CCJ BY capquest and CCA request

[nafiz333]

Hi,

im wondering if anyone can help.

I was issue CCJ Tom my old address back in 2015 which I've spotted couple of months ago. I think it was to do with one of MBNA credit card, but to confirm I contacted the claiment solicitor called fairfax and they advise me to pay £1 nominal fees in order to get the CCA and defaul notice along with where the debt originally came from.

its been nearly 2 months and I haven't heard any thing Dom them.

Can an I apply for a CCJ set aside and claim the cost from claiment ?

I thought the the statutory time to provide CCA is within 14 days of request otherwise debt is unenforceable, is it correct ?

thanks

[charitynjw]

Re: CCJ BY capquest and CCA request

Hi nafiz333

When you say you received a CCJ, do you mean it went to court & a judgment was made against you, or do you mean that you have received a claim pack (probably via Northampton Court).

If the latter, did you acknowledge the claim as per the pack instructions.

If there was no judgment, there would be nothing to set aside.

Have you contacted the court to find the current status of the claim?

[Diana M]

Re: CCJ BY capquest and CCA request

I was issue CCJ Tom my old address back in 2015 which I've spotted couple of months ago. I think it was to do with one of MBNA credit card, but to confirm I contacted the claiment solicitor called fairfax and they advise me to pay £1 nominal fees in order to get the CCA and defaul notice along with where the debt originally came from.

Can an I apply for a CCJ set aside and claim the cost from claiment ?

It may be possible to get the CCJ set aside by consent if the Claimant is willing. It should then cost you £100 to file it with the court. Has the Claimant already admitted they made a procedural error?

First of all, why was the claim served on you at your old address? Would/should the Claimant have known your new address?

I'm not sure why Fairfax solicitors advised you to send them a CCA request (at least that's what it looks like from your description) because if the Claimant can't comply with your request then they (Fairfax) are effectively handing you a potential defence against their client on a plate.

Here's a link to a thread on this forum which gives you a step-by-step guide to getting a CCJ set aside > http://legalbeagles.info/forums/show...090#post413090

Di

[charitynjw]

Re: CCJ BY capquest and CCA request

It may be possible to get the CCJ set aside by consent if the Claimant is willing. It should then cost you £100 to file it with the court. Has the Claimant already admitted they made a procedural error?

First of all, why was the claim served on you at your old address? Would/should the Claimant have known your new address?

I'm not sure why Fairfax solicitors advised you to send them a CCA request (at least that's what it looks like from your description) because if the Claimant can't comply with your request then they (Fairfax) are effectively handing you a potential defence against their client on a plate.

Here's a link to a thread on this forum which gives you a step-by-step guide to getting a CCJ set aside > http://legalbeagles.info/forums/show...090#post413090

Di

Morning, Di

It didn't make much sense to me, either!

If a default judgment has been made, A CCA request would be a waste of time, wouldn't it?

[Diana M]

Re: CCJ BY capquest and CCA request

If a default judgment has been made, A CCA request would be a waste of time, wouldn't it?

Morning to you too Charity

Well, if the CCJ were to be set-aside a CCA request (in default) would be helpful to the Defendant when filing their Defence since the claim goes back to square one after the set-aside (if you follow me).

What baffled me (and you apparently) is why would the Claimant's solicitor advise the Defendant of a potential way to defeat their client's claim?

Di

[pt2537]

Re: CCJ BY capquest and CCA request

Hi,

im wondering if anyone can help.

I was issue CCJ Tom my old address back in 2015 which I've spotted couple of months ago. I think it was to do with one of MBNA credit card, but to confirm I contacted the claiment solicitor called fairfax and they advise me to pay £1 nominal fees in order to get the CCA and defaul notice along with where the debt originally came from.

its been nearly 2 months and I haven't heard any thing Dom them.

Can an I apply for a CCJ set aside and claim the cost from claiment ?

I thought the the statutory time to provide CCA is within 14 days of request otherwise debt is unenforceable, is it correct ?

thanks

Hi there

So to clarify, the Claim was issued against an old address. Can i ask, when did you move from that address? Secondly, when you moved, did you update your bank account and other service providers with your new address?

The reason i ask is that under the Civil Procedure Rules it maybe the case that there is an argument to say the Claimant should have carried out a reasonable check to ensure you were still residing at the premises before issuing proceedings. It may also be arguable under CPR rule 13.2 that the Judgment must be set aside if the Claimant wasnt entitled to enter Judgment on the Claim.

Forget about the CCA request, with Judgment in place there is no statutory requirement to comply so they can ignore the request without sanction.

[pt2537]

Re: CCJ BY capquest and CCA request

Morning to you too Charity

Well, if the CCJ were to be set-aside a CCA request (in default) would be helpful to the Defendant when filing their Defence since the claim goes back to square one after the set-aside (if you follow me). No, it would not be valid, it would only be a valid request where the request was made after Judgment was set aside

What baffled me (and you apparently) is why would the Claimant's solicitor advise the Defendant of a potential way to defeat their client's claim?

Di

A statutory request only bites when it is made without a Judgment being in place, thats the problem. I think there may be scope under Rule 13.2 to set aside the judgment, then once the Judgment is gone you can start looking at potential defences.

