CCJ to wrong address - is my consent order okay?

[rara2022]

I performed a credit check last week as myself and My partner are hoping to buy a house soon. I saw that a CCJ has been made against me for the sum of £2360 and the case was heard on 12 January. I didn’t receive the claim forms as I’d moved house in August 2021, I informed the claimant that I had a new address in October 2021, I also told them I wanted to start paying again as my circumstances were due to change soon. they replied and there was some back and forth since then as they asked for my previous addresses for data safety reasons. Despite me informing them I had moved and wanted to start payments again, they never asked for my new address and in the meantime were sending out a claim form to an old address.

it is my understanding that they haven’t followed Part 6 of the CPR and so I should (hopefully) be able to get the court to set this ccj aside.

My aim is to have this CCJ removed from my history. And so I’ve been told I should have a good chance of having the CCJ set aside if I ask the Claimant to consent to set aside based on the above address issue, and in exchange, agree to pay the claim in full. I will attach evidence of the aforementioned email conversation to the email, as well as a draft consent order.

I have 3 questions and hoped that somebody could help me before I email the claimant.

1. The original debt was for £2100, now it’s £2367, I assume because of court fees. Do I need to pay this too if I’m offering to essentially settle outside of court? Money is tight and I could do with saving this £250.

2. Please could someone have a look at my proposed email and consent order to see if it’s fit for purpose?

3. what happens next? If the claimant does consent to set it aside, do I still complete the N244 and pay £265. And should I mention to the judge that I’ve paid the claim - I’ve read some people on this forum say that that can put the judge off setting aside because I’m essentially admitting the claim rather than defending it and they’ll suspect I’m “credit cleansing”…

any help or success stories much appreciated. Thanks

[jaguarsuk]

1. it depends how confident they are of winning, I wouldn't necessarily go offering to settle straight away if it were me. I would get it set aside pursuant to CPR 13.3(1)(b)(ii) on the grounds of deficient service either with or without consent and ask that the cost of the application be awarded to you against the claimant.

The reason it has increased is the court fee paid to file the claim and possibly interest.

2. The judge will not order the claim dismissed, they'll order either that the Claimant serve you Particulars of Claim by a date then you further file and serve a defence by a date or simply that you file and serve a defence by a particular date.

3. If you say anything about settling or that you owe the claim either in your application, witness statement, defence, any draft orders or in court the judge could refuse set aside on the basis of the fact you have admitted owing the amount.

Either way you will use form N244 to apply, but the fee will differ with (£108) or without consent (£275).

In your email requesting consent I would scrap the final paragraph and word it more like this, so they know you are serious as well as actually know what you are doing:

Consequently it is my intention to apply to the court to set aside the judgement pursuant to CPR 13.3(1)(b)(ii) on the grounds of deficient service and request the cost of that application be paid by the Claimant (you) to the Defendant (me). Bearing in mind the difference in the fee of £108 with your consent or £275 without it, please confirm by reply your consent.

So to enable me to elaborate of my point 1 I need to ask:

A. What is the original debt? (e.g. loan, credit card, phone contract etc.).

B. Is it the original company you were indebted to bringing the claim or have they sold it to another company who are now bringing it?

C. Has the court sent you a copy of the claim form?

[rara2022]

Hello




Thanks for your help!




Unfortunately I only just saw your reply and I emailed the claimant (Arrow ltd) on 03/03/2022. They have since replied and said that my account is being handled by their solicitors now, Drydens Fairfax.




I’m not sure if that gives me room to alter my approach and instead write what you suggest?




I really need to have this taken off of my credit record, as it’s going to have a negative impact on my job, living situation and even my relationship. And so I was advised that by disputing the way the claim was handled (not sent to the right address), paying up and getting consent from the claimant, I’d have a better chance of convincing the judge to set the judgment aside.




Here’s answers to the questions you asked:

A) the original debt is a student overdraft with Halifax taken out around 13 years ago.




