Capquest got sneaky CCJ by Default - shop direct debt.***Set a Side/Dismissed***

[CitizenAccord]

On 2nd July 2013 I received a Claim Form from Northampton (CCBC) County Court with an Issue Date of 27th June 2013 (attached).

 

Capquest were claiming the value of £299.99 plus costs related to a Shop Direct account

 

I had taken out in 2010 but stopped paying in 2011 as I lost my job and had difficulty making payments.

Although I believe the original debt was closer to £450.

 

I subsequently acknowledged service of the Claim Form through Money Claim Online with the intention of submitting a defence in due course.

 

I also sent two letters to Capquest, a CCA s.78(1) request and a CPR 31.14 request (both attached) on the 3rd of July,

 

I subsequently received a response from Capquest dated 12th July which included a copy of a Notice of Assignment from Shop Direct

and a Debt Purchased letter from Capquest which were allegedly sent to me on the 8th of February 2012 (I can not find these in my files from Feb 2012),

the letter (attached) also stated that whilst they liase with Shop Direct to resolve this matter no further legal action will be taken.

 

Naively, I submitted no defence to the Claim Form and had received no further correspondance until today, 27th December 2013, when I received a Judgement for Claimant (in default) dated 9th December 2013 and with costs of £90, not £65 as stated in the original claim form.

 

I've been scouring these and other forums all day for some advice,

I realise that I could pay £80 and apply to the court to set aside the judgement,

but would be grateful for any advice on how to deal with this CCJ and Capquest

as I believe that Capquest have misled me to manipulate a judgement by default a

nd hope there is some other way to remedy this especially as Capquest have failed to provide respond fully to my CCA s.78(1) and CPR 31.14 requests.

Edited December 28, 2013 by CitizenAccord
Updated Attachment

[silverfox1961]

Hi and welcome to CAG

 

Unless you set this judgement aside, CQ will enforce this judgement. It will also show on your credit file for 6 years.

 

 

Hopefully more peeps can assist

[mjt2013]

Could you explain why you feel you have been "misled"?

 

Also, just to clarify the advice you're seeking; you say you're aware of the option of setting aside the judgment but want advice about how to deal with the CCJ; are you saying you've considered applying to set aside and want advice about other options like how to pay or are you nonetheless after advice about whether to apply to set aside?

[mjt2013]

Oh, I've just read the attached documents. Are you saying they misled you by saying no further action would be taken and then applying for a default judgment?

[renegadeimp]

Oh, I've just read the attached documents. Are you saying they misled you by saying no further action would be taken and then applying for a default judgment?

 

Sadly, thats one of capquest's favourite tricks to get a CCJ on someone. About a set aside, what reasons would you have? The reasons to get a set aside are limited, and so far i cant see any you could use.

[dx100uk]

you need to ditch the barcode on the claimform.

 

have you ever sent shop direct an SAR?

have you got all the statements?

 

dx

[CitizenAccord]

Hi mjt2013,

Thanks for your questions.

 

Yes, I believe that Capquest have misled me by saying that no further action would be taken and then continued to apply for a default judgement.

 

I've considered the option of applying to set-aside the judgement based on the letter Capquest sent stating that they would not take further legal action but I can't afford to pay the £80 fee or the judgement value right now. Also because they seem to have misled me and haven't complied with my CCA s.78(1) and CPR 31.14 requests I am looking for advice on what other options might be open to me to challenge this and ensure the judgement doesn't appear on my credit file.

 

I'm not afraid to do the research or work required but do need some direction if at all possible.

[mjt2013]

If you're on certain benefits you can be exempt from the fee. If you're working I'd suggest it'd be money well spent to try to have the judgment set aside if you do want to challenge it because there's not really anything else to be done if the judgment remains in place. In particular the judgment can and should appear on your credit file because you're a credit risk.

[CitizenAccord]

Hi renegadeimp,

 

I would use the letter that Capquest sent to me as a reason for set-aside as I believe they have misled me to manipulate the process for a default judgement.

If I call Capquest and explain the situation and that I believe they have made a mistake, could they cancel the judgement?

