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Backdoor Asset/TM CCJ -old Lending Stream PDL - subject to IRL Complaint

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Today in the post I received a claim form from TM Legal Services for a debt that I owed to payday loan company Lending Stream.

 

The original address on the claim form had been crossed out in red pen and my current address was hand written in the box to the right of this.

 

The date on the claim form is 10/10/2018, the date that is marked on the franking stamp on the envelope is 07/11/2018. I called the court and they advised I have received a judgement by default on 06/11/2018.

 

I had started an affordability complaint with the original lender Lending Stream via letter on 01/10/2018. In this letter I gave them my current address.

 

They are the only lender I had to send a letter to as the rest I have done via email. Unfortunately, I sent this by first class post and not recorded delivery. I have not had an acknowledgement from the lender to this letter.

 

I called the company TM Legal Services who initially advised it was the court that sends out claim forms. When I pointed out that the envelope that the claim form came in had a return address of their company and was posted the day after the judgement was obtained they put me on hold.

 

They came back and said that they received the original claim form back as undelivered and had done a trace on me to find my current address to send out the claim form.

 

I called the court back and explained this and they said I can apply to get the judgement set aside at a cost of £255.

 

I have sent a further letter of complaint to the original lender and advised the financial ombudsmans office of the situation, however they say that when the complaint comes to them if referred (29/11/2018 is 8 weeks) they are unable to instigate the removal of the CCJ even if my complaint is upheld.

 

I now don't know what to do.

Should I apply for the judgement to be set aside now or wait for the reply from the lender/complaint to the financial ombudsman's service?

 

At the time of the loan I had 6 defaults for various utilities and loans in my recent credit history as well as an outstanding balance of over £3500 with other short term lenders.

 

The original debt was for £850 but now with court costs and interest stands at £1780.

 

If I apply for the judgement to be set aside, is that there is an ongoing affordability complaint a valid reason, along with the fact that it was sent to a previous address?

 

Is the fact that it was sent to what the company alleges is my last known address and not my current one enough of a reason to get it set aside or will I have to show that there is a chance I will win the hearing?

 

Will the 30 day period after the CCJ to pay reset if the judgement is set aside?

 

I work in an industry regulated by the FSA so a CCJ will likely cost me my job.

 

Apologies for the long post.

 

Thanks a lot for reading if you got this far.

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The original debt was for £850 but now with court costs and interest stands at £1780

 

Are you sure?

 

If I apply for the judgement to be set aside, is that there is an ongoing affordability complaint a valid reason, along with the fact that it was sent to a previous address?

 

Is the fact that it was sent to what the company alleges is my last known address and not my current one enough of a reason to get it set aside or will I have to show that there is a chance I will win the hearing?

 

If you can show that the Solicitor/DCA knew your new address when issuing the form, then you can get it set aside. If you didnt inform them or the OC/DCA of your new address, it will be very difficult.

 

Will the 30 day period after the CCJ to pay reset if the judgement is set aside?

 

If it gets set aside, it goes back to them having to issue a new claim form.

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Are you sure?

 

Yes. I am counting interest added as part of the original loan agreement though. The default balance was £1580.

 

Edit: Just saw the second section of your reply. The only evidence I have is the letter I sent them on the 1st October. Since this wasn't recorded I don't have any evidence I suppose.

 

The claiment did a trace and managed to find my address 1 day after the judgement. I have been at my current address for over a year. This in my obviously bias opinion means they chose to send it to my previous address.

Edited by CCJHell

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You'd still need a defence for the org claim to set aside regardless

 

Dont think an pending IRL complaint is good enough.

 

What date was the debt sold. And by that date had you informed the oc of change address


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If this is the case it wont be set aside. I don't know the date the debt was sold.

 

The only update of address I gave was in my complaint dated 01/10/18. The original loan was taken out in April 2017. The default date was November 17.

 

Sounds like unless I can magic £2k by the end of the month I am screwed.

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just type no need to hit reply with quote if responding to the last post above.....

 

looks like that might be the only way yes

argue afterwards...10/10 claimform..1.11 your letter.

 

shame you didn't address this issue earlier

now you know why its SOOO important to update everyone.

even those NOT on your credit file...


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OK.

 

01/10 was my letter. I'm of the opinion that the affordability claim is what triggered the claim form to my old address.

 

However it does seem others have had the claim set aside due to incorrect address.

 

Over on MSE someone submitted the defense:

 

"At the time of the County Court Judgement, I was on the electoral roll at my new address, and was registered at the new address for council tax, banking, bills, my driving license and with the HMRC. As Civil Enforcement Ltd had received no correspondence from me at any point and I had not responded to the court summons, I believe they had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address. Indeed, …….. Solicitors have evidently been able to find my new address in order to attempt to collect the alleged arrears.

I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” He added:

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.""

 

And was successful.

