DCA with default CCJ

[AndyOrch]

Thanks both, do I need to add that sentence Andy?

I'm also concerned that if I get the set-aside and the DCA resend it can they alter the original claim in any way? eg. leave something out or change the amount they are claiming.

 

 

Its only a reword of your post#46 but the way you should plead it. They can try but its the same account number same claim...look up Res Judicata.

 

Regards

 

Andy

[Learnerlitigator]

Okay, thanks for that. I'm concerned that instead of a part only = less than 400 quid they go for the full balance of god knows what. And by doing so used the default judgement to reset the SB clock by 4 years.

[AndyOrch]

I'm concerned that instead of a part only = less than 400 quid they go for the full balance of god knows what. And by doing so used the default judgement to reset the SB clock by 4 years.

 

Unless it was already SB in 2008 then it will never be now its been a judged.

 

Andy

[Learnerlitigator]

Surely that only applies if judgement is for the applicant when it is heard again following set-aside? If the applicant discontinues doesn't the statute of limitations revert to the last payment date? Otherwise all DCAs would need to do is issue and reissue until they eventually enforce. I understood that only a substantive judgement would take the place of the CCA agreement.

[Learnerlitigator]

I'm going to be really screwed if they substitute the larger part for the small amount they have the default judgement for. It's the same account number so if it turns out to be my liability then I'm in for a real stuffing.

[AndyOrch]

I assume the P.o.C states " partial monies " if so then the figure cant be changed unless the P.o.C is changed and that would require the Courts agreement and also yours.

 

Andy

[Learnerlitigator]

That's correct Andy it does so state. Thanks for that, i feel easier about it now. If the DCA does not send out the claim pack again does he have to discontinue or just leave it stayed?

[AndyOrch]

Why would they send out the claim again they have already served? The decision to claim Partial monies is a choice of the claimant that only for their reasoning is beyond the understanding of CAG.

 

Andy

[Learnerlitigator]

I've never received the original claim pack hence the application for set-aside. I understood that if it is set-aside then they have to reissue the claim pack for acknowledgement etc. The claim would then be listed at my local County Court for disposal in the normal manner where I could request disclosure of documents before submitting my response/defense/admission.

POC reads:

 

PART ONLY OF MONIES DUE UNDER REGULATED CREDIAGREEMENT NUMBER

*********** BETWEEN

OC AND THE DEFENDANT THE BENEFIT

OF WHICH WAS ASSIGNED TO THE CLAIMANT ON **/**/2006 THE AGREEMENT

TERMINATED UPON THE DEFENDANT(S) FAILURE TO COMPLY WITH THE

TERMS OF THE AGREEMENT AND/OR THE STATUTORY NOTICE OF DEFAULT

SERVED BY OC CLAIMANT

SEEKS INTEREST PURSUANT TO SECTION

69 OF THE COUNTY COURTS ACT 1984

AT THE RATE OF 8% PER ANNUM FROM THE DATE OF

ISSUE CONTINUING AT THE DAILY RATE OF 0.07 ANY PAYMENTS OR QUERIES SHOULD

BE DIRECTED TO THE CLAIMANT ON telephonenumber

[AndyOrch]

Yes if they wish to resubmit and proceed (but the amount will remain the same ) its the same claim hence no change in amount.

 

Andy

[Learnerlitigator]

Hmm, received 2 letters regarding my CCA and SAR requests sent for the non CCJ matter. In respect of the CCA (Capital One) they say they "have requested a copy of the agreement for the above account and this will be forwarded to you when received.

If they own the debt they should have it surely?

 

The second letter: Please be advised that we have received your request for further information on this account in order to process your request further we require you to confirm if you have previously resided at the below address: Address given here.

 

Their "our reference:" are different on the 2 letters so I don't know if the address seeking letter is for the SAR or not. Am I obliged to give them this information before they comply with the timetables or are they simply trying to get me to fill in the blanks of their tracing?

 

I do not deny that I had the cap one but know it to be SB (defaulted early 20** ).

If they have contacted me regarding an account from a previous address using my new address surely they should not require my confirmation that they have not disclosed personal information to the correct individual; otherwise they have breached DCA no?

 

Just to clarify for those who might think I seek to avoid a legitimate liability for the Default CCJ, this is NOT the case otherwise I would have left well alone and ridden out the 2 remaining years on the register.

Should I respond to the address enquiry or just count down the 12+2 and 40 day deadlines?

BTW, the address they are inquiring about is different again to the one on which they served CCj

Edited September 6, 2012 by Learnerlitigator

[BRIGADIER2JCS]

No debts are sold in bulk with little more than the banance os, name address and other contact details and the name of the oc, 99 times out 100 a DCA will hvve to get the oc to provide the CCA.

If you are positive the Cap 1 account is statute barred, you can get them off your back easily by sending the following to the compliance manager of the DCA.

 

Ref: xxxxxxxxxxxxxxxx

 

Formal Notification Limitation Act 1980.

 

Dear Sir or Madam,

 

I refer to the alleged debt to Capital 1 which you claim is owed by me, having researched my credit history I have concluded that any such debt is STATUTE BARRED and I will not now or at any time inthe future make any payment or offer of payment.

