Help needed to set aside CCJ/Achieved Defence now needed **Set aside and discontinued!**

[avatari]

Hello everyone!

 

I'll try and be as succinct as possible.

 

Back in July, I received a CCJ from Bryan Carter on behalf of Lowells, who had purchased a debt from Barclaycard.

 

I received the CC Claim via forwarded documents from my old landlord at my old address but only had two days to respond due to the dates. I sent an Ack of Service which applied to defend on the basis of needing the full 28 days. Unfortunately, I then went abroad on family holiday for two weeks (could not cancel the trip based around a friend's wedding which was fully paid for and where I had a leading part) which meant that when I came back I had no real time to consider the debt. Stupid, stupid me, I was frightened into accepting the claim as it was only a partial claim for £290+costs out of total alleged debt and I was scared. I did not check it out with CAG!!!!

 

Now when I have thought about it and read more of what I should have done, I am not sure the debt is mine. I had a Barclaycard over 5 years ago, but totally different account number to the one provided, and I did not recognise the total amount of £3645, although I did default on payment. I have heard nothing since bar Bryan Carter in a three/four month run up to the CC Claim. I ignored Bryan Carter until the CC Claim.

 

How can i get this CCJ set aside? I don't want a debt that may not even be mine, and even if it is, I would like to know that the amount claimed is fair before I go paying it. Can I claim for not having had time because Claim sent to wrong address? What if no CCA/notice of assignment turns up? Partial claim?

 

I point out that I am making payments of £1 per month due to hardship.

 

If anyone wonders why I got into debt, I lost my job and my income halved for several years. I had always paid on time up until losing my job, when it all went wrong: so please don't judge me too harshly for trying to do the best by my family now, which includes eventually trying to get a mortgage at less than a punitive rate of interest!

 

Here's the letter I plan to send to Barclaycard (Subject Access Request) as I'm told no point now in CCA'ing Bryan Carter as CCJ in place, please note I have only a 13 digit ref number for the account number:

 

Data Protection Act 1998

Subject Access Request

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: 4929 xxxx xxxx x [only 13 digits!!]

 

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 in relation to detailed occurrences relating to the Account Number 4929 xxxx xxxx x (no further digits available) Barclaycard Gold Visa

 

This account information has been provided by a Debt Collection Agency, Lowell Financial Limited (REF: LOW/xxxxxxxxx), who claim that I owe money on this account.

 

If this account is not found, please provide all information on any Barclaycard accounts you have linked to me.

 

To aid your search, please see below all addresses I have lived at in the last six years previous to my current address given at the top of this letter:

 

[PROVIDED TO BARCLAYCARD IN REAL LETTER]

 

The following is by no means an exhaustive list but in the main this is what I require.

 

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, all records you hold on me relevant to these accounts, including but not limited to:

 

1. A transcript of all transactions, including charges, fees, interest, repayments and payments.

 

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

 

3. Where there has been any event in the account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

 

4. True copies of any default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

 

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

 

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

7. True copies of any notice of assignment that you may have sent to me, with a copy of any proof of postage that you hold.

 

8. A genuine copy of any deed of assignment.

 

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

11. A copy of all account statements for the duration of the agreement.

 

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

 

13. A True copy of the consumer credit agreement section 77-79 of the Consumer Credit Act of 1974.

 

Any other information relating to this account.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return.

 

Yours faithfully

 

 

xxxxx xxxxxxxxxxxx

 

 

 

 

Any thoughts? Really sorry for length of this.

Edited December 29, 2008 by avatari

[fedup74]

Hi avatari welcome to CAG:) Do not worry about people judging you- nearly all of us are in the same position and people here do not judge they try and offer help, advice and support which is what you need right now:) You say the CCJ papers were sent to your previous address- did Lowells/ BC know your new address and had they sent you any correspondence to this address? Why was the CCJ for £290 +costs when they claimed the amount owed was £3645? I think the SAR is the right way to go for now and somebody more knowledgeable will be able to advise on the setting aside part- if they have served the papers to the wrong address and it is not your debt you have a good chance of set aside. Please don't worry about people judging you and don't feel you have to explain yourself as to how you got into debt- you are doing something about it now and as I said, most people on here are in the same position. Good luck:)

[Ross-co]

Firstly welcome.

 

I've been through the set-aside process, successfully I may add, after getting a default judgement against me.

 

For your application to succeed you have to convince the court that you have a good chance of successfully defending the claim.

 

Looking at your facts then:

 

 

1. Had you at anytime prior to receiving the court documents been in correspondence with anyone regarding this debt?
   
2. If yes, had you notified them of a change of address?
   
3. Can you prove using acount numbers that the debt isn't yours?
   

If you can answer no to the first then you have an excellent chance. If you answer yes to both the first and second then you can claim that they served papers at the wrong address and in doing so prejudiced your defence, again a reasonable chance. If you can answer yes to the third then you've won

Edited December 30, 2008 by Ross-co
Spelling

[avatari]

Many many thanks for this Fedup and Ross-co.

