Shop Direct (Great Universal) Claimform - admitted debt, offered payment, but missed some, now bailiff NOE

[Guest Zooman]

Your have no grounds to have this set aside, judgement has been entered against you over 12 months ago and you have made payments, any attempt to set aside will be seen as you trying to avoid enforcement of a warrant and will not be allowed, this would mean a waste of of the fee to make the application and if it went to a hearing the costs of the hearing, £150 - £750 depending who they sent to object.

 

The above is fundamentally bad advice as should be obvious to all, this is no longer a CCA matter but a court matter, and you where free to defend the matter when the claim was raised against you, a defence that they failed to send a piece of paper after the agreement has been terminated and secured by judgement is no defence at all.

[Laiste]

I don't entirely agree with Zooman. There are limited circumstances under which you can pursue this, however you will need to provide the Court with compelling reasons as to why you did not act promptly to have this set aside or varied. You haven't detailed the circumstances surrounding what led them to obtain judgment and why you didn't defend the claim, so its impossible for me to comment on whether the Court would consider your reason(s) valid to set aside the decision.

 

If you weren't served with the Court claim for eg, that would be valid. However, a Judge would question why you have been paying monies for the last year, if that's the situation. Additionally, I presume you have received some paperwork after judgment was given, detailing what you had to pay etc...? I'm not sure how you would explain that:???: perhaps you've been ill, simply didn't realise you could challenge it, feared what the consequences of challenging this would be? I'm clutching at straws as I don't have all the facts! What I do know is that many people act in strange ways where debts are concerned. They panic and pay monies they don't owe or pay more than they owe, without questioning anything! In the absence of legal knowledge, for many, the easiest thing to do is pay up, whether its right or wrong for them to do so!

 

We need to know more about your circumstances that led to this CCJ being registered. If your reasons for not defending the claim fall within the CPR, I would suggest pursuing this, you would certainly on the 2nd set of criteria have a real prospect of defending the claim (if its a catalogue debt). The Human Rights Act might even be relevant here also. Give as much detail as you can, so we can properly advise.

 

Regards,

 

Laiste.

[Guest Zooman]

It is easy for people to say the above when it not their money at risk, I do not see you winning in court, you may that is true but it is stacked against you, there is a lot of points the post above fails to tackle that you would have to both in a set aside hearing and then your defence if you where granted it, your chances are very remote of getting the set aside and as such costs will be higher as the judge will not side with you bringing a claim in front of him that is 18 months old. Be warned.

[dexyblue]

It was a catalogue debt and couldnt repay the monthly charges, I bascically buried my head in the sand despit numerous letters complete with charges. It was then GCC Debt recovery became involved and the agreement was for£40.00 month this I tried to pay as it was the minimum they would accept. Being on benefits I found it difficult and repeatedly asked for it to be reduced to £30.00, they wouldnt accept this and took it to county court, they then accepted what I had originally offered £30.00 and MOORCROFT were their collection agents,I did not dispute the debt and duly paid until I forgot the November payment which the letter came from MOORCROFT asking for £30.00 within 7 days, this was then paid to them and then the heavy handed, intimidating tactics began.

 

I received a warrant of execution and a demand for £152.25, this is when I started the dispute. MOORCROFT then sent a Bailiff for £152.25 and if I didnt pay it they would come back with a van. Once again intimidation, and because I am on state benefits cannot pay it. So went down the route of asking for agreement and this is the letter I received back yesterday.

I seem to be getting conflicting advice.

[tifo]

If you weren't served with the Court claim for eg, that would be valid. However, a Judge would question why you have been paying monies for the last year, if that's the situation. Additionally, I presume you have received some paperwork after judgment was given, detailing what you had to pay etc...? I'm not sure how you would explain that:???: perhaps you've been ill, simply didn't realise you could challenge it, feared what the consequences of challenging this would be? I'm clutching at straws as I don't have all the facts! What I do know is that many people act in strange ways where debts are concerned. They panic and pay monies they don't owe or pay more than they owe, without questioning anything! In the absence of legal knowledge, for many, the easiest thing to do is pay up, whether its right or wrong for them to do so!

 

I have a few similar cases coming up.

 

My argument would be that i did agree to the debt initially at at court because :

 

1. i was not aware that charges were unlawful hence could not dispute the amount

 

2. i was not aware that the DCA did not have the agreement. Being a professional company i assumed they had purchased the debt legally and had all the paperwork. If they did not then they have also misled the court in pretending to own the debt legally.

 

3. if they did not own the debt then they have no right issuing defaults.

 

4. ask for as much as i can get back, e.g. monies paid + interest, payment for distress, payment for effect of default.

