CCJ 'overpaid' salary need help

pipsi_2

I'm new to this forum so apologies if this is a bit long, I've had a bit of a look around the forum and read a few threads, i still don't understand a lot of the acronyms people are using so please bear this in mind if you would like to respond or ask me anything.

I worked for Marks and Spencer a few years ago, the store i worked in was due to close, all employees were told they would be given a job in the store of their choice when that store closed. Around the time of the close i was moving away to go to uni so that suited me anyway.

I told them which store i wished to work in but they didn't give me a job there, instead they offered me a job in a store a few miles outside of the city in a retail park which was pretty much impossible for me to get to because i didn't drive. (This bit is irrelevant to the debt but may be useful as some sort of argument as a defence as they failed to keep their word).

When i left the company in September 2004 I received a final payment of salary into my bank account which as far as i am concerned consisted of my salary due for what i'd worked, overtime worked and holiday pay that i was owed.

Several months (possibly a year later) they contacted me via my Grandparents (who were listed as my second emergency contact on my next of kin form, I was obviously no longer a the address i'd lived at while i was working for them, no idea why they didn't contact my through my parents who were my first emergency contact). They said hey had overpaid me in the region of £1600. Firstly i wasn't on a huge amount of money working for them (probably a little over minimum wage working full time) so i think i would have realised if i was overpaid by an amount as big as this, it;s more than a months salary would have been.

I asked for proof and was sent a couple of pages of printed papers showing what i'd been paid and when (however this did not in anyway prove any of it was an overpayment). I spoke to someone in the university's financial aid office who was already helping me out. She took the matter on and wrote to M & S offering a payment of £5 per month as a goodwill gesture but stating that i did not admit to the debt and wanted proof that it was in fact an overpayment. (It later turned out that the financial aid lady at uni was very unhelpful, i applied for a bursary from the university because i was a mature student and was told it would only be granted if they rescheduled my debts, at the time i had a credit card and a store card which i didn't owe a huge amount on, but their point was that i shouldn't be using my bursary to pay off debt [which is fair enough i suppose] however i wasn't made aware that if they made the arrangements to reduce my payments it would affect my credit rating and would mean i would no longer be able to use the cards.)

Every six months or so i sent them postdated cheques for £5 per month, each time arguing that i didn't think i owed them any money and that i was only making this payments as a token goodwill gesture and expected a full refund when the matter was sorted. I continued to make these payments like this because i was advised by the financial aid office that this was the best thing to do.

Cutting out a few years of doing this, about a year ago a got a very threatening letter from them, it turned out that my last batch of cheques had been lost in the post, they threatened passing it on the a solicitor, i wrote to them again apologising for the lost letter (although it wasn't my fault), asking them why they hadn't contacted me earlier (ie when the next payment hadn't been received) and again asking for proof that i owed them the money. A while later i received a letter from Northampton County Court stating that they had filed a claim and did i wish to enter a defence, I did so within a day or two of receiving the letter. However i then received a letter stating my defence had been received after the deadline so i could do nothing, i made a few phone calls to the court, to the solicitors (whose details i had from the court docs, i don't recall getting anything from them before i contacted them), and to M&S (who said i should speak to their solicitors). I wrote to the firm asking them to prove i owed the money, i received a basic letter demanding i pay the debt because a judgement had been entered and i copy of the print outs i received years earlier. I wrote to them stating that this proved nothing and that i wanted to see some proof that i owed this money. They didn't produce anything a couple of months after that i received a generic letter asking for payment. I wrote back asking again or the proof and stating that their figures didn't match up, (the papers i had received apparently show a payment made to me which was never actually paid into my account when they say it was as well as other discrepancies), they didn't seem to be able to produce anything with the figures of the goodwill payments i'd made, they didn't respond to this letter.

