Trying to get rid of a CCJ

[conar686]

Background

 

The following occurred at a time in 06 where I was under severe financial duress and didn't understand at all what my rights were.

 

This account has been on my back burner as I've had more important fish to fry, I've periodically took up the gaunlet over the last 2 years.

 

I had just started with S PECTRUM finance and thought they would deal with this in a proper manner, they didn't they just sent back an admission.

 

I've a bit of money coming and I'd like to try my hand going thro' the courts route to get them to back off and do the decent thing.

 

• The Issue is over a Dorothy Perkins Storecard dating back to Dec '06
  
• Impact CCJ against 'she who must be obeyed', we pay H oward and Co hen £1pcm
  
• I challenged a Burtons Card CCJ this year and got it set aside as they couldn't produce an agreement.
  

 

I've tried to get them to set aside the DP account on the basis that what they have sent me is 'illegible' but they state they won't.

 

The offending documents your honour

[conar686]

Their POC looked like this

 

[conar686]

They have refunded the charges yet the judgement has not reduced so I think the following would suffice

 

• Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
  
  

 

I suspect time gone by may be a constraint but I can blag the fact that 'I'm a no nothing nomark' and I've only just become aware of this anonomly

 

Any ideas/suggestions/comments that would be helpful, anyone got a POC that I could adapt

 

win/win for me is I put in a claim and they fold.

[conar686]

N244 form bits for comment

 

N244 Application Notice

In the Cheltenham County Court

You should provide this information for listing the application

1. How do you wish to have your application dealt with:Claim no: 6XYxxxxx

a) at a hearing? √ (complete all questions below)

b) at a telephone conference? ...... (complete all questions below)Warrant no.

c) without a hearing? ...... (complete Qs 5 and 6 below)

 

2. Give a time estimate for the hearing/conference:Claimant: CL Finance (ref xxxxx)

.....1....... (hours) 30 (mins) (including ref.)

 

3. Is this agreed by all parties? NoDefendant(s) Mrs frisp

(including ref.)

4. Give dates of any trial period or fixed trial date

Date 31 May 06

5. Level of judge: District

 

6. Parties to be served: The Claimant

 

 

Part A

 

I, Mrs Frisp (the defendant) intend to apply for an order that the judgment dated 31 May 06 be set aside and the Defendant be allowed to defend the claim

 

Because

 

The defendant has a real prospect of successfully defending the claim for the following reasons;

 

1.I now dispute the amount of the claim

2.I did not receive a default notice as prescribed by the Consumer Credit Act prior to the claimant issuing his claim

 

Part C Claim No: 6XYxxxx

 

I (We) wish to rely on the following evidence in support of this application:

 

1.A County Court Judgement was obtained by acknowledgement of the defendant on 11 Dec 06. The time lapse to date is due to my unfamiliarity with the requirements of the Consumer Credit Act and protracted communication with the original creditor, the claimant and their legal representatives Howard Cohen & Co Solicitors

2.The claimant states a debt of £486.83 for a Dorothy Perkins Store card (xxxx xxxx xxxx xxxx) were purchased from GE Capital Bank (Original Creditor) and CL Finance (Claimant). I have not received a notice of assignment for the alleged debts from the original creditor. I therefore put the claimant to strict proof that such a contract exists between the claimant and Defendant

3. After reading articles on the finance industries debatable practices regarding the levying of late payment charges. On 4 Jan 07 the defendant sent a request under the consumer credit act for a true copy of the executed Credit Agreement, a statement of account detailing the principal, with all charges and fees made in respect of the debt and a copy of the default notice this was followed with a Subject Access Request for all data on all systems on 27 Feb 07.

4.The original creditor (OC) and subsequently the claimant have so far failed to send the defendant a legible copy of the agreement or a copy of an applicable default notice. I would respectfully submit the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides the necessary information

5.Despite numerous correspondences to the OC and the claimant requesting an enforceable copy of the original Consumer Credit Agreement pertaining to the account and a copy of the default notice. To date neither the claimant nor the original creditor could produce a legible credit agreement or a single copy of any default notice.

6.It is denied therefore denied that any Default Notice in the prescribed format was ever received from the OC.

7.The Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant and that any default notice sent to me was valid. To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

8.If, however, the OC did send a default notice and that it included unlawful/excessive charges, it is my assertion that such a default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

9.With respect to the claim, it is denied that I am liable to the claimant for the sums as stated in the original Particulars of Claim, as:

a.During the period in which the Account was operating the original creditor (OC) debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied.

b.Having requested a copy of the credit agreement, which when produced by the claimant (not the original creditor) was illegible, I put the claimant to strict proof that a document exists that can be clearly read and is, in all respects, compliant with the consumer credit act 1974.

c.The claimant and the original creditor (OC) have singularly failed to produce an enforceable Consumer Credit agreement in relation to this account. In the absence of such a document, I deny that there has been any failure to make payment in accordance with any alleged contract.

d.The Claimant having failed to produce a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, it is my assertion that no agreement has ever existed for there to have been a default condition to occur.

