Unknown CCJ by drydens on an EGG debt***Claim Discontinued***

[dx100uk]

so what defence are you using for the reason?

 

 

did you confirm its SB'd?

 

 

dx

[PCoombes100]

Sorry for the late reply, things have been a bit of a downer for me lately.

 

I have today received a statement from Capquest (ahead of the court hearing) saying that I was paying them for a debt they purchased from Egg (in 2005 when it defaulted) up until 2011. I have no recollection of this, and can not access my bank statements from this far back, any ideas what can I do please?

[Old Cogger]

Ask them for proof/when/amount/how etc etc etc

[PCoombes100]

Hi mike.

 

They sent a witness statement and payment schedule but I can't check bank statements nor do they have any written correspondence of me admitting the debt to Egg.

 

Any ideas what to do are appreciated

[PCoombes100]

Witness statement attached - thanks for all help!!!

[AndyOrch]

If the agreement was terminated 1st July 2005 with a balance of £3,287 how has it increased to £5,187 Judgment 11th Sept 2014?...The agreement had ended.

 

Strange that they used your old address for service of the claim...yet I assume they got the correct address for enforcement?

 

Regards

 

Andy

[PCoombes100]

Hi Andy

 

Thanks for taking the time to review.

 

They have never used a correct address for anything!! As you will see, Egg sent a letter to 1 address stating that account passed to Capquest, and Capquest then sent their account passed letter to a different address, within a matter of days!!!

 

They have said in the statement that they have posted a notice of default, but, as they had registered nothing on my credit file, am I right in assuming this could just have been a letter? Do they need to prove where/when they sent this?

 

I am fairly hopeful that I can get the judgment set aside, but as I am not a well-read solicitor (or trainee in this instance), I am obviously concerned that things may not go in my favour in court. What do you think is the appropriate course of action?

 

Thanks again

[AndyOrch]

Not fully up to speed with your thread PC...but what stage are you at....you have a hearing.......have you submitted any form of defence?

 

Do you intend submitting a WS in response to the above....if so you need to serve it not less than 7 days pre hearing.

 

Andy

[PCoombes100]

Hi Andy

 

My hearing is on Tuesday!!

 

I am going to pursue the defence that I had no detail of Capquest being a creditor, nor did they attempt to contact me until after I had left my previous address, which they admitted to in their WS.

 

Is that sufficient you think to get it set aside to allow a proper defence?

[AndyOrch]

You really should have submitted a Witness Statement in support of your application...on receipt of the claimants.You could still possibly email the court and the claimant this evening and it would be accepted (3 days prior).

 

The points I made in my post#56 should be your main points of argument.

[PCoombes100]

Hi Andy

 

I completed an n244 form and the 2nd page detailed all of the points about incorrect addresses, no contact, no information sent to me when requested, this is what they argued against.

 

I will send an email ASAP tonight, although I don't have a court email.

 

Are you able to expand on your points for the email at all please?

 

Many thanks.

[AndyOrch]

Having read their Witness statement and looking at the facts that they will rely on to object to any set a side...your main 2 are the ones I have already stated and which you should be concentrating on.Yes the other points that you may have listed on the N244 will be taken into account...but they may not suffice to attain success.

 

The WS they have drafted is in response to your application and what they have viewed as your main contentions...you are now in a position to expand and add to your defence by way of a Witness Statement.

 

My points are relativity simple and common sense.... how can a terminated agreement increase by over 2k when their is no agreement ?

 

How did they not know your address for service...yet they could find the correct one for attachment of earnings etc?

 

I could possibly assist you tomorrow...but I'm about to leave now for the evening.If you wish to make a start and start refuting their witness statement paragraph by paragraph...and I will check it tomorrow and tweak as necessary.

 

Regards

 

Andy

[PCoombes100]

Thanks Andy, that's very useful info, I will get on the case as soon as I get home.

 

Really appreciate your time and help with this.

 

Hi Andy

 

Have PMd you.

 

Many thanks.

 

Hi Andy

 

Have sent a PM.

 

Kind regards

[AndyOrch]

Many thanks and contents noted....further to their WS I note at point 16.2 they rely on CPR 6.9 for service of documents......

 

CPR 6.9 for reference is as follows .....

 

6.9

(1) This rule applies where –

 

(a) rule 6.5(1) (personal service);

(b) rule 6.7 (service of claim form on solicitor or European Lawyer); and

© rule 6.8 (defendant gives address at which the defendant may be served),

do not apply and the claimant does not wish to effect personal service under rule 6.5(2).

(2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table.