The last time i wrote to them was in May and since then i've heard nothing from them. I stopped making the token payments last year when it all kicked off. Looking back i don't know why i continued to make these token payments for so long, i guess i was just following the advise of the financial aid office at my uni. I tried to get to the bottom of the issue but never received a response from M&S and the few times the sent me a letter to acknowledge receipt of my cheques they would either not mention that i had asked for the proof or refer me back to the printed papers they'd already sent me which prove nothing. The papers look like they have been written in a word document, they aren't copies of pay slips or print outs from their payroll system, or in fact anything that proves that i wasn't entitled to the money or in the case of some of it, that it was paid to me, it states that it was 'paid' but i did not receive any money into my bank account like i had done every month with my salary. Over the years i've sent them copies of my bank statements to show that some of the money they claim was overpaid was not in fact paid into my account.

I'm really looking for help on what to do next, do i just let it lie until i get another letter from their solicitors, (they haven't been very quick on trying to sort this out, the CCJ was entered about a year ago) or do i keep writing to them to get it sorted? What do i do about the fact that they are still yet to provide concrete proof that they money was paid to me incorrectly by providing details of the days and hours i actually worked and how the money paid to me exceeds this? How can the force me to pay back this money when a. i don't think i owe it and they have yet to prove otherwise and b. it's not like a credit agreement where i was given the money like a loan or credit card, i never asked for it other than what i was entitled to as payment for the work i had done.

I read somewhere that CCJs can only show on credit reports if it is a credit debt owed such as a defaulted credit card or loan (eg a parking fine resulting in a CCJ doesn't show). I never entered into a credit agreement so how can this show on my credit report when i never applied for the money? My fear is that if i apply for credit it will look like i had a M&S credit card or loan and failed to pay it properly. I do have a fairly bad credit rating anyway due to the restructuring of payments the uni made me enter into so that i could receive a bursary and the fact that i've moved around a lot while i was at uni and in the years since. I've also missed the odd payment over the years but nowadays i pay early and always 2 or 3 times more than the minimum payment. I recently tried to open a business bank account (i didn't want an overdraft or a cheque book, just an account to pay money into and take it out) because i've become self employed and was turned down because of my credit history. I also applied for a credit card with Capital One a while ago to help improve my credit history and was turned down.

I'm really sorry for the extremely long post but i thought it best to include as much as possible as many other threads seem to include questions for the OP that could have been easily included in the post albeit making it super long. Thank you in advance for any help and thanks for reading through til the end.

DarkConvict

You have atleast 7 days to state you want to defend against a CCJ. At which point it is moved to a local court, giving you 28 days to prepare a defence. The fact you only had 2 days is incorrect, you only need to say you will defend to give you the time to prepare it. I do not see how your defence was ever late.

CCJ will show for anything regardless of the debt type.

I agree the token payments was a mistake, if you disputed the money was owed you simply do not pay. You then take it up with ACAS.

These events have happened over such a long period im unsure how much of a defence you will be able to put up, given that the CCJ has been granted. You can usually set it aside if you didn't get the court papers, but you did. it may still be worth asking for a set aside/redetermination hearing.
However before doing this, get proof that their payment records that they finally sent you after years, do not match records from your bank. In that no money was paid to you on the dates they have stated. You may need to SAR your bank and you are likely to only get the last 6 years of statements. As said above, time is against you for you to gather proof. Action should have been taken years ago.

Given you can prove the money is not owed, i would then get in touch with ACAS and see what they can do. They deal in disputes and may be able to help you prove the money is not owed, how to go about getting the CCJ set aside and stopped. And how to recover money you paid to them in goodwill, probably with statutory interest of 8%, in addition if it goes to court again you could try to reclaim costs incurred such as charges for getting bank statements, or higher interest rates due to CCJ on credit file.

