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

[dx100uk]

i will guess they are for the fees and costs of raising the court claim?

you dont need to hide times/dates or £'sums

 

i agree its rather crass that all letters were sent to your current address, then later they filed against an old address

you might have a set aside reason

but you need a basic defence for the debt too, that could be the earlier letter saying we have no CCA letter.

[soldat]

Good evening,

 

i've completed my N244, draft order, witness statement, and draft defence. I came across this:

1. You have a duty under CPR 1 to minimise costs, court time and the issues in dispute.

 

Is it worth contacting drydensfairfax to get a consent order then? I don't really want to tell them my evidence.

[dx100uk]

They get your set aside claim etc anyway.the court send it

 

i doubt drydens would consent, they dont even do it on debts that are proved were already sb'd when they backdoor ccj people.

 

 

[soldat]

Thanks dx. You've been really helpful. Will get my paperwork sent off and I'll let you know how it turns out.

[dx100uk]

woe slow down 

 

do you not want it all checked?

 

[soldat]

Yeah, thanks. Haven't finished completely. Probably needs work. Have copied various bits from Internet here and there.

 

Any tips, etc. would be greatly appreciated.

cag - do.pdf cag - ws.pdf cag-dd.pdf

[dx100uk]

i rhink file DD needs fluffing out 

relying solely upon no CCa is a bit dangerous?

what about things like notice of assignments and default notice too? 

[soldat]

Not sure what to do about those. Received notice of assignment in 2014 from shop direct.

any pointers on default notice?

 

also, how long realistically have i got to send this off. Judgment date was 10th. i learned about it on the 14th

 

I've done some googling. So, notice of assignment.. if it was unproven that the notice was served to debtor, does that mean the assignment was unenforceable under section 196 of the Law of Property Act 1925?

 

My head hurts with all this!

[dx100uk]

theres no real rush , by set aside 'promptly' that doesnt mean you only have weeks nor days.

 

its better to get all your ducks inline before submitting the appeal.

 

NOA is not that important, (i recommend you search here on CAG rather than the whole internet as 99% of your q's have been answered lots of times here.) and the very fact that a debt buyer can sent both letters from them and the OC, sort of removes most of the actual requirement, a recon of one would do.

 

of more importance are things like the default notice and enforceable agreement. but you also need to remember that a default judgement, also can negate the need for those to even exist as the judgement 'trumps' any paperwork wriggles at this stage.

 

i however think you have a good case on why they never sent the claimform to your current address

and

that as they'd responded stating they had no CCA as well, why you should not have been expecting/protecting against a backdoor CCJ.

 

our typical defence runs upon these lines and might be useful to inc a few bits of it.

 

Here are some recent Cat defences that Andyorch drafted for another poster s 
.
You will have to edit slightly to suit your claimant Particulars and add your requests for CCA /CPR ect.....
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
.

Defence 
.
 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 r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.
.
 1 .Paragraph 1 is noted. I have had an agreement in the past with [enter original creditor] but do not recognise the account number referred to by the claimant. 
.
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.
.
 3 .Paragraph 3 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served over X years ago. 
.
 On the DD/MM/YYYY ( sent by recorded delivery) I requested information pertaining to this claim by way of a CPR 31.14 request and a Section 78 request. The claimant has failed to date to respond to the CPR and remains in default of the section 78 request.
.
 3.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:
.
 (a) show how the Defendant has entered into an agreement with the Claimant; and
 (b) show how the Defendant has reached the amount claimed for; and
 (c) show how the Claimant has the legal right, either under statute or equity to issue a claim;
.
 4.As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.
.
 5.On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. 
.
 6.By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
.
Regards
.
Andy
***************
...
..

