Backdoor Capquest CCJ - old CAT debt - 3 years after CCA Request not fulfilled ***Set a Side /Consent***

[soldat]

Thanks Andy

 

Do I need to attach the evidence or do I also provide that later?

 

[soldat]

Merged witness and draft defence, deleting some paragraphs.. still too long?

 

1. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 10 November 2021. However, the claim had not been served at my current address. Therefore, I was not aware of the County Court Judgment until I received a notification that it had been entered on my credit report.

 

2. On learning of the County Court Judgement on 15 November 2021, I immediately contacted County Court Business Centre to find out details of the Default Judgment. It was only at this point that I discovered that Capquest Investments Limited was the Claimant and that the judgment was regarding monies owed on an alleged credit agreement. On 17 November I received a copy of the judgment from the County Court Business Centre by Email.

 

3. I now know that the judgment was served at an old address (xxx). However, I moved to a new address on 8 January 2021 with my tenancy at the old address ending 5 February 2021. In support of this I can provide confirmation of two (2) Council Tax bills for my current address (xx) and previous address. See [EVIDENCE A and B]

 

4. On 12 September 2018, the Claimant wrote to the Defendant clearly stating that following a request from the Defendant for a copy of the signed Consumer Credit Agreement with the original creditor, that one did not exist. I had no reason to believe this situation has changed to date and, the Claimant having already written to my new address reporting of default sums notice under the the Consumer Credit Act 1974 did, purposefully, use an old address to gain a Default Judgement. See [EVIDENCE C]

 

5. I suggest the Claimant did not make reasonable enquiries as to my current address before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3) where a Claimant has reason to believe that the address of the Defendant referred 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. At the time of the County Court Judgment, my credit file showed my current address so I was there to be found by a simple trace. See [EVIDENCE D].

 

6. The Claimant sent a letter dated 27 October 2021 to my current address which I received on 9 November 2021. This equates to only twelve (12) working days between the Claimant filing the claim and producing this letter. I must question why the Claimant would use two different addresses in such a short space of time if there was any doubt I no longer resided at the address they had on record. See [EVIDENCE E].

 

7. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

 

8. Considering the above, I as the Defendant was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

 

9. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

10. Paragraph 1 is noted. I have had an agreement in the past with Shop Direct Finance Company Limited but I do not recognise the account number referred to by the Claimant. 

 

11. Paragraph 2 is noted but not admitted. The Claimant would not be aware of any alleged breach or in a position to plead such fact as an assignee as the Defendant did not enter into any agreement with the Claimant and is therefore put to strict proof to verify the alleged statement of its particulars.

 

12. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served.

Edited December 6, 2021 by dx100uk
formatting

[Andyorch]

Too long its now back to a witness statement.....1=3 should suffice also without reading all your topic...and before you go to the expense of this application , you did inform Capquest  of your change of address before they issued the claim ?

[soldat]

I've not heard from Capquest since they acknowledged they had no cca, so I must have forgotten all about them. I suppose if I had, they wouldn't have tried backdoor ccj.

 

My defence is they deliberately gained the default knowing I had moved given they sent default of sums to my current address only 12 working days after filing the claim.

 

and like dx said, I had no reason to believe I had to protect myself against the ccj given they have no cca. Which is pretty much what my witness statement says.

 

Edited December 6, 2021 by dx100uk
spacing

[Andyorch]

Quote

 they sent default of sums to my current address only 12 working days after filing the claim.

Fine so they were aware of your current address.

[soldat]

I'm still a bit confused as to what I'm sending off.

 

I've filled in the N244 following dx's instructions.

 

Box 3. I've put: "The Defendant in these proceedings respectfully requests that the Court make an order to set aside the judgment pursuant to CPR 13.2 & 3(2).

 

The claim form was not delivered to my address. I only became aware of the judgment after I checked my credit file. I believe I have a real defence against the claim."

 

or should I put (as my reason): "The Claimant deliberately filed the claim to an old address in order to win a judgment by default."

 

I've ticked Draft Order attached as per Andy's suggestion.

 

Which I have:

 

1. The judgment be set aside pursuant to CPR 13.2 & 3(2).

2. The Claimant pays the Defendant’s costs of this application to the sum of £275.

3. The Claimant has permission to file and serve a reply if so required.

 

4. All enforcement be put on hold pending the outcome of the application.

I thought my witness statement has all the information as to why it should be set aside, so why do I not send this with the application if there's a ticky box for it?#

 

Help!