B) the debt has been sold to various debt collectors over the years. I set up a payment plan with Capquest in 2019-2020, informed them I was made redundant in 2020. They offered to reduce the debt to £800 if I paid straightaway but I couldn’t. Then in 2021 when I emailed them to say I’d changed address, my circumstances had changed and I’d like to take the offer of £800, they forwarded the email to Arrow Ltd who then contacted me.




C) No I haven’t got a copy of the claim form. I know the claim number and court name from the information on my credit check.




If I use your suggested route of applying to set aside under CPR 13.3 (i)(b)(ii), and not offer the claimant the opportunity to settle outside of court, do i then need to defend the claim overall? So deny that I should pay it….? Under what grounds?

Thanks

[jaguarsuk]

I really need to have this taken off of my credit record, as it’s going to have a negative impact on my job, living situation and even my relationship. And so I was advised that by disputing the way the claim was handled (not sent to the right address), paying up and getting consent from the claimant, I’d have a better chance of convincing the judge to set the judgment aside.

Whoever advised you of this is wrong, admitting the debt before applying for set aside can lead to the judge refusing to set it aside because it is correct by virtue of you admitting it.

Upon being set aside it is removed from your credit file, even while you are defending the claim. You can settle this at anytime up to the moment you walk in the court room door at the final hearing, therefore there is no harm in seeing what they can actually produce in terms of evidence.

That said, it is your claim and once set aside if you wish to settle that is your call to make, I personally would want to know they have the evidence to make me pay before I pay. I believe the money is better in my bank than theirs, but then I know what to do in this process and therefore it's not as big a task for me. I'm not going to sugar coat it that it is a complicated process and time consuming, so not for everyone.

If they have referred you to their solicitors then you need to ask them for consent if you haven't already, I would definitely use my final paragraph if you haven't as that is very clear to a solicitor what your intention is.

Okay, so assuming you don't want to settle until you know they have the evidence and you have no choice, the reason you are not admitting owing it is that legally you don't know if they can prove that you owe it.

You ask for it set aside for the reason I have said above and then you defend the claim. Once set aside you will send a CPR 31.14 Request to Dryden Fairfax asking for copies of the documents mentioned in the particulars of claim.

Contact the court now and ask them to send you a copy of the claim form, that way you can remove personal info and post here, then be advised what you should include in the 31.14 request to enable you to hand the request to their solicitor at the set aside hearing when successful.

It is a good thing that it's been sold more than one to more than one debt purchaser, it will often mean issues proving assignment and the legal right to bring a claim.

You should send an Subject Access Request Letter to Halifax now as well asking for all they hold on you, including any terms and conditions you entered into to open any accounts and any Notice(s) of assignment they have sent you. Also ask them in their cover response letter that if they are not able to provide the specifics they specify that is the case, so you know not to write thinking they may have forgotten them.

This will let us know what the claimant can get document wise if they don't already have it.

Where student overdrafts differ from normal overdrafts is that they increase by set increments throughout a students years at University, therefore they are written into the terms of opening the account.

You defence will be to argue that you don't remember opening an account with Halifax, that for the court to rule on a contract the claimant must satisfy offer, acceptance, performance and the intention to create a legally binding relationship. And if established for the court to rule upon the terms of an agreement they must be able to see those terms as they were written at the time, the rights of cancellation of agreement and any penalties/monies that might be owing out of those terms.

It will also be that pursuant to the Law of Property Act 1925 s.136 the claimant must be able to demonstrate that Notices of Assignment must have been served upon you by each of the assignor parties throughout the chain.

What were hoping is that either they can't get the terms and/or they can provide copies of Notices of Assignment from Halifax and Capquest, plus anyone else who might have owned it.

On filing your defence, assuming they have not found those documents they'll have until the date the hearing fee is due to try to obtain documents and if they can't get them (which we may already know they can't from your Subject Access Request) it is unlikely they'll pay the fee and would usually discontinue the claim.

However, we're just at the beginning and lets not get ahead of ourselves, there's a lot to do yet.