or 
.
1.The claim is for the sum of £398.82 due by the defendant under a non-regulated Shop Direct account with an account ref of ******
.
 2.The defendant failed to maintain contractual payments required under the terms of the account agreement.
.
 3.The debt was legally assigned to the claimant on 28/Aug/2015, notice of which has been given to the defendant. 
.
 The claim includes statutory interest under S.69 of the County Courts Act 1984 at a rate of 8% per annum from the date of assignment to the date of issue of proceedings in the sum of £31.91
 The claimant claims the sum of £450.73 
.
.
 Defence
.
 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 r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.
.
 1. Paragraph 1 is noted. I have had in the past an agreement with Shop Direct but do not recognise the account number referred to by the claimant.It is my understanding that all credit facilities provided by Shop Direct would be regulated and legislated under Credit Consumer Act 1974. 
.
 2. Paragraph 2 is denied. I have not received a Default Notice from the original creditor.
.
 3. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served. 
.
 Therefore Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:
.
 (a) show how the Defendant has entered into an agreement; and
 (b) show and evidence the nature of any breach by way of a Default Notice
 (c) show how the Defendant has reached the amount claimed for; and
 (d) show how the Claimant has the legal right, either under statute or equity to issue a claim;
.
 4. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.
.
 5. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of consumer credit Act 1974.
.
 6. On the 8th November 2016 I made a legal request by way of a CPR 31.14 request and a Section 78 request to the Claimant. The Claimant has failed to comply and therefore is in default of this request and as such is forbidden to request any relief until such compliance.
.
 7. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

.
or
.
1.The claimants claim is for the sum of £460 being monies due from the defendant to the claimant under a home shopping agreement regulated by the consumer credit act 1974 between the defendant and shop direct finance company limited under account reference xxxxx and assigned to the claimant on xx/xx/xxxx notice of which has been given to the defendant.  
.
2.The defendant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and not complied with. 
.
3.The claim also includes statutory interest pursuant to sectiom 69 of the county courts act 1984 at a rate of 8.00% per annum (a daily rate of £0.10 from the date of assignment of the agreement to xx/xx/xxxx being an amount of £36.60.
.
.
.
 Defence 
.
 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 r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 1 Paragraph 1 is noted. I have had an agreement in the past with Shop Direct Finance Company but do not recognise the account number referred to by the claimant. 
 Furthermore which is denied,I am unaware of any legal assignment or Notice of Assignment allegedly served over X years ago. 
.
 2 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.
.

 3 On the 07/11/2016 (sent by recorded delivery) I requested information pertaining to this claim by way of a CPR 31.14 request and a Section 78 request. The claimant has failed to date to respond to the CPR and remains in default of the section 78 request.
.
 4 It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:
.
 (a) show how the Defendant has entered into an agreement; and
 (b) show how the Defendant has reached the amount claimed for; and
 (c) Show and evidence any breach and service of a default Notice which it refers to in their particulars;
 (d) show how the Claimant has the legal right, either under statute or equity to issue a claim;
.
 5 As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.
.
 6 On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. 
.
 7 By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
.
or
.
.
Edit to suit and fit your particulars....
.
.
 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 r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.
.
 1 Paragraph 1 is noted. I have had an agreement in the past with Shop Direct Finance Company but do not recognise the account number referred to by the claimant. 
 Furthermore which is denied,I am unaware of any legal assignment or Notice of Assignment allegedly served over X years ago. 
.
 2 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.

.
 3 On the 07/11/2016 (sent by recorded delivery) I requested information pertaining to this claim by way of a CPR 31.14 request and a Section 78 request. The claimant has failed to date to respond to the CPR and remains in default of the section 78 request.
.
 4 It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:
.
 (a) show how the Defendant has entered into an agreement; and
 (b) show how the Defendant has reached the amount claimed for; and
 (c) Show and evidence any breach and service of a default Notice which it refers to in their particulars;
 (d) show how the Claimant has the legal right, either under statute or equity to issue a claim;
.
 5 As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.
.
 6 On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. 
.
 7 By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
.
 

 

 

 

 

 

 

[soldat]

Hi dx

 

Thank you very much. That has been a great help. I have been searching the forum, but wasn't finding anything that I thought was relevant to our situation.

 

Find attached v2 of draft defence.

 

Have I missed anything? are the other documents ok?

 

Thanks

cag-ddv2.pdf

[dx100uk]

just copy and past the text into a msg box here then its far easier to edit/quote for us please

 

dx

 

[soldat]

DRAFT DEFENCE

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.

1. 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. 

2. 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.

3. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served over six years ago. 