Getting bank statements is best done with a SAR - http://forums.moneysavingexpert.com/showpost.html?p=33791933&postcount=24

ACAS - http://www.acas.org.uk/index.aspx?articleid=1461

CCJ Set aside - http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=12_how_to_set_aside_a_judgment_in_the_county_court

pipsi_2

DarkConvict wrote: »

You have atleast 7 days to state you want to defend against a CCJ. At which point it is moved to a local court, giving you 28 days to prepare a defence. The fact you only had 2 days is incorrect, you only need to say you will defend to give you the time to prepare it. I do not see how your defence was ever late.

CCJ will show for anything regardless of the debt type.

I agree the token payments was a mistake, if you disputed the money was owed you simply do not pay. You then take it up with ACAS.

These events have happened over such a long period im unsure how much of a defence you will be able to put up, given that the CCJ has been granted. You can usually set it aside if you didn't get the court papers, but you did. it may still be worth asking for a set aside/redetermination hearing.
However before doing this, get proof that their payment records that they finally sent you after years, do not match records from your bank. In that no money was paid to you on the dates they have stated. You may need to SAR your bank and you are likely to only get the last 6 years of statements. As said above, time is against you for you to gather proof. Action should have been taken years ago.

Given you can prove the money is not owed, i would then get in touch with ACAS and see what they can do. They deal in disputes and may be able to help you prove the money is not owed, how to go about getting the CCJ set aside and stopped. And how to recover money you paid to them in goodwill, probably with statutory interest of 8%, in addition if it goes to court again you could try to reclaim costs incurred such as charges for getting bank statements, or higher interest rates due to CCJ on credit file.

I already have the statements as i keep everything like that, they've been sent to M&S a number of times but they never seem to acknowledge them directly and sometimes completely ignore the fact that i've sent them a load of documents. Many of the letters i've sent espeically the ones to their solicitors have been sent recorded delivery so i can prove i sent them. I can only prove that some of the money can't be owed as it was never paid into my bank account, as for the rest of it surely it is up to them to prove that i never worked the shifts it covers, that i wasn't entitled to the over time and holiday pay etc. The sheet of paper they have sent to me is not a copy of a pay slip or anything like that it is just a number of sentences including figures written in a word document. There is nothing official like a copy of a pay slip and nothing that demonstrates they made a mistake in making the payments i did receive.

The court papers were sent to me by their solicitors, the covering letter is dated 6th May 2009 but the papers were submitted on 3rd April 2009 (this is this date on the top of the court pages. So i can only assume that they didn't send me the court papers straight away and sat on them for a month which therefore meant that when i entered my defence of not owing the money etc etc it was turned down because this is why it was late. I called the court to complain but was told there was nothing i could do now as judgement had been passed so i had to pay, there wasn't an appeals procedure.

As mentioned in my super long post, i didn't want to pay the token payments but was instructed to do this by the university financial aid office, every time i sent cheques i stated in the covering letter that i did not believe i owed the money and that i wanted to matter to be investigated. In one or two letters i pointed out to them that i was a student struggling on the money i had and could not therefore afford to pay an accountant or someone else to look into it for me.

At the time i also complained that i had not been notified of a hearing date and wasn't given the opportunity to appear in court to defend myself. All of this fell of deaf ears.

Sorry for being a bit new to this forum but i don't understand what you mean by a SAR, although it seems you mean it is a way to get the bank statements from my bank, i already have these so i'm guessing it isn't applicable to me.

Also what is ACAS?

I've had a really good read through the national debtline website and didn't actually find it that useful in answering my questions.

So is there nothing i can do even though i don't owe the money? Do i have to pay it just because they messed up sending me the court papers and didn't follow procedure, obviously being unfamiliar with the legal system is not a defence but i didn't have a clue what was going on and no-one seemed to want to give me an answer when i made phone calls. Calling the solicitors firm is about as useful as writing to them, some lowly trainee answers the phone who is unfamiliar with my case, doesn't know the ins and outs and i never seem to get anywhere. I was also hoping that after all this time of them not responding to my letters or providing adequate prove i could use their disorganisation as some sort of defence too?