 

I am fully aware of the OFT Guidance on Debt Collection and in particular the section regarding the pursuit of statute barred debt.

 

You will now with immediate effect remove all data relating to me from your records how so ever held.

..Any further contact regarding this matter will be considered harassment and suitable action WILL be taken should this happen.

 

send recorded delivery

[Learnerlitigator]

I get that entirely Brig, thanks. I'm pressing for the CCA so that Caggers can see that the DCAs will try to avoid the issue of taking on both the rights AND responsibilities of the OC once assigned. The creditor post assignement is the DCA and the creditor has a duty to provide, no?

 

It's the issue of the DCA trying to pass the responsibility of confirming (or not) that I lived at a given address (5 addresses before the present one). Following a serious house fire we were placed in temporary homeless accommodation for 3 months before renting the property (for 2 years) at which I was CCJd. When the old lady that owned that house died her family wished to sell the property and we were again placed in temporary homeless accommodation, again for 3 months before getting local authority housing.

 

Now the DCA want me to confirm if I previously resided at **address**, presumably if I tell them I did not it puts their entire trace in doubt supporting my argument that targeted my name and receiving no response/confirmation assumed that I was their debtor and issued their threat-agrams accordingly.

 

If the court asks me then of course I have to tell the truth, but when the DCA ask me (and I have no confirmed business with them) am I obliged to co-operate? I am minded to tell them that they have no right to demand personal information from me.

 

PS please don't take the view that I am arguing for the sake of argument or disrespecting you in any way as such is not my intent.

[BRIGADIER2JCS]

The DCA is complying by asking the OC to provide the documents, this is normal as documents are not provided at the point of sale.

 

I agree that you do not have to prove anything the DCA must bear the burden of proof for the debt.

 

State you are unable to comply with their request.

[Learnerlitigator]

Thanks, that sounds like a plan

 

and, nemo tenere prodere seipsum in response to: Nemo Mortalium Omnibus Horus Sapit

Edited September 6, 2012 by Learnerlitigator

[Ganymede]

I seriously doubt it would happen but I suppose as proceedings have not actually been served then technically the Claimant can make whatever chances they like to the paperwork without the permission of the Court or Defendant pursuant to CPR 17.1.

 

Still can't see it happening though...

[Learnerlitigator]

Doubt they could plead that it hadn't been served when there has been a default judgement which was (hopefully) set-aside as I would argue that the POC are different to those on record already.

[Ganymede]

Doubt they could plead that it hadn't been served when there has been a default judgement which was (hopefully) set-aside as I would argue that the POC are different to those on record already.

 

 

If the claim is set aside on the basis that you were not served then the claim would return to the beginning and the Court would order the Claimant to serve the Defendant.

 

After the set aside the claim has still been issued but not served and so in theory the Claimant could make as many changes as they like to the paperwork under 17.1.

 

You can't have it both ways, either it's served in which case your set aside would be in trouble or it wasn't served and the Claimant can amend the documents.

 

Like I said this is just a possibility and I was answering your question. I can't see it actually happening...

[Learnerlitigator]

That's clear enough, thanks Ganymede. Just trying to cover all the angles. I think the DCA are helping me to see what is what by referring to an address that I have not lived at which leaves me to believe that they have mis-traced.

[Learnerlitigator]

Is the CBBC method of issuing a claim an "alternative method" with CPR part 8? If it is then should the claimant have issued under part 8 if he knew not whether there would be "substantial dispute of fact"? ie. because there had been no correspondence/dialogue

 

I'm probably reading it all wrong or my understanding of the part 8 thingy's application doesn't apply.

 

Hmm I'm 55 now and it takes weeks to absorb one little bitty of this legal mumbo-jumbo, perhaps I ought not think of re-training as a lawyer after all.

[Learnerlitigator]

oh seems not otherwise they couldn't have a default judgement.

[AndyOrch]

Types of claim in which Part 8 procedure may be followed

8.1

(1) The Part 8 procedure is the procedure set out in this Part.

(2) A claimant may use the Part 8 procedure where –

(a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or

(b) paragraph (6) applies.

(3) The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate.

(4) Paragraph (2) does not apply if a practice direction provides that the Part 8 procedure may not be used in relation to the type of claim in question.

(5) Where the claimant uses the Part 8 procedure he may not obtain default judgment under Part 12.

(6) A rule or practice direction may, in relation to a specified type of proceedings –

(a) require or permit the use of the Part 8 procedure; and

(b) disapply or modify any of the rules set out in this Part as they apply to those proceedings.

(Rule 8.9 provides for other modifications to the general rules where the Part 8 procedure is being used)

(Part 78 provides procedures for European orders for payment and for the European small claims procedure. It also provides procedures for applications for mediation settlement enforcement orders in relation to certain cross-border disputes.)

[Learnerlitigator]

Thanks Andy, still unsure what the part 8 procedure means.

[AndyOrch]

Basically Pt 8,s are used if there is no amount claimed but for the court to decide (from a CAG point of view we dont usually get many if any queries about PT8,s)Mostly used in the High Courts and Supreme in cases such as damages, slander.

Rarely used in Civil Cases.

[Learnerlitigator]

Oic, thanks that explains my confusion (to me at least lol). I'll worry about it no more.