4. On the 04/08/2018, I requested information pertaining to this claim by way of a CPR 31.14 request and a Section 78 request. <<- is this the CCA request?

5. On the 12/08/2018, the Claimant sent confirmation they were unable to provide a copy of the original agreement and that any account they had was unenforceable so therefore, the Claimant has failed to date to respond to the CPR and remains in default of the section 78 request. <<- their response to CCA request

3. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment / balance / breach requested by CPR 31.14, therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

(c) show how the Claimant has the legal right, either under statute or equity to issue a claim;

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant should prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. 

6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

I believe the facts stated in this Defence are true.

[dx100uk]

Ok, you haven't got the set aside yet so you can't file the 'full blown' defence we would normally file upon receipt of a claim form, you need to await the set aside and if a subsequent hearing is requested to file what you have.

 

your 1st no.5. Is about the only relevant bit above. But no a cpr is not a cca and you didnt send a cpr or any other request for noa or dn?

 

DX

[soldat]

Oh yeah, I messed up the numbering. So should I keep paragraph 1-3, then use my original ones for the CCA?

No CPR / NOA or DN.

Thank you for your patience. I don't really fully understand all this legal stuff.

 

Revised draft defence:

 

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.

 

1. 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. 

 

2. 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.

 

3. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served over six years ago. 

 

4. On the 04/08/2018 I sent a formal request for a copy of the Credit Consumer Agreement to the Claimant pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee. <---- do i need to delete 77 or 78?

5. On the 12/08/2018, the Claimant sent confirmation they were unable to provide a copy of the agreement and that any account they had was unenforceable so therefore the Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement. 

 

Thanks

[dx100uk]

hit CCA request

read the posts .

 

i'll pop in later with fluffin up bit busy with sheep up here !!

[soldat]

Ah yes, got it. THanks Section 78. Updated draft.

Hope the sheep didn't give you too much trouble!
 

[dx100uk]

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 no (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
 

[dx100uk]

 

two things you need for a set aside

a reason on the form regarding why you did not received the original claimform.

a brief defence statement as to why you do not owe the debt sum claimed. signed with exhibits (expand in sec 10 in needed)

 

just a Signed defence.....you have not got to witness statement stage yet....that follows allocation of the claim

 

 

 

 

 

[AndyOrch]

I would recommend that a draft order is prepared and attached and that costs of the application are requested and reserved pending the outcome of the application/claim.

 

Andy

[soldat]

Thanks guys.

Updated witness statement accordingly with dx's post. I have a draft order. As follows, is this ok?

 

It is ordered that:

1. The default judgment dated 10 November 2021 be set aside.

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.

 

So with the N244.. include the Witness statement, draft defence, and draft order?

And include a copy of all evidence?

 

Thanks

[dx100uk]

new versions of everything please to PDF

lets get this right, i'm not the expert and didn't really finish either..i think the updates might still be needed.

[soldat]

Attached latest versions of draft order, draft defence, and witness statement.

 

Thanks

01-12-draft-defence.pdf 01-12-draft-order.pdf 01-12-witness-statement.pdf

[AndyOrch]

On your defence I would amend the following as a date of assignment was not referred to within the particulars so therefore you stating over 6 years ago means that you do know and have received it.

 

Quote

3. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served over six years ago.

 

Which do you intend to submit with your application your defence or your statement?...it does not require both.

 

With regards to your draft order ....you have referred to the relevant CPR in your witness statement but not your order so add it to your point 1.

 

CPR 13.3 states (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if – (a) the Defendant has a real prospect of successfully defending the claim

 

Andy

[soldat]

Hi Andy

 

Thanks for taking the time to look at my documents.

 

I don't need to submit draft defence along with the witness statement? I suppose the witness statement would be the better one to submit in my case?

 

Should I copy some of the points from the draft defence into the witness statement?

 

Thanks

Edited December 3, 2021 by soldat

[AndyOrch]

Quote

Should I copy some of the points from the draft defence into the witness statement?

 

Other way around some points from the statement into your defence...your application only requires an initial defence in support......save your witness statement should your application be successful and which you will require it later in the process.