 

I can confirm that I have NOT been in contact with ANYONE re this alleged debt prior to the CCJ claim.

 

Can I prove the account numbers? Well, unless this account was set up with Lowells using my old account but given new number details (though why on earth would this be the case?), then yes, as I still have my old account statements: with totally different numbers (except the first four, 4929).

 

Fingers crossed! Just quickly:

 

1) Does the SAR go to Barclaycard?

 

2) is my SAR above okay?

 

Thanks again.

[postggj]

to begin with, i know its no comfort but if you dont get the ccj set asside, all you have to pay is mr carters costs of 290

 

mr carter is in the habit of splitting claims, that way he gets paid first, then comes after the rest 3645

 

whats the problem you may think, well its against the county court act to split his claim, he has had his only bite at the apple with his costs, the rest is history

 

unsure on the legalities, ill dig up the threads and post a link

 

pt is your man on this one

ime sure he will drop in soon

[postggj]

have a look at this

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/173964-bryan-carter-2-a.html?highlight=brian+carter

[palomino]

mr carter is in the habit of splitting claims, that way he gets paid first, then comes after the rest 3645

 

 

I think you will find he claims for a part of the outstanding debt, together with his legally allowable costs based on the amount claimed (not on the whole debt). Your assertion is therefore somewhat wide of the mark.

 

I have yet to hear of anyone who has received a claim for the balance (it may have happened but I have yet to hear of it).

[avatari]

Great link, thank you - but can anyone confirm if the SAR is okay and if I send it to Barclaycard or Bryan Carter (or Lowells!)?

 

Thanks

[42man]

Send the SAR to Barclaycard....is there any possible chance that there was a 6 year gap i.e. would the debt be statute barred ? between the issuing of the claim form and the last payment you made ?......

 

Send the SAR to Barclaycard's head office for the attention of the data compliance manager - send with £10 of postal orders and send recorded del....

 

This is a good one to use...

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

sign your name but put crosses through it so it can't be lifted

[avatari]

No, 4.5 years only I'm afraid.

 

Barclaycard, will do.

 

Thanks, will keep you posted.

[Tawnyowl]

Just a bit of info on the set aside process hope it helps good luck. Tawnyowl

Removal of CCJ's - Valid reasons to have your judgements set aside

[Ross-co]

Many many thanks for this Fedup and Ross-co.

 

I can confirm that I have NOT been in contact with ANYONE re this alleged debt prior to the CCJ claim.

 

Can I prove the account numbers? Well, unless this account was set up with Lowells using my old account but given new number details (though why on earth would this be the case?), then yes, as I still have my old account statements: with totally different numbers (except the first four, 4929).

 

Fingers crossed! Just quickly:

 

1) Does the Subject Access Request go to Barclaycard?

 

2) is my Subject Access Request above okay?

 

Thanks again.

 

Waiting for the results of the Subject Access Request could take 40 days and part of getting a judgement set aside is that you act quickly. The court doesn't like people sitting on these things.

 

If you can show that the account numbers are different I would go with the application to set aside on that basis. Showing the court that the account numbers are different will be enough for them to set aside and order a new hearing. You will most likely find that the claimant then discontinues and if they don't then by that time you will have proof from Barclaycard that this is not your account.

 

If you want I'll dig out my application to set aside and you can modify it to fit.

 

Regards

 

Ross-co

[avatari]

Hi Guys!

 

The Subject Access Request is back from Barclaycard! Just statements with a different account number to what Bryan Cater have, they confirm in the letter that they have no other info whatsoever on me! No deed of assignment, default, cca, nothing!

 

However, the sum on the last statement is the same as the amount originally stated by Bryan Carter

 

I guess it may well be my account but some mix up with account numbers.

 

However, no deed of assignment, nor CCA...

 

Many thanks to all for their help so far, I really appreciate it!

 

Plus I didn't receive in time to build a defence (as sent to wrong address and then forwarded to me just before out of time) and so admitted it out of fear.

 

What should I do? Do i have a case to set aside?

 

Anyone know what sort of things I should state in my appeal to set aside?

[avatari]

bump please, can anyone advise on what to put in request to set aside?

[avatari]

I'm sorry - can anyone help me as I think I need to take action asap?

 

PLEASE?

[tendogs]

Hi there avatari. My understanding is that there is a time limit for an application to set aside, I used to think it was 21 days but from some information I’ve just had I think it might be more flexible than that. With the lack of a CCA, a notice of default, a termination or a notice of assignment it certainly does not seem as though the debt is enforceable. The lack of a letter before action, the incorrect account number from the DCA also appear to strengthen you case. IMHO I think you should apply for a set aside. If you do decide to do, it do it ASAP.