[Laiste]

Zooman,

 

I did not make the comments I did lightly and I take exception to your suggestion that I did!

 

Of course there are risks involved with the above situation, there are risks associated with any legal action one might contemplate, some clearly carry greater risks than others. Of course I would not suggest that someone fritter away their money on a case that has absolutely no prospect whatsoever! What would be the point? That said it is obviously very important to Dexyblue to resolve this matter if she can and she has a right to seek redress if she so wishes. She does need to be fully aware of the pitfalls of embarking on this course of action before she proceeds, naturally.

 

I would like to address some of your points. Firstly, I have not "failed to tackle" the relevant issues. I did not see the point of going into infinite detail regarding all of the issues that DB would need to raise in seeking to set aside/vary this order, because as I repeatedly stated in my last post, I do not know her precise circumstances. What would be the point of me going into lengthy detail about making an appeal and all that it encompasses, if DB for example, advised us she couldn't be bothered filing a defence/was too busy, or any other spurious reason that doesn't hold water? I am waiting for her to advise me what the circumstances were at the time!

 

Secondly, you are making conflicting statements. You started off by saying DB has no grounds to have this set aside, then you stated you do not see DB winning in Court countered by, you may (win) that is

true...? You do not know whether or not DB would win in Court given that she has yet to explain the circumstances surrounding the judgment! She may have a very good case for all you and I know! I find its best to know what the facts are before determining what a Court might decide! Oh and incidentally, whether or not you think she will win is your opinion, its not a fact, ultimately it is for a Judge to determine.

 

Having regard for all the circumstances and the risks involved, is what DB should consider before proceeding.

 

Before making criticisms of my comments, I would have appreciated you at least doing me the courtesy of reading my post thoroughly and understanding why the legal procedure details were omitted as I had no hard facts to work with, stated more than once! By the same token, if you are going to be rude and berate others unecessarily, it might be worthwhile not making conflicting comments, it just adds to confusion.

 

Laiste:)

[Guest Zooman]

there is no legal grounds for it to be set aside, FULL STOP.

 

Although this said she may gain the indulgence of the court, but this would be counter to the overriding objective that all ligation must have finality, and also would be counter the claimants right to "Finality of litigation", CPR for set asides also deal with this with the instruction to the court that they must consider if the application to set aside was made promptly, 18 months is not promptly.

 

Courts are very use to seeing defendants bringing set aside cases once bailiffs are involved, and look most dimly on it this combined with "Finality of litigation", CPR 13 "something something (if you have a copy of the CPR it the second point on the subject of the courts in the indulgence section)" and the fact that they have made no breach of the CCA as the request for information was made after the judgement was entered (and as such the agreement terminated) which means there is no real prospect of defending the claim (again a must in CPR 13) make it most unlikely that she would have the courts indulgence.

 

All a set aside appliction would achieve is money for lawyers. many of these ill founded applications have been made by members and they have all failed and costs have been awarded, the use of the courts and it procedures is not a debtors charter and it can be very dangerous and costly to try and use it as such.

[Laiste]

Make your mind up please....!

 

One minute you are claiming DB might win and now you are apparently resolute in your view that there are no grounds for appeal! Once again you are offering your opinion as fact. We are no wiser in terms of what happened, in respect of whether service took place and in accordance with the CPR, despite DB's last two posts. You are making assumptions about what YOU BELIEVE happened, which in my opinion, is a very dangerous thing to do.You can only offer a definitive answer when you have all the facts at your disposal, we DON'T have them! Preaching the CPR in the absence of the relevants facts is entirely counter-productive.

 

Nobody with an ounce of sense and particularly those of us with experience of the Court system and rules, is going to encourage DB to embark on a meaningless flight of fancy! Neither, should we be advocating that DB give up as the situation is hopeless, before we know EXACTLY what the situation was! I prefer to qualify my comments, where information is lacking, you should consider doing the same. Something to think about......

[Guest Zooman]

My mind was made up from the moment I read the first post.

 

I have not at any point changed it, you have referred though out that it is an indulgence of the court, and I have agreed.

 

Yes I have made the assumption that she was aware of the claim when they sent the claim papers, and even if my assumptions are proved wrong, it is highly unlikely that the court would up hold an application for the judgement to be set aside, for the reasons I have outlined above.

 

As to preaching the CPR in the absence of the relevant facts being entirely counter-productive, I find this an odd statement from someone who knows the legal system as you will know CPR controls the courts actions.

 

The facts remain this to have a judgement set aside certain tests have to be meet before the court can ever consider an indulgence, and the user fails on all counts.

 

Then there is the well know test that is not in CPR and that is simply is the defendant using the court to avoid a debt, a CCJ recorded against them and bailiff enforcement.