[rara2022]

Thanks so much for all of this information. I would be tempted to follow your suggested route and deny the debt. However I just want this to be over with as quickly as possible, this is already affecting my mental state a lot right now and I just think it would be a lengthy process if I were to fight it. Also I was paying off the debt in 2019-2020 so I kind of admitted to it then.

If I ask the solicitors to set it aside on the basis that their process didn’t meet the requirements of CPR part 6 and 13 as you mentioned above, so that I’m disputing the method of the claim and how it was delivered (to the wrong address) not the claim itself, will a judge still see that me admitting to the debt is justification for me having a ccj against my name for 6 years?

[jaguarsuk]

Thanks so much for all of this information. I would be tempted to follow your suggested route and deny the debt. However I just want this to be over with as quickly as possible, this is already affecting my mental state a lot right now and I just think it would be a lengthy process if I were to fight it. Also I was paying off the debt in 2019-2020 so I kind of admitted to it then.

If I ask the solicitors to set it aside on the basis that their process didn’t meet the requirements of CPR part 6 and 13 as you mentioned above, so that I’m disputing the method of the claim and how it was delivered (to the wrong address) not the claim itself, will a judge still see that me admitting to the debt is justification for me having a ccj against my name for 6 years?

No, CPR 13.3 (i)(b)(ii) says it should be set aside if there is good reason for you to defend the claim, that good reason is that you didn't have the chance to defend (or admit it) for that matter. They should set it aside, and then set dates for filing a defence.

As you say you wish to settle you simply negotiate a settlement with the claimant during that period, get them to provide you a letter stating the settlement is in 'full and final settlement of claim XXXXXXXX' and that they will issue a Notice of Discontinuance upon receipt of the amount agreed. Once paid they'll discontinue and you'll get a stamped copy of the NoD in the post from the court.

[rara2022]

Hello, it’s me again.

I have read a few scenarios on this forum where the defendant hasn’t successfully had the judgment set aside based on the claimant serving forms to an old address alone. I’m genuinely terrified of having my application rejected.

I’m thinking that I might have a better chance if I also defend the claim as you suggest, however I don’t believe I can go down the route of denying knowledge of the existence of the debt in the first place, as I was making monthly payments in 2019-2020.

Do you think I could defend the claim amount based on the fact that Capquest (a subsidiary of Arrow, the claimant) offered me a reduction of £1260 in January 2021 to pay just £800 to clear the debt and close the account. I didn’t email them to take them up on the offer until October 2021 as I wasn’t in employment. But maybe I could prove that the debt itself is no longer worth £2365 which is what the claim is for?

[jaguarsuk]

Hello, it’s me again.

I have read a few scenarios on this forum where the defendant hasn’t successfully had the judgment set aside based on the claimant serving forms to an old address alone. I’m genuinely terrified of having my application rejected.

I’m thinking that I might have a better chance if I also defend the claim as you suggest, however I don’t believe I can go down the route of denying knowledge of the existence of the debt in the first place, as I was making monthly payments in 2019-2020.

Do you think I could defend the claim amount based on the fact that Capquest (a subsidiary of Arrow, the claimant) offered me a reduction of £1260 in January 2021 to pay just £800 to clear the debt and close the account. I didn’t email them to take them up on the offer until October 2021 as I wasn’t in employment. But maybe I could prove that the debt itself is no longer worth £2365 which is what the claim is for?

Usually those people have done something else like admitting they owe the debt for example and the judge will then refuse to set aside as it's a correct judgement.

At this stage the judge just needs to believe you want to defend the claim, it doesn't mean you actually have to as I said above.

If you have changed your mind after thinking about it and want to defend, then happy to help. However, you don't have to.

At this stage whether you want to defend or settle you ask for their consent to set aside as this is the cheapest way to do so.

When you file you N244 to apply either with or without consent there will only be mention of the fact you want to defend because you should be given the right to.

If (I have to say 'if,' but it's more likely that you will be) successful you'll be instructed to file a defence, you'll need to request documents from the Claimant via a CPR 31.14 request.

Even if you are going to negotiate a settlement to avoid filing a defence, you still need to be preparing a defence because there are two parties that have to agree to settle and if they refuse you'll need to defend.

