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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11554
Experience:  30 years as a practising solicitor.
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I am submitting a case for recall of a decree made against

Customer Question

I am submitting a case for recall of a decree made against myself and my wife.
We did not receive the claimants paperwork chasing the debt as they were using an old address we had moved from 2 years previous. We therefore did not receive any bills or court papers and were unable to defend the decree as we did not know about it.
The decree was made and the debt was settled as soon as we saw the CCJ appear on our credit files.
I have written to Glasgow Sheriff Court requesting the decree be recalled which the claimants have agreed they will nor contest but the clerk has return my paperwork stating:
"In terms of the small claim rules 2002, chapter 22.1(3) the application must include the proposed defence or proposed answer to the counterclaim."
I clearly stated on form 20 that we had not received the original claim paperwork and were unable to defend the claim in my submission.
I was also asked if a charge for payment has been served on us yet?
The CCJ is showing as satisfied but we should not have received this CCJ in the first place.
Please can you advise how I need to respond to ensure this CCJ is recalled.
Submitted: 11 months ago.
Category: Scots Law
Expert:  JGM replied 11 months ago.

The defence you have to advance is that payment has been made of the sum sued for. You don't have to say when. You can advance a reason for not defending as not receiving the papers because you had moved but that is not a defence to the case. It's just the reason you didn't get the papers. The answer to whether a charge for payment has been served has to be "no". If you answer "yes" the application for recall is out of time and incompetent. I hope that helps. Please leave a positive rating so that I am credited for my time.