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CCJ Set aside hearing Monday

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  • CCJ Set aside hearing Monday

    Back in May time i discovered a CCJ on my credit file after a phone call to Northampton Court discovered with was for Lowell Porfolio I and after contacting them to get more information and getting no where they told me basically I was in default to XX amount and must pay them. A discussion followed as I asked what it was for and that if I wanted further information I would need to go back to the court.

    So thats what I did using a template found here I applied to have the judgment set aside, last week I got my letter from the court telling me the date.

    Today I have had mail from Lowell Solicitors, that reads the following sorry its a little long winded, but wondered now what I should do.

    INTRODUCTION


    1. I am a Legal Assistant in the employ of Lowell Solicitors Limited, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and am duly authorised by the Claimant to make this statement on the Claimant's behalf. the facts contained in this statement are known to me save as expressly stated and are true to the best of my knowledge, information and belief.


    2. This statement is made in response to the Defendant's Application to Set Judgment Aside dated xx August 2017.


    BACKGROUND


    3. On xx September 2014 the Claimant took assignment from Progressive Credit Limited trading as Aqua Card "the assignor" of the Assignors account number xxx, in respect of a credit card agreement ("the agreement") entered into on xx xx 2010. This account ("the account") was given the Claimant's account number x. Copies of the Agreement, Default Notice and closing statement of Account have been requested of the Assignor and will be produced if received before the hearing. However, the Claimant respectfully reminds the Court that the burden of proof in this Application rests with the Defendant as Applicant.


    4. Notices of Assignment were sent to the Defendant by the Assignor and the Claimant on or around xx october 2014 by posting to the address he now confirms to the Court. Reconstituted copies of these are attached at "CCL1".


    5. Between serving Notices of Assignment and instructing solicitors who issued the claim, the Claimant sent the defendant seventeen further letters by posting to the same address, in addition to those that will have been sent by external debt recovery agents from time to time instructed including but not limited to the issuing solicitors.


    6. No item of correspondence was returned by the Royal Mail undelivered, and the defendant made no response to the Claimant whether to raise any potential defence or other reason for non-payment, or at all. However on the xx January 2015 the Claimant received an inquiry from CallCredit, a Credit Reference Agency to whom a default report had been made by the Claimant replacing one previously made by the Assignor. CallCredit stated they had been contacted by the defendant who stated that he noted the default report on his credit file and did not recognise the Creditor. Reply was made to CallCredit on the same day, confirming that the report related to an Aqua credit card account sold to the claimant, and requesting that the Defendant be asked to contact the Claimant direct to discuss the matter. He did not do so.


    7. No payment being made and no response being received from the Defendant, a Claim was issued on xx October 2015 for the assigned balance of £xxxx.xx plus interest limited to the County Court rate rather than any contractual rate and capped at one year, being £xx.xx, plus fixed costs and fees.


    8. Judgment in default of a defence was entered on xx xx 2016 in the resultant sum of £xxxx.xx


    9. Between entry of Judgment and the Defendant's Application, the Claimant sent the Defendant fiver further letters by posting to the same address. Again no item of Correspondence was returned by the Royal Mail undelivered, and the defendant made no response to the Claimant whether to raise any potential defence or other reason for non-payment, or at all.


    10. However on xx September 2016 the Claimant received a further enquiry from CallCredit which had in turn received a further enquiry from the Defendant in the same terms as that attested to at paragraph 6 above. Again the claimant responded on the same day and in the same manner. Again the Defendant made no contact with the Claimant, and continued to ignore the matter and the Claimant unti the date of his Application some eleven months later.


    THE APPLICATION


    11. The defendant says in his application that he did not receive the claim Form and knew nothing of it. He nevertheless confirms service at the correct address.


    12 The Application is silent as to any potential Defence to the Claim save only that the Defendant avers that he has not seen and is entitled to see the Deed of Assignment.


    RESPONSE TO APPLICATION


    13. The defendant neither suggests nor has any basis for suggesting that any mandatory ground for setting aside judgment in accordance with CPR 13.2, applies. In particular, the Defendant confirms as correct, the address at which proceedings were issued and to which all prior correspondence was sent. Accordingly the Defendant does not and cannot allege or show any basis for alleging improper service, and offers no excuse or explanation for his failure to respond.