You were paying a debt to Capquest, you have never paid a debt to Arrow, so how could you recognise it? They'll have to show you from the documents it's a debt of yours and then at that point you might recognise it. You won't know though until they prove you entered into agreement to pay it and that when it was sold all the correct legal process were followed to give the Claimant the right to bring this claim.

You can't defend something by admitting it.

Have you sent a Subject Access Request Letter to Halifax as I suggested in post #4?

And have you requested a copy of the claim form from the court?

[rara2022]

Thanks for your reply. Okay so I apply to have the ccj set aside, and the judge will either accept and give me a date where I have to defend by, or deny the set aside. If they do accept my set aside and give me a date to defend (or admit), will the judgment be removed from my credit report at this stage, or is it only once the defence or settlement is complete?

I also wondered if the below would help make my case for set aside stronger?

I have an email (attached) which shows that I emailed the claimant’s subsidiary (Capquest, my original contact) on 15 October to inform them that my circumstances have changed and that I would like to pay the offer they made the following month. I also told them that I had moved house and wanted to update my details. The claimant themselves replied over 6 weeks later (29 November) to say they are now handling my account and asked for some security info for data protection reasons. In later email correspondence the claimant didn’t make it possible for me to pay, and didn’t ask to confirm my new address.

I am now filling out Q3 of the N244 form and wanted to know whether, based on the attached email evidence where I offer to pay their offer next month, I have sufficed the grounds for a mandatory set aside based on the below. Of course when I emailed saying I wanted to pay the offer next month, I did not know of any claim or legal proceedings and so I did not file and serve an admission of liability, but could my email count as such?

Wrongly entered default judgments
“Before default judgment was entered, the defendant filed and served on the claimant an admission of liability to pay all the money claimed in a money claim, together with a request for time to pay.”

Is it possible I could use this mandatory set aside rule?

For Q3 of the N244 form I have written:

That the defendant contacted the claimant to pay the debt before the claim was made and the claimant did not reply or pursue this.

That the default judgment dated 12.01.2022 was knowingly sent to an old address and therefore It was not served in accordance with CPR Part 6.

Since the claim form has not been served, this is an order that the judgment be set aside pursuant to CPR 13.3 (1)(b)(ii).

[rara2022]

I wills send the subject request letter to Halifax today. And I’m on hold on the phone to the court to ask for the claim form.

not sure if this changes things but Capquest, my original debt collector, is a subsidiary of Arrow Ltd. And Drydens is acting on their behalf. There has been previous debt collectors in the past from different companies.

[jaguarsuk]

Thanks for your reply. Okay so I apply to have the ccj set aside, and the judge will either accept and give me a date where I have to defend by, or deny the set aside. If they do accept my set aside and give me a date to defend (or admit), will the judgment be removed from my credit report at this stage, or is it only once the defence or settlement is complete?

Obviously not right at that moment set aside is granted, but when the clerk processes the order to set aside the CCJ it is removed from the credit report.

It would only go back on if you lost, judgement was made against you and you didn't pay that judgement within 28 days of the order.

I also wondered if the below would help make my case for set aside stronger?

I have an email (attached) which shows that I emailed the claimant’s subsidiary (Capquest, my original contact) on 15 October to inform them that my circumstances have changed and that I would like to pay the offer they made the following month. I also told them that I had moved house and wanted to update my details. The claimant themselves replied over 6 weeks later (29 November) to say they are now handling my account and asked for some security info for data protection reasons. In later email correspondence the claimant didn’t make it possible for me to pay, and didn’t ask to confirm my new address.

No it makes it weaker, you don't want to admit that you know what the debt is or the judge may decide judgement is correct and refuse set aside.

I am now filling out Q3 of the N244 form and wanted to know whether, based on the attached email evidence where I offer to pay their offer next month, I have sufficed the grounds for a mandatory set aside based on the below. Of course when I emailed saying I wanted to pay the offer next month, I did not know of any claim or legal proceedings and so I did not file and serve an admission of liability, but could my email count as such?