 

You have also failed to inform the user how to argue a CCA default by the creditor once the agreement was terminated would affect the judgement 18 months ago, I to would be interested in this. In fact without the user overcoming the above she has no defence and as such no leave to even apply for a set aside, and it would simple be struck out upon reading the files.

 

All of the above is of course relying on one thing, which is the claimant solicitors are worth their salt, and can see the obvious arguments; I do concede that many a strange thing happens as lawyers do not see what is looking them in the face.

 

I'm going to have to bow out of this thread as it is no longer about the 1st post and I have said my point of view and can add nothing more to it.

[Laiste]

Zooman said:

My mind was made up from the moment I read the first post.

 

Yes you made up your mind, then declared she might win and then stated unequivocally that DB had no right of appeal, FULL STOP. So you've made your mind up at least 3 times, that's consistent!

 

I have not at any point changed it, you have referred though out that it is an indulgence of the court, and I have agreed.

 

Yes you have at least 3 times!

 

Yes I have made the assumption that she was aware of the claim when they sent the claim papers, and even if my assumptions are proved wrong, it is highly unlikely that the court would up hold an application for the judgement to be set aside, for the reasons I have outlined above.

 

Thank-you for acknowledging that you have made assumptions. Unlikely, is not the same as impossible and the reasons you have outlined, once again assume that service has taken place in accordance with the CPR. Whether you think it would be upheld is not a matter for you or I to pontificate over, its for the Court!

 

As to preaching the CPR in the absence of the relevant facts being entirely counter-productive, I find this an odd statement from someone who knows the legal system as you will know CPR controls the courts actions.

 

What is odd about what I said? The applicable rules regarding procedure come into play when you have all the facts, we don't, which is why I said what I did. It was a pretty unambiguous comment!

 

The facts remain this to have a judgement set aside certain tests have to be meet before the court can ever consider an indulgence, and the user fails on all counts.

 

Yes specific criteria have to be met, at least we can agree on that! DB may fail on all counts, which we can establish if and when we are given all the information! You have once again made a supposition in the absence of the info!

 

Then there is the well know test that is not in CPR and that is simply is the defendant using the court to avoid a debt, a CCJ recorded against them and bailiff enforcement.

 

That is also for the Court to decide, not you! From a cursory look at the situation, there are probably at least 4 or 5 grounds that the debt can be challenged on, not least the fact that these companies have no agreement to furnish! I don't call that debt avoidance, its called challenging the legal validity of the agreement entered into!

 

You have also failed to inform the user how to argue a CCA default by the creditor once the agreement was terminated would affect the judgement 18 months ago, I to would be interested in this. In fact without the user overcoming the above she has no defence and as such no leave to even apply for a set aside, and it would simple be struck out upon reading the files.

 

I have not failed to inform DB over the CCA issue. I take things a step at a time with people, particularly if they are inexperienced, so as not to swamp them with endless legal stuff. Furthermore, it makes sense to establish a right of action (if there is one) vis a vis the first set of criteria under the CPR before looking at what defence DB might raise. There are other powerful arguments in addition to the CCA route, that I'm researching at the moment, some of which is fairly complex, so I'm not going to go bleating on about those if there is no right of action to begin with!

 

To anyone reading my above post, the largest part of my answer is also in the blue highlighted part! Doh! So to make sense of it, you will need to read all of it. Hopefully, it will be clear, what Zooman wrote and my corresponding comments!

 

Sorry for any confusion, quoting parts of posts is clearly beyond my understanding!LOL:rolleyes:

 

Laiste:)

[Laiste]

Thanks Karnevil. I'm such a plonker at times!

 

Regards,

 

Laiste.

[dexyblue]

What have I started I didn't mean to get you two arguing

[Laiste]

Hi Dexyblue,

 

You haven't started anything, don't worry! Law is a subject that can provoke strong differing views amongst novices and professionals alike! Its no bad thing, through discussion (sometimes heated) you can hopefully make progress in a contentious and/or grey area, or where an unusual set of circumstances arise.

 

I need you to put me in the picture regarding when you became aware that a court claim had been filed and what you did.

 

Regards,

 

Laiste.

[dexyblue]

Hi Laiste, the CCJ was made in July 2005, I was not aware of any of my rights back then and to be honest I was just grateful at the time that they accepted a reduced monthly payment, something I had been asking for for months prior to the court action.

I received the letter at the start of this thread so what do I do know send SAR to GCC Debt Collections.

I am awaiting news from the courts as to whether my reguest to suspend/ammend the warrant has been granted.

This is stressing me out no end, I am dreaming about courts, baliffs etc.

