Cabot/? Cap1 debt CCJ setaside help please

[G2M]

Hi All,

 

I'd really appreciate some advise please, I'm in court next week for a set aside hearing.

 

It's in relation to a Cap 1 cc claim for just over 1k,

the court papers were sent to my old address so I never received them,

I'm certain I gave my new address to all concerned back in 2007/8 but cannot prove it.

 

I don't think it's statute barred but I can't find when I last made a payment.

 

I sent a SAR to Cabot and have received it back on a CD,

there is no default notice or credit agreement on the CD,

 

 

I've read that they are not obliged to send these with a SAR

in their response to my request they state

"We may not hold information such as your credit agreement or statements on file.

In order to obtain this information, we recommend you contact the original lender.

 

 

However, in the event that the original lenders have supplied us with this information,

the documents will be included with your SAR.

 

I guess my question is

can I use this in my application to set aside the judgement and CCJ,

as just relying on the fact the papers were sent to my old address may not help me get a set aside?

 

Many thanks

[Old Cogger]

CCA1974 request cost £1.00 and they would of had 12+2 days to respond before they would of been in default and unenforceable until produced if ever! SAR takes too long a CPR31.14 should of been used ,bit late now!

 

 

set aside as you say the papers sent to wrong address so set aside the CCJ cost £255 unless you are on certain benefits etc then when set aside the case starts again, sure other will comment but move quick on this one?

[BankFodder]

I think it might be a good idea if you read our Court familiarisation guide. There is a copy on this forum but also it is included in the new Consumer Survival Handbook which might contain some additional helpful information for you.

 

Secondly, showing that you didn't receive the documents is only part of the process. Showing that you have a good chance at trial is bubbly much more important. If you haven't received the CCA then this is fatal to their case. If they have stated clearly that if they have a CCA then it will be included in the SAR – and if it isn't then included in the SAR and that amounts to a failure to provide you with a CCA. This means that they are unable to proceed with the case until they do provide you with this document.

 

It's a shame that you didn't mention this in your set-aside application. (I gather that you didn't). However, I think that this is the most important aspect of the set-aside hearing – that they have not provided you with a CCA and that it is clear from their letter and from the accompanying disclosure that they are unable to do so at this moment. Therefore, any alleged debt is unenforceable at law and it is therefore in the interests of justice for the court to grant you the set-aside.

 

I suppose that you haven't provided a draft defence either. Tell the court that you will file a defence and the defence at this point is likely to be that you do not admit to any indebtedness and that the claimants are unable to substantiate the alleged debt by the provision of a CCA and therefore they are prevented from taking any further action.

 

In court, I should avoid saying things like "I don't think it statute barred" or "I don't think there is a debt" et cetera. You need to be very firm about what you say. However, you must be truthful

 

By the way, you should be sure to ask the judge to order that you are repaid the cost of your set-aside application – particularly in view of their inability to provide a crucial document – the CCA

[G2M]

Many thanks for your quick replies, I didn't mention the lack of credit agreement in my application as I didn't know at the time if they had it or not, I will read the court guide.

 

I have also received their witness statement, there are a couple of anomalies, eg, they state the last payment was made in Sept 2010 and in the SAR they give a default date of July 2010.

 

Will read up and come back, thanks again.

[BankFodder]

If there is no evidence of any payment being made after July – and if you are sure that you didn't make any payment after then, then I would suggest also that you present their claim to the judge as a last-ditch attempt to try and get in before the limitation period expired even though they knew that they didn't have all the relevant documents necessary to make any alleged debt enforceable.

 

It's a real shame you didn't come to us about this before you put in your set-aside application because we would have helped you do a lot better job. That's what we're here for.

 

Despite that, it sounds to me as if you've got a pretty good chance of success

[G2M]

Thanks again, it is not SB, I made the last payment around July2010, the claim was issued in Feb 2010, there is however no statements/evidence in the SAR that shows any payments made to them, even though they claim in their WS that I made the last payment in Sept 2010, if they know this surely it should be in the SAR?

 

Am I right in thinking that I should now put together a Witness Statement/Defence in response to theirs and the basis of it is the lack of a credit agreement?

