CCJ on Statute Barred debt - Need advice on set aside!

User avatar
Schedule 12
Posts: 13066
Joined: 30 Jul 2012 21:23
Location: London WC2
Contact:

#36 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Schedule 12 » 20 Dec 2016 20:23

If your application has not been considered by the court, its not too late to give an amended draft order to stay the writ and set aside the judgment.
Run this Checklist. If no joy, then we'll fix it
Author: dealingwithbailiffs.co.uk

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#37 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 20 Dec 2016 20:43

jasonDWB wrote:If your application has not been considered by the court, its not too late to give an amended draft order to stay the writ and set aside the judgment.
Yes actually ccbc said it takes 24/48 hrs to process. So i could amend.
What shall I put in the draft order?

-Any enforcement relating to this judgement is to be stayed.

?

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#38 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 20 Dec 2016 20:58

Michelle wrote:
Lionheart wrote:I've paid the fee today and will submit the application so I can clear my head for Christmas. I'll just go with what I've got. I'm not sure if half of what of written in the witness statement is relevant, I feel a bit of a fraud/blagger quoting cases etc :?
That's fine, it goes to the point. The WS is meant to be your account of the events and you've given them that. Quoting case law is not essential but in this case, it helps paint the picture as to why you think the court should set aside the judgment.

You have a very good case for set aside with a statute barred debt. :xmas_mrgreen: :xmas_mrgreen: :xmas_mrgreen:
Yes Ultimately the claim isnt legally enforceable so hopefully the district judge set aside. Not being able to prove I didnt receive the claim form worries me slightly still as I know they will say proof of posting the form is proof its been 'served'. But like you said you cant prove a negative.

Thanks for your help.

User avatar
Schedule 12
Posts: 13066
Joined: 30 Jul 2012 21:23
Location: London WC2
Contact:

#39 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Schedule 12 » 20 Dec 2016 21:11

Lionheart wrote: What shall I put in the draft order?

-Any enforcement relating to this judgement is to be stayed.

?

Something like this:
  • IT IS HEREBY ORDERED THAT:


    The writ of control issued in relation to judgment claim number CLAIM NUMBER be stayed.

    The default judgment (CLAIM NUMBER) be set aside on the grounds that the Defendant has a real prospect of defending the claim.

    Judgment creditor is to notify the High Court Enforcement officer forthwith by telephone or email of the terms of this order.

    (Judgment creditor to draw up and seal and serve this order, and the application notice and evidence in support by [DATE 7 DAYS TIME])

    The Claimant to pay the Defendant’s costs in the application.


    Dated
You do not have the required permissions to view the files attached to this post.
Run this Checklist. If no joy, then we'll fix it
Author: dealingwithbailiffs.co.uk

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#40 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 16 Mar 2017 14:32

****UPDATE****

I have just returned from my court hearing after the judge adjourning the hearing to a later date based on lack of evidence from the Claimant.

In response to my defense of statute barred the Claimant produced a document/statement outlining 3 payments that I had 'apparently' made each a year apart for very small odd amounts (which the judge acknowledged that they were odd amounts). The document had no heading or anything that described what it was. Method of payment was 'Payment via Truncation' - neither I or the judge new what this meant and seemed rather perplexed that this is the only evidence that supports their case. The solicitor - lost for words - and no response.

Judge at this point said I'm in two minds on whether to set aside now or give the claimant time to produce more evidence regards these payments. She gave this choice to the Claimant to which the Claimant advised they would like more time to produce evidence regards these mysterious payments.

So I was an inch away from it being set aside :|

After looking it up - Truncation means payment by cheque. Well I've not owned a cheque book in 15 years and I certainly never made these odd payment each a year apart.

The overdraft/account was closed in 2 years before these payments were made. So they were not made to the account itself but apparently to a supposed debt collector - even though the document never stated this either.

The only logical explanation is that the Claimant is fabricating evidence. They must be - or someone must be. The Claimant now has 3 weeks to produce evidence that I made these payments - the judge also said I can produce evidence i.e bank statement of this period. I took that as a hint.

L

User avatar
Pote Snitkin
The Watcher
Posts: 6459
Joined: 28 Apr 2014 09:43
Location: In your loft, waiting

#41 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Pote Snitkin » 16 Mar 2017 16:03

I reckon they'll just dump it. If you've received nothing by 6th April, you've won.
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

GDB
Posts: 81
Joined: 20 Feb 2015 10:05

#42 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by GDB » 16 Mar 2017 17:04

It is not unusual for so called debt collection agencies to put "phantom" payments on the account, they rely on people not knowing what the score is etc.

