backdoor CCJ Cabot/Restons - old Blackhorse loan - **WON ** successfully set aside & Cabot Paid my costs!!

[9000Parts]

Was quietly browsing my credit reports last night

when I spotted on both of them that there was a CCJ listed.

I check monthly and its the first time ive seen them.

Was issued 29/12/15 by Northampton Bulk Clearance Centre.

 

Called Northampton today and get a few details from them including the creditor, etc.

Turns out ive been CCJed for a debt that I last made a payment on in 2006

and have never communicated in written form about ever.

 

There were a few calls around 2008/9 from them but I requested more than once

a copy of the Credit Agreement that they were unable to provide.

 

Question 1, Is this debt statute barred? I think it is based on information on gov.uk.

 

Next thing is the claim was made at my previous address

but as I have lived at my current address for more than 2 years

would the debt collector be naughty enough to deliberately issue against the wrong address

in order to get a default judgement?

 

Question 2, How do I go about proving that?

 

There are a few searches on my credit file that have all returned my current address

and as I am confident there is nothing else lurking in my closet

I would assume these searches come from Hillesden.

 

Question 3, Is there a way of getting the information on who made the search

(and for what purpose) from the referencing agencies?

 

Before the end of today N244 will be in the post with a cheque for £155 enclosed.

 

Do I try and talk to Hillesden or their solicitors (I have their details)

or should I just go straight for a hearing in person and try and resolve it that way.

 

The logical thing in my mind is to give them an opportunity to either answer some questions

or trip themselves up but usual advice tends to be leave them alone.

 

As it stands with a CCJ on file I dont really have a lot to lose by taking the fight to them as hard as I can.

[AndyOrch]

Thread moved to Financial Legal Issues.

 

Regards

 

Andy

[9000Parts]

Time for an update on this and a request for information.

 

Submitted N244 and had the hearing recently.

Wasnt well prepared but then nor was the Restons Rep.

The result was that an adjournment was given of 21 days

to give me a chance to get my Witness Statement and evidence sorted.

 

The papers were not served correctly in line with CPR

as the Creditor (Cabot) knew my current address but chose to instruct Restons

to issue the claim on my previous address instead.

I have it in Black and White that Cabot knew my address.

 

Ive been to CAB who have reviewed and tidied up my Witness Statement

which points out the error in issuing

but the main point I make is that the debt is statute barred

(last acknowledgement would be 2006).

 

The Restons rep. claimed he had proof of payments being made in 2010

but I absolutely know that I didnt make those payments.

 

The Limitations Act is a bit vague on the point of who should pay

but I was told there is Case Law that clarifies that only the Debtor can pay on the account.

 

Its this piece of Case Law im looking for.

Been trawling google for a while but im not sure im putting the right search phrase in to discover it?

 

If the Restons rep wants to pull the payments list to refute the claim

then I want to have the Case Law there to refute him.

 

Reason I want to do this is that Restons rep claimed it didnt matter who made the payment

and the Judge (who was clearly irritated early on) seemed to agree with him on that point.

 

It was only when he couldnt find the list

(I know he had it, he briefly flashed it under my nose) did the Judge call to adjourn.

[Ell-enn]

You should be asking them to show how the payments were made :

 

- if it was a card payment - who's name was on the card - what was the transaction number

- if it was by bank transfer - what was the account number, bank name and who's name was on the bank account it was transferred from

[9000Parts]

I understand that part but the payments will either be raised in their response to my witness statement

which claims Statute Barred or I will get ambushed on the day.

 

I want to cover the fact I think the Judge that is taking this case isnt totally aware

(or was being led astray by the Restons rep.) of the Case Law that surrounds payments

made on an account and that only payments made by the debtor count when it comes to Statute Barring a debt.

 

Until I get their response in about 10 days time I am not going to go into details about where the payments come from

I am sticking with me not acknowledging the alleged debt for more than 6 years

and therefore it being Statute Barred.

 

Once I get their response I can formulate my argument.

[Ell-enn]

Did you send them a £1 payment for the CCA you requested ? It has been known for those to be credited to the account as payment, not as a fee for a statutory request - that may be where they're getting the payment info from. Did you keep copies of the letters you sent asking for the CCA ?

[9000Parts]

No,

I did request a CCA some time ago by phone and was issued with part of it

but no payments have ever been made and requests were not made by letter.

 

The Restons rep. had a sheet with multiple payments on it

but nothing that identified them as belonging to me or my account.