 

Thanks

[G2M]

I have done some more digging around, if I can prove that Cabot knew and had my new address but still sent the claim to my old address would I have a case to get the original claim thrown out, forcing them to issue a new claim from a later date?

[Guest]

I have done some more digging around, if I can prove that Cabot knew and had my new address but still sent the claim to my old address would I have a case to get the original claim thrown out, forcing them to issue a new claim from a later date?

if ccj is set aside, then the claim will continue from back to the beginning (as if you had just received the claim form) subject to any directions.

unless, the J decides to dismiss their claim entirely at the hearing for some reason.

[G2M]

Hi All,

 

I'm about to start preparing my witness statement for my set aside hearing on Friday, I have Restons WS and costs schedule.

 

Should I use my WS to refute what they say in theirs or lay mine out with the facts as I see them?

 

Thanks

[AndyOrch]

Hi All,

 

I'm about to start preparing my witness statement for my set aside hearing on Friday, I have Restons WS and costs schedule.

 

Should I use my WS to refute what they say in theirs or lay mine out with the facts as I see them?

 

Thanks

 

Shouldn't you have already submitted/served it G2....14 days ?

 

Andy

[G2M]

Technically yes, but I only received the SAR information on Saturday and their WS on the 15th, on Sunday I developed a stomach ulcer and have been laid up ever since, so today is the first day I'm able to do anything with it.

 

One more question for my WS, the agreement was taken out after 2007 so am I right in assuming they do not need to produce the credit agreement on which they rely?

 

Many thanks

[AndyOrch]

Technically yes, but I only received the SAR information on Saturday and their WS on the 15th, on Sunday I developed a stomach ulcer and have been laid up ever since, so today is the first day I'm able to do anything with it.

 

One more question for my WS, the agreement was taken out after 2007 so am I right in assuming they do not need to produce the credit agreement on which they rely? Correct unless there,s been any changes to the agreement during its commencement...and a reconstituted version still has its requirements to be legally valid

 

Many thanks

 

Get cracking on that WS and get it away today..pref email the Solicitor their copy.

[G2M]

Is the following ok as my WS?

 

I need to work on a defence too to go with it I assume and also a costs schedule for my application to set aside?

 

Do I have a valid defence if they don't need to have an agreement?

 

POC on original claim is;

 

The Claimant claims payment of the overdue

balance due from the Defendant(s) under a

contract between the Defendant(s) and

Capital One

dated on or about Oct 08 2008 and assigned

to the Claimant on Sep 28 2015

 

PARTICULARS a/c no 5xxxxxxx

 

DATE ITEM VALUE

22/01/2016 Default Balance 1039.77

Post Refrl Cr NIL

 

TOTAL 1039.77

 

My WS?

 

 

I, xxxxxxx make this Witness Statement in preparation and to assist the court for the above hearing.

 

1. All statements made by me below are true to the best of my knowledge.

 

2. In August 2016 upon checking my credit report I noticed a CJ had been registered against me.

 

3. I immediately sent an N244 form to the courts applying to set aside the judgment as I had no knowledge of the alleged debt and had not received any paperwork relating to it.

 

4. I received correspondence regarding my application from the claimant’s solicitor on 21 September 2016 in which it states that their records show that a letter before action was sent to me on 25/01/2016 in compliance with PD-Pre-Action conduct and Protocols. It states that this letter was sent to my last known address of xxxxxx

 

5. I attach exhibits “DOC1” and “DOC2”, these clearly show that the claimants did have my current address as they sent me a letter in August 2014 (DOC2), this was I response to a letter I had sent them in which I gave them my new address. My new address is also shown to be held by them as it is within the CD I received with all the data they hold on me for the Subject Access Request I made to them.

 

6. This clearly does not comply with CPR 6.9 and therefore must be considered an irregular judgment, I respectfully ask the court to set aside the judgment made on 18/07/2016.

 

7. I attach my costs schedule showing my costs for todays hearing which, given the circumstances above I respectfully request the court orders the claimant to pay.

 

Thanks for your help.

[G2M]

Edited WS..