    14. The claimant therefore submits that judgment is regular and there is no mandatory ground for setting it aside.


    15. In order for judgment to be set aside on discretionary grounds, the Defendant must satisy the Court both that a discretionary ground applies in accordance with CPR 13.3 and that it should be just and equitable for the Court to exercise that discretion in all circumstances.


    16. The grounds at CPR13.3(1) are that:


    (a) the defendant has a real prospect of defending the claim, or


    (b) it appears to the court that this 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.


    17. The defendants application does not deny and is completely silent as to the original Agreement and the debt arising thereunder.


    18. Paragraph 12 above is herein repeated and the Defendants application does not deny receipt of Notices of Assignment, merely asserting that he has seen no copy of the Deed of Assignment. The Deed of Assignment is a confidential commercially sensitive document which can in no way provide, assist or be relevant to any purported Defence to the Claim. The Defendant cites Denning MR in Van Lyn-v-Pelias in support of his assertion that he is entitled to see the same, neglects to mention that the cited sentence was entirely obiter in a case not concerned with this issue but rather with what constituted proper Notice of Assignment, but correctly goes on to cite Dennings MR's next words, to the effect that such entitlement would be for the purpose of satisfying a debtor that an assignee could give proper discharge. This is not required or relevant in a case such as this, where the assignor, as well as the Assignee, has served Notice of Assignment.


    19. The defendant is otherwise completely silent as to what his Defence may be even in the most general terms. Paragraphs 4 to 10 above are herein repeated and the Claimant submits that it is simply not credible either that the Defendant received none of the correspondence therein attested to including that forwarded by CallCredit in response to his enquiry, nor that in receipt of the same and having any honest belief in any Defence now relied upon, he made no attempt to raise the same with the Claimant prior to issue of the Claim.


    20. The claimant therefore submits that the Defendant has shown no defence with any prospect of success, nor any other reason why judgment should be set aside.


    21. If the court is nevertheless satisfied that its discretion applies in this case, CPR 13.3(2) requires that in considering whether to exercise it, the Court must take into consideration whether the applicant has made the application promptly.


    22. The application does not make clear when or how the Defendant says the judgment came to his attention. However it suggests no reason why it would not have come promptly to his attention and confirms the address to which both Judgment and all post-judgment correspondence was sent, in any event, paragraph 10 above is herein repeated and the Claimant avers that the defendant must have been aware of Judgment no later than xx September 2016, the date on which CallCredit, having received his further enquiry showing that he had again reviewed his credit file whih would then have shown Judgment as well as default, passed that query to the Claimant.


    23. The defendant gives no explanation for the excessive delay in making the Application, and the claimant submits that in the circumstances the Application cannot be said to have been made promptly or within any reasonable period.


    24. The claimant avers that in the event Judgment were now set aside it would be particularly prejudiced by that the delay, as this was an assigned debt and the Claimant cannot reasonably expected the Assignor to have retained records this long after not only assignment but also judgment, which would have been requested immediately had any reply been made to the claim or had application been made promptly after judgment.


    ORDER REQUESTED


    25. The claimant submits that the Defendant has established no grounds for having the judgment set aside and requests that the Defendants application is dismissed, and the defendant pay the claimants costs of attendance, to be confirmed by the advocate attending but not expected to exceed £120.


    DIRECTIONS IN THE ALTERNATIVE.


    26. If, notwithstanding the above, the Court is minded to set judgment aside, the Claimant requests that it does so conditional upon the defendant paying the Claimants costs within 14 days, and filing and serving a fully particularised defence supported by the documentary evidence of the facts upon which it relies, also within 14 days.


    27. The Claimant further requests that in default of the Defendants compliance, judgment shall stand, but that if the defendant complies, the matter be allocated to the small claims track and Directions Questionaires dispensed with. In this event the Claimant confirms willingness to mediate.
    Tags: None

  • #2
    Re: CCJ Set aside hearing Monday

    That is a statement lowells used

    Comment


    • #3
      Re: CCJ Set aside hearing Monday

      Yes, i used the templated one found on the internet, i wondered what to do next.

