Set aside advice

[inkslinger]

This is a very long drawn out story so I will try and keep it to the relevant points and hope someone can help me fill in the information section that I will rely on in support of my N244.

 

Basically Cap quest have put a CCj on me. It was placed at an old address, even though they had communication with me at my new address. I have sent a SAR to them and its all in there own paperwork so they cannot contest this. I was even making some payment to them at this time.

 

I missed a payment as they increased the amount while I was out of the country working and there wasnt enough in the account to cover it. In the meantime blissfully unaware of all this, they found out the house that my ex was living in was up for sale, and a buyer had been found (I suspect through another DCA but obviously I cannot prove it). Sneakily they have served court papers at this address (again I cannot prove but suspect, in order to obtain a charging order before the property is sold).

 

My ex who I was having extreme problems with did not notify me of this and in fact has never told me about it. When I confronted her recently she wrote me a letter confirming that she kept important documents from me at the time and withheld information regarding this.

 

I informed my solicitor at the time to pay off anything outstanding whatsoever and I thought that was that. Iv kept a really good eye in my credit report and its clean apart from a very old default about to drop off. Iv always been on the voting register wherever I have lived, no Gone away indicators and absolutely no defaults from Capquest.

 

Had a letter through from Capquest in march 09 demanding payment. No mention of a CCJ, I paid it to get them off my back, again checked credit file, nothing on it at all.

 

I moved house January 2010, again, I keep an eye on my credit fie and I archive each one. Still nothing. Then in June this year CCJ appears from Capquest completely out of the blue. Its taken me the past few months of firing letters and SARS about to get the bottom of this whole sorry mess.

 

Its how I need to word this Im having problems with. Im thinking my evidence is:

 

1 unable to defend due to never receiving court papers,

2 Capquest where aware of my new address as there is clear communication between both parties at this address

3 That any court papers received at the old address where never forwarded onto myself due to being withheld by my ex wife.

4 as soon as I was aware of an outstanding debt after the fact I payed it

 

I can prove (because I keep my credit reports) that I was always registered on voters poll during this time, no gone away records exist, no default on my file, and no record of a CCJ until much further down the line.

 

Any advice as to how I could best word this would be highly appreciated.

[debbbbsy]

1 unable to defend due to never receiving court papers,

2 Capquest where aware of my new address as there is clear communication between both parties at this address

 

I think these are your 2 main points. I think referring to your wifes address and her role in this may only confuse the issue.

 

Aslong as you can provide the court with proof of your current address. This should be enough.

That you did have dealings with Capquest,the last time in March 09, you paid them in full. And have recieved no correspondence since then.

Capquest have issued the claim to an incorrect address to gain judgement undefended. Make an official complaint to trading standards. Include this letter with your application.

 

Use one of the CPR's on Capquest to get full disclosure.

 

Debs

[inkslinger]

Thank you for the prompt reply debs. Iv taken your advice on board and have wrote the following:

 

1 A Country Court Judgement was obtained against me on the 25th June 2010 by default. I was first made aware of of this on 6th of June 2010 by an alert through Equifax Credit Reference Agency whom I have been a member of since January 2010. Despite receiving regular credit reports for twelve months prior to this there had been no indication of a County Court Judgment. It appears that the court papers in this case were sent to my old address where my wife whom I was separated from still lived. This is despite the claimant being aware of my current address at the time, and having received some payment towards the debt. It would appear that Capquest have issued the claim to an incorrect address to gain judgement undefended. I am therefore asking for the Judgement to be set aside, as I was unable to defend as the papers where clearly sent to the wrong address.

 

Had I been aware of an impending County Court Judgement at the time it was taken out I would have attended court to defend myself, ensuring that Capquest had all relevant paperwork regarding this case. At the time I had an agreed sale of my house which was completed on the 15th August and funds were available to pay Capquest within the 28 day allocation required.

 

 

2 A demand for payment was received from the claimant on 31st December 2008 without mention of any CCJ or court action, an arrangement to pay was reached in March 2009 and was settled by 8th July 2009. I settled the demand without complaint or prejudice.

 

Can anyone take a look over this and tell me if 'Im over cooking it or I have got it where it needs to be? Do I keep it this simple or makes notes such as (item a) within the text to make it easy to check over or is this all done on the day? Pretty nervous about handling this lol

[debbbbsy]

1 A Country Court Judgement was obtained against me on the 25th June 2010 by default. I was first made aware of of this on 6th of June 2010 check your dates by an alert through Equifax Credit Reference Agency whom I have been a member of since January 2010. Despite receiving regular credit reports for twelve months prior to this there had been no indication of a County Court Judgment. It appears that the court papers in this case were sent to my old address where my wife whom I was separated from still lived how do you know this. This is despite the claimant being aware of my current address at the time, and having received some payment towards the debt your admitting you owe the money.the court may reject your application because they would have got judgement even if they had issued the claim to the correct address. It would appear that Capquest have issued the claim to an incorrect address to gain judgement undefended. I am therefore asking for the Judgement to be set aside, as I was unable to defend as the papers where clearly sent to the wrong address have you got confirmation from the courts to support this .