10.It is my assertion that the amount of the claim is inaccurate and I now disagree with the amount claimed for the following reasons;

a.The charges debited to the account were punitive in nature

b.Exceeded any alleged actual loss to the claimant in respect of breaches of contract on the part of the defendant

c.Are not a genuine pre-estimate of cost incurred by the claimant

d.Are not intended to represent or related to any alleged actual loss, but instead unduly enriched the original creditor.

11.Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

 

IT IS ORDERED THAT

The Court is considering setting aside the order reference number 6XYxxxx in favour of the defense in this action as;

a.A default notice was not issued in respect of the Dorothy Perkins account (xxxx xxxx xxxx xxxx) and therefore the appropriate pre-court process was not adhered to, and

b.The amount of the original claim is not now a true representation of the amount owed

The basis for this is the fact that CL finance and the original creditor GE Capital have failed to produce a properly executed credit agreement pursuant to the requirements of the Consumer Credit Act or proof that a default notice was sent or received.

If the Defendant objects to the proposed set aside, it is ordered to file, by no later than 4:00pm on (date) (month) 2007.

Upon receipt of any such objections, the Court will consider listing the claim of an on notice hearing of the set aside issue.

In the absence of any such objections being filed in time, the defence herein will be set aside a judgement entered for the amount claimed by the Claimant, together with the appropriate costs claimable on the small claims track.

 

Agreement not compliant with Consumer Credit Act:

a.Unenforceable under s127(3) as it does not contain the prescribed terms

b.Must be legible - s61 [1c]

 

Relevant case law

1.The law states that without a prescribed agreement the courts may not enforce under 127(3) and

2.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

I'd appreciate any comments/suggestions on the whole and on the contents of the N244

[tifo]

my experience from threads and advice given on this forum is that once you have a CCJ, whether they have an enforceable agreement or not does not matter because the account HAS BEEN ENFORCED BY THE COURT.

 

i have always been told that the time to ask for proof etc was before and at the hearing etc and ignorance of your rights is no excuse, that's what solicitors are for. Further, you have admitted the debt upon receiving the claim form.

 

for this reason, i have not applied for a set aside on 3 CCJs i have from some years ago even though the creditors cannot supply an agreement or anything else.

Edited January 2, 2009 by tifo

[42man]

This might be of interest to you...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/171762-charging-order-help-please.html?highlight=miffed+puppy

[conar686]

my experience from threads and advice given on this forum is that once you have a CCJ, whether they have an enforceable agreement or not does not matter because the account HAS BEEN ENFORCED BY THE COURT.

 

i have always been told that the time to ask for proof etc was before and at the hearing etc and ignorance of your rights is no excuse, that's what solicitors are for. Further, you have admitted the debt upon receiving the claim form.

 

for this reason, i have not applied for a set aside on 3 CCJs i have from some years ago even though the creditors cannot supply an agreement or anything else.

 

tks tifo

 

There are grounds for having a CCJ set aside and this is what I'm pursuing, they are quite at liberty to take me to court again if I succeed.

 

The 2 areas I'm challenging are

 

1.Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount? - The charges now make the total different

 

2. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons. - They can't produce the default notice

[conar686]

Tks 42

 

What about the statement is it good enough or does it need more work.

[car2403]

Carried on from here;

 

http://www.consumeractiongroup.co.uk/forum/legalities/135397-getting-ccjs-set-aside.html

 

You aren't guaranteed a set aside of the CCJ as you admitted the debt in the original claim. (CPR Part 13.2(a))

 

You may be able to get a set aside of the CCJ if you can show that you have a realistic prospect of successfully defending the original claim (CPR Part 13.3(a)) or there are some other good reasons why you should be allowed to defend the claim. (CPR Part 13.3(b)(ii))

 

In either case, the Court will consider the amount of time that has passed since the CCJ was awarded and the set aside application is received - if too long has passed, it may not be set aside. (CPR Part 13.3(2))

 

I think the issue here is will the agreement be enforceable - it seems to be to me, as it contains the prescribed terms and your signature. If the agreement is enforceable, what can you achieve? Perhaps a set aside/variation based on penalty charges/PPI applied, but you'd still have a CCJ for the remainer of the balance. If the agreement is unenforceable, the original CCJ is flawed, but you'd need to have your defence to the claim ready (and submit it prior to the hearing to set aside) for the Court to consider it.

 

I think a faulty Default Notice alone isn't enough for you, as yes you may get the set aside, but with an enforceable agreement, they will just issue you another one and request a stay while it expires, then the claim can continue on the new Default Notice. There is an argument that the original DN and the subsequent action indicated termination of the agreement and rescission of contract, so they shouldn't be able to do so, but that would need a Judges' decision, which could go either way.