[tendogs]

I found this in the listings:

I wish to apply for a set aside as I did not receive the response pack when the claim was issued.Had I received the claim, I would have submitted a defence and counter-claim against the Claimant,as it is my belief that no credit agreement exists.

 

I was totally unaware of the existence of the County Court Judgment, until very recently, when I obtained a copy of my credit file from Experian. On the basis of that information, I requested a copy of the credit agreement on the xx xxxx 2008, from the Claimant, that the alleged debt refers to, under s.77/78 (Delete as ness )(1) of the Consumer Credit Act 1974. My request has been completely ignored by the Claimant and they have now been in default of said request since xx xxxx 2008. I have enclosed a copy of the letter sent to the Claimant, as evidence of my request.

 

It is my contention that as a result of this and the aformentioned reasons, the Judgment has been improperly granted.

 

I would therefore respectfully ask the Court to set-aside the Judgment, on the basis that I never received the claim pack and consequently was denied the opportunity to respond to the claim; which I would have done as it is my sincerely held belief that no credit agreement exists.

 

I know it does not reflect your circumstances but it might give you some idea

[avatari]

Okay, guys, how does this sound:

 

I am applying for a set-aside for the following reasons:

 

1. I did not receive notice of 28 days that payment was due on the alleged debt: I received no notice whatsoever from any party.

2. I did not receive 21 days’ notice from the court by way of summons due to the fact that I was not living at the address the summons was sent to at the time of the summons being issued. I only received the summons two days before the deadline for reply due to mail being forwarded to me, which did not give me time to investigate the claims. I applied to enter a defence, but unsure of whether the debt was mine, and afraid of a default judgement I could not afford to pay, I admitted the offence before this time was up, having been advised that a CCA would not be forthcoming before the time was up.

3. After receiving the judgement, I was advised to investigate whether the debt was mine as I had doubts. This was due to the fact that, upon further investigation of an old Barclaycard account, the account number provided by the Lowell Group did not match. I then submitted a Subject Access Request to Barclaycard, and they have recently replied that they could not provide me with any details of this alleged account number. To date they, have not provided me with a Credit Consumer Agreement. I trust that the court appreciates that while some time has passed since the Judgement being awarded, that I have had to wait some considerable time to conclude investigations, these seem to imply that that this debt is not even mine, and that no evidence has been provided to show that there was a credit agreement linked to me. Had I known this at the time, and been given the legal amount of time I am entitled to in order to investigate and respond, then I would have not admitted that I owed the debt.

4. Please see the attached evidence to show that I was not living at the address the summons was sent to at the time it was sent (I moved out some three months previously), and that thus I did not have time to consider my reply to the court under full knowledge of the facts.

 

I therefore respectfully ask the Court to set aside judgement for this CCJ on the grounds that I did not receive notice either 28 days’ notice to pay, the summons was sent to an incorrect (previous) address and thus I only received two days’ notice to apply to the court, and that had I had time to investigate the alleged debt I would have realised that the account numbers didn’t match and that there was no Consumer agreement linking me with this alleged debt: therefore I would have contested the alleged debt.

 

 

I would be really grateful if someone could comment on this, as I intend to send off in the next couple of days. BTW, does the form go the County Court which issued the judgement?

 

And, if set aside, can I claim back the amount I have already paid to the DCA> How?

 

Thanks, beginning to feel better now.

[avatari]

bump please?

 

really need to send off set aside request urgently

[avatari]

bump, would be great if someone could appraise this letter to set aside asap, as i will send tomorrow: anyone?

PLEASE

[Tawnyowl]

Any news did you send the letter.

[avatari]

yes, posted nearly three weeks ago now. have heard nothing so far, don't know what to do next. I might phone the court and see what's happened to the case.

 

I have seen that the cheque has been banked, so they obviously received it. i've heard that it can take a while - any ideas?

[avatari]

Okay, good news, my application for a hearing to set aside has been accepted and I'm going to court in July.

 

So, just one Q at the moment: should I SAR BryanC in order to see what they have on me? Would the judge expect me to have done that, or is the SAR info I received back from BarclayCard enough to take to court to get a set aside?

 

 

I have no idea what's expected of me - help please!

 

Thanks!

[avatari]

bump - can anyone tell me if I SAR or CCA Bryan Carter or no need, if I SAR i need to do asap as thye will have 40 days to comply!

[42man]

If you want to send a SAR to Bryan Carter then do, however my feeling is that it won't reveal too much, I presume you SAR'ed Barclays too. However if the account number is incorrect then that alone should stand out as being enough to set the judgment aside, let alone any other arguments. If it was me i'd simply deny the account was mine. As for the CCA to Bryan Carter they would probably say 'we already have judgment we don't need to comply'