 

 

Edited December 6, 2021 by dx100uk
Format only

[dx100uk]

You dont file a witness statement with an n244 application, you file a sep statement of defence ( if you like to call it that)

 

A ws with exhibits is for after you win the set aside and if a sep hearing is latterly ordered regarding the actual initial claim.

 

Dx

[soldat]

I'm struggling with the wording of my statement then.

 

So far I got:

 

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made. ← do i need this?

The Claimant wrote to the Defendant in August 2018 admitting they were unable to produce a copy of the Credit Agreement which they noted in paragraph 1 of their particulars of claim, and therefore the account they had on record was unenforceable, after the Defendant requested a copy.

I have reason to believe the Claimant would only file a claim if the Defendant was unable to respond in order to win the judgment by default. The Claimant filed a claim using the Defendant’s previous address, and the Defendant was only made aware of the judgment after checking their credit file.

The Claimant sent a letter dated 27 October 2021 to the Defendant’s current address only twelve (12) days after filing the claim to Defendant’s previous address therefore showing they were aware the Defendant had changed address.

 

Any tips?

[dx100uk]

Yea drop the 1st bit.

 

I would specifically mention what the letter was and a legal requirement under the consumer credit act 1974.

 

I think you had this in before but have left it out now. It brings weight to your claim.

[dx100uk]

On 05/12/2021 at 17:00, soldat said:

understand that the Claimant obtained a Default Judgment against me as the Defendant on 10 November 2021. However, the claim had not been served at my current address. Therefore, I was not aware of the County Court Judgment until I received a notification that it had been entered on my credit report.

 

2. On learning of the County Court Judgement on 15 November 2021, I immediately contacted County Court Business Centre to find out details of the Default Judgment. It was only at this point that I discovered that Capquest Investments Limited was the Claimant and that the judgment was regarding monies owed on an alleged credit agreement. On 17 November I received a copy of the judgment from the County Court Business Centre by Email.

 

3. I now know that the judgment was served at an old address (xxx). However, I moved to a new address on 8 January 2021 with my tenancy at the old address ending 5 February 2021. In support of this I can provide confirmation of two (2) Council Tax bills for my current address (xx) and previous address. See [EVIDENCE A and B]

 

 

As andy pointed too ....make a 4 to the above about the default sums notice

[soldat]

Quick question. Do I need to submit copies of evidence with N244 or do I send those later?

[dx100uk]

3 hours ago, dx100uk said:

You dont file a witness statement with an n244 application, you file a sep statement of defence ( if you like to call it that)

 

A ws with exhibits is for after you win the set aside and if a sep hearing is latterly ordered regarding the actual initial claim.

 

Dx

 

[soldat]

Just checking. So the only thing I send is the N244?

 

Revised statement (this goes in box. 10?):

 

1. I understand the Claimant obtained a judgment against me as the Defendant on 10 November 2021. However, no claim was served at my current address. Therefore, I was not aware of any judgment until I checked my credit file online.

2. On learning of the judgment on 15 November 2021, I immediately contacted the County Court Business Centre to find out the details. It was only then I discovered that Capquest Investments Limited was the Claimant and that the judgment was regarding monies owed on an alleged credit agreement. On 17 November I received a copy of the judgment from the County Court Business Centre via Email.

3. I now know that the judgment was served at a previous address (Do not put your address -dx))  However, I moved to a new address on 8 January 2021 with my tenancy at the old address ending 5 February 2021. My new address was added to my credit file in February 2021, and entered into the Electoral Roll in May 2021.

4. The Claimant sent a letter dated 27 October 2021 to the Defendant’s current address reporting of a default sums notice under the Consumer Credit Act 1974, only twelve (12) days after filing the claim to Defendant’s previous address therefore demonstrating they were aware the Defendant had changed address, and purposefully used my previous address to gain a judgement by default.

5. On 12 September 2018, the Claimant wrote to the Defendant stating that following a request from the Defendant for a copy of the signed Consumer Credit Agreement with the original creditor, that one did not exist. I had no reason to believe this situation has changed to date and therefore had no reason to protect myself against a default judgment.

 

 

Edited December 6, 2021 by dx100uk
removed address

[dx100uk]

leave the old N244 ALONE 

 

this is a SEPARATE DEFENCE STATEMENT to accompany it.

[soldat]

Haha. Sorry. I'm still unsure what i'm submitting. I've completed the N244 as per your instructions. Done

 

The above is the statement or draft defence? I'll put that on separate sheet.

