Can I ask for Ccj to set aside

in Credit File & Ratings
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Zizzi_sZizzi_s Forumite
2 Posts
First Post
MoneySaving Newbie
Recently I checked my credit file and noticed a Ccj was added in November 2020.

This is a debt I incurred as I took out a mobile phone contract for an abusive ex partner under duress in 2015. After several years of being under his control I finally managed to leave in 2016 with my 2 children. I was forced to move more than 100 miles away for safety reasons by the police and all relevant agencies involved in my case.

From the period of 2016 to 2019 i moved constantly ( women's refuge, friend, hostels and temporary accommodation etc). Since 2019 I have had a stable address. I have never received a letter pertaining to this debt let alone possible court action.

My current address was confirmed on my file in 2019 as my last known address by my bank. I feel like the debt collection agency never really made an attempt to find my address to forward any communication relating to possible court action for the opportunity to defend my self in court. 

The court order was made whilst we were in the second national lockdown, this coupled with no communication is there a possibility to ask the court to set aside the ccj.

Replies

  • edited 12 May at 4:44PM
    FarfetchFarfetch Forumite
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    edited 12 May at 4:44PM
    You can certainly pay to have it set aside

    Sounds like they got the CCJ before the statute of limitations ran out to be able to enforce it. They send it to the last known address on their file, if you do not update them they can't send it to the right address

    While they should certainly take into account domestic abuse, if they don't know about that they would have taken the (technically) correct course of action of defaulting the debt then chasing/CCJ etc. You won't win/defend a case on the basis they should have tried to chase you to the right address 

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  • edited 14 May at 10:50AM
    sourcratessourcrates Forumite
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    edited 14 May at 10:50AM
    They don`t tend to put a lot of effort into tracing individuals for debts, usually a last known address is all that is required.

    You are free to use the services of the court just like anyone else, so you could apply for a set aside of this judgement, however you will need both a reason why you didn`t respond to the original court papers, and a defence against the claim, to have any chance of success.

    Court fee`s have risen this last few months, a set aside application now costs £275, although for anyone on a low income, a reduction on the fee is available.

    You fill in an N-244 for your set aside application, and an EX-160 for help with the fee`s, both should be submitted together.

    It`s entirely at the courts discretion if an application is granted, or not, there are certain circumstances where a court must set aside a judgement, these include -


    Cases where the court must set aside judgment entered under Part 12

    13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–

    (a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

    (b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

    (c) the whole of the claim was satisfied before judgment was entered.


    And other circumstances where they may, grant a set aside -


    Cases where the court may set aside or vary judgment entered under Part 12

    13.3

    (1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

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

    (b) it appears to the court that there 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.

    (2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.


    There are no guarantee's of success, but you may qualify under section 13.3 part (b) and/or part (ii).

    If you want to follow this up, application forms are available online, Google is your friend.



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  • edited 22 May at 10:58PM
    macmanmacman Forumite
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    edited 22 May at 10:58PM
    There is no obligation for them to track down your actual address, which would have been difficult anyway in your circumstances. Service is legally valid if made to the last known address on file. 
    So it rather depends if you are willing to bet £275 in the hope that the judge will set aside on one of the discretionary grounds.
    No free lunch, and no free laptop ;)
  • fatbellyfatbelly Forumite
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    Yes you can apply for set aside as outlined above. The criteria are

    • a reason why you did not reply to the claim
    • a defence with a reasonable prospect of success
    • to act promptly
    Proving duress is quite difficult but I hope you succeed

    If a contract has been made under ‘undue influence’ (ie, if a person has taken unfair advantage of her/his influence over another person), it may not be enforceable. Undue influence may be actual – eg, if a person has been subjected to domestic abuse. Domestic abuse includes financial abuse, which is a form of controlling behaviour and includes controlling or interfering with the person’s benefits, controlling her/his access to income, bank accounts or savings, and getting her/him to take out credit.

    Undue influence may also be presumed – eg, if a person is persuaded to enter into a contract by someone on whom s/he relies for advice and guidance and the transaction is explainable only on the basis that undue influence was used, because it puts the person at a substantial disadvantage. This issue can often arise with guarantees. Another example is where one person takes out a loan for the benefit of another person but the loan is in the sole name of the first person.

    A situation commonly arises where one partner in a couple applies for a loan for her/his own purposes (eg, to pay off debts or fund a business), which the creditor requires to be in joint names so that it can be secured on jointly owned property or so that the income of the other partner can be taken into account as part of the creditor’s lending process. If it appears that the second borrower’s agreement to taking out a joint loan was only given because the first borrower used ‘undue influence’ (eg, by saying, ‘we’ll lose our home if you do not sign’ or by misrepresenting the effect of the transaction – see below), the second borrower may not be liable and should get specialist advice.

    Although examples of creditors actually being aware that a contract has been entered into as a result of undue influence are rare, in certain situations, the law deems the creditor to have notice of the possibility of undue influence (known as ‘constructive notice’) and requires the creditor take certain steps to counter any undue influence to which the client may have been subject. Failure to take those steps may mean that a client who has been subjected to undue influence is able to challenge her/his liability

    As well as having a potential defence to any court action taken by the creditor, the client may also be able to make a complaint which can be escalated to the Financial Ombudsman Service, which may be able to relieve the client from liability in appropriate cases.
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