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Moon phases


Statute Barred after set aside

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Statute Barred after set aside Empty Statute Barred after set aside

Post by Kestrel on Thu Sep 13, 2018 9:10 pm

Hypothetical question, if you were to about have an alleged debt become statute barred but then found you had a CCJ by default prior to it been statute barred but then got the default judgment set aside, then prior to a hearing that you could attend the would be statute barred date kicked in - would it be statute barred?

i.e. Statute barred date was between original judgement set aside & actual hearing where you would attend, could you state statute barred or is it no longer valid (due to default CCJ albeit now set aside)? If it is valid would it be before the actual hearing or before you received correspondence from claimant in pre-action protocols?

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Post by waylander62 on Thu Sep 13, 2018 11:20 pm

That is a very grey area and could be down to the judge, so not worth the risk on its own.

however what i would do is for any future hearing ( and i assume there will be one ) is request the court give consideration to a preliminary matter, then raise this point and a good argument for it being statute barred, if it should fail then the proceedings would carry on as normal so you have tried, failed but not lost.

if you get what i mean.

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Post by Kestrel on Fri Sep 14, 2018 8:24 am

Thanks waylander, research I've done hasn't given any true interpretation on this, one thing I do know is that if you know or even 'believe' an alleged debt is statute barred it is up to the creditor/claimant to prove otherwise which I would expect they would have to prove either last acknowledgement/payment of alleged debt or default notice & we all know that they rarely can provide anything. Proving they have bought the alleged debt proves nothing.

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Post by pieintheskywhenIdie on Fri Sep 14, 2018 11:40 am

@Kestrel wrote:Hypothetical question, if you were to about have an alleged debt become statute barred but then found you had a CCJ by default prior to it been statute barred but then got the default judgment set aside, then prior to a hearing that you could attend the would be statute barred date kicked in - would it be statute barred?
I think probably not, as the set aside removes the judgement and does not dismiss the claim itself. If the claimant continues to pursue the claim is it not still the same claim - ie commenced prior to the debt being statute barred?

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Post by handle on Fri Sep 14, 2018 11:53 pm

pieinthesky is correct. starting litigation frustrates the limitation

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Post by Kestrel on Sat Sep 15, 2018 9:32 am

I would see it as any set-aside judgement as an overturned judgement as if you were found guilty in a crime but proven innocent by having the judgement removed i.e. back to innocent until proven guilty but then should they seek to prosecute you then take you back to court again...if that makes any sense.

I take on board your comments though.

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Post by pieintheskywhenIdie on Sat Sep 15, 2018 10:00 am

I think it's clearer to think of Set Aside in a civil judgement as equivalent to a Statutory Declaration after a criminal conviction which doesn't actually find you innocent (which would be the end of the matter), but it sets things back as if the case hadn't yet been heard.

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Post by daveiron on Sat Sep 15, 2018 10:32 am

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