to add, can't check the facts as such, as that information hasn't been posted.

DEFENCE

1.The Defendant became aware of the claim Hxxxxx from the Northampton County Court on 24^th January after checking the credit file.

2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3.This claim is for 3 x Credit Cards and 1 x Catalogue Account, agreements which are regulated under the Consumer Credit Act 1974.

4.It is admitted that the Defendant has previously entered into an agreements with Original Creditors for provision of credit.

5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards to the claim.
As I had not received the original claim at my correct address I have no details to refer to.

6.The Claimant's Particulars of Claim fail to state when the agreement was entered into.

7.The Defendant contends the alleged debt from JD Williams ref Bxxxxxxx balance of £1xx.20 is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years.

8.The Claimants statement of case states that the accounts were assigned from Original Creditor to Carmel Nelson with no date stated. The Defendant does not recall receiving any notice of assignment.

9.It is denied that Original Creditors served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

10.On the 7^th February The Defendant sent a request for inspection of documents mentioned in the claimant's statement of case under Civil Procedure Rule 31.14 to Lowell Portfolio Ltd. I requested the Claimant provide copies of the Agreements.

11. Lowell Portfolio has not sent any of these documents to the Defendant.

12.On the 7^th February The Defendant sent a formal request for a copy of the original agreement to Lowell Portfolio pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

13.The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

14.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

17.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

18.It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

I believe that the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[eire13]

Hello,

Thanks for previous replies. Yes unfortunately I think they just got the CCJ before they became statete barred. The earliest one the default was at the end of April 2016. So I believe they won't be statute barred.

So now the case has been set aside ready to put in my defence in a few days. I have just copied the example defence from here. Could someone look over it please and advise if I need to amend it at all. Also where do I post it. Is it to the local court?

In the [Northampton County Court Business Centre]

Claim No: H5KQ9X8P

Cxxxx xxxxxx

Claimant

And

Lowell Portfolio I Ltd

Defendant

DEFENCE

1.The Defendant became aware of the claim Hxxxxx from the Northampton County Court on 24^th January after checking the credit file.



2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3.This claim is for a 3 Credit Cards and a Catalogue Account agreements regulated under the Consumer Credit Act 1974.



4.It is admitted that the Defendant has previously entered into an agreements with Original Creditors for provision of credit.



5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. As I had not received the original claim at my correct address I have no details to refer to.

6.The Claimant’s Particulars of Claim fail to state when the agreement was entered into.



7.The Defendant contends the alleged debt from JD Williams ref Bxxxxxxx balance of £1xx.20 is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years.



8.The Claimants statement of case states that the accounts were assigned from Original Creditor to Carmel Nelson with no date stated. The Defendant does not recall receiving notice of any assignment.



9.It is denied that Original Creditors served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.



10.On the 7^th February The Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Portfolio Ltd. I requested the Claimant provide copies of the Agreements.



11.Lowell Portfolio has not sent any of these documents to the Defendant.

12.On the 7^th February The Defendant sent a formal request for a copy of the original agreement to Lowell Portfolio pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.



13.The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.



14.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

16.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.



17.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.



18.It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.


If someone could advise if this is ok please and also where to send it.

Thaks so much

[atticus]

indeed

[echat11]

Well, indeed.

The thing is that Lowell's knows the date the account was opened, it's well known tactics where they go for a CCJ, just before statuted barred.

[atticus]

Well, indeed.

[echat11]

Isn't the question whether the alleged debts were statute barred at the time the Court proceedings were issued?

In post 1, the OP says 'I have credit card debt from nearly 6 years ago'.

In post 13, the OP says 'Also these debts are now over 6 years old.'

We need to know when the account was opened? It might be that the OP needs to send a SAR requesting information the account, to get concrete facts, i.e. date account was opened, last payment was made etc. Make sure you get Proof of Postage.

https://legalbeagles.info/library/gu...ccess-request/

[atticus]

Isn't the question whether the alleged debts were statute barred at the time the Court proceedings were issued?

[echat11]

Ok thanks for the replies. Everything looks good in the consent order. I just wanted to make sure.
could I get help with the defence to make sure I am not making mistakes.
Also these debts are now over 6 years old. Will the fact the ccj was issued mean they are not statute barred now.
Thanks

a) could I get help with the defence to make sure I am not making mistakes.

Yes

b) Also these debts are now over 6 years old. Will the fact the ccj was issued mean they are not statute barred now.

Yes, can't be statuted barred.

[eire13]

Ok thanks for the replies. Everything looks good in the consent order. I just wanted to make sure.
could I get help with the defence to make sure I am not making mistakes.
Also these debts are now over 6 years old. Will the fact the ccj was issued mean they are not statute barred now.
Thanks

[atticus]

And it appears from your other thread that you have an understanding of the procedures followed in a court claim.

[echat11]

Hello
I am looking for advice again on this claim please. I have now been sent a consent order to sign by the solicitors. They are consenting to have the case set aside and allowing me to file a defence. They are not asking for costs. I just wanted to make sure it is the right thing to do to agree with this.
Any replies and advise appreciated.
Thanks

As long as you agree with everything that's stated in the Consent Order, then it's fine to sign and send off. Make sure you keep a copy. Make sure you get Proof of Postage.

[eire13]

Hello
I am looking for advice again on this claim please. I have now been sent a consent order to sign by the solicitors. They are consenting to have the case set aside and allowing me to file a defence. They are not asking for costs. I just wanted to make sure it is the right thing to do to agree with this.
Any replies and advise appreciated.
Thanks

[eire13]

You need to distinguish between your application to set aside the CCJ and the underlying claim. If there is a CCJ in place, they don't need to prove anything further. You can apply to have the CCJ set aside and it sounds like you're doing that. Provided you have acted promptly, the court is likely to set aside the CCJ if you can show that it was sent to a previous address and you had no opportunity to respond. The court may then allow the claimant to continue with the underlying claim. They will then need to prove their case and you will have the chance to defend it.

My advice would be to make sure you have evidence that you were no longer living at the address where the claim was sent.

Thank you for your reply. Yes the CCJ is in place as I didn't have the opportunity to defend it. I have acted within about 2-3 weeks of the CCJ being on my credit file when I noticed it. The address on the ccj is showing as the old address would this be enough proof please?
I would have a tenancy agreement or bills at the new address would this be enough proof?
Thanks for your help.