CCJ setaside actions' advice

[AK2020]

Hello, please advice. After finding a CCJ by accident on my credit file I sent form N244 to Northampton Court with a very primitive witness statement as unfortunately I found this forum only now and didn't know how to word the statement properly. This week I received a letter from Northampton Court that my case transferred to my local court for a new hearing. Could you, please, advise what my next steps are? Can I amend my witness statement, should I request CCA from PRA Group (the claimant) and any other relevant documentation? Basically what to do next?

The debt is Barclaycard debt, card itself originated in 2009, debt transferred to PRA Group in 2015, whom I paid £50 a month until August 2017 when they couldn't locate my CCA and the debt became unenforceable. The reason why I didn't receive any court forms is that PRA Group sent them to wrong flat number in the same building I currently live. I moved home in 2017, don't remember informing PRA Group of the change of address as debt was unenforceable as I thought. They didn't use my old address for sending court forms but incorrect current address with only flat number wrong.The same wrong address they have on my credit file when everyone else have the correct one. I asked the case to be setaside on the ground that PRA Group knew my current address but made mistake in it. I would like to defend my case as I don't believe PRA Group has the original CCA. Please, help, what should I do next.

[luxardo]

You say the debt became unenforceable ? Do you mean you considered it to be unenforceable because you asked PRA for a copy of the original CCA and when they couldn't provide it you stopped paying the 50 quid a month ?
They must provide a copy within 12 days or the debt is unenforceable so you are correct. Did you write and tell them this ?

A court may conclude though, that by making regular monthly payments for 2 years you had accepted PRA had the right to collect it regardless. That would be for a judge to decide.

You can certainly apply to have the CCJ set aside on the grounds of service at wrong address but if you succeed they will only issue a new one at the correct address.
If they do and you defend it on the grounds they have no rights as they do not have the original CCA I'm sure Barclaycard will still have a copy to give them. Certainly if they can't produce it you will be successful.

You could also consider a counterclaim demanding the 50 quid monthly payments you made for 2 years be returned as PRA had no legal right to enforce the debt or collect it.
You should also look into whether or not the debt is statute barred. 2009-2015 is 6 years. But if 2009 was when you actually got the card it is unlikely.

[AK2020]

You say the debt became unenforceable ? Do you mean you considered it to be unenforceable because you asked PRA for a copy of the original CCA and when they couldn't provide it you stopped paying the 50 quid a month ?
They must provide a copy within 12 days or the debt is unenforceable so you are correct. Did you write and tell them this ?

A court may conclude though, that by making regular monthly payments for 2 years you had accepted PRA had the right to collect it regardless. That would be for a judge to decide.

You can certainly apply to have the CCJ set aside on the grounds of service at wrong address but if you succeed they will only issue a new one at the correct address.
If they do and you defend it on the grounds they have no rights as they do not have the original CCA I'm sure Barclaycard will still have a copy to give them. Certainly if they can't produce it you will be successful.

You could also consider a counterclaim demanding the 50 quid monthly payments you made for 2 years be returned as PRA had no legal right to enforce the debt or collect it.
You should also look into whether or not the debt is statute barred. 2009-2015 is 6 years. But if 2009 was when you actually got the card it is unlikely.

Thank you for your reply. To clarify couple of things. It wasn't me who decided that the debt is unenforceable, PRA Group told me that in their letter in 2017 when they couldn't find the original CCA but unfortunately I can't find the letter anymore to use for my defense.
The debt is not statute barred for sure. I was on payment plan with Barclaycard for couple of year prior to 2015, then they decided they couldn't offer me the plan anymore and transferred my debt to PRA Group. So, from 2009 to 2015 I paid Barclays every month, I stopped to pay to PRA Group in September 2017.
Should I send a new SAR to be sure that PRA Group don't have CCA now or should I wait for the hearing? Thanks.

[luxardo]

Send a SAR definitely and demand again a copy of the CCA. Ask for copies of all letters they have sent you, you might get lucky and they will send you the letter you have lost.
If they can't produce the CCA they have no case. They have already admitted this so I don't know why they have brought this action.
Make a counterclaim for the payments you made to them between 2015-2017 as they had no legal tight to recover from you.
Your only risk, as I have already mentioned, is that a court may decide you acknowledged the debt by making payments.