Is it sufficient what I wrote in my previous post?

[dx100uk]

On 28/11/2021 at 18:35, dx100uk said:

on your ws your 4. remove all, write that the claimant on xxx date wrote to the defendant clearly stating that following a request from the defendant for a copy of the signed agreement with the original creditor, that the claimant replied dated xxxx that one did not exist (exhibit xxx) and you had no reason to believe this situation has changed to date and that the claimant having already written to your new address several times, including required reporting of default sums notice under the the Consumer Credit Act 1974 did, purposefully, use an only address to gain a default judgement.

N244

 

On page one of the N244, fill out the Court details and Claim no. The Claimant’s and your details in the top right-hand box and the date (include Claimant’s sols ref if you know them).
 Leave Warrant no. blank (not applicable to your application).

 In para 1 – put your full name in Caps.
 In para 2 – tick Defendant box.

 In para 3 - What order are you asking the court to make and why?, state the following:

 1. The Defendant in these proceedings respectfully requests that the Court make an order to set a side judgment pursuant to CPR 13.2 & 3(2).
 [your reason to set aside.]

 (You can go into further detail at box 10)

 In para 4 – tick yes ( attach Draft Order)

 In para 5 – tick with a hearing box

 In para 6 – leave blank

 In para 7 – leave blank

 In para 8 – put District Judge

 In para 9 – put sols

 In para 9a -put sols Address

 Then fill out the Statement of Truth – sign & date.

 In para 11 – your signature & date.

 Then fill out your full address details & Phone & Fax & E-mail details –(if applicable).

 Serve a copy on the claimants solicitor and retain a hard copy for your file
 

 

it can go into box 10 yes

head it back ground information.

 

If its too big to fit in box 10 , then it becomes a sep sheet and in box 10 state see separate defence statement attached.

make sure you put your details on it so if it gets detached by someone, they know its yours.  also dont forget to do the statement of truth at its end and sign it, like the end of the n244.

[dx100uk]

Tnx to @andyorch for updating the above, the guide was from a very old post of yours i'd nicked years ago.

 

Dx

[soldat]

Hi guys

 

We've finally received a court date. We have to submit a telephone number for a one hour slot that's been allocated.

 

They haven't told us anything else. Do we need to provide defence etc. or does that come later? No idea what to expect.

 

Thanks

[dx100uk]

you included a statement with your N244 did you not?

 

 

[soldat]

That's right. So don't need to prepare anything?

[dx100uk]

You ideally should be reading up between stages.

 

here is a loan n244 thread but the process is the same..

 

https://www.consumeractiongroup.co.uk/topic/430894-erudiodrydens-slc-loan-ccj-advice-please-set-a-side-claim-proceeding/#comments

[soldat]

Thanks very much for that dx.

 

We've just received a letter from drydens saying they have reviewed our application, and the claimant has taken the decision to consent to the Judgment being set-aside, and further, will discontinue their claim.

 

However, as legal proceedings have commenced, this needs to be done by way of a Consent Order and sent to the court.

 

They've included a consent order to sign and return.

 

However, it doesn't mention paying my costs for my N244.

On the Order it says:

 

1. Judgment obtained on 10 nov 2021 be set-aside and registration removed.

2. The Claimant's Claim to be discontinued, and

3. There be no Order as to costs.

 

How do I proceed, or shall I thank my lucky stars they have agreed to set it a-side?

 

Thanks again

 

[dx100uk]

ask them about your £275 costs for the fee as its very unfair they forced you to spend this fee money when they have already been directly contacted before? the N244 application + fee to agree consent.

 

 

[soldat]

Thanks dx.

 

Is this ok to send off?
 

I write with reference to your recent correspondence dated 1 March 2022 informing me that your client has consented to the Judgment against me being set-aside, and furthermore, their decision to discontinue their claim.

 

However, I’m unsatisfied with the Consent Order you attached with regards to item 3) There be no Order as to costs. It is unfair I have had to pay costs of £275 to file an application notice for a Judgment I should never have received. I therefore politely request your client agrees to paying my costs on an updated Consent Order.

[soldat]

OK, they've agreed and sent a new consent order to sign and return.

 

point 3) has been revised to:

The Claimant do pay the sum of £275.00 to the Defendant in respect of her application fee within 14 days of the date of the sealed Order.

 

OK to sign and return?

 

I assume we don't have to pay any of their fees that they sent in the notice of sums etc.

 

It seems strange they've agreed to all this.