The date of 6 years starts from the last phantom payment, this can be an absolute nightmare for people in debt.

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#43 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 16 Mar 2017 17:43

GDB wrote:
16 Mar 2017 17:04
It is not unusual for so called debt collection agencies to put "phantom" payments on the account, they rely on people not knowing what the score is etc.

The date of 6 years starts from the last phantom payment, this can be an absolute nightmare for people in debt.
Well I guess unless they can prove I made the payment with evidence then the judge will see them as phantom too. I'm not entirely sure what constitutes evidence.

User avatar
Schedule 12
Posts: 13066
Joined: 30 Jul 2012 21:23
Location: London WC2
Contact:

#44 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Schedule 12 » 16 Mar 2017 17:50

The judge is saying that unless the other party shows evidence of flow of money from you, their case will be struck out.

They have 21 days to give that evidence.

The judge is allowing you to give evidence to the contrary by printing off the last 6 years bank statements and filing them in evidence at court. If they show no flow of money to the other party, their case is again, struck out.
Run this Checklist. If no joy, then we'll fix it
Author: dealingwithbailiffs.co.uk

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#45 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 16 Mar 2017 18:00

jasonDWB wrote:
16 Mar 2017 17:50
The judge is saying that unless the other party shows evidence of flow of money from you, their case will be struck out.

They have 21 days to give that evidence.

The judge is allowing you to give evidence to the contrary by printing off the last 6 years bank statements and filing them in evidence at court. If they show no flow of money to the other party, their case is again, struck out.
Excellent. I've just this minute looked into the dates payments were made supposedly made - as I have online banking - and there is no flow of money/payments from my account on these dates...

Should I just print out the periods payments were supposedly made and send those? Rather than sending the entire 6 years?

User avatar
Schedule 12
Posts: 13066
Joined: 30 Jul 2012 21:23
Location: London WC2
Contact:

#46 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Schedule 12 » 16 Mar 2017 18:05

The whole six years. I know it's a big bundle. The judge will treat you with a lot more respect seeing as you made the effort to prove your side of the case.
Run this Checklist. If no joy, then we'll fix it
Author: dealingwithbailiffs.co.uk

User avatar
Michelle
Moderator
Posts: 1956
Joined: 10 Nov 2014 14:42
Location: Nuvion

#47 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Michelle » 16 Mar 2017 18:15

Lionheart wrote:
16 Mar 2017 14:32
In response to my defense of statute barred the Claimant produced a document/statement outlining 3 payments that I had 'apparently' made each a year apart for very small odd amounts (which the judge acknowledged that they were odd amounts). The document had no heading or anything that described what it was. Method of payment was 'Payment via Truncation' - neither I or the judge new what this meant and seemed rather perplexed that this is the only evidence that supports their case. The solicitor - lost for words - and no response.

Judge at this point said I'm in two minds on whether to set aside now or give the claimant time to produce more evidence regards these payments. She gave this choice to the Claimant to which the Claimant advised they would like more time to produce evidence regards these mysterious payments.

So I was an inch away from it being set aside :|

After looking it up - Truncation means payment by cheque. Well I've not owned a cheque book in 15 years and I certainly never made these odd payment each a year apart.

The overdraft/account was closed in 2 years before these payments were made. So they were not made to the account itself but apparently to a supposed debt collector - even though the document never stated this either.

The only logical explanation is that the Claimant is fabricating evidence. They must be - or someone must be. The Claimant now has 3 weeks to produce evidence that I made these payments - the judge also said I can produce evidence i.e bank statement of this period. I took that as a hint.

L
Yes, it's not unusual to make up phantom payments on statute barred debts. Just to be clear, the claimant is saying these payments were made neither to the bank when they still owned the account, nor to the actual claimant, but to a third party? Did they say who the DCA was supposed to be?

The onus is on the claimant to prove that the account is not statute barred, not on you to prove that it is. That's why the judge asked THEM to produce the evidence.
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

Knowledge is Power.

GDB
Posts: 81
Joined: 20 Feb 2015 10:05

#48 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by GDB » 17 Mar 2017 10:02

If you only use online banking, you should be able to search around the dates without to much trouble.

As Michelle stated, the burden of proof is on them - not you!

If you tell the Judge you only use online banking and show him / her the proof by printing out and highlighting around the dates the "Phantom" payments were made. Whilst I understand its a pain in the rear end collating the info its the best way to discredit the other side.

