CCJ Wrongly Applied

sarahxfbu

Hi,

My boyfriend got himself into debt and got everything consolidated through Payplan. He has been paying Payplan since 2005 and they have distributed his payments between his debtors. Last year I paid off all his debt so he is now debt free and is paying me back.

We viewed his credit report and noticed he had an outstanding CCJ which was applied in 2008. As we had paid the company that debt we paid £15 and applied for a certificate of satisfaction.

A year has passed and his credit rating is still classed as "poor" and although Payplan may have a bit to do with that I think it is mainly because this CCJ will remain on his file for 6 years although it is satisfied.

The other day I realised that the CCJ must have been applied incorrectly (not only because I am 100% sure he never received a summons, something we can't prove) but because the debt the CCJ relates to is a debt that he was making regular payments to through Payplan.

Anyway we have contacted Payplan and they have sent us a list of all payments made since they first got involved which clearly shows regular and no missed payments going to HSBC. We then contacted the solicitor (who was acting on behalf of a debt agency) and they have sent an email confirming that they can see the payments and that they were going directly to HSBC but not being transferred to their office and they are going to query with HSBC to look into why these payments were not allocated to his account with them. They said they are unsure as to how long it will take to be resolved and that due to the payments going direct to HSBC and not allocated to them we can apply direct to the court to have the judgment removed and they will not object. They have advised us of the court fee or told us to await a reply from HSBC.

Whilst we will apply to the court asap to get this removed does anyone know if;
a) they should be made to reimburse the court charges because the CCJ was applied incorrectly,
b) can we sue them for negligence as he has suffered financial loss as a result of paying court fees but also his credit has not been getting any better (assuming it is because of the CCJ) and he can't even have a normal current account.
c) what do they mean about waiting for a reply from HSBC? Either we can apply to the court to get it removed or not?

Any advice would be greatly appreciated!

RAS

it doesnot matter that the debt he has the CCJ for was with Payplan on a DMP, they are still entitled to ask for the CCJ if they want.

sarahxfbu

I know, the point is, is that he has never missed a payment he has been paying this debt all along and therefore they wrongly applied for a CCJ.

RAS

sarahxfbu wrote: »

I know, the point is, is that he has never missed a payment he has been paying this debt all along and therefore they wrongly applied for a CCJ.

NO.

In law if he made payments less than the original agreement, they are legally entitled to ask for the whole sum back and if he did not pay it within two weeks, to obtain a CCJ.

If he did not get the opportunity to repay the money because he did not get the default letter or court papers, he may have a case for overturning the CCJ, but it was not "wrongly applied for".

In fact I would expect that any DMP provider will have warned him of the possibility of CCJs before he signed up.

sarahxfbu

Ok, if that's the case then I think it's outrageous.

He was unaware that they were supposedly unhappy with the agreement made via Payplan because he didn't receive any summons etc and more to the point no CCJ payment arrangement has EVER been set up because he was completely unaware of it. He never paid anything towards this CCJ (until we saw it on his credit file and paid it all off)

Also, if it was not wrongly applied for then why has collection company turned around and said he can apply to have the judgment removed? This contradicts what you are saying because you are giving me the impression in your replies that he doesn't have a chance of getting his CCJ removed because he defaulted on his original repayment plan (hence going to Payplan) even though he was making payments through an arrangement we thought was satisfactory.

Tixy

Ras is right. Once you are using Payplan for a DMP you will be making less than the originally contracted payments. Whilst the creditor may or may not say they accept these they will allow payplan to pay the money and apply it to the account.
At any time after you stop making the full contracted payments the creditor can decide to take you to court. To do so they would issue court papers.

You may get it set aside because you didn't receive court papers, you cannot get it set aside because you were making repayments to the debt (if those payments were not what was in the original contract).

sarahxfbu

Well you learn something new everyday...
...bit of a set back.

Not sure how we can prove that he didn't receive any court papers, because I'm sure that's an excuse people probably use all the time, however may as well go for it anyway because every single penny of the debt has been paid now anyway so it's not as if they can ask for anything else.

Very disappointing to learn that it may not get removed from his credit file though.

sp1987

The creditor sued for loss arising from breach of contract. The fact your partner was paying less than the contract rate in some other way doesn't affect that breach.

CCJ rightfully obtained in the legal sense as far as the creditor and court are concerned (as you have not yet informed them of not receiving the papers).

As for a claim for negligence, it wouldn't go anywhere. Your partner had a debt, which he paid at a rate less than the contract rate. They then sent court papers that you didn't get (not their fault if they were sent, it happens). No reply given, default judgment obtained. They obtained the CCJ before you paid off his debts. At the time it was obtained, there was a debt due. There isn't now, but that is the same essentially as saying 'oh I was sued last year for not paying my debt, I paid it today so the CCJ is wrong, can I get the CCJ removed?'.

Application to set aside on the basis of non-receipt of court papers under part 13 CPR.

sarahxfbu

Now I understand it all better I realise the suing thing sounds ridiculous. Thanks.

Tixy

National debtline website has a useful factsheet how to set aside a judgement - have a look at that and see whether you think you may have a case. I'm not sure you will have but its worth a read.

sarahxfbu

Thanks,
What I still don't understand though is how he has never been chased by the courts for not paying the payment arrangement that they will have arranged in his absence at court?
The company has only ever been receiving the amount that was agreed with Payplan, they've never asked for anything else? (i.e information order, attachement of earnings, bailiffs etc etc)
I don't understand.