 

This is why I want the case law that stipulates that only the Debtor can make payments

and other payments from other sources do not reset the SB clock.

 

I know the payments arent mine so I can claim as much on the day and leave it to Restons to prove otherwise.

Without that case law in my hand I fear the Judge may get led by the Restons rep.

that it doesnt matter who makes the payment.

[mercyblue]

"only the Debtor can pay on the account."

 

It doesn't matter who made the payment you wont find any case law on it because there isn't any.

It would be a ridiculous ruling to be made,

if there had been every judge in England would have been aware of it!!

How would a parent be able to pay off a gambling addicts son debt just for example?

 

"Until I get their response in about 10 days time I am not going to go into details about where the payments come from I am sticking with me not acknowledging the alleged debt for more than 6 years and therefore it being Statute Barred. Once I get their response I can formulate my argument."

 

You wont get their ws till the deadline when the court requires it,

that date is usually the same for both parties

- are yours different for some reason?

Its done to stop people doing the same as you are suggesting.

[dx100uk]

usual trick by restons

phantom payments.

not authorised by you

 

if they cant prove who made them etc as post 4

then they are up a creek without a paddle.

 

type 'phantom payment'

into the search cag of the top red toolbar

 

all is revealled

[9000Parts]

Phantom Payment. Exactly the phrase ive been looking for.

[AndyOrch]

But why would you be researching possible case law on " it must be the debtor that made payment "....if payment was made by any of your family or friends then forget the statute barred argument..however if you can categorically state they were not... then the claim is statute barred and Restons will have have to disclose evidence of said phantom payments...dates by who account number bank sort number.

 

Andy

[9000Parts]

I want to be able to reference cases where the Creditor has claimed the payment was made

but was unable to prove that it was the debtor who paid into the account,

meaning the case was thrown out.

 

 

Speaking to the CAB advisor yesterday he said he knows there are cases out there

but it would take some work to try and find one.

 

Restons have already tried the 'any payment counts as acknowledgment' and the Judge agreed with him.

I want to make sure the Judge has no chance to allow the claim on that basis

by providing case law that backs up the assertion that only the Debtor

or an Authorised person can make the payments on an account

and for those payments to be considered an Acknowledgement.

 

Its no good just going in to court and saying these things

because lots of forums are littered with cases being lost on the grounds

that companies have pulled a suspect looking Excel spreadsheet with no supporting evidence

and the claim being awarded.

 

I am well aware of the Statute of Limitations 1980 and I know these payments havent been made.

What I am trying to achieve is watertightness against something that shouldnt (but often does) happen.

[shamrocker]

Are you saying that payments WERE made onto the account, presumably by someone known to you, but you did not authorise them to contact the creditor and make those payments? How many payments are we talking about here?

[martin2006]

So as not to complicate things:

 

The debt is Statute Barred unless proof of how this "phantom" payment was made arises

[9000Parts]

So as not to complicate things:

 

The debt is Statute Barred unless proof of how this "phantom" payment was made arises

 

That has already arisen

the Judge was about to believe the Restons rep on the strength of a scrappy piece of A4

he reckoned he had without any other evidence to support it.

 

 

I am merely trying to cover some more bases as I have the primary ones sorted.

I KNOW the debt is Statute Barred but as ive said,

there are cases all over the internet where people have gone in front of a Judge with the argument

and its been shot down by the scrappy piece of A4 with no supporting evidence.

[martin2006]

But in your favour he didnt and adjourned

[AndyOrch]

Did the claimant disclose this paper of payments on their standard disclosure?

[dx100uk]

sorry but I think you are generalising too much here

there are no lost claims whereby the claimant won without proving WHO made disputed payments

post links if you think otherwise

[9000Parts]

Did the claimant disclose this paper of payments on their standard disclosure?

 

I have no idea because I didnt get to see the original claim.

They knowingly issued papers to my previous address

(and I have some good evidence of that too)

 

 

I am fighting for a set aside on the grounds I was unable to defend the claim

because it was sent to the wrong address AND that the alleged debt is Staute Barred.

 

 

I have submitted my witness statement for the next hearing

which demonstrates the proof I have of the wrong address

and the argument i'm Statute Barred

 

 

Restons claimed they had a copy of my account with payments showing.

I got a brief look at that before entering the court

when the Judge asked to see it Restons rep got a bit flustered with his stack of A4 (must have been 150+ pages)

and couldnt find it.

 

 

All I had from them for the first set aside hearing was a 3 page witness statement

and a copy of their final threatening letter.

