CCJ by Default - Claim Form not received

[Inthemire]

Good morning. I have recently received a letter from the court to say that judgement has been made against me despite me not receiving a claim form prior to this. I knew they were likely to make a claim as I'd received a pre legal assessment but was shocked when I received notification of the judgement against me without first receiving the claim form.

I sent a written response to the court on the day of receipt to explain I hadn't received the form prior to the judgement being made and they wrote back immediately just telling me I could apply to set it aside (at my cost) or complete a variation if I could not afford to pay in full (£8800). Which I can't.

Although I am liable for the debt, I was hoping I could have at least had the opportunity to defend the claim. I've had a claim discontinued in the past (thanks to the Beagles) and would have liked the opportunity to try and defend against this one in the same way if I'd have had the chance. It's hard to say whether it just didn't make it through the post or whether my Mum misplaced it (my mail goes to her house).

What should I do? Is it worth paying and attempting to set it aside due to the fact that I didn't have the opportunity to defend the claim? Is a possible failure of the postal system reason enough to set it aside? Or am I just opening a can of worms taking this track and just accept it and make an offer.

Any advice would be much appreciated.

[Debt Camel]

Re: CCJ by Default - Claim Form not received

what is the debt for? what defence would you be using?

do you have other debts - if you do you need to change the addresses on them so the mail comes to you!

[Inthemire]

Re: CCJ by Default - Claim Form not received

It's for a credit card. I don't have a defence as such but I was hoping to challenge it by ensuring that they had the documents they would rely on if they were to go to court such as a properly executed agreement with all the prescribed terms and a compliant DN in accordance with the CCA.

Also, as they are not the original creditor, that they can show they are the legal owners of the account through assignment.*

I defended in this way with another credit card with MKDP and they discontinued it. I'm just so frustrated that this opportunity appears to have been whipped out of my hands with this one.

[Debt Camel]

Re: CCJ by Default - Claim Form not received

who was the original creditor? what date did you take out the credit card?

[Inthemire]

Re: CCJ by Default - Claim Form not received

The original creditor was Barclaycard. I've just found a letter to say that the account was assigned and transferred by Barclaycard to MKDP LLP in August 2012.

I'm unsure exactly when I opened it exactly but the earliest statement I can find right now goes back to 2011. I'm sure I'd had it for at least a few years before then though. I could try and get up the loft and find out a more accurate date if that will help in any way.

[Diana M]

Re: CCJ by Default - Claim Form not received

The original creditor was Barclaycard. I've just found a letter to say that the account was assigned and transferred by Barclaycard to MKDP LLP in August 2012.

I'm unsure exactly when I opened it exactly but the earliest statement I can find right now goes back to 2011. I'm sure I'd had it for at least a few years before then though. I could try and get up the loft and find out a more accurate date if that will help in any way.

So you've got a Default Judgment (CCJ) for a Barclaycard which was assigned to MKDP so I'm guessing the Claimant is Hoist and their instructed solicitors are Howard Cohen.

I would think you have a potential Defence based on that.

If the mail goes to your mother's address is there any reason why it doesn't go to yours?

How long since you moved into your current address?

Are you on the Electoral Register at either address?

Do you have any financial products at your own address such as a bank account or even a mobile phone account? These would be visible on the CRA files if the Claimant bothered to search (they should carry out due diligence before issuing a claim).

I would suggest you consider making an Application for a Set Aside promptly. If you are on benefits or low waged you may be entitled to fee remission so it won't cost you.

Ask the court for a copy of the Case Details which is a computer printout of the claim form information including the Particulars of Claim. You'll need this in order to prepare your Draft Defence which you will file together with a Witness Statement explaining to the court why you didn't receive the claim form, when you make your Set Aside Application.

When did you last make a payment to the account? Was it to Barclaycard or was it to MKDP?

You need to go up into the loft!

Di

[Inthemire]

Re: CCJ by Default - Claim Form not received

Sorry, I tried to use the quote function but I couldn't get it to work as it should so I've just done my best below. I hope it's clear enough.

So you've got a Default Judgment (CCJ) for a Barclaycard which was assigned to MKDP so I'm guessing the Claimant is Hoist and their instructed solicitors are Howard Cohen.

That's exactly right Di.

If the mail goes to your mother's address is there any reason why it doesn't go to yours?

Unfortunately, yes. I've kept my debts a secret from my partner of 9 years as things had got to such a terrible and shameful level. Alongside that he has a very negative view of credit and I'm sure wouldn't have continued with our relationship if he knew how bad things were. Albeit small and part-time, he also has interest in property development so has a couple of mortgages and borrows against these for any projects that come up. I have been, and still am, terrified that if I change the details on my accounts that he'll find out in some way. Not so much through any correspondence but if it affected his ability to get credit through the association for example. It's a horrible situation.

How long since you moved into your current address?

We moved into our current address together 5 years ago.

Are you on the Electoral Register at either address?

I am on the Electoral Register here, and have been for at least the last few years, if not all. Not at my Mum's.

Do you have any financial products at your own address such as a bank account or even a mobile phone account? These would be visible on the CRA files if the Claimant bothered to search (they should carry out due diligence before issuing a claim).

No. I have purposely kept anything related to credit registered to my Mum's address for the above reasons. Phone and bank account included.

When did you last make a payment to the account? Was it to Barclaycard or was it to MKDP?

The last payment I made was in July 2011 and that was to Barclaycard themselves. The final direct debit payment before I went under.

