Set Aside whilst living abroad?

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Just_Di

debaur wrote: »

This is my N244 application, and offers of advice will be heartily appreciated - no bullies or judgementalist need proffer thank you!

(Which of these boxes would I tick please on the N244 please as I am including my defence?
....the attached witness statement?
....the statement of case?
....the evidence set out in the box below?)

Thank you very much -Merry Xmas! :beer:

I am XXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated ………… to:

· Set aside the Default Judgement dated ………… as it was not properly served at my current address;

· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

· Order for the original claim to be dismissed, or to be re-heard at a new hearing

(Witness Statement ?)
1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on X August 2017 in the amount of Court Judgment of £X,XXX.
However, this claim form had not been served at my current address and I thus was not aware of the Default Judgement until checked my credit file in December 2018 as I had decided to apply for a new credit arrangement in the UK.

1.2 I understand that this Judgement was served at an old rented address: XXXXXXXXXX. However, I moved to a new address in February 2017. My new address being in Portugal at :XXXXXXXXX

1.3. At the time of the County Court Judgement, I was registered at the new address for council tax, banking and bills and I enclose documents to prove this. Although this new address is in Portugal, I believe it is still unfair to have a judgment served on me which I had no knowledge of.

1.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” He added:
"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address."

1.5 I have responded straight away to the discovery of the Judgement against me.

1.6. Considering the above, I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.


(Draft Defence?)
2. Order dismissing the Claim
2.1. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.2. I have no idea who XXXXXX (the defendant – a debt collection agency) is. I have made several requests for a copy of any contract or agreement that they claim to have with me, however they have not supplied me with any further information.

2.3. I have not received any previous documentation from the Claimant in this matter. Any contract must have offer, acceptance and consideration both ways.

2.4 On this basis, I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.5. In order to make informed decisions and statements in my defence, I will require any copies of all paperwork and pictures of all signs from the Claimant.

2.6 I am requesting that there be no hearing because I live in Portugal and therefore attending a hearing in person would not be viable at this point.


Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name:
Dated:
Signed

I can see that today you’ve started another thread where you say this case has been transferred to the county court.

Did you file your Application for a set-aside (as above post) which asked for your Application to be heard without a Hearing?

Di

debaur

Dear Di, thank you so much for your help. I am in your debt (if that is perhaps a good way of putting it). I have written answers in pink for your consideration please. I have also tried to address any points from previous threads. BIg thanks again:

From what you say Cabot made an Application for an Attachment of Earnings. Since you didn’t respond to the Application the court appears to have made an Order requiring you to file certain information within a limited amount of time. Since you didn’t comply with that Order the court appears to have instructed bailiffs to personally serve you with a N61.
Yes

You say you live in Portugal but are you employed by a company or business based in the Uk?
No
If not then an Attachment of Earnings Order cannot be made since there is no employer to attach it to.
However you need to deal with this legal issue as a matter of urgency before things escalate.

I recall suggesting (on another thread) that you check Land Registry to establish whether there was/is already an Interim Charging Order on the property which could lead to a Final Charging Order.

I did check thank you. There isn't at the moment.

What you want to avoid is the risk of an Application for an Order for Sale if the property is in your sole name and you aren’t an occupier. OfS can be rare but you need to take advice based on your specific set of circumstances.

Cabot will have instructed solicitors to deal with this case typically Mortimer Clarke (which they own) , Restons or Shoosmiths. You may need to approach them direct.
I can do this, I have filled in a form on Cabot's website with the Case number and that I live in Portugal and my email address. Perhaps if they respond I can find out who the solicitors are! .

You need to know who was the original creditor in order to consider your legal position otherwise how can you prepare a Defence?
I still don't know who this is - I have checked my credit files on checkmyfile and Equifax but have nothing except 'Cabot Credit Management'
NCCBC can email you the Case Details which will include the Particulars of Claim which will establish what the Claimant was/is claiming and why they think they have the right to claim it.
I have asked them to do this. They have told me:
'Please note your case has been transferred to the County Court at WESTON-SUPER-MARE. As we no longer hold this case at the County Court Business Centre, I am unable to take any action or provide any updates in relation to this claim and you will need to forward your email to the relevant Court to be processed'.



Is the Claimant named as Cabot Financial Ltd. or Cabot Financial (UK) Ltd or Marlin/MFS etc? It matters because there could be legal issues with lack of FCA authorisation.
I have asked CCBC who the Claimant is but received no response.. Will I now deal solely with the County Court at WESTON-SUPER-MARE ? I have emailed them as well to ask for the Case Details.