(For service out of the jurisdiction see rules 6.40 to 6.47.)

 

Nature of defendant to be served

 

Place of service

 

1. Individual............ Usual or last known residence.

 

So you can counter that by referring to CPR 6.9 (3)

 

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

 

PC you need to read their WS para by para and make notes .of what they state /rely on...the above is one example were you can find a flaw....if you dont point out errors then the DJ will go with what they state in their WS.

 

Regards

 

Andy

[PCoombes100]

Hi Andy

 

Thanks again for this.

 

Will review what I currently have and go through each point as you suggest.

 

Hope to be able to use my PC instead of phone to post up later!!

 

Kind regards

[PCoombes100]

Hi Andy,

 

here is my response, all input and feedback is hugely appreciated.

 

WITNESS STATEMENT RESPONSE

 

In response to the claimant’s witness statement, I submit the following response and politely request the court to consider all points before making its decision:

 

BACKGROUND & OVERVIEW

4 - The claimant states that they bought ownership of a debt from Egg Plc relating to a credit card. The claimant has not provided an original Consumer Credit Agreement, pursuant to my request under the Consumer Credit Act 1974, section 78.

5 - The account is alleged to have defaulted on 1 July 2005. Is the claimant able to provide proof of the alleged default and Egg’s attempts to recover monies?

6 - The alleged debt/outstanding balance is stated as £3287.60, however, the claimant has filed a CCJ for £5165.02. Is the claimant able to explain for what reason an alleged debt, of which no proof has been provided, can increase by over 36%?

7 - The Claimant reports that under Point 136 of the Property of Law Act 1925, the alleged debt was legally assigned to them. As per the claimant’s evidence, the first letter was sent by Egg to an address at ‘26 D Road’, with a second letter sent by Capquest to ‘200 C Road’ address. It is my argument that the alleged debt has not been legally assigned to the claimant correctly, nor any notice served correctly as the claimant has not endeavoured to locate my current correct address at the time.

8 – The document the defendant classes as a statement of payment provides no concrete proof of payments being made to the claimant for the alleged debt. If, as claimed due to the statement, payments were taken from my account without my knowledge or authorisation, and as the alleged debt was not proved to be legally assigned to the claimant, this is liable to further investigation by the Financial Conduct Authority (and any other relevant authorities).

 

PRESENT PROCEEDINGS

9 – As previously stated, under the claimant had not made sufficient attempt to ascertain my current address. As per my N244 form presented to the court, I have been living at ’50 V Road’ address, and on the electoral register since February 2014. It is my claim that the claimant could have accessed this readily available information, prior to contacting the courts to start proceedings.

10 – As above, the claimant offers letters as proof of contact, however the first letter is nearly 4 months after I moved out of 120 J Road. If, as the claimant suggests these letters were sent without reply or return, then it is right to assume that the claimant has not followed Civil Procedure Rules 6.9 (for service of documents):

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

11 – As per the previous points, it is right and fair to state that the claimant had not taken reasonable steps to obtain my correct and current address.

12 – The claimant states that Judgment in Default was entered on 11 September 2014 due to lack of response. As for the points raised above, I state that the claimant had not followed correct procedure in obtaining the judgment.

13 – Claimant states that they proceeded with enforcement of an Attachment of Earnings Order, again, contravening CPR 6.9 that reasonable steps should have been taken. I have had no contact regarding the Attachment of Earnings, nor has my employer. By checking this information (about employer being contacted for Attachment of Earnings), has led to questions about my current state of well-being (physical and psychological) with my employer, leading to undue stress on my part.

 

CLAIMANT’S RESPONSE

16 – The claimant indicates they received no notices indicting that the documents had been returned or not delivered to me. Again, as per Civil Procedure Rules 6.9, a simple check of the electoral roll would have indicated the claimant was issuing letters to an incorrect address. If the claimant insists that '120 J' was my last known address, they should indicate how they obtained this address for issuing letters and Attachment of Earnings, as I had no contact with them whilst living there. It is my claim that the claimant has tried to avoid standard court procedure and law in order to obtain a CCJ by deceit.

 

DELAY/ABUSE OF PROCESS

17 – As stated in my completion of form N244, I was made aware of the CCJ in October 2014, yet the claimant argues that 7 months later is too late to set aside a CCJ. As per my N244 form sent to the court, I have asked for the claimant to provide proof of the alleged debt and reasons for enforcing the CCJ. As stated, they had not responded to my request for information, and only provided this to the court when a suitable application to set aside had been applied. It is my claim that the claimant had delayed providing me with information in order to delay the process in the hope that their claim be upheld.