[Amethyst]

If you are resting your case on PRA being unable to produce the agreement, you must ask for it by way of a formal statutory request -CCA Request - with payment of the £1 fee. If you did do that originally there is no need to do another unless you also have lost the evidence that the request and payment were sent.* However as there is a judgment in place there is no requirement for them to comply until the judgment is set aside.* You could do a SAR but whether there is or isn't the agreement within that won't have any standing at the moment.

There is no basis for you counterclaiming for payments made to date.

You are currently applyng to set aside a default judgment. The court has decided your application requires a hearing.*

Your application relies on that PRA sent the court claim to the wrong address.

Have you stated in the application that you intend to, and have a reasonable prospect of success in defending the claim, and, is that your intention ? Or are you going to try and remove the CCJ then try negotiate to settle the debt before it goes back to a CCJ (should PRA come up with the CCA ) ?

Once the CCJ is set aside, based on the issuance to a wrong address, you will have to file your defence, as soon as it is set aside you can send a new formal CCA request - argue for 28 days to file your defence to allow enough time for your request to be sent and the 12 days to pass before filing defence.

*

[luxardo]

Why do you think there is no basis for counterclaiming for payments made to date ? I would have thought if they don't produce the CCA they had no right to enforce the debt ?

[MIKE770]

If only it was that simple!

[Amethyst]

While in a period of non compliance they are unable to enforce the agreement, ie. obtain a judgment ( and then only if the defendant defends on that basis and the court agrees )* The debt still exists (until its written off of course due to being unable to enforce), they can still request payment, issue a court claim, report to CRA's etc.


London Scottish v Craig
McGuffick v Bank of Scotland
S170 of the consumer credit act (*http://www.legislation.gov.uk/ukpga/1974/39/section/170)
unjust enrichment
(I'm sure there's other case law as well )

[AK2020]

If you are resting your case on PRA being unable to produce the agreement, you must ask for it by way of a formal statutory request -CCA Request - with payment of the £1 fee. If you did do that originally there is no need to do another unless you also have lost the evidence that the request and payment were sent. However as there is a judgment in place there is no requirement for them to comply until the judgment is set aside. You could do a SAR but whether there is or isn't the agreement within that won't have any standing at the moment.

There is no basis for you counterclaiming for payments made to date.

You are currently applyng to set aside a default judgment. The court has decided your application requires a hearing.

Your application relies on that PRA sent the court claim to the wrong address.

Have you stated in the application that you intend to, and have a reasonable prospect of success in defending the claim, and, is that your intention ? Or are you going to try and remove the CCJ then try negotiate to settle the debt before it goes back to a CCJ (should PRA come up with the CCA ) ?

Once the CCJ is set aside, based on the issuance to a wrong address, you will have to file your defence, as soon as it is set aside you can send a new formal CCA request - argue for 28 days to file your defence to allow enough time for your request to be sent and the 12 days to pass before filing defence.

Thank you for the reply. Here is what I said on the N244 form

'I am asking to set aside the judgment because I wasn't aware of the hearing, the forms and the judgment itself were send to the wrong address even the claimant was informed of the correct postal address. I never received forms and was not aware of any steps to recover the alleged debt.

In August 2017 PRA Group informed me that they could not locate my Consumer Credit Agreement and therefore the debt became unenforceable. Prior to that I paid them £50 a month from 2015 when they acquired the debt from Barclaycard. I have not heard from them since.

The claimant was informed about change of the postal address in 2017. Given that PRA failed to take reasonable steps to find me as for some reason they recorded a wrong flat number in the correct block of flats for my address on their file. I never lived in xxx, I moved to xxx directly from xxx. Therefore I didn't receive any correspondence regarding the hearing, any court forms *and the Judgment itself. I would kindly ask the Court to set the judgment aside and have a new hearing where I can be present.

Attached, please, find a copy of the water bill and a copy of my credit report showing my postal address with the correct flat number.'*

[Amethyst]

That sounds fine. You have said you want to apply to set aside the judgment because PRA hadn't taken reasonable steps to ensure they were issuing their claim to the correct address. Do you have any evidence of your informing PRA about the change of address?