 

Had I been aware of an impending County Court Judgement at the time it was taken out I would have attended court to defend myself, ensuring that Capquest had all relevant paperwork regarding this case. At the time I had an agreed sale of my house which was completed on the 15th August and funds were available to pay Capquest within the 28 day allocation required. Too much, all you need to say is "I was denied the opportunity to defend this claim......."

 

 

2 A demand for payment was received from the claimant on 31st December 2008 without mention of any CCJ or court action, an arrangement to pay was reached in March 2009 and was settled by 8th July 2009. I settled the demand without complaint or prejudice. Doesn't need to be mentioned

 

Can anyone take a look over this and tell me if 'Im over cooking it or I have got it where it needs to be? Do I keep it this simple or makes notes such as (item a) within the text to make it easy to check over or is this all done on the day? Pretty nervous about handling this lol

You need to understand, you can prove the papers were sent to the wrong address. You have not recieved any letters from the claimant prior to this, informing you that a breach existed & giving you the opportunity to either rectify the breach or dispute the alleged debt.

The "Burden of Proof" is on the claimant to prove the judgement was gained in accordance with court procedures. It is not up to you to provide an explanation why THEY gave the courts the wrong address.

 

Debs

[inkslinger]

Thanks again Debs. Most helpful.

 

I Take it I need to make this part as simple as possible.

 

1 A Country Court Judgement was obtained against me on the 25th June 2008 by default. I was first made aware of of this on 6th of June 2010 by an alert through Equifax Credit Reference Agency whom I have been a member of since January 2010. Despite receiving regular credit reports for twelve months prior to this, there had been no indication of a County Court Judgment. The Judgement is listed at an old address despite the claiment being in possesion of my new address.

 

I am therefore asking the judgement be set aside as I was denied the opportunity to defend this claim.

 

Rather than make argument at this point the above is enough for a hearing and I should make any relevant arguments in front of the DJ?

[debbbbsy]

[quoteHad a letter through from Capquest in march 09 demanding payment. No mention of a CCJ, I paid it to get them off my back, again checked credit file, nothing on it at all.

]

1 A Country Court Judgement was obtained against me on the 25th June 2008 by default.

 

I'm confused.

Am I right. The judgement was June 2008. Court docs to your wifes address,( but you moved into current address jan 2010). Paid Capquest march 2009. Judgement entered on credit file june 2010. ????

 

Firstly, at what address were you residing when the 2008 claim was made ?

When you paid Capquest in 2009, was it the full amount ?

 

Debs

 

Okay.

[inkslinger]

Yes, to cut a very long story short, the CCJ is logged at the address (and family home) I shared with my ex wife, I was living at another address at this time. I then moved to another address where Capquest sent me a demand for payment (no mention of CCJ) which I paid the full amount requested. I moved into my current house in January of this year, registered on voters poll immediately. Out of the blue in June a CCJ appeared on my report that I was unaware of. I did say it was fairly complicated. sorry if Iv caused confusion.

[debbbbsy]

No problem.

Although I said the burden of proof is on them to prove they made the claim to the wrong address, the court system is unfairly biased against the plaintiff. Your N244 set a side is the same, served to the wrong address...you knew nothing of it. But you will have to state at what address you were living, and maybe required to prove it ...any letters/documents you can get will be invaluable.

You may want to check the courts, you can get a copy of all there documents.

 

I think, before making this application you really need to understand exactly what has been going on.

This is like a jigsaw puzzle, you have some of the pieces, but the picture is unclear.

Send a SAR to your Original Creditor (you will need the account number), and, also to Capquest. You can also request a copy of your file from the courts.

Once you have this information,you can then put all the pieces together & decide what action to take.

 

Debs

[inkslinger]

I didn't know I could ask for the documents from the court. I have SAR Capquest so I have everything (supposedly) they have about me. I have proof that I was living where I said I was, when I said I was. I was really thinking at this point to stick to the defence of papers never delivered despite claiment being aware of my address. I really do think this is a very sneaky thing to do and wonder how many other people have been hit with the same trick Thanks for your advise Debs. I will mull it over but I really dont want to wait too long as I have heard the longer time between judgement at application for set aside, the less likely you are to get it.