CapQuest - Default Judgement CCJ - going for set aside***Discontinued by Consent***

[Asbestross]

Ok all,

 

Apologies, this is gonna be another part-rant/part-informative thread.

 

I had a letter in middle of August this year from CapQuest, advising that they have recently obtained a CCJ against me and expecting me to contact for payment etc etc etc.

 

 

 

Following, some quite extensive investigations, i've managed to find the following:

• This is in relation to an old T-Mobile account which I vaguely remember having around 5 years ago. Lost the phone with about 5 months left in the contract, and rather stupidely didnt pay the bill expecting the insurance to cover it.
  
• During my time at previous address, I had no correspondence whatsoever from CapQuest, no calls, no visits, no letters.
  
• In January 2012, CapQuest credit searched me, obtaining my current address - No contact was made to me at my current address either.
  
• Having discussed with them recently, the residents of my previous address told me that around February / March they had a visit from someone called Scotcall (an acting agent of CapQuest) and that they had advised no longer at this address, and provided my current address. I was only on the electoral roll at my new address, registered October 2011.
  
• CCJ was obtained by default in May 2012, at my previous address knowing full well of my current address and my inability to defend.
  
• CapQuest then sent a letter advising that a CCJ had been obtained against me, to my current address in the middle of August and that I should make payment.
  

Obviously as we're dealing with a higher level of debt here, I was obliged to offer any form of payment. A 'without prejudice' payment schedule was setup, and the first payment taken out at the end of September. Now knowing full well that CapQuest had applied for judgement in a previous address when they had full awareness of my current address, and being able to prove this with various means, documents etc. Considering I have made payment without prejudice, is this grounds for a set-aside?

 

The delay from mid-august to now, has been finding all documentation, speaking to occupiers of previous house etc.

 

They filed for CCJ in my previous address knowing that I wouldnt be able to defend, even on one of their letters it states "Enforcement action via the CCJ was never persued, to prevent a higher amount of debt" - so in other words. We filed for a CCJ knowing you couldnt defend, so that we could say 'Look, we have a CCJ, now you gotta pay us'....

 

As always, comments / questions or advice are appreciated.

Thanks

[marmaris30]

It looks like you can construct a decent case that their tactics are an abuse of process - hopefully someone will come along who can help you do that and apply for a set-aside. In your letters about payment, have you made it clear that payment is under protest?

 

Also, when was the last payment actually made to T-Mobile? The trouble is that if you did actually owe them money and this was less than 6 years ago, set-aside simply resets the proceedings to the claim stage and you'd then need to enter a defence.

[Asbestross]

Payment details were provided over the telephone as a direct debit, I did state in the call that i'll make payment without prejudice so that I can investigate the matter though.

 

All further correspondence I've sent them I've also stipulated that all payments are without prejudice. But not under protest though.

 

The thing is i'm not disputing that I owe money to T-Mobile, just the amount that they claim. If they had bothered to contact me at my current address I would have paid it in full and as soon as possible. But they have denied me that right, and also denied me the right to settle within the 30 days as they only contacted me after that time had passed.

 

What a nightmare!

[marmaris30]

You need to be careful with the term 'without prejudice', as all it does is enable letters to be withheld from evidence, where they represent a genuine attempt to settle out of court. They might try to argue that once it has been to court, the tag has no effect, and therefore introduce them as evidence of an admission of liability.

 

However your defence, by the sound of it, is that you were happy to pay whatever amount (do you know how much?) had you been notified, and that the CCJ is an abuse of process because it was never necessary and you have evidence of their messing about with addresses. Their counter-argument could be that you knew you had a T-Mobile account and that you ignored it, thus justifying the eventual legal action regardless of process.

[Asbestross]

Ah, well if that comes to pass then it is purely a mistake on my part. But if it comes down to a hearing I'm sure the judge would agree my belief of making payment whilst admitting no liability.

 

The amounts owed, according to CQ pre-CCJ are around £300. They try to imply I had awareness, but I've had no contact from CQ, or T-Mobile in relation to any amounts owed up until this CCJ being filed for. I genuinely believed that as my phone had been lost and the insurance initiated that this would cover the remainder of the contact - rather naive on my part I know, but I wasnt as clued up all those years ago as I am now unfortunately

 

It just feels like, instead of giving me an opportunity to resolve the situation amicably, they've instead gone down the route of filing for a CCJ when they know I couldnt defend, so as to give themselves more authority to collect.... I would definately say an abuse of process.

 

Thanks for your help marmaris, very much appreciated

[marmaris30]

It sounds like you have some reasonable arguments to me, and you're welcome. I hope one of the more experienced forum members will be able to help you further and ensure you're on the right track.

[Asbestross]

Following on from this, I have had a copy of the notice of assignment sent by CapQuest as requested.

This is dated 2x/11/2011 which is three months after I left the property which they have obtained judgement by default in.

 

No contact would have been possible at the previous address, and I am actually quite bemused as to how to came to the conclusion that I was living there. I hadnt obtained any credit in that address, was not on the electoral roll and had no utilities either. I had no credit searches performed in that address also.