      Comment


      • #4
        Re: CCJ Set aside hearing Monday

        Originally posted by NGL View Post
        Yes, i used the templated one found on the internet, i wondered what to do next.

        It seems that was their evidence used before or is being used this time??

        have you put to-gether yours regarding not received or what the real situation is?? i.e. reasons??

        @charitynjw


        what reason to the court you gave??

        Comment


        • #5
          Re: CCJ Set aside hearing Monday

          This is there response to my application to have the CCJ Set aside, Lowell Solicitors have just been obstructive in trying to help me resolve this which it is back at court as they would not provide any evidence of this debt when I requested to see it.

          I have not made any defence yet.

          Comment


          • #6
            Re: CCJ Set aside hearing Monday

            in court MONDAY25th sept???

            Comment


            • #7
              Re: CCJ Set aside hearing Monday

              Ok, think we need to know a bit of background.

              Can you tell us about this communication with Callcredit regarding the entry on your credit file? was that after you saw you had a CCJ ( in Sept 2016?)
              Did you receive the court papers at your address?
              What grounds did you use to apply for the set-aside?
              #staysafestayhome

              Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

              Received a Court Claim? Read >>>>> First Steps

              Comment


              • #8
                Re: CCJ Set aside hearing Monday

                This is a copy of the witness statement I sent with my set aside application.

                ________________________________________
                STATEMENT IN SUPPORT OF APPLICATION
                FOR JUDGMENT ENTERED TO BE SET ASIDE
                ________________________________________


                I xxxof xxxx make this statement in support of my application for an Order that the Judgment Entered against me be set aside.
                1. I confirm that I am the Defendant in this action.
                2. Proceedings have been issued against me by the Claimant.
                3. I accept that the address on the Claim Form is my address and that matter is not at issue. However, despite the Claim Form having the correct address I did not receive the Claim Form at my address.
                4. Had the Claim Form been received I would have defended the Claim. However, as it was not received I cannot defend a claim I know nothing about. I believe that the claim originated from the County Court Business Centre in Northampton which is not my home Court and it was only upon it checking my credit file that I had any knowledge at all of the claim being made against me.
                5. In support of my position in relation to not receiving the Claim Form and not being able to Defend the Claim I rely upon the case of Estate Acquisition and Development Ltd v Wiltshire
                [2006] EWCA Civ 533 wherein it was held that Dyson LJ at para 24:
                6. Dyson LJ stated "A person is under no obligation to make himself amenable to potential claims of which he has no notice. It must follow that, if he fails to attend a hearing in proceedings of which he is unaware, he has a good reason for failing to attend."
                7. I apply the same principle to my situation. Deemed service is rebutted and whilst deemed service may be applied by the Claimant it was not possible for me to deal with non receipt of the Claim Form until I became aware of the said proceedings.
                8. I did not and never have entered into any agreement with the Claimant. I have received no Deed of Assignment from either the originating creditor or the Claimant.
                9. I do not believe that the Claimant has any right to make a claim against me. I do not believe that I am indebted to the Claimant whether as alleged or at all.
                10. The Claimant relies on the Section 126 of the Law of Property Act 1925. No Deed of Assignment has been received. In this respect I would draw attention to Lord Denning who states in the Pelias Construction Case (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824) where he said the debtor is entitled to "view the sale agreement to ensure that the assignee can give him good discharge under the contract."
                "In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person from whom the assignor would have been entitled to claim the debt or the chose or thing in action".
                11. In the circumstances I should be grateful if the Court would take into account that I did not receive the Claim Form and have, therefore, been deprived of the opportunity of defending the Claim.
                12. Further that I have reasonable prospects of successfully defending the Claim.
                I believe that the facts stated in this statement are true.

                Comment


                • #9
                  Re: CCJ Set aside hearing Monday

                  beatthebailiffs template?

                  Seriously I don't know how these people dare to have a template

                  I mean

                  I believe that the claim originated from the County Court Business Centre in Northampton which is not my home Court
                  Of course it is not your home court, it is the bulk processing centre ( county court business centre ) where the majority of moneyclaims are filed through. Completely moot point and totally irrelevant.