If it a statute barred debt and you disprove the other side phantom payments you can ask the Judge to strike out the claim.

If you get a hearing you can request documentation from the other side under the Civil Procedure Rules (CPR)

A lot of people get into a panic and make offers of payment because they do not know the score / law, stand your ground and make them look stupid or inefficient and get the claim struck out.

User avatar
Michelle
Moderator
Posts: 1956
Joined: 10 Nov 2014 14:42
Location: Nuvion

#49 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Michelle » 17 Mar 2017 11:40

GDB wrote:
17 Mar 2017 10:02

If you tell the Judge you only use online banking and show him / her the proof by printing out and highlighting around the dates the "Phantom" payments were made. Whilst I understand its a pain in the rear end collating the info its the best way to discredit the other side.

If it a statute barred debt and you disprove the other side phantom payments you can ask the Judge to strike out the claim.
This is a set aside application where the claimant already obtained judgment in default, so there's no claim to strike out. It's a question of getting the judge to agree to set aside the default judgment.
GDB wrote:
17 Mar 2017 10:02
If you get a hearing you can request documentation from the other side under the Civil Procedure Rules (CPR)
That would be the procedure when you get a claim you intend to defend, in this case the OP didn't get the claim to start with, hence the default judgment. Happens all too often, so much so it was front page news last summer.
GDB wrote:
17 Mar 2017 10:02
A lot of people get into a panic and make offers of payment because they do not know the score / law, stand your ground and make them look stupid or inefficient and get the claim struck out.
More accurately, get the judgment set aside, as it's gone well past the claim stage.
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

Knowledge is Power.

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#50 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 17 Mar 2017 12:14

Michelle wrote:
16 Mar 2017 18:15
Lionheart wrote:
16 Mar 2017 14:32
In response to my defense of statute barred the Claimant produced a document/statement outlining 3 payments that I had 'apparently' made each a year apart for very small odd amounts (which the judge acknowledged that they were odd amounts). The document had no heading or anything that described what it was. Method of payment was 'Payment via Truncation' - neither I or the judge new what this meant and seemed rather perplexed that this is the only evidence that supports their case. The solicitor - lost for words - and no response.

Judge at this point said I'm in two minds on whether to set aside now or give the claimant time to produce more evidence regards these payments. She gave this choice to the Claimant to which the Claimant advised they would like more time to produce evidence regards these mysterious payments.

So I was an inch away from it being set aside :|

After looking it up - Truncation means payment by cheque. Well I've not owned a cheque book in 15 years and I certainly never made these odd payment each a year apart.

The overdraft/account was closed in 2 years before these payments were made. So they were not made to the account itself but apparently to a supposed debt collector - even though the document never stated this either.

The only logical explanation is that the Claimant is fabricating evidence. They must be - or someone must be. The Claimant now has 3 weeks to produce evidence that I made these payments - the judge also said I can produce evidence i.e bank statement of this period. I took that as a hint.

L
Yes, it's not unusual to make up phantom payments on statute barred debts. Just to be clear, the claimant is saying these payments were made neither to the bank when they still owned the account, nor to the actual claimant, but to a third party? Did they say who the DCA was supposed to be?

The onus is on the claimant to prove that the account is not statute barred, not on you to prove that it is. That's why the judge asked THEM to produce the evidence.
Hi Michelle

The claimant did not have an answer when the judge asked who these payments were made to. The bank account was closed 2 years prior to the first phantom payment and the judge could see this. The claimant took the debt on 2 years after the last phantom payment as well and the judge could see this.
If these payments have been manufactured, could they not just manufacture more evidence - I mean if they've gone this far what's to stop them.. i.e create phantom accounts etc.

GDB
Posts: 81
Joined: 20 Feb 2015 10:05

#51 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by GDB » 17 Mar 2017 19:01

Sorry, Michelle is right - my bad - set aside!

User avatar
Michelle
Moderator
Posts: 1956
Joined: 10 Nov 2014 14:42
Location: Nuvion

#52 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Michelle » 17 Mar 2017 21:30

Lionheart wrote:
17 Mar 2017 12:14
Hi Michelle

The claimant did not have an answer when the judge asked who these payments were made to. The bank account was closed 2 years prior to the first phantom payment and the judge could see this. The claimant took the debt on 2 years after the last phantom payment as well and the judge could see this.
The payments could have been made to a DCA who had taken over the account after it was closed, even if not the current claimant, however, the fact thy are random should be enough for any judge with an ounce of common sense, to see they were not made by you, why would anyone just randomly pay a small amount into an account? It is possible that, by trying to be too clever, the claimants may have shot themselves in the foot. :mrgreen: A single payment could be attributed to a doorstep visit or even a phone call, pressuring you into paying something, however, THREE payments are a bit much.