 

Moving forward, I'll draft a letter to CapQuest informing them that unless they agree to a Consent Order being drafted I will be applying for a set-aside in relation to the Judgement? Is this the right thing to do, or should I just be applying for a set-aside in light of their abuse of process and not receiving the claim form?

Edited October 18, 2012 by Asbestross

[Asbestross]

Would someone be so kind as to proof read thhe particulars of the N244 form as below for me?

 

I HEREBY MAKE APPLICATION THAT THE JUDGMENT BY DEFAULT ENTERED AGAINST ME BE SET ASIDE.

THE CLAIM WAS ENTERED AGAINST ME, AT A PREVIOUS ADDRESS BY THE CLAIMANT, WHILST KNOWING MY CURRENT ADDRESS AND AS SUCH I DID NOT RECEIVE THE CLAIM FORM NOR ANY DOCUMENTS PERTAINING TO THIS JUDGEMENT.

 

WITH ALL DOCUMENTATION RECEIVED AND INVESTIGATIONS, IT IS PROVEN THAT THE CLAIMANT ENTERED THIS CLAIM AGAINST ME IN MY PREVIOUS ADDRESS KNOWING THAT I NO LONGER RESIDED THERE. UP UNTIL BEING AWARE OF THIS ALLEGED DEBT IN xx/xx/xx I HAD NO PRIOR CONTACT, NO CORRESPONDENCE FROM THE CLAIMANT, NOR HAD AN AWARENESS OF THIS ALLEGED DEBT.

THE CLAIMANT CREDIT SEARCHED ME IN xx/xx/xx, AT MY CURRENT ADDRESS, PROVEN WITH A COPY OF MY CREDIT REPORT. THIS CLAIM WAS ENTERED AGAINST ME, WITH THE INTENT OF OBTAINING JUDGMENT BY DEFAULT AND AS SUCH DENYING ME MY LEGAL RIGHT TO DEFENCE. THE CLAIM FORM WAS NEVER RECEIVED BY ME.

I BELIEVE I HAVE A DEFENCE TO THIS CLAIM AND IF THE CORRECT PROCESS HAD BEEN FOLLOWED BY THE CLAIMANT, COURT ACTION WOULD NOT HAVE BEEN NECESSARY. AS SUCH I SUGGEST THE CLAIMANT HAS COMMITTED AN ABUSE OF PROCESS. PAYMENTS HAVE BEEN MADE SINCE DISCOVERY OF THIS CCJ UNDER DURESS AND WITHOUT PREJUDICE TO STAY ENFORCEMENT ACTION WHILST THIS CLAIM WAS INVESTIGATED.

 

Thanks in advance,

[dx100uk]

i would state you owe nowt as you had insurance.

get it set aside

dx

[Asbestross]

I would include that, but i no longer have the paperwork for the insurance and dont want the courts to think i'm being dishonest if they request I produce it and cannot

[Asbestross]

Evening all,

 

CapQuest have responded to my LBA:

 

 

• They confirmed that the first contact made with me was after the CCJ had been obtained by default.
  
• Their tracing methods used involved tracking me to my previous address via the electoral roll (I wasnt on the electoral roll at my previous address).
  
• They state that they never performed a credit check on me in January this year (my credit file says differently).
  
• That it is my responsibility to keep them informed of a change of address (even though I wasnt aware of a debt with them until September this year after they obtained a CCJ by default.
  
• They also claim to have never sent a Scotcall doorstep agent to my previous address, the resident of my previous address has confirmed he is willing to enter a witness statement stating that a Scotcall visitor attended and was provided with my current address.
  

T-Mobile confirmed to me that there was an outstanding debt of £19x, but this wasnt passed to CapQuest but to another DCA. CapQuest's notice of assignment states clearly they bought the debt from T-Mobile for a value of £3xx.

 

They refused to even investigate the matter, and merely stated that should I feel the need to apply for a set-aside, 'this letter will be sent to the court as clear proof that my claim is unfounded' .

 

N244 form is being sent next week with request for Stay of Execution, SAR to CapQuest and T-Mobile sent, DD cancelled and complaint being drafted to FOS and OFT.

 

Site team, please could you move this thread to 'Legal Issues' accordingly, and I will update the thread when further correspondence is heard back from the court.

 

Thanks all

[Asbestross]

Quick update, submitted the N244 application to set-aside today via royal mail gtd next day. Expect feedback from the court in around a week or so.

Would I be able to ask the DJ to consider costs at the set-aside hearing in light of their abuse of process? Or should these be left for the defence?

 

Cheers all

[Asbestross]

Postie works earlies on Monday it would seem

 

Just had another letter from CQ, assuring me that they are now investigating as per the complaints procedure and asking me to allow them more time before I submit my N244 . Also noting that the account is on hold indefinately until they fully investigate.

 

So ... they blatently refuse to adhere to lawful process, and yet they want me to give them more time to investigate its laughable at best. Too late anyhow, the application form has already been sent to and received by the court. Clearly they didnt read my lba correctly as the deadline was last Monday.

 

I'm so tempted to send them a snotty mail in return, but I think i'll let the application notice they'll receive speak for itself.

[Asbestross]

Hearing date set with local court as middle of Jan 2013.