 

I, xxxxxx make this Witness Statement in preparation and to assist the court for the above hearing.

 

1. All statements made by me below are true to the best of my knowledge.

 

2. In August 2016 upon checking my credit report I noticed a CCJ had been registered against me.

 

3. I immediately sent an N244 form to the courts applying to set aside the judgment as I had no knowledge of the alleged debt and had not received any paperwork relating to it.

 

4. I received correspondence regarding my application from the claimant’s solicitor on 21 September 2016 in which it states that their records show that a letter before action was sent to me on 25/01/2016 in compliance with PD-Pre-Action conduct and Protocols. It states that this letter was sent to my last known address of xxxxxx.

 

5. I attach exhibits “DOC1” and “DOC2”, these clearly show that the claimants did have my current address as they sent me a letter in August 2014 (DOC2), this was in response to a letter I had sent them in which I gave them my new address. My new address is also shown to be held by them as it is within the CD I received with all the data they hold on me for the Subject Access Request I made to them.

 

6. This clearly does not comply with CPR 6.9 and therefore must be considered an irregular judgment; I respectfully ask the court to set aside the judgment made on 18/07/2016 as I believe I have clearly satisfied the requirements of CPR13.3.

 

7. I attach my costs schedule showing my costs for todays hearing which; given the circumstances above I respectfully request the court orders the claimant to pay as I believe my claim to costs satisfies CPR 44.2, 5(a) as the claimant has clearly not complied with CPR 6.9.

 

CPR 44.2 5(a)- conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

 

 

 

Costs in the application

 

N244 Application Fee-£255

Time spent on research and Witness Statement-4 hours @£19ph (LIP rate)

Lost wages for a day @ £209 per day

 

Copies and printing @ 10p per sheet-£1.70

Travel and Parking-£10

[AndyOrch]

"I need to work on a defence too to go with it I assume and also a costs schedule for my application to set aside?" Your WS acts as both..no need to draft a separate defence..but you must include a short synopsis of what your defence would rely on.So you get your set a side...now whats the reason for not paying ?

 

You dont prepare a costs schedule for an application to set a side...you should have just requested costs in the application on your N244.

 

" Do I have a valid defence if they don't need to have an agreement? "[COLOR="red"] If thats all you are relying on and the only part of your defence...I personally cant see the set a side being granted.[/color]

 

Andy

[G2M]

Thanks Andy,

 

Maybe I'll email them and withdraw.

 

Appreciate your help.

[AndyOrch]

You may as well attend now...after all you have paid for it...they may not even show up and you get your set a side anyway.....kick yourself then

[G2M]

Lol, one way of looking at it I guess, they've said they'll attend and want 460 costs too...

[AndyOrch]

Well if they do actually show up...have a little chat with their counsel before entering the court and suggest a possible settlement by way of a Tomlin Order...if they agree to set a side the CCJ you will enter into a payment plan for £ x per month ?

[G2M]

Went to court today and got the judgement set aside!

 

I now have 14 days to submit a defence;

 

1. The agreement is post 2007 but from what I have read here and elsewhere that does allow Caboot to show they have an agreement, is this correct?

 

2. I am unsure if it is statute barred as it is very close , can I say I believe that it is and put them to strict proof of when the last payment was made?

 

Anything other thoughts welcome as to what I can put in my defence.. I'm assuming a CCA request is pointless as I already have the SAR data from them?

 

Thanks

[AndyOrch]

Did they attend G2m?

[G2M]

Yes, they sent counsel..no order for costs made

[AndyOrch]

So for the benefit of readers could you possibly expand about the hearing and why you was granted the set a side ?

[G2M]

Sure, the Distrct Judge didn't seem to put much on my evidence that they had my current address, he seemed more interested in why they had not taken 'reasonable' steps to ascertain my new address given that they waited nearly 6 Years before they applied for judgement. He seemed unimpressed at the time that had gone by.

[AndyOrch]

And quite rightly so that the DJ should remark about the length of time the DCAs are allowing their assignments to run before proceeding to litigation..we can only assume its to build up any section 69 to make their purchases profitable.(8%)