Applying for set aside or ask cliamant for a CCA?

[infoplease]

Hi,

I received a CCJ by default judgement in 2012. At the time I was getting bombarded with various letters saying this and that and when the claim form arrived I thought it was just another attempt to make me pay. Little did I know it was actually a real court claim form at the time. I was busy working trying to make ends meet and didn't have the time to look into it.

It was from a capital one credit card taken out in 2002 and from reading these forums it would appear there is a fair chance that the CCA is unenforceable. Whether or not this is actually the case is another question.

The last payment was made on it in September 2009 and no correspondence or payments have been made since.

I am now in two minds of whether to pursue the CCA with a possibility of getting the judgement set aside on the basis of it being unenforceable or 'not available' or leaving it until the 6 years is up after the last payment. I figure either way, if they provide an enforceable CCA then it will have to be sorted and if not I assume I could apply for a set aside on this basis.

I don't know if I should contact the court or the claimant (AG) first and am concerned that the court will not allow the set aside to pass because I have left it so long.

Any advise is much appreciated.

I look forward to any replies.

Thanks in advance.

[ploddertom]

Re: Applying for set aside or ask cliamant for a CCA?

The CCJ trumps the CCA so no joy there and as you say you have left so long since the CCJ was awarded thee chances of applying for Set Aside are very thin and you would need a robust defence to do so. Looks as if you are stuck with it unfortunately.

[infoplease]

Re: Applying for set aside or ask cliamant for a CCA?

The CCJ trumps the CCA so no joy there and as you say you have left so long since the CCJ was awarded thee chances of applying for Set Aside are very thin and you would need a robust defence to do so. Looks as if you are stuck with it unfortunately.

Thanks for the reply.

so if I were to ask the claimant for a CCA and they could not provide one, would the CCJ not be set aside on the basis of it was re-tried and the claimant could not provide a CCA the case would be dismissed?

[ploddertom]

Re: Applying for set aside or ask cliamant for a CCA?

They do not have to provide a CCA as a CCJ has been awarded. I imagine if you decided to try & challenge it then you would be throwing money down the drain.

[infoplease]

Re: Applying for set aside or ask cliamant for a CCA?

They do not have to provide a CCA as a CCJ has been awarded. I imagine if you decided to try & challenge it then you would be throwing money down the drain.

OK, so is it possible to apply for a set aside on the grounds that it was not made clear who the account was with? - and by this I mean the following:

4/9/2009 - Letter received from CO around the last payment date.

25/9/2009 - Received a letter from f.t.c. stating:
'We write to inform you that with immediate effect CO have appointed f.t.c. as their managing agent for the purpose of securing repayment of your credit card account ref no. XXX.
Our client has an obligation to update the credit reference bureau and as such a statement of default has been registered on your credit file. A default is a formal notification that your agreement has been terminated and a creditor has to issue a default before any legal action or intervention can take place.
All future contact regarding your account should now be with this firm by calling us on 0870 000 0000 and quoting ref mo. XXX

19/10/09 - Received a letter from f.t.c. stating: 'Further to our letter of the 24/9/09.
We regret that you have chosen not to deal with...etc...'

4/3/10 - Letter from CO stating: 'I am writing to advise you that your account is no longer being managed by the debt collection agency who were acting on behalf of CO.
Your account has now been returned to CO.'

26/3/10 - Letter from f.t.c. stating: 'As stated previously your account may be passed to a specialist debt collection agency...etc..

At this point I was unsure of who the debt was with as, well, you can understand my confusion, being sent letters from CO and f.t.c. after CO said that the account was back with them. But I also had a previous letter from f.t.c. stating that all correspondence should be with them. So as far as I was aware at this point, I was dealing with CO and f.t.c. were pushing their luck trying to get me to pay also, so admittedly, I left it, until...

I received a phone call 11 months later I received either a letter or phone call (if it was a letter I definitely spoke to them on the phone) and I explained to them that I had not received a letter from CO stating that the account had been passed on and therefore I would not deal with them.
Within a couple of days I received TWO letters in the same envelope that I could only assume to be from AG. One of the letter had the CO header and the other the AG header. Both letters are dated the same date (18/2/11).
As both letters came in the same envelope I believed the CO letter to be something that AG had knocked up just to get me to pay.

The supposed CO letter stated that CO had sold the account to AG on 11/2/11.

The AG letter stated that: ' We advise that CO has assigned all of its respective rights, title and interest in respect of the above referenced account (including the right to receive payment of the outstanding balance) to AGGLTD, effective 2/2/11.
The same letter also stated that: ' It is essential that all future payments and correspondence regarding this account be directed to:- WCS. Yet another name that I didn't believe the money was owed to as CO had not sent me a letter stating they had passed it on as they did in the past.
So the next 2 letters I receive are one the same day and both dated 30/5/12. The first being a letter from BCS of behalf of AG (but I thought AG had told me to only correspond with WCS??) stating: As you have failed to make repayments on the above account we have now issued litigation proceedings in the County Court. You will receive the claim form in the next 48 hours direct from the court.'
Of course, the other letter was the claim form. Which I now know is real! All I believed it to be was another someone trying to get me to pay when between them it appeared to me that none of them owned the debt except CO who had not written to tell me otherwise.