I’ve asked you how much is the CCJ but you have declined to answer. I’ve asked quite a lot of questions on your other threads which also remain unanswered. There’s only so much help I can give without knowing the full facts.

The amount is £8,000


Sorry I am not trying to be evasive,
I am panicking and was trying to find out the information. I suffer from PTSD and any stress triggers this. Anyway. The debt would not be statute barred and it is shown as a credit card debt on my credit file.

From another post from you DI: The court may take the view that the debt owner (Claimant) should carry out due diligence before issuing a claim. Such things as check the debtor's CRA file to see if they are on the Electoral Roll and/or have any other file entries at the address (bank account, credit card etc).
There are no searches by Cabot from December 2016 until November 2018 which is at my new UK address, the house which I own.

Thank you so much for your help DI. If I could engage you I would.

ciderboy2009

OP - have you ever lived in or is your house in either Bournemouth, Poole or Weston-Super-Mare? (please answer just yes or no - don't give an actual location as you don't know who is reading this)

The case would have been transferred to these courts because the claimant thought that that was where you were located so, if none of these locations are related to you, then it's possible that it's a mis-match on your name.

Personally I would phone Weston-Super-Mare today to get details of the case. Emails sent to the courts tend to just be treated as normal correspondence - the last time I looked at WSM correspondence was over 10 days in arrers.

Just_Di

debaur wrote: »

Dear Di, thank you so much for your help. I am in your debt (if that is perhaps a good way of putting it). I have written answers in pink for your consideration please. I have also tried to address any points from previous threads. BIg thanks again:

From what you say Cabot made an Application for an Attachment of Earnings. Since you didn’t respond to the Application the court appears to have made an Order requiring you to file certain information within a limited amount of time. Since you didn’t comply with that Order the court appears to have instructed bailiffs to personally serve you with a N61.
Yes

You say you live in Portugal but are you employed by a company or business based in the Uk?
No
If not then an Attachment of Earnings Order cannot be made since there is no employer to attach it to.
However you need to deal with this legal issue as a matter of urgency before things escalate.

I recall suggesting (on another thread) that you check Land Registry to establish whether there was/is already an Interim Charging Order on the property which could lead to a Final Charging Order.

I did check thank you. There isn't at the moment.

What you want to avoid is the risk of an Application for an Order for Sale if the property is in your sole name and you aren’t an occupier. OfS can be rare but you need to take advice based on your specific set of circumstances.

Cabot will have instructed solicitors to deal with this case typically Mortimer Clarke (which they own) , Restons or Shoosmiths. You may need to approach them direct.
I can do this, I have filled in a form on Cabot's website with the Case number and that I live in Portugal and my email address. Perhaps if they respond I can find out who the solicitors are! .

You need to know who was the original creditor in order to consider your legal position otherwise how can you prepare a Defence?
I still don't know who this is - I have checked my credit files on checkmyfile and Equifax but have nothing except 'Cabot Credit Management'
NCCBC can email you the Case Details which will include the Particulars of Claim which will establish what the Claimant was/is claiming and why they think they have the right to claim it.
I have asked them to do this. They have told me:
'Please note your case has been transferred to the County Court at WESTON-SUPER-MARE. As we no longer hold this case at the County Court Business Centre, I am unable to take any action or provide any updates in relation to this claim and you will need to forward your email to the relevant Court to be processed'.



Is the Claimant named as Cabot Financial Ltd. or Cabot Financial (UK) Ltd or Marlin/MFS etc? It matters because there could be legal issues with lack of FCA authorisation.
I have asked CCBC who the Claimant is but received no response.. Will I now deal solely with the County Court at WESTON-SUPER-MARE ? I have emailed them as well to ask for the Case Details.


I’ve asked you how much is the CCJ but you have declined to answer. I’ve asked quite a lot of questions on your other threads which also remain unanswered. There’s only so much help I can give without knowing the full facts.

The amount is £8,000


Sorry I am not trying to be evasive,
I am panicking and was trying to find out the information. I suffer from PTSD and any stress triggers this. Anyway. The debt would not be statute barred and it is shown as a credit card debt on my credit file.

From another post from you DI: The court may take the view that the debt owner (Claimant) should carry out due diligence before issuing a claim. Such things as check the debtor's CRA file to see if they are on the Electoral Roll and/or have any other file entries at the address (bank account, credit card etc).
There are no searches by Cabot from December 2016 until November 2018 which is at my new UK address, the house which I own.

Thank you so much for your help DI. If I could engage you I would.

I've replied on your other thread here > https://forums.moneysavingexpert.com/discussion/comment/75238172#Comment_75238172

Di