 

Clearly the fact they had my correct address within 24 hours of the judgement being obtained indicates that it was not difficult for them to obtain the correct address.

 

Also the advisor on the phone admitted that the claim form had been returned to them, so they knew they had the wrong address and waited, on purpose, untill the judgement had been obtained before contacting me.

 

I have recieved the original claim form in the post. I have not even received a judgment in writing as of yet. Unless this was sent to my previous address as well.

 

I am not going to find 2k by the end of the month. Its impossible. There is a strong possibility that the debt will be reduced to the original capital provided minus the payments I made towards the debt once the complaint is heard by the Financial ombudsman's office.

 

I need the judgement set aside until my complaint is resolved and then I will pay what I owe.

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then I will pay what I owe

 

To the OC. Not a fleecing DCA


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

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To the OC. Not a fleecing DCA

 

Of course!

 

I will also add. Lowell sent a claim form from the same court to my current address two months ago for an old BT account. I had not given BT an up to date address for over 3 years yet they managed to issue the claim form if not the pre court action forms to the correct address.

 

I paid in full so there was no CCJ but that was only £400. I cannot tell you how screwed I am if I have to find 2k by the end of the month!

 

I'm trying to get my affairs in order but it's a bit relentless atm.

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" The date on the claim form is 10/10/2018, the date that is marked on the franking stamp on the envelope is 07/11/2018. I called the court and they advised I have received a judgement by default on 06/11/2018. "

 

So the claimant sat on the claim in the meantime whilst your 33 days was ticking away and then sent it to your new address......MCOL would not scratch out address and write in hand the correct address.

 

You may have recourse that this is a procedural error exasperated by the claimant in delaying service.

 

CPR 6.18

 

Notification of outcome of postal service by the court

6.18

 

(1) Where –

 

(a) the court serves the claim form by post; and

 

(b) the claim form is returned to the court,

 

the court will send notification to the claimant that the claim form has been returned.

 

(2) The claim form will be deemed to be served unless the address for the defendant on the claim form is not the relevant address for the purpose of rules 6.7 to 6.10.

 

And CPR 6.24

 

Change of address for service

6.24 Where the address for service of a party changes, that party must give notice in writing of the change as soon as it has taken place to the court and every other party.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06

 

So the claimant didnt advise MCOL...as stated sat on it and your time ran down..thje reason for the above CPR is so MCOL can reset the date.

 

Which then moves us to CPR 7

 

In the event that a claim form is returned to the claimant......

 

Extension of time for serving a claim form

7.6

 

(1) The claimant may apply for an order extending the period for compliance with rule 7.5.

 

(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –

 

(a) within the period specified by rule 7.5; or

 

(b) where an order has been made under this rule, within the period for service specified by that order.

 

(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

 

(a) the court has failed to serve the claim form; or

 

(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

 

© in either case, the claimant has acted promptly in making the application.

 

(4) An application for an order extending the time for compliance with rule 7.5 –

 

(a) must be supported by evidence; and

 

(b) may be made without notice.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07#7.5

 

But the above would have cost a further application fee of £100.

 

Hope you get it sorted...but you are legally entitled to 33 days from receipt of a claim form if intending to defend.....whichever way you look at it.

 

Andy

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Thanks so much for your reply Andyorch, this is great information. I have been scouring through the guidance notes in the links you provided and also am looking at 6.9 Service of the claim form where the defendant does not give an address at which the defendant may be served.

 

It states in the table in paragraph 2 that for an individual that the place of service is the usual or last known address.

 

Then in paragraph 3 it states "(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’)."

 

Which also suggests that upon receiving the claim form back they should have initiated a search on my address. Which by the looks of things they did, but sat on it and failed to take the action mentioned in 7.6.

 

I think with what you have mentioned above I have a slim chance.

 

I need to put together my N244 and get it sent off as soon as possible. I don't want the court to think I am intentionally delaying the proceedings by waiting on the outcome of my complaint with the original creditor.

 

This gives me hope that my £255 won't be flushed down the toilet and I can defend the original claim.

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looking good I must say.


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Furthermore I think you may be able to approach the claimant and ask they set it aside by Consent Order......given the nature and details of how they attained the Judgment...wont cost you anything then.

 

But you must have a viable defence ready...as they can simply reissue the claim again...and your back to square one.


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would the fact that an IRL complaint to the lender, that may result in a favourable decision from them play any part in this?

could that be used in a basic defence regarding a claim if evidence were to be presented?


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No harm throwing it in but concentrate on service here......thats the key...use it as leverage with the claimant...you never know they may be prepared to set a side if a reasonable offer of a payment plan is agreed....and not reissue.


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Brilliant thanks so much guys. I have been googling a consent order to try and find out what wording I would use to propose this to them but it is mostly coming back with results applicable to family law not creditors. Is there any guidance on the CAG or elsewhere that you could point me to that shows how they work.