...and so this would lead me back to my previous point that I don't believe any of these DCA's own the debt and if they do, then the CCA should be supplied.

Unfortunately for me it would seem I should have acted sooner, though you can see my reasons for not replying to the court! - Just wondering if there's anything I can do to get the CCJ removed from my credit file as I now have a business of which I am finding difficult to raise funds whilst it is on there and it needs to be gone.

If you get this far.. thank you for reading! - any comments greatly appreciated.

[ploddertom]

Re: Applying for set aside or ask cliamant for a CCA?

As you say yourself you should have acted sooner. Only if you have a defence whereby they should not have got the CCJ in the first place would you possibly be succesful - and even then the Court would look at the delay in applying unless of course the facts had only just come to life - say for instance you had just found out the the original CCJ was obtained on a debt that was Statute Barred, even then there is a chance at this late stage it would not be entertained. Sorry to say but I think you may have to chalk this one down to experience.

If you can afford it you could pay it off and apply for a Cerificate of Satisfaction. This does not remove the CCJ from your file but shows it has been paid but I believe it doesn't really make a lot of difference to your credit rating.

[infoplease]

Re: Applying for set aside or ask cliamant for a CCA?

That's not what the bank said! - lol

What I don't get is that they are able to enter the judgement and potentially have a CCA that is unenforceable with it being pre 2007.

Irrespective of this, anyone could get a default judgement on anyone if they were a little crafty about it!

i.e. I believe that if it was set aside then my first question would be - 'where's the CCA?' and the answer is most likely going to be - we don't have one, because if they did, it wouldn't be enforceable. Therefore the judge would have reason to believe that if the case were set aside then the CCJ would not be served in the event of a re-claim.

[FlamingParrot]

Re: Applying for set aside or ask cliamant for a CCA?

The last payment was made on it in September 2009 and no correspondence or payments have been made since.

I am now in two minds of whether to pursue the CCA with a possibility of getting the judgement set aside on the basis of it being unenforceable or 'not available' or leaving it until the 6 years is up after the last payment. I figure either way, if they provide an enforceable CCA then it will have to be sorted and if not I assume I could apply for a set aside on this basis.

It wouldn't make any difference now a CCJ has been obtained, the clock stopped in 2012 when the claim was issued.

That's not what the bank said! - lol

What I don't get is that they are able to enter the judgement and potentially have a CCA that is unenforceable with it being pre 2007.

Not all pre-2007 agreements are unenforceable, the only difference is that you'd still have the protection of s.127 of the CCA if taken out before April 2007, but this would only apply if there had been no properly executed agreement containing all the prescribed terms to start with. Sadly their duty to respond to a CCA request ended when they obtained judgment against you.

Irrespective of this, anyone could get a default judgement on anyone if they were a little crafty about it!

i.e. I believe that if it was set aside then my first question would be - 'where's the CCA?' and the answer is most likely going to be - we don't have one, because if they did, it wouldn't be enforceable. Therefore the judge would have reason to believe that if the case were set aside then the CCJ would not be served in the event of a re-claim.

The problem is that, as stated above, they no longer have to supply you with the CCA. The only way I can see you could make the point would be if you had your own copy of what you signed at the time and you could show it was just an application form without terms, such as those often found in adverts, etc. Otherwise you can't really argue non-compliance with s.78 as the law says they no longer have to comply, so it's a bit of a catch-22.

Furthermore, it has been a long time since the CCJ was obtained, the court would want to know why you left it so late to apply for set aside. :ohwell:

Have you been making payments into this CCJ?

[infoplease]

Re: Applying for set aside or ask cliamant for a CCA?

Hi, Thanks for your reply.

No I have not made any payments on the CCJ.

In fact I don't believe I've had any correspondance from either the court or BCS or AG since the CCJ went through unless I tore it up and threw it away, which I don't believe I would have done because I still have the claim form.

[FlamingParrot]

Re: Applying for set aside or ask cliamant for a CCA?

Hi, Thanks for your reply.

No I have not made any payments on the CCJ.

In fact I don't believe I've had any correspondance from either the court or BCS or AG since the CCJ went through unless I tore it up and threw it away, which I don't believe I would have done because I still have the claim form.

Ah, so you did receive the claim form. In that case, it would be difficult to convince the court to set aside the judgment, unless you had a very good reason not to have responded to the claim.

Have you NEVER made payments into this judgment? Although judgments don't go SBd, if the creditor does not make any attempt to enforce the judgment within the first six years, they cannot enforce it later. Unlike debts where no judgment has been obtained, in this case it's not enough just not to 'acknowledge' the debt or make payments, there really has to be no attempt on the part of the creditor to enforce it via an attachment of earnings, warrant of control, etc.

[infoplease]

Re: Applying for set aside or ask cliamant for a CCA?

Ok,

So I've now attempted to pay the debt even though I am still not admitting it. The debt apparently has been moved to CQ. Though I have spoken to AG, CQ and they are 'unable to take payment'. Well now I really don't know what to do. The court have told me to contact AG, AG have said contact CQ and CQ are unable to take payment.
Does anyone know of a similar situation. Am I now able to apply back to the court?