Isn't this type of tactic illegal in some way?

Edited December 28, 2013 by CitizenAccord
Additional Question

[CitizenAccord]

Hi dx,

 

Thanks for the advice, I've amended the claim form and removed the barcode.

I've never sent a SAR to Shop Direct, only the CCA s.78(1) and CPR 31.14 requests to Capquest, I've got all the statements that Shop Direct sent to me in my files but haven't received anything from Capquest.

[havinastella]

If you apply for a set aside, this will just reset the claim. What defense do you have against the claim?

[CitizenAccord]

If you apply for a set aside, this will just reset the claim. What defense do you have against the claim?

 

Thanks havinastella,

 

The reason I sent the CCA s.78(1) and a CPR 31.14 requests was to find out if they could produce the documents to prove that they own the debt and also that the debt belongs to me. My defence would have been dependant on this, but Capquest didn't even respond to my requests in full.

[havinastella]

Is the debt yours? Was the credit taken out after April 2007?

 

If so, you really have little defense, so no point in setting it aside. Are the figures correct, it sounds like they have split the claim.

[AndyOrch]

Thanks havinastella,

 

The reason I sent the CCA s.78(1) and a CPR 31.14 requests was to find out if they could produce the documents to prove that they own the debt and also that the debt belongs to me. My defence would have been dependant on this, but Capquest didn't even respond to my requests in full.

 

 

You had better think of something more substantial than that if you intend setting a side...the claimant will have a field day for costs against you.

 

 

Regards

Andy

[defaulter3076]

While Shop Direct Financial Services were the finance company, who were you shopping with? Similar problem myself, not as far advanced as yours, possibly there was a previous assignment from Shop Direct Financial Services.

[CitizenAccord]

Is the debt yours? Was the credit taken out after April 2007?

 

If so, you really have little defense, so no point in setting it aside. Are the figures correct, it sounds like they have split the claim.

 

I believe the debt is mine, and the credit was taken out in 2010, I'm not trying to avoid paying the debt here, only the default judgement, I simply can't afford to pay the debt.

Why did you ask if the debt was taken after April 2007, is there any significance about that date?

The value of the claim is lower than the total amount Capquest claim I owe, what do you mean by split the claim? Does that mean that Capquest could still chase me for the remainder of the debt?

[CitizenAccord]

You had better think of something more substantial than that if you intend setting a side...the claimant will have a field day for costs against you.

 

Regards

Andy

 

Hi Andy,

Do you mean that Capquest would be able to ask the court for me to pay their costs if I apply for a set-aside?

 

My main aim is to avoid the default judgement, even if that means getting into an agreement to pay little every month to Capquest, which I would have attempted to do if they had not said not legal action would be taken. Can Capquest cancel the CCJ?

[AndyOrch]

Hi Andy,

Do you mean that Capquest would be able to ask the court for me to pay their costs if I apply for a set-aside? Correct if your application fails/grounds for set a side rejected

My main aim is to avoid the default judgement, even if that means getting into an agreement to pay little every month to Capquest, which I would have attempted to do if they had not said not legal action would be taken. Can Capquest cancel the CCJ?

No the only way to avoid it to make payment within the required time.

 

 

 

 

With regards to the outstanding balance any further claim for partial monies is averred contrary to s35 of the county courts Act 1984..s35...division of causes of action.

Regards

Andy

 

[CitizenAccord]

Today I spoke to the County Court

 

who advised that I call Capquest directly to ask them to discontinue the claim,

 

which I did and

 

Capquest advised me that they will investigate,

 

but I'm worried that this will just be a stalling tactic and nothing will happen.

[Ganymede]

Why would they discontinue now there is a CCJ in place?

[CitizenAccord]

Since my last post I've been thinking about what my defence would have been (I did start researching back in July but dropped the research when I received the letter from Capquest about no further legal action) as I'm becoming more and more certain that Capquest won't discontinue. So I've prepared two possible defences based on the facts:

 

Defence 1

 

1)Except where otherwise mentioned in this defence the Defendant neither admits nor denies any allegation made in the Claimants Particulars of Claim.