 

The Judge really wasnt looking favourable to me when the Restons rep said it doesnt matter who makes the payment,

if a payment is made on the account it stays live.

The Judge asked to see that document but Restons rep lost it

(and even tried to accuse me of having it!) before apologising.

 

If he had pulled that scrappy bit of A4 my money is on the Judge rejecting the set aside

and allowing the claim to stand.

 

 

This is why its bothering me as the same Judge has stated he will take the next hearing

so he clearly has a personal interest in this one.

 

CAB man who I saw suspects Restons rep has irritated him

but it also seems fairly common according to CAB that self representers

rarely get a fair deal in front a a Judge and an aggressive solicitor.

 

 

Like Ive said, I want to cover as many bases as I can because the weakness in my case

is that I cant prove I didnt make any payments

(I didnt, nor did I authorise anybody else to do so)

 

 

the Judge was prepared to take the scrappy piece of A4 as evidence a payment was made

and disregard the point that there is Case Law out there somewhere

that clarifies that only the Debtor or and authorised agent can make a paymen

t and its for the Claimant to prove this beyond doubt.

 

 

Reference to a case where the claim has been rejected in similar circumstances would be very useful to have

as I can then put it as part of my argument that their scrappy piece of A4 isnt good enough.

 

I should get a copy of what Restons are relying on a week on Monday

so I will have more to go on when that arrives

 

 

but in the meantime im doing all I can to have all my ducks in a row.

I need to convince the Judge to set aside on the grounds I did not get a fair chance to defend

but unless I can convince him that I have a case to argue Statute Barred it isnt going to happen.

 

 

Just saying its Statute Barred isnt going to cut it otherwise the Judge would have already set the case aside for me.

[9000Parts]

Are you saying that payments WERE made onto the account, presumably by someone known to you, but you did not authorise them to contact the creditor and make those payments? How many payments are we talking about here?

 

No, pretty sure that isnt what Ive said at all.

 

What ive said is the Restons have a scrappy piece of A4 showing some payments were made.

 

I havent said they were paid by anybody I know at all.

 

I dont know what the payment value was, it was a brief glimpse of a very poorly produced document using a tiny font and in bold.

 

What Im saying is it must be a Phantom Payment which this crows seem pretty good at.

[shamrocker]

By getting caught up on this case law malarky,

you're not coming across as very clear and it sounds like straw clutching.

 

You need to to state quite clearly that the payments are pure fabrication by the claimant

so that they can pursue a statute barred debt.

 

Invite them to disclose the details of the payments -

then you will start getting somewhere.

Keep it simple.

[dx100uk]

sorry but you are reading it wrong

no judge will make any decision on a scrappy piece of paper a defendant has not seen.

 

IMHO you are panicking about nothing

and reading far to much into it all.

the judge simply delayed things

to give you chance to view the scrappy bit of paper

 

rectums have pulled these stunts time and time again

and always get caught out and lose in court.

 

being a LIP is no disadvantage at all

[shamrocker]

No, pretty sure that isnt what Ive said at all.

 

What ive said is the Restons have a scrappy piece of A4 showing some payments were made.

 

I havent said they were paid by anybody I know at all.

 

I dont know what the payment value was, it was a brief glimpse of a very poorly produced document using a tiny font and in bold.

 

What Im saying is it must be a Phantom Payment which this crows seem pretty good at.

 

I was just trying to rule that possibility out as your position of

'only an authorised person can make a payment' sounded like it could be taken a few different ways.

Thanks for clearing it up.

[9000Parts]

Im trawling the forums looking for broadly similar cases

but my problem is that im fighting this with a CCJ already in place

whereas a lot of the cases on here are being dealt with before it gets to court.

 

 

It looks a lot easier to use the Statute Barred on the claimant rather than a Judge.

 

Got to say I am looking forward to their disclosure pack though.

[AndyOrch]

In my view the DJ should not be going into that kind of detail at a set a side hearing..it should be based on whether procedure was followed to attain a default judgment.

 

Simply you state you never received the initial claim (I assume you have not changed address in the last 5 years)

 

And that the claim is statute barred anyway.

 

That should be enough to allow the set a side and then move to procedure from the beginning......claim / defence / allocation /disclosure/witness statements/trial.

 

The claimant cant rely on scrap of paper (which he couldn't even find or want to find when the judge asked to see it ,it could be anything self typed he showed you before going in in hope to make you crumble) it has to be disclosed to you to consider and to respond....the process must be followed....hence the CPR.

 

Andy