With a default judgment there hasn't been a hearing, so once the judgment is set-aside it will return to the point as if you have just been served with the claim… you will then need to either defend or settle the claim. At the set aside hearing the judge is likely to want to know what you would have done had you received the court claim originally ( ie. will the outcome be any different if the judgment is set aside and restarted )

It sounds like, had you received the claim, you would have defended on the basis that PRA had failed to comply with your formal CCA request under s 77/78 of the consumer credit act and had previously written to you to inform you they were unable to enforce the agreement.

If they do respond to your SAR in time it SHOULD include a copy of that letter, or at least a note that it was sent. If you can get that it will help show the court that you would have defended the claim and would have had a reasonable prospect of success.

Does the hearing order give any further directions at all ?

Have you obtained a copy of the original claim form / particulars of claim etc ?

[luxardo]

While in a period of non compliance they are unable to enforce the agreement, ie. obtain a judgment ( and then only if the defendant defends on that basis and the court agrees ) The debt still exists (until its written off of course due to being unable to enforce), they can still request payment, issue a court claim, report to CRA's etc.


London Scottish v Craig
McGuffick v Bank of Scotland
S170 of the consumer credit act (http://www.legislation.gov.uk/ukpga/1974/39/section/170)
unjust enrichment
(I'm sure there's other case law as well )

Well that sucks like a lemon the size of a beachball !!*
It's like me sending you an invoice when you don't owe me money and*I get to keep it if you pay me.

[AK2020]

That sounds fine. You have said you want to apply to set aside the judgment because PRA hadn't taken reasonable steps to ensure they were issuing their claim to the correct address. Do you have any evidence of your informing PRA about the change of address?

With a default judgment there hasn't been a hearing, so once the judgment is set-aside it will return to the point as if you have just been served with the claim… you will then need to either defend or settle the claim. At the set aside hearing the judge is likely to want to know what you would have done had you received the court claim originally ( ie. will the outcome be any different if the judgment is set aside and restarted )

It sounds like, had you received the claim, you would have defended on the basis that PRA had failed to comply with your formal CCA request under s 77/78 of the consumer credit act and had previously written to you to inform you they were unable to enforce the agreement.

If they do respond to your SAR in time it SHOULD include a copy of that letter, or at least a note that it was sent. If you can get that it will help show the court that you would have defended the claim and would have had a reasonable prospect of success.

Does the hearing order give any further directions at all ?

Have you obtained a copy of the original claim form / particulars of claim etc ?

I don't have any proof for the change of address but PRA Group managed to find my current address. Except making mistake in flat number every other lines of the address are correct. So far I only receive a letter from Northampton Court that my case transferred to a local Court. I received it on Friday. Where can I get a copy of the original claim form? Should I ask Court or PRA Group? Thanks.

[Amethyst]

Lol, it isn't really... majority of people arguing a debt is unenforceable DID enter into an agreement and do owe the debt... and if they are arguing they didn't enter into the agreement and don't owe the debt at all, then there are other arguments ( fraud, ID theft, misrep/mistake etc ) than unenforceability under s.77/78, which would entitle them to a refund of payments made.

[Amethyst]

I don't have any proof for the change of address but PRA Group managed to find my current address. Except making mistake in flat number every other lines of the address are correct. So far I only receive a letter from Northampton Court that my case transferred to a local Court. I received it on Friday. Where can I get a copy of the original claim form? Should I ask Court or PRA Group? Thanks.

Ask Court - Northampton CCBC should have it on their case system and should be able to email you a copy of their screen which contains the particulars ( it really depends who in the call centre you talk to as to how helpful they are on that ) Worth trying first anyway, and if not then yes you'd have to ask PRA.

[luxardo]

Lol, it isn't really... majority of people arguing a debt is unenforceable DID enter into an agreement and do owe the debt... and if they are arguing they didn't enter into the agreement and don't owe the debt at all, then there are other arguments ( fraud, ID theft, misrep/mistake etc ) than unenforceability under s.77/78, which would entitle them to a refund of payments made.

makes sense I guess