[Diana M]

Re: CCJ by Default - Claim Form not received

I've kept my debts a secret from my partner of 9 years as things had got to such a terrible and shameful level.

. . . I have been, and still am, terrified that if I change the details on my accounts that he'll find out in some way. . . . It's a horrible situation.

I am on the Electoral Register here, and have been for at least the last few years,

There's no no need to feel any shame for having borrowed money which you've not been able to pay back.

Nobody wakes up and says "I think I'll get into debt today". Stuff happens.

You take out a 'credit' card then when all of a sudden (sometimes years later due to circumstances beyond your control) the 'credit' card is called a 'debt'.

So you're on the Electoral Register where you live. That may be enough to prove that the creditor/Claimant could/should have known where you lived before serving a claim to an address where you don't live (for an Application to Set Aside this CCJ).

Sometimes they do that on purpose.

Maybe check on Noddle (a free CRA) to see whether the Claimant (Hoist) searched your file before issuing these proceedings.

Di

[Inthemire]

Re: CCJ by Default - Claim Form not received

Thank you Diane.

I've just signed up to Noddle and the only search visible is one carried out by Robinson Way in 2015 so it doesn't look like Hoist searched my file before issuing.

[Diana M]

Re: CCJ by Default - Claim Form not received

I've just signed up to Noddle and the only search visible is one carried out by Robinson Way in 2015 so it doesn't look like Hoist searched my file before issuing.

Actually it means the opposite. Robinson Way are the DCA for Hoist so they did search your credit file in 2015 and would/should have seen you on the Electoral Register at your current address yet nevertheless they served the claim on you elsewhere.

Time to get cracking on your Set Aside.

Di

[Inthemire]

Re: CCJ by Default - Claim Form not received

Ah, I see.

When I wrote to the court to express my astonishment about the fact that I'd received a judgement against me without first receiving the claim form I put my Mum's address on the top of the letter. Does that matter?

Also, if through trying to get this set aside, I go ahead and tell them that I've been living here all along, will that then have implications for my partner?

[Diana M]

Re: CCJ by Default - Claim Form not received

When I wrote to the court to express my astonishment about the fact that I'd received a judgement against me without first receiving the claim form I put my Mum's address on the top of the letter. Does that matter?

Also, if through trying to get this set aside, I go ahead and tell them that I've been living here all along, will that then have implications for my partner?

That's a tricky one.

You'll be making an Application to the court to set aside the CCJ on the basis you never received the claim because you don't live at the address where it was served. You'll be providing evidence to prove that you live where you now live and not at your Mum's place.

You will in effect be 'outing' yourself to the court but not to anyone else.

However, this has the potential for Hoist to change their CRA file entry from your Mum's address to your current address since they (Hoist) are party to these proceedings.

I can't say whether that would have any negative impact on your partner. But if they subsequently traced you (which it appears they already have done but perhaps chose to ignore) then the link would be created anyway, as would any other creditor searching a CRA file who sees you on the electoral roll at your current address.

Di

[Inthemire]

Re: CCJ by Default - Claim Form not received

I understand. Is that the only basis I would have to set it aside at this stage?

[Diana M]

Re: CCJ by Default - Claim Form not received

they wrote back immediately just telling me I could apply to set it aside (at my cost) or complete a variation if I could not afford to pay in full (£8800). Which I can't.

The core issue is the CCJ which won't simply evaporate unless you pay the claimant £8.8k within 28 days of the judgment.

Hoist will be entitled to enforce the debt.

Do you rent your home or is it jointly owned/mortgaged with your partner? Since the CCJ is over £1k the Claimant has the automatic right to apply for a Charging Order on the property but if it's in joint names it will be a Restriction at Land Registry meaning there could be no Order for Sale etc.

Or the Claimant may choose to enforce with an Attachment of Earnings Order if you are in employment.

Or the Claimant may decide to enforce with bailiffs who would attend your Mum's house if they believe that's where you're living.

I'm not saying this to spook you, I'm saying it to help you make up your mind what you want to do next.

The CCJ will be a 'forthwith' Order meaning you have to pay the whole lot in one go unless you make an Application to the court to Vary that Order (unless you get the CCJ set aside). In order for the court to consider your Application you will have to provide them with your I & E.

An Application to set aside the CCJ will put a stop on all enforcement of the CCJ pending the outcome of your Application. This could take several weeks or even months depending on how busy your local county court is because there will be a hearing so it will be transferred. (You can ask for the Application to be considered without a hearing but if the Claimant contests your application then there will be a hearing.)

Even an offer to pay the Claimant direct (without varying the CCJ) doesn't guarantee they won't also seek enforcement at some stage.

I know none of these options sound attractive but you will have to do something to protect yourself from the worst case scenario.

I'm sure we'll think of something

Di

[Inthemire]

Re: CCJ by Default - Claim Form not received

Crikey.

Our home is mortgaged but it's in my partner's sole name.

I am in employment but only two days a week as we have a young daughter.

I care for a young adult with a moderate learning disabilty so my wages are very low but my partner pays the mortgage and all associated bills while our daughter is little. My wages just pay for my expenses, feeding and clothing our little girl etc. We live very separate lives with regard to money - he has his money and pays for the home, I have mine and pay for me and our little girl. Strange, and quite sad really but I suppose I've had to engineer things in part so that I haven't had to be involved in joint bank accounts or mortgages so to protect my horrible skeletons in the closet. I feel like I've been living like a ghost.

Anyway, I don't suppose my feelings are at all relevant here, we just need to work out the best solution. I really appreciate you taking the time to help me.