Hannah_10

A SAR is a Subject Access Request. It means you want a copy of every single bit of information they have on you, the lot, everything. It will cost you a tenner and it's a legal right you have. It will date back the entire time you have had the account and not miss anything. If your account has been open 50 years and got 30 entries a day on it, it's still a tenner.

You seem to be mistaking "defence" for something sexy that happens on courtroom dramas. That the person you owe money to is a total shambles doesn't make the slightest bit of difference. The defence you have is that you do not owe it, that's all, nothing more fun than that is on the cards.

And this is ACAS http://www.acas.org.uk/index.aspx?articleid=1461

I'm not sure how you arrive at the sentance "So is there nothing i can do even though i don't owe the money?" As far as I read Dark Convict was pretty much spelling out to you exactly what to do.

Marisco

Hi Pipsi, ACAS is Advisory, Conciliation and Arbitary Service and they give free advice on all employment rights.

http://www.direct.gov.uk/en/Dl1/Directories/DG_10010857

DarkConvict

I was not trying to say their is nothing you can do, I'm saying these events have happened over a long time, the longer it is the harder it is to dispute.

ACAS will handle employee disputes, this includes overpayment. They will be a primary source of help for you!

You will be asked why it has been left for so long, why did you make token payments if you disputed the debt. Token payments are made by those who cannot afford a debt not those that dispute its existence.

You will need to present the information, that you contacted M&S and several dates, were possible state the dates (recorded delivery slips if possible) this was done and bring copies of the letters written.
This is to show that you disputed the debt and asked for proof, but your requests were ignored.
As time went on, you sought advice from your university, who said to make token payments, without hesitation you followed their advice but stated you disputed you owed any money and this was a goodwill gesture until the dispute was resolved, and expected any money paid to be returned.
Eventually M&S provided statements showing wages been paid, not all of the amounts paid actually reached the bank account (show bank statements, highlight dates on statements to show no money received), and state that money paid was didn't match amount on statements (the overtime they stated they paid but you didn't receive). Showing this inconsistencies would put M&S on dodgy ground. It would show they have broken the data protection act 1998 for failing to keep records accurate which have led to this court action and years of stress. By information been wrong you believe it is only right that M&S now prove the time you had worked their rather than relying on a simple statement that has been proved to be incorrect, therefore any evidence money is actually owed is not credible, further of which is probably liable for investigation by the ICO for failing to process data in line with the law, Data protection act 1998.
Then I honestly would tag on the end, that at the start of this M&S promised a job at any of their stores, however only offered a job at a location that was impossible to get to. It is just to add weight to your side in the mistakes that have been made.

Since they have a CCJ, they can use bailiffs at any time since a monthly amount to pay was not arranged. So this does need to be sorted. I would contact ACAS / National debtline and see about getting it set aside once you have got some professional advice together. You need to get your defence heard before the court. Reason for setting aside you can state is the creditor sat on the paperwork by the time it was received there was no chance to state you wanted to defend. The court failed to advise you of the set aside process when asking to appeal it.

When you do goto court, do list all the charges you have incurred. Cost of court fees (£75 to set aside), solicitor costs, your own personal hours used and stationary costs. If you win, you should be able to claim this back.

Regards to your solicitor firm, they should have given you more detailed answers than I have given, I'm 22 with no legal training and never been though the legal system, so this is why you need professional advice and why we point people towards it. I've spent just some free time in between my final year project on this forum since September 09.
Regards to national debtline, its a free phone number, just call them. They will log you on the system and take some information (20mins), then you can ask them questions. Long process but many people do need it, and it helps them to know it all before answering questions.

pipsi_2

Thanks for your advise everyone. Dark Convict, your last post made things a little clearer to me, just to clear up a couple of points, i don't have a solicitor, when i've mentioned solicitors in what i've written i've been referring to the solicitors M&S have. I'm not in a position where i can afford a solicitor and from what i understand i would not be able to claim legal aid. Not sure if you read something i had written and thought i had a solicitor working for me.