 

2)The claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a)The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b)A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form as laid out in Practice Direction 16. Paragraph 7.3.

 

c)A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

Abuse of Process

 

3) It is also noted that the Claimant is trying to conduct this claim contrary to s35 County Courts Act 1984 as the Defendant notes the Claimant has split one cause of action into two or more separate claims. This is unlawful as laid out in section 35 of the Act and with respect the Defendant requests the court strike out this case as a clear abuse of process.

 

4)Further to the case, on 3rd July 2013 the Defendant requested disclosure of information from the Claimant, pursuant to CPR Part 31.14. A copy of this request is attached with this defence

 

5)In reply to this letter the Defendant received only a written statement on the 13th of July 2013 noting that the Claimant is liaising with Shop Direct Financial Services as the requested documents are held by the original creditor and an unverified copy of a Notice of Assignment from both Shop Direct Financial Services and the Claimant.

 

6) On 3rd July 2013 a letter was sent to the Claimant, requesting details under the Consumer Credit Act 1974 s.78(1). A copy of this letter is attached with this defence

 

7)In reply to this letter the Defendant received only a written statement on the 13th of July 2013 noting that the request has been received with acknowledgement that under the Consumer Credit Act 1974 s.78(1) a creditor is unable to seek enforcement of an agreement if they fail to respond to comply with a request for a copy under the said Act.

 

8) To date the Claimant has failed to produce further documentation as requested under CPR Part 31.14 and the Consumer Credit Act 1974 s.78(1) and no such documentation has been received. As a result it has proven difficult to compose this defence, especially given that the Defendant is Litigant in Person.

 

Conclusion

 

9) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

10) In the alternative, the Defendant respectfully requests a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraphs 4 and 6 of this defence, or until the court orders the Claimants compliance with the same. The Defendant respectfully includes draft directions for consideration by the court. The Defendant will then be in a position to file a fully particularised defence and possible counterclaim and will seek the courts permission to amend his statement of case accordingly.

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

Fully particularised statement of case

Copy of Referenced agreement

Copies of any statement or other document relied upon pursuant with CPR 31.14

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

An amended defence sufficiently particularised in response to the documents supplied by the claimant

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

Defence 2

 

1. Paragraph 1 is nether admitted or denied with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') the Claimant has yet to disclose any Agreement. Furthermore any claim for partial monies is averred Contrary to s35 of the county court Act 1984 s35 Division of causes of action.

 

2. Paragraph 2 is noted with regards to termination of the alleged contractual Agreement , the Defendant has no knowledge, therefore the Claimant is placed to strict proof there of.

 

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

6. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

At the point the defence would have been due in July Capquest had not complied with my request under Section 78(1) of the Consumer Credit Act, which I understand to mean that the debt would be unenforceable due to exceeding 12 working days from my request. I also believe that this is something I should raise in a set-aside request, would that be right?

 

I'd be grateful if anyone could advise on the defences and which one looks better.

[CitizenAccord]

Since my last post I've made some good progress with this case and Capquest have asked the court to discontinue the judgement...success!

 

I wanted to let other people in a similar situation know that it's possible.

 

In the end, through more in-depth research myself and the help of some other forums I contacted Capquest, by phone, after Northampton County Court advised me that Capquest can discontinue the claim. I explained, politely, what had happened and that it was in the interest of Capquest to discontinue the claim, two days later Capquest's law firm confirmed that they had sent the papers to the court to discontinue.

 

Some of the advice I received was that there's nothing to be done and I should pay everything or put the money I'd spend on setting-aside the judgement towards paying Capquest. It was in Capquest's interest to ensure that they followed the process set-out in law, which they didn't, and as a result they were obligated to correct the error.

 

Thanks to everyone who helped.

[AndyOrch]

How can you discontinue a Judgment ?

[renegadeimp]

Is capquest up to their old tricks again? Sure looks that way.

 

Until you get it in writing AND get confirmation from the court that the claim is discontinued, treat it as if it hasnt. Capquest are known to say they have discontinued purely to get you to default on a court oder, so they can go all out on you.

[dx100uk]

that's what I though too andyr ??????

 

dx