[conar686]

Tks for the above Chris, an honest perspective of my chances and I appreciate it.

 

Looking at the agreement with new eyes, I was relying more on the fact that the majority of the thing is illegible. However as you point out you can (just) see the amount, repayments, apr and there are signatures

 

It all falls onto the fact that there was no default and would I have realistically been successful with this defense.

 

At the moment I'm not paying them as I've argued illegibility and they are not chasing me as they probably don't want to test this in court. However the CCJ is still there and its having an effect on my ability to improve my CR.

 

I reckon ur right and 50/50 is not good enough to do the court thing. Time for a replan.

[42man]

I'm not up fully on this, and you may have to research further, but I believe you might be able to use Limitation section 32 C, The fact that you made no dispute earlier could be irrelevant if you put the case forward that you only became aware the charges were unfair and unlawful following the OFT investigation and media reports....and had you known BEFORE then....

[debbbbsy]

At the moment I'm not paying them as I've argued illegibility and they are not chasing me as they probably don't want to test this in court. However the CCJ is still there and its having an effect on my ability to improve my CR.

Becareful. We stopped paying the RBS, after 7 years without missing a single payment of £300p/m, we felt we'd paid enough. And because what was left was 100% interest & charges.

Without any prior warning, they went for a charging order. The judge accepted that the CCJ may be "incorrect", but becauese we were not complying with the judgement he had no choice but to grant the charging order.

Debs

[postggj]

dont want to put cold water on this but

 

as its been nearly three years i doubt you will have no chance on a set asside

 

its only what i have read on the forum

 

pt or surface gent are the people to ask on this one

[debbbbsy]

as its been nearly three years i doubt you will have no chance on a set asside

I don't agree.

4 years ago we went to see a solicitor, she told us that because the CCJ was 6 years old, we should either negotiate a full & final, or basically put up & shut up.

Where does it actually state that your chances of success diminish because of time. It seems to be an unwritten law, that you shouldn't even bother to challenge the bank if your CCJ is more than a few months old.

I believe that every case should be judged on its merits, & not the age of the CCJ.

When our CCJ was issued the Data protection act wasn't around to force information from the RBS, all our requests prior to judgement were either ignored or refused. Our CCJ was made up of 60+% interest & charges, but before the OFT's ruling,& we didn't know about the data protection act.

 

We had no way of challenging the bank, or defending the CCJ.We were bullied into a CCJ which we knew was wrong.

 

We have now discovered why the bank never responded to any of our requests for information about these accounts.

Couple stung by £100000 ‘secret’ loan - Times Online

I found this site in April, & we did the SAR. I then found Paul Walton's article in the Guardian,& spotted the similarities. Now our case has made front page news.

 

We intend to challenge our CCJ, even though it is 10 years old.

 

Debs

[Jamesx81x]

When you state the CCJ included unlawful carges are you referring to bank charges?

 

I ask due to the test case on them. They have yet to be announced as unlawful by the courts so the bank would just contest this on those grounds.

 

Also you are going along the lines that no agreement existed using the CCA but if you are claiming charges added to the account are unlawful you are more or less stating that an account did exist.

 

You have to be careful how you word things and what you are claiming as the claim will be put in front of their solicitors who will look and use every decrepencie in it.

[Jamesx81x]

Ignore first section i noticed it is a store card.

[TheAnalyst]

I might be wrong here.... but .... going by your Avatar then it might actually be simpler than all this.

 

I had a 4 year old CCJ thrown out by the court on the grounds that I live and always have lived in Scotland. The creditor had just run a moneyclaim on me and they (Moneyclaim/court etc) never clocked on to the fact that I live in Scotland and should never had a CCJ in the first place.

 

I simply pointed this out to Northampton County Court (via email), 3 months passed and I had never heard a thing so called them... woman called back a hour later and advised me it had been thrown out by a judge on the grounds that it should have never gone through the english court system in the first place...

 

Is that of any use to you? Or do you now live in England?

[conar686]

Unfortunately I'm living in England but thanks for your help.

 

To all that have responded I thank you and I'm still umming and awwing over this.

[Sirensinger]

Just thought I'd add my twopennyworth - I had one CCJ set aside on grounds of no CCA having been provided (it was a credit card). However, I've just had the trial for this, and even though HSBC has lost the CCA, the Judge is now deliberating what his decision will be regarding unenforceability. Another (for a current account, now closed) was partially set aside because the Judge agreed that although the Claim Form had been sent to the wrong address, and I already had a Claim in progress against the Clsimsnt, he could only set aside that part which represented my Claim (for bank charges) and which therefore I might be reasonably assumed to have the possibility of reclaiming. I have appealed, and have to give more details before the Judge will decide if she can issue further directions or hear the Appeal. Good luck - my experience isn't giving me much faith in the English legal system!

 

Sirensinger