I recall reading a post by someone who said he'd worked as a debt collector and, when he did doorstep visits and the debtor refused to pay, he was instructed to make a small payment himself and credit the account as if the debtor had given him the cash to put towards the account he was collecting. :evil:
Lionheart wrote:
17 Mar 2017 12:14
If these payments have been manufactured, could they not just manufacture more evidence - I mean if they've gone this far what's to stop them.. i.e create phantom accounts etc.
Phantom accounts cannot be created, because they would be required to produce evidence of the existence of the debt at various stages, with requests under the Consumer Credit Act, CPR requests and directions from the court before the hearing.

Phantom payments are easy to create because all they have to do is fabricate an entry and print off a statement. However, it is possible to see through that quite easily. If they claim the payments were made by cheque, they'll need to produce details of the cheque numbers and the accounts the cheques came from. Not very likely. They are not Lowell by any chance, are they? They are well known for playing dirty. :evil:
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

Knowledge is Power.

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#53 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 20 Mar 2017 17:45

The judge noticed how random the payments were - for example; £4.78. The statement with the payments they pinned their case on really is pathetic - its a printout from some sort of financial database software - something similar to SAP.

There's no payments made out of the only bank account I've had in the last 7 years for these amounts either.

No it's not Lowell it's a company called :evil: Hoist Portfolio. :evil:

User avatar
Michelle
Moderator
Posts: 1956
Joined: 10 Nov 2014 14:42
Location: Nuvion

#54 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Michelle » 20 Mar 2017 21:07

Lionheart wrote:
20 Mar 2017 17:45
The judge noticed how random the payments were - for example; £4.78. The statement with the payments they pinned their case on really is pathetic - its a printout from some sort of financial database software - something similar to SAP.
Any judge worth their salt should be able to see those were home baked. :twisted: So they are now coming up with "clever" figures rather than nice round ones, but that only makes their case even less believable. Why would anyone pay £4.78 rather than £5? That sounds more like refunds or accounting adjustments of some sort, however, the clock is only reset by payments made by yourself or someone acting for you, such as a debt management company, not by internal adjustments or payments made by the creditor themselves.
Lionheart wrote:
20 Mar 2017 17:45
There's no payments made out of the only bank account I've had in the last 7 years for these amounts either.
As they said the payments were made by cheque, they've shot themselves in the foot, because they can't argue you paid cash to a doorstep agent or something like that.
Lionheart wrote:
20 Mar 2017 17:45
No it's not Lowell it's a company called :evil: Hoist Portfolio. :evil:
Ah yes, I know them well. They often lose their claims... :mrgreen: :mrgreen: :mrgreen:
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

Knowledge is Power.

Lionheart
Posts: 27
Joined: 13 Dec 2016 16:51

#55 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Lionheart » 22 May 2017 16:46

***UPDATE***
After the Claimant failed to file further evidence supporting the phantom payments presented in the first hearing and subsequently failing to turn up to the 2nd hearing (today) the judge ruled in my favor and set the judgement aside providing I file and serve a defense with 14 days. :)

The claimant did 'email' the court in advance and submit they are willing to agree to the set aside on the basis that none of my costs are paid.

I advised I shouldn't have to agree to their terms as the case itself should now be ruled in my favor due to evidence not being provided which were the terms set in the original hearing. The judge then reviewed the file and advised she would set the judgement aside (as per above) and schedule another hearing regards my costs.

In hindsight - as attending court is quite a stressful and inconvenient event I wish I'd agreed to just write the costs off! Now I'm afraid if I lose that hearing I'll then have to pay all costs.

User avatar
Schedule 12
Posts: 13066
Joined: 30 Jul 2012 21:23
Location: London WC2
Contact:

#56 Re: CCJ on Statute Barred debt - Need advice on set aside!

Post by Schedule 12 » 22 May 2017 18:49

If the judgment is out of time under section 24 of the Limitation Act 1980, then I don't see why you have a problem.

  • An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

A writ application (apparently) does extend the limitation of time if the action was brought before the judgment date, but I don't know what legislation provides for the extension. Maybe someone else here can see if they can find it.
Run this Checklist. If no joy, then we'll fix it
Author: dealingwithbailiffs.co.uk

Post Reply