 

Have also received all info as per a Subject Access Request I served on them this morning. Interesting to see that there are absolutely no statements / agreements etc which they explicitly referred to in the POC's on their claim form. No default notice which they also referred to.

 

Also in the transcripts several sections state that the address in which they filed the claim form was 'unconfirmed address-retrace'.

 

...and surprise surprise, no copy of the credit report they obtained as per the search done in January.

 

Will update closer to the time.

Thanks

[Guest]

re technical cc act def notice? prob not required as was a mob phone contract, not a consumer credit agreement?

ooi, what were their poc?

anyway, set aside in. that statement from resident could prove v useful.

Edited November 25, 2012 by Ford

[Asbestross]

POC's of original claim form

 

Part of the balance outstanding under a regulated agreement made between T-Mobile and the Defendant for the supply of mobile Telecommunications. The agreement was terminated by T-Mobile when the Defendent failed to honour the agreement. The 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 oe queries should be directed to the claimant on: 0844 248 9097 (Phone) or 08442488999 (fax) or email: [email protected]

[Asbestross]

An update to this thread.

I had my time in court this morning for the set-aside hearing.

 

CQ appointed a local solicitor to represent them, to be honest she just looked flustered and stuttered through the whole hearing.

 

Judge asked why I felt I had grounds to set-aside,

 

I stated that firstly I had no idea what this debt was for as upon contract termination I had a zero balance.

 

He asked the CQ rep if there was a contract in place.

 

.. she replied "Well there must be sir, as how would the claimant bring this to court without it".

 

My response "Having served a SAR on CQ which failed to provide one,

and contacted T-Mobile only for them to refuse to discuss as my details dont match what they have on the account. I can say all evidence proves otherwise."

 

Judge asked why I hadnt responded with this originally, stated that CQ knowingly filed for judgement in previous address to deny me legal right to defence.

 

He then stated that 'presumably you didnt receive paperwork as a result?'.

 

Judge agreed to set-aside under the condition that I file a defence with the court within 14 days and that CQ provide a contract within the same timeframe.

 

What infurated me though, the rep for CQ managed to argue £90.00 costs for her time as CQ claimed that I hadnt advised this debt wasnt mine previously.

 

Even though I showed the judge a letter detailing everything that was discussed today, he awarded costs in their favour

 

But, im taking this as a win, the judgment was set-aside and I can now finally challenge it

 

Anyone willing to offer help with writing a defence?

[Asbestross]

Ok, have sent a CPR18 request to CQ giving 7 days to respond. Hope this was the right thing to do.

If they do not respond do I submit an embarrassed defence to the court?

 

Cheers

 

EDIT: My mistake, a CPR31.14 request.

Edited January 15, 2013 by Asbestross

[AndyOrch]

" What infuriated me though, the rep for CQ managed to argue £90.00 costs for her time as CQ claimed that I hadnt advised this debt wasnt mine previously. Even though I showed the judge a letter detailing everything that was discussed today, he awarded costs in their favour "

 

Did you claim your costs Asbestross...after it was your application and costs...not the claimants and they lost.I would be questioning that decision further into the process.

 

Regards

 

Andy

[Asbestross]

Hi Andy,

 

I tried and asked the judge to consider mine, but he said that he felt it may be inappropriate to award my costs at this stage. Said that I've to submit my defence and at a later hearing they will be considered should I succeed.

 

I'm right in thinking that if I succeed in my defence, costs for yesterday will not need to be paid also?

 

Cheers

[Ganymede]

Were today's costs summarily assessed? Were costs awarded in the application? If so you'll have 14 days to pay them.

[Ganymede]

Sorry can't edit on my phone, meant to ask if costs were awarded in the case if not?

[Asbestross]

Hi Ganymede,

 

The judge said costs awarded in case to claimant (CQ). I presumed that CQ would then add these costs onto the account.

 

Guess i'll know for certain when I get the order through, should be tomorrow I think.

 

Thinking about it some more, I really cannot understand why he awarded costs in their favour and denied mine. The judge agreed that they didnt follow the correct process in obtaining the CCJ and that I have a reasonable chance of defending it... so naturally it should follow that my expenses should be paid.

 

A little confused

[AndyOrch]

"Thinking about it some more, I really cannot understand why he awarded costs in their favour and denied mine. The judge agreed that they didnt follow the correct process in obtaining the CCJ and that I have a reasonable chance of defending it... so naturally it should follow that my expenses should be paid."

 

Preciously my point!!

[Asbestross]

Ok, well not gonna stir too much of a fuss up for the time being as I applied to court for a set-aside and got what I wanted, so even though he awarded costs in their favor, I get the opportunity to defend now .

 

He did say I should submit my costs schedule of tuesdays hearing at a later date so i'll keep a schedule and present them at the next hearing.

 

They have until next Thursday to provide copies of the documents as per CPR 31.14; the same documents I have been asking for since September last year and they've been unable to provide even after a SAR to CQ. When I SAR'ed them for a copy in October, they were unable to provide it... Will be interesting to see what their excuse is this time with regards to CPR.

 

Surely they must have all documents prior to starting court action?

 

Cheers