[Diana M]

Re: CCJ BY capquest and CCA request

As you say, it's all about timing

Di

[Diana M]

Re: CCJ BY capquest and CCA request

A statutory request only bites when it is made without a Judgment being in place, thats the problem. I think there may be scope under Rule 13.2 to set aside the judgment, then once the Judgment is gone you can start looking at potential defences.

If you can’t provide evidence that the Claimant should have known that you were no longer at the old address you can’t apply to setaside under Rule 13.2.

Application to set aside the default judgment would then need to be made under Rule 13.3 and made promptly to comply with Rule13.3 (2) and 2.

If application to set aside is made under Rule 13.3 (at discretion of Judge) then to increase its chances of success it would be wise to attach a copy of your proposed defence for the court to see. As Rule13.3 (1) says judgment may be set aside if the defendant has a real prospect of successfully defending the claim.

So it is probably a good idea to start thinking about what your defence to the claim would be.

Di

[charitynjw]

Re: CCJ BY capquest and CCA request

[MENTION=87380]Diana M[/MENTION]

I'm not entirely convinced that a judgment has been made.
I've seen other threads where the poster has referred to a CCJ when in fact they are meaning that a CC claim has been issued, but it hasn't progressed to a hearing.
Also, while stating that the 'CCJ' was some time in 2015, there is also reference to some kind of communication 2 months ago. ("Its been nearly 2 months......", etc).

c......(onfused, lol!)

[pt2537]

Re: CCJ BY capquest and CCA request

If you can’t provide evidence that the Claimant should have known that you were no longer at the old address you can’t apply to setaside under Rule 13.2.

Application to set aside the default judgment would then need to be made under Rule 13.3 and made promptly to comply with Rule13.3 (2) and 2.

If application to set aside is made under Rule 13.3 (at discretion of Judge) then to increase its chances of success it would be wise to attach a copy of your proposed defence for the court to see. As Rule13.3 (1) says judgment may be set aside if the defendant has a real prospect of successfully defending the claim.

So it is probably a good idea to start thinking about what your defence to the claim would be.

Di

Erm, hence why i asked about whether there had been other accounts registered at the new address. Creditors such as the Claimant have access to credit reference agencies and therefore it would be open to ascertaining the correct address for service

See CPR 6.9(3)

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

It is arguable, indeed i have argued this point before many times with success , that it is incumbent on the Claimant, if they dont recieve a reply to their letters, to at least consider and check to ensure the Defendant is still resident at the address before serving proceedings. It takes seconds to check a credit reference at which point it would show the defendant had moved.

And whats more your argument under CPR 13.3 may well be fundamentally sunk by delay, the Court must under 13.3 have regard for any delay, the case of Regency Rolls v Carnell makes it clear that 28 days delay in making an application is altogether too longer delay.

Delay however falls away under CPR 13.2.

Hence why i fall back to the question as to whether the Defendant have other accounts registered at their new address, and in particular whether they had move other accounts from their old address to their new address.

[nafiz333]

Re: CCJ BY capquest and CCA request

Hi All,

Thank you all for advise.

just to clarify, I've moved into my new address on March 2014 and the CCJ was issued on January 2015 as per my credit file. I did contact with court and they provide me detail of the solicitor.

When I contact to the claiment solicitor they said they tried to contact me and send a litigation letter on 26 April 2014 to my old address (while already moved out) !

However I asked them to provide detail about the debt and only thing they can say was capquest bought it from Bank of America. So they advise me to request for a CCA with £1 nominal fees about couple of months ago and haven't heard anything from them !

im not sure if I shall contact them (claiment solicitors) to ask set aside or make an application for set aside my own with your references above along with failure to provide me a CCA and statement of accounts.

thanks all in advance for your supportive and very helpful comments.

[charitynjw]

Re: CCJ BY capquest and CCA request

Proceeding on the basis that a County Court Judgment was made:

How much was it for?
When did you first get/apply for the credit card?
Have you asked the court for, or have they supplied, any of the court documentation? (original claim form, judgment decision etc)
Have you been in contact with the present occupiers of that previous address to see if any paperwork might be there?
When you moved, did you make any arrangements for forwarding mail?

[nafiz333]

Re: CCJ BY capquest and CCA request

It was for £3989

I'm guessing is to do with MBNA given the balance which they didn't confirm, think applied back in 2004 and last paid in June 2008.

As mentioned I wasn't aware of this issue till I check my credit file back in March 2016, before that no communication was received neither current or previous address.

No I haven't contact the current occupier of previous address.

no forwarding mail service was in place

[charitynjw]

Re: CCJ BY capquest and CCA request

It was for £3989

I'm guessing is to do with MBNA given the balance which they didn't confirm, think applied back in 2004 and last paid in June 2008.
Can you conclusively prove this?
Have you acknowledged the alleged debt in writing since this date?

As mentioned I wasn't aware of this issue till I check my credit file back in March 2016, before that no communication was received neither current or previous address.

No I haven't contact the current occupier of previous address.

no forwarding mail service was in place

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