18 – The claimant states it would be prejudice to the claimant for the judgment to be set aside, however, by not complying with Civil Procedure Rules, nor my request for information, there is no substantiating this claim of prejudice. In fact, by not supplying me with the information I requested, has caused severe prejudice against my subsequent claim.

19 – The claimant suggests that by waiting for the claimant to enforce a judgment before having it set aside is an abuse of the court’s procedure by myself. However, I am able to provide a credit report that shows that there was no debt/credit agreement with the claimant, nor did they follow suitable procedure in getting the judgment enforced. It is my claim that it was implausible for me to defend against an alleged debt that I knew nothing of, especially if the claimant was unwilling to provide evidence.

 

 

SUMMARY

22 – The claimant states that assignment of the alleged debt to the claimant enforces that debt is now owed to them and repayment has been requested. As previously stated, the claimant has not pursued alleged debt through the correct methods, pursuant to Civil Procedure Rule 6.9 (3).

23 – The judgment must be set aside for the following reasons:

a) The proceedings and judgment were not served at the correct address as the claimant had no prior contact with me, so Civil Procedure Rules were not followed.

b) The claimant has been unwilling and unable to provide an original credit agreement and information pertaining to the original alleged debt.

c) According to the claimant, the alleged debt had defaulted in July 2005. Under the Limitation Act 1980, a simple contract may not be pursued after a period of 6 years. The claimant will suggest that they received payment toward the alleged debt, however, no proof of this claim has been provided.

d) The claimant has abused process by not providing information in due course which would have strengthened my claim to have the judgment set aside. The claimant has not registered any debt or default against my credit report, and I am happy to provide my latest report from credit reference agencies to prove this.

 

CONCLUSION

24 – I politely request that the court set aside the judgment as substantial proof of the alleged debt has not been provided, nor have correct procedures been followed by the claimant.

[AndyOrch]

Yes that's fine....just one suggestion at point 6 state the actual difference in cash value and reiterate that the claimant states the agreement was terminated at xxxxxxx with a value of £ xxxxxxx...how can a terminated agreement increase?

 

You are running out of time now ....so I suggest you email the Court and claimant ASAP.

 

Regards

 

Andy

[PCoombes100]

Brilliant, will do.

 

Thanks Andy

 

Thanks Andy, will do.

 

Is it worthwhile adding the following to the conclusion/

 

Furthermore, I have a very good credit record and wish for this to remain unblemished with a view to obtaining a mortgage in the near future. If the claimant’s judgment is upheld, this would severely impact on my credit rating and make it near impossible to obtain credit.

 

Yes that's fine....just one suggestion at point 6 state the actual difference in cash value and reiterate that the claimant states the agreement was terminated at xxxxxxx with a value of £ xxxxxxx...how can a terminated agreement increase?

 

You are running out of time now ....so I suggest you email the Court and claimant ASAP.

 

Regards

 

Andy

 

Hi Andy, should I state the date that it went into Default (July 2005), or the date that they state it was supposedly assigned to them (October 2006)?

 

Thanks again

[AndyOrch]

Personally....no I wouldn't.....but be mindful that any set a side relies on the ability to be able to offer a proposed viable defence...so when the DJ comes to conclude he will refer to this and ask...just so you are prepared.

 

Hi Andy, should I state the date that it went into Default (July 2005), or the date that they state it was supposedly assigned to them (October 2006)?

 

Thanks again

 

Depend on what you intend to argue......? What is the basis of your defence...should you attain a set a side?

[PCoombes100]

Okay, I won't add anything to the conclusion.

 

What about this for point 6:

6 - The original alleged debt/outstanding balance is stated as £3287.60, however, the claimant has filed a CCJ for £5165.02. Can the claimant provide justification as to how an agreement which was terminated in October 2006 can then be entered for judgment with an additional £1877.42 added to the claim?

[AndyOrch]

Fine.

[PCoombes100]

Thanks Andy,

 

The basis for my argument to set aside is that the debt is statute barred, they have not followed correct procedures in obtaining the CCJ, they have delayed proceedings and tried to withhold information to damage may application to set aside and that no original CCA has ever been produced.

 

Do you think that is a good route to follow?

 

Regards

[AndyOrch]

As long as you can prove it was SB before any claim issued then you dont need anything else.......its the ultimate weapon

[PCoombes100]

I am hopeful that SB will stand, but obviously worried about their claim that payments were made.

[AndyOrch]

Then you attack the phantom payments ...have you included a section above in response to their statements of payment?