 

Please look at this to get more of the picture Baliff Visit Thanks

[gizmo111]

Please look at this to get more of the picture Baliff Visit Thanks

 

Link goes to main forum

[dexyblue]

Sorry new to this its Baliff Visit in Baliff forum thought this would link to my post, how do I link it pleze

[Laiste]

Hi Dexyblue,

 

Its not after the Court's decision, essentially when judgment was given and the CCJ added to your credit file that I need to know about. I need to know, did you get documents from the Court telling you that a claim had been filed and the relevant defence and counter-claim form? What did you do upon receipt of these forms?

 

Laiste.

[dexyblue]

Oh sorry, yes I do remember receiving Court papers and as I recall panic set in, I filled them in and sent them back with my offer of payment. At the time I did not know what I know now ie Debt cant be enforced without written agreement, all the added charges for default prior to debt going to court and the fact that I repeatedly requested to Shop Direct for payment reduction but they wouldnt go lower than £40 yet when it goes to court they then accept £30 if they had done this in the first place then the debt would now be paid off and I would be in the position of being able to claim back all the unlawfull charges. A ball park figure I rckon I have been stung for about £700+ charges

[Laiste]

Hi Dexyblue,

 

Sorry to be the bearer of bad news, but there is nothing you can do about this in my opinion, in view of what you've told me. You admitted liability for the debt when you filled out the Court papers offering payment.

 

The best thing you can do if at all possible, is borrow the money from family/friends to resolve this matter as far as pmt is concerned. It will stop people hassling you. Sorry I can't be more positive.

 

Regards,

 

Laiste.

[dexyblue]

When can I get all these charges back then? After I have paid the final CCJ payment or am I an exception to the rule and can claim nowt back?

[Laiste]

You can't claim the charges back! When you filled in the Court papers you were asked if you acknowledged all or part of the debt. You clearly accepted the debt in full, which means you have admitted liability for the outstanding amount, including the penalty charges. Anything that you disputed had to be raised in your defence and counterclaim. You are not an exception, you had the opportunity to file a defence and counter-claim and didn't, because as you said, you weren't aware of your rights at that time. That does not change the fact that you accepted the debt in full,which means you cannot challenge any part of the debt.

 

I understand its a bitter pill to swallow and my advice would be if you ever find yourself on the receiving end of Court papers again, admit nothing and challenge everything! It's exactly what I do.

 

Laiste.

[adelaidebull]

You can't claim the charges back! When you filled in the Court papers you were asked if you acknowledged all or part of the debt. You clearly accepted the debt in full, which means you have admitted liability for the outstanding amount, including the penalty charges. Anything that you disputed had to be raised in your defence and counterclaim. You are not an exception, you had the opportunity to file a defence and counter-claim and didn't, because as you said, you weren't aware of your rights at that time. That does not change the fact that you accepted the debt in full,which means you cannot challenge any part of the debt.

 

I understand its a bitter pill to swallow and my advice would be if you ever find yourself on the receiving end of Court papers again, admit nothing and challenge everything! It's exactly what I do.

 

Laiste.

 

Why can't the changes be claimed back?At the time of the CCJ no one knew that the banks and Credit companies where making unlawful over the top changes...

Surely this alone would be a reason to contest the CCJ ,as the amount claimed was wrong at the time..

[Guest Zooman]

it not that no one knew, the court rulings have been in place for circa 100 year, it is that the user did not know, but sadly this is no defence in law, as at the time she was free to investigate the charges and file a defence.

[adelaidebull]

it not that no one knew, the court rulings have been in place for circa 100 year, it is that the user did not know, but sadly this is no defence in law, as at the time she was free to investigate the charges and file a defence.

 

So i gather theres nothing to be done about the CCJ,but what about claiming the changes back off the original company or is that banned by the CCJ?

[tifo]

You can't claim the charges back! When you filled in the Court papers you were asked if you acknowledged all or part of the debt. You clearly accepted the debt in full, which means you have admitted liability for the outstanding amount, including the penalty charges. Anything that you disputed had to be raised in your defence and counterclaim. You are not an exception, you had the opportunity to file a defence and counter-claim and didn't, because as you said, you weren't aware of your rights at that time. That does not change the fact that you accepted the debt in full,which means you cannot challenge any part of the debt.

 

I would disagree.

 

If the debt has been sold to a DCA, then it is no longer the property of the bank. You may have accepted the amount owed with the DCA, but not with the bank. Depends whose name is on as the 'claimant'. So you can claim the charges back from the bank, as you haven't admitted anything with them.

 

However, if the DCA cannot show that they own the debt with an agreement, then their court action was based on presumtions (they assumed they owned the debt) and they could be challenged for that.

 

That's my opinion anyway, i have CCJ's and i will claim from the bank and also the DCA to get it removed if they cannot show an agreement.