                  Did you receive any of their letters preceeding the court claim ?
                  Last edited by Amethyst; 23rd September 2017, 10:43:AM.
                  #staysafestayhome

                  Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                  Received a Court Claim? Read >>>>> First Steps

                  Comment


                  • #10
                    Re: CCJ Set aside hearing Monday

                    Originally posted by Amethyst View Post
                    Ok, think we need to know a bit of background.

                    Can you tell us about this communication with Callcredit regarding the entry on your credit file? was that after you saw you had a CCJ ( in Sept 2016?)
                    Did you receive the court papers at your address?
                    What grounds did you use to apply for the set-aside?
                    As I recall I queried the account online with noddle, note this was not the CCJ i didn't notice that until around May time this year when both myself and my wife decided to do a clearscore after watching the advert with the dogs.

                    All i recall getting back from them was a letter confirming the information they hold for this account is correct. nothing else.

                    - - - Updated - - -

                    Originally posted by Amethyst View Post
                    beatthebailiffs template?
                    Maybe i know i got it off the internet somewhere. I really dont have a clue what i am doing. If Lowells were not being obstructive i dont think this would have gone back to court.

                    Comment


                    • #11
                      Re: CCJ Set aside hearing Monday

                      Of course they are being obstructive. Basically they currently have a judgment against you and could chose to go to enforcement to obtain payment.


                      Okay so enquiry made Jan 2015 - so that was before the CCJ
                      January 2015 the Claimant received an inquiry from CallCredit,
                      Claim was issued October 2015

                      Judgment in default entered Jan 2016 ( Edit: No it was July - so long period before Default Judgment .... )

                      Then a further enquiry from call credit in Sept 2016
                      xx September 2016 the Claimant received a further enquiry from CallCredit
                      So that is going to be the sticking point.

                      Did you make that enquiry in writing ( email ) etc to Call credit (noddle) in Sept 16 ?
                      #staysafestayhome

                      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                      Received a Court Claim? Read >>>>> First Steps

                      Comment


                      • #12
                        Re: CCJ Set aside hearing Monday

                        Originally posted by Amethyst View Post

                        Did you receive any of their letters preceeding the court claim ?
                        I dont recall any of the letters, and although this is to my address it's been my family home since 2010 I havent always lived here. I seperated from my wife for periods and lived at my mums.

                        I did ask my wife as we are currently back together if she had letters and were they forwarded. She says they were returned "not known at this address" she remembers this because the postman queried it with her that she should really be putting "return to sender"

                        Comment


                        • #13
                          Re: CCJ Set aside hearing Monday

                          7References to service by post.

                          Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
                          https://www.legislation.gov.uk/ukpga/1978/30/section/7
                          CAVEAT LECTOR

                          This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

                          You and I do not see things as they are. We see things as we are.
                          Cohen, Herb


                          There is danger when a man throws his tongue into high gear before he
                          gets his brain a-going.
                          Phelps, C. C.


                          "They couldn't hit an elephant at this distance!"
                          The last words of John Sedgwick

                          Comment


                          • #14
                            Re: CCJ Set aside hearing Monday

                            Judgement in default was July 2016. The enquiry was online with noddle just another checkbox I don't recognise this account. and a standard reply confirming the information to be correct.

                            Comment


                            • #15
                              Re: CCJ Set aside hearing Monday

                              Originally posted by NGL View Post
                              I dont recall any of the letters, and although this is to my address it's been my family home since 2010 I havent always lived here. I seperated from my wife for periods and lived at my mums.

                              I did ask my wife as we are currently back together if she had letters and were they forwarded. She says they were returned "not known at this address" she remembers this because the postman queried it with her that she should really be putting "return to sender"
                              Would she also have done this with the letters from the Northampton Court Business Centre ?

                              Was the card in joint names or just your name?

                              How much is the claim fro btw - between 1000 and 9999 is about all I can figure out lol.

                              And is the hearing of the set aside application on Monday ?
                              #staysafestayhome

                              Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                              Received a Court Claim? Read >>>>> First Steps

                              Comment

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