 

I don't want to sound stupid/amateur when it comes to asking them to agree to it.

 

I will be sure to offer them an initial payment of £250 if they agree to it, the money that would have been used to file the form anyway. I'll then offer a further £250 on 1st of each month starting December and hope for the best.

 

Untill I get my answer from the financial ombudsman office anyway.

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Would be grateful if you guys would look over this letter and see if there is anything you would add, amend or take out?

 

 

Date: 10th November 2018

 

 

Your Reference:

 

Claim Number:

 

Dear Sir/Madam,

 

I write in response to a claim form I received in the post yesterday dated 10/10/2018 to advise that I will be submitting an N244 Form to the court to set the judgement aside. I attach a copy of this overleaf for your records.

 

During our telephone call on 09/11/2018 your adviser stated that your company had received this claim form back as undelivered when you originally issued it and this is the reason that there was a delay in sending it to the correct address.

 

As you are aware a judgement has been entered in default on 06/11/2018. The envelope franked by your company on 07/11/2018 was sent to my current and correct address.

 

This is a procedural error in contravention of Rules & Practice Directions for Service of Documents.

 

CPR 6.9 Paragraph 3 states:

(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’).

 

Before the claim was started, you should have taken reasonable steps to identify my current address. The fact that you had my current address within 24 hours of the judgement by default indicates that this was not difficult for you to do. Furthermore, when you received the claim form back as undelivered, this notified you that I was no longer residing at that property.

 

CPR 6.18 Paragraph 2 states:

 

(2) The claim form will be deemed to be served unless the address for the defendant on the claim form is not the relevant address for the purpose of rules 6.7 to 6.10.

 

I refer you back to rule 6.9 above. This claim form was not served in accordance with the rules of service.

 

Also,

 

CPR 6.24 states:

 

Where the address for service of a party changes, that party must give notice in writing of the change as soon as it has taken place to the court and every other party.

 

You should have notified Money Claims Online of a change of address for service once made aware that I was no longer residing at the property and applied for an Extension of time for serving a claim for as laid out in CPR 7.6.

 

Due to the above stated breaches in the rules of service I believe the judgement will be set aside and I will have an opportunity to file my defense. I note that had I been served correctly, the time limit for doing this would have been 12/11/2018, the date you receive this letter.

 

To save the courts the unnecessary administration that this N244 would create, and to avail yourself of the fee I would be paying to the court I propose that you draft and submit a Consent Order to set aside this judgement.

 

I am willing to agree to the following should you agree to do this.

 

1. Payment of £255 to your company immediately once the consent order has been submitted to the court.

 

2. Payment of £255 on the first of each calendar month starting 1st December 2018 until such time as the debt the settled.

 

Please respond at your earliest convenience. I will be forced to submit the N244 Form 1 week from today's date to ensure that the judge is satisfied I made every effort to resolve this in a timely manner.

 

Regards,

 

CCJHELL

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Responding to your PM

 

 

Your time line to deal with the claim would be from the date re issued or reserved..so from the 7th Nov you would have had 19 days to acknowledge service and a further 14 days to submit a defence (33 days) and your defence due date would have been Friday 7th Dec 2018

 

" I propose that you draft and submit a Consent Order to set aside this judgement.....at your cost "

 

Regards

 

Andy


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Be clear about how much the debt is that you are offering to pay.

 

I still intend to continue with my irresponsible lending complaint though. I don't know how much the final debt will end up being.

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OK so the complaint to TM Legal was going to take 8 weeks to resolve. Chased them for updates but they just kept delaying. If it went past the 06/12 I would have had to try and get it removed from my credit file and I couldn't take that risk.

 

I have begged and borrowed the amount and paid it in full today. Needless to say I am absolutely skint!

 

They said they would still continue the complaint process.

 

What now though?

 

Can a consent order be granted even if the debt has been paid? Does this mean that I cant defend the CCJ and apply for it to be set aside because it has been paid?

 

And slightly off topic but will this affect my affordability complaint with the original lender?

 

The original loan amount was around £800 so my payment today is well over the 200% mark that the Ombudsman takes into consideration at £1780.

 

They also tried to say that there was a further court fee of £40 above and beyond what was on the claim form. Wanted £1820 but said they would write it off after I told them the amount on the claim form.

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You cant set a side a CCJ that has been settled...there is nothing to set a side.

 

So they didnt agree with the Consent Order ?


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You cant set a side a CCJ that has been settled...there is nothing to set a side.

 

So they didnt agree with the Consent Order ?

 

 

They were stalling. They wouldn't respond to the complaint and said it would take 8 weeks.

 

But I was very uncomfortable leaving it past the 6th without an agreement in place.

 

I was afraid that I wouldn't be able to get it set aside due to my only defence being that it was part of an ongoing complaint.

 

I wish there was other action I could take now it isn't on my record there is no rush. They have basically extorted the money out of me

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