With regards to the £75 set aside fee, i think i will be able to claim remission of the fee on the grounds i am claiming Working Tax Credit (i sent my application off a couple of weeks ago, should get my award letter etc in the next couple of weeks) so that's good news.

Thanks for pointing me to National Debtline, as i said in a previous post i didn't find their website overly useful as it didn't fully answer my questions, i'm going to go back and read it again as i now have a better understanding of the position i'm in thanks to the help and suggestions you guys have offered me. I may give them a ring but as i don't have a land line it'll cost me i the region of 50p per minute to call from my mobile I don't really have access to a land line anywhere and short of standing in a phone box (come to think of it i'm not even sure where my nearest phone box is) with all of the paperwork and documents i have from the last six years, using my mobile is my only option. Do they offer a ring back service by any chance?

I'll also get in touch with ACAS to see what help or advice they can provide.

Thanks for the help and i will update with how i get on and any other questions i get along the way.

NorthernLas

Hi Pipsi - All that I have read on CCJ says that you should have received papers from the court directly and not via the solicitors for M&S.

If you were in correspondence with the solicitors acting for the creditor, presumably they were aware of your current address, so why did you not get information from the court direct?

It says this in the national debtline leaflet "
If you did not get the claim form, you will usually need to show you have a defence or other good reason as well, for the court to set aside the judgment unless:

• you can prove you gave the creditor your new address;
• the claim was not made following the rules, for example, they were sent to the wrong address, lost in the post; or
• the post office returned the claim papers as they were not able to deliver them."

http://www.direct.gov.uk/en/MoneyTaxAndBenefits/ManagingDebt/CourtClaimsAndBankruptcy/DG_10013083

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=12_how_to_set_aside_a_judgment_in_the_county_court

So apart from M&S not providing adequate information on the overpayment, not getting the papers from the court when the creditor had your updated address should be enough to get it set aside.

As for phone calls to free call numbers - have you thought of skype. Not sure how it works but someone on the phone or tecchie board may be able to tell you if 0800 numbers are free

DarkConvict

Who is your mobile with. Some charities can be called for free from mobiles, without been charged like most 0800/0808 numbers.

This list is for ORANGE only. - http://www1.orange.co.uk/about/community/charity/free_charity_and_helpline_calls.html?N#N (national debtline is listed).

If your not with orange, ring up your customer call centre, and give them the national debtline phone number and ask if this is in there list of free charities to ring.

Acas number is not free as its not a charity. 0845 747 4747 , alternative number - 0115 900 2670 (should be cheaper to ring from mobiles)

Hannah_10

It really isn't worth 50p a minute, what if you were on hold 10 minutes? A fiver! :eek:

Those calls can easily be 30 minutes long. That'd be £15 then :eek::eek::eek:

Find a phone box, although they're cramped and a bit grim, for the sake for nearly 3 hours pay it's got to be worth it surely?

pipsi_2

Hannah_10 wrote: »

It really isn't worth 50p a minute, what if you were on hold 10 minutes? A fiver! :eek:

Those calls can easily be 30 minutes long. That'd be £15 then :eek::eek::eek:

Find a phone box, although they're cramped and a bit grim, for the sake for nearly 3 hours pay it's got to be worth it surely?

Yeah tell me about it, i was on the phone on hold to Barclaycard for over an hour on Friday night, when i eventually got through to someone he said i needed to speak to another department, before i could say anything he transferred me and all i got was a recorded message stating the department was closed and then the line hung up!! Rang a different number on Saturday thinking it could have been the number he was putting me through to, spoke to a really nice lady there who gave me the correct number and said they are only open Mon - Fri in office hours and suggested i ask them to refund the phone call charges! Very nice lady indeed!!!