If they are able to provide the documents you are going to ask for, yes that email would be an admission of liability. However, you don't even know if the claimant has the legal right to bring the claim yet and if they can't prove they have that right, then that email is worthless to them.

And remember, you can settle at any point up to walking into a final hearing, so if they do provide the terms and they can prove their right to bring the claim, then you negotiate settlement which isn't a CCJ.

The end result sough here is one of two things:

1. The CCJ is removed and you don't have to pay anything.
2. The CCJ is removed and you have to settle, which means paying.

Even if you did go to a final hearing and lost, if you pid the judgement within 28 days it doesn't go on your credit file, but that's not the end we're aiming for.

Wrongly entered default judgments
“Before default judgment was entered, the defendant filed and served on the claimant an admission of liability to pay all the money claimed in a money claim, together with a request for time to pay.”

Where has this statement come from?

Is it possible I could use this mandatory set aside rule?

For Q3 of the N244 form I have written:

That the defendant contacted the claimant to pay the debt before the claim was made and the claimant did not reply or pursue this.

That the default judgment dated 12.01.2022 was knowingly sent to an old address and therefore It was not served in accordance with CPR Part 6.

Since the claim form has not been served, this is an order that the judgment be set aside pursuant to CPR 13.3 (1)(b)(ii).

No, again you are admitting the debt and therefore risking a judge deciding the judgement is correct.

The answer to Q3 of the N244 is 'An order to set aside the judgement dated X pursuant to CPR 13.3 (1)(b) on the grounds of deficient service of the claim form.'

I wills send the subject request letter to Halifax today. And I’m on hold on the phone to the court to ask for the claim form.

Good, both are necessary.

not sure if this changes things but Capquest, my original debt collector, is a subsidiary of Arrow Ltd. And Drydens is acting on their behalf. There has been previous debt collectors in the past from different companies.

No, we'll just pretend you don't know that as there is no expectation that you should.

Finally I would edit post #9 if I were you as the image contains your name.

[rara2022]

Thank you for your reply.

I am filling in the evidence section, question 10 of my N244 form where I am writing a timeline of events to prove that I did not live at the address where the claim was served. My evidence of this is the email I post in #9, however the email where I tell the claimant I have moved address, also says "i definitely want to pay the offer" - would this be an admission of the claim and mean that I cannot set aside.

Also I want to elude to my defence against the claim in Q10 but I'm not sure what I can say at this point. Do you have any advice?

[jaguarsuk]

Thank you for your reply.

I am filling in the evidence section, question 10 of my N244 form where I am writing a timeline of events to prove that I did not live at the address where the claim was served. My evidence of this is the email I post in #9, however the email where I tell the claimant I have moved address, also says "i definitely want to pay the offer" - would this be an admission of the claim and mean that I cannot set aside.

Also I want to elude to my defence against the claim in Q10 but I'm not sure what I can say at this point. Do you have any advice?

There are other ways to prove that you were at a new address, use a bank statement or council tax bill from the time.

You don't have to say what your defence is going to be, you simply need to say you were not living at the address and that is why the judgement should be set aside.

[rara2022]

Thank you so much for your time and the detailed responses you’ve given me - they’ve helped me massively. Sorry for my confusion sometimes, this is all very new to me.

okay I do have a council tax bill from that date, and an email from my estate agent to confirm my move out date so I will provide that. I thought I had to prove that the claimant knew I had moved address but if the fact I had simply not received them I’d enough, then perfect.

[jaguarsuk]

Thank you so much for your time and the detailed responses you’ve given me - they’ve helped me massively. Sorry for my confusion sometimes, this is all very new to me.

okay I do have a council tax bill from that date, and an email from my estate agent to confirm my move out date so I will provide that. I thought I had to prove that the claimant knew I had moved address but if the fact I had simply not received them I’d enough, then perfect.

No, it's on the Claimant to check you are at an address and if they've just assumed your at the address they have on file then that's their fault. You simply need to demonstrate you didn't get the claim forms and that you did have a chance to defend it as a result.