CCJ now High Court writ

kevoakes

Apologies if this is the in wrong section, I'm new to all of this.

If you can help I will be eternally grateful. Any advice welcome.

In summary, I'll try to keep it brief for now.

My former partner and I split 11 years ago and a debt from back then still hangs over us. Our son of 13 years old is the only thing keeping us in contact over more than a decade.

Am I right in thinking that this debt isn't enforceable because of the time passed (I read somewhere that the slate is almost wiped clean after 6-7 years?).

Due to moving house almost annually and not being on the electoral roll, I heard nothing of this debt until 2013. At this time I had a letter from a company I had never heard of telling me that if I didn't pay £6000 odd pounds within 30 days I would be taken to court. I did make contact with them of course, but refused to make payments. They wouldn't accept this and persisted with threats of legal action until March 2014. They suggested I took one of their "affordability tests" over the phone as they are a "responsible company" or similar wording, and they will only pursue what people can afford. I failed this and it was agreed, over numerous calls and weeks, that I wouldn't make any payments and that "things would be put on hold for the time being and we'd review in six months". This co-incided with a court letter and court date which was subsequently cancelled.

I went on holiday for 10 days and moved house. Subsequently a court letter was sent to me I didn't receive promptly and judgement was entered without my involvement and I had a CCJ against me. I contested this with the creditors solicitor who told me things had been put on hold when clearly they hadn't been. I felt it somewhat unfair I had been led to believe I need do nothing, and now I was guilt and needing to prove innocence.

Over the subsequent 30 days after the CCJ we haggled over a sensible settlement and they would allow the CCJ to be paid off and wiped from the records. We couldn't agree a sensible figure as they wanted me to be liable "joint and several" and pay my former partners share too. I didn't agree with any of the debt but was willing to pay some of the £6000 to end this, but not to pay over what I thought I should.

I have now applied for judgement to be set aside, but because of slow courts and over zealous solicitors, a high court writ has been issued, so its escalated quickly.

What is my best cause of action, and can the following when expanded on be used as defence ...

- debt 12 years old, (is it therefore void)
- no admission from me personally of acceptance of debt (although I dont know what my ex partner has done and whether that implicates me),
- solicitor pursuing suggesting I need do nothing prior to court (written documentation and call recordings likely to be available from them), this then made my situation worse,
- solicitor pursuing admitting I cannot afford to settle debt based on their own affordability criteria, so how can then then pursue me for non-payment,
- me offering to make payments of £25 a month even though they admitting I couldn't afford to, and them refusing to take those payments.

Thank you in advance for any help.

Kevin

Tixy

What did the debt relate to originally? was it an unsecured debt? If for example it was a mortgage shortfall these are treated differently.

What was the date of the CCJ?

kevoakes wrote: »

What is my best cause of action, and can the following when expanded on be used as defence ...

- debt 12 years old, (is it therefore void) the debt is not void. There is a chance the debt could have been statute barred at the date of the CCJ. That depends on the date of last payment/date of last acknowledgement of the debt from either of you/date of CCJ
- no admission from me personally of acceptance of debt (although I dont know what my ex partner has done and whether that implicates me), either of you admitting the debt is outstanding will count as a course of action under the limitation act.
- solicitor pursuing suggesting I need do nothing prior to court (written documentation and call recordings likely to be available from them), this then made my situation worse, unlikely to help, if you received a court form then you need to complete it and return it.
- solicitor pursuing admitting I cannot afford to settle debt based on their own affordability criteria, so how can then then pursue me for non-payment, affordability does not impact on the validity of the debt. It can be used to ask the court to allow you to pay in installments but wouldn't prevent a CCJ being granted.
- me offering to make payments of £25 a month even though they admitting I couldn't afford to, and them refusing to take those payments. Again this would not effect the validity of the debt.

Thank you in advance for any help.

Kevin

kevoakes

Thanks for your prompt and detailed response.

The debt was unsecured, via HSBC, from as far back as 2002. CCJ was 4th June this year.

Re: your other comments.

Statute barred - I would argue it is from my side of the fence as I haven't been paying it. However, I think my ex partner had been paying a nominal amount. However, surely 12 years after our separation, her actions do not implicate me? I have never admitted to the debt, nor made payments on it in recent time, if at all.

I have written documents from the claimant telling me to do nothing as the defendant and it won't go to court. It then did. I surely have a case that the claimant misled me? Had they taken my payment of £25 a month as I offered to service the debt it would never have reached court, and therefore never reached a CCJ.

Tixy

If it was a joint account then either party paying or acknowledging the debt would prevent the debt becoming statute barred under the limitation act.

If the written document telling you to do nothing was dated after the court papers were sent to you and before the court date, then that may help your case to get the judgement set aside.

The offer of payment won't help you. Even if you had paid them £25 a month they still could have chosen to take court action on the debt.

kevoakes

Thank you.

National_Debtline

Hello there.

Any payment made by your ex-partner would reset the limitations clock each time the payment was made. This means that if there isn't a clear six year gap in payments from both of you, it's likely that you will not have a limitations argument.

*edit: Beaten by Tixy, again!*

Best wishes,

David @ National Debtline.

kevoakes

David, thanks.

Although I would suggest her payments started 6 years after it should have be statute barred anyway ?? does this help ??

jamesd

Each of you can be chased for the whole debt and there's no need at all for them to agree to split it into a part for each of you, partly because that just makes them potentially worse off than they need to be.

You might try one of the debt charities since it appears that your best option might be a Debt Relief Order (DRO) or Individual Voluntary Agreement (IVA). They can also negotiate on things like writing off part of the debt but that seems pointless in your situation, which appears to be ongoing poverty that will not allow you to ever make progress on paying the debt.

Before going with a DRO you might try telling them that you are going to do so because there is no prospect of you being able to repay and ask them to agree to write off all of your obligations to the debt instead of causing you to have to go the formal DRO route. IN this, do whatever the charity advises, most likely that they should make the request rather than you, or just do go for the DRO anyway to get absolute legal certainty that it's gone forever.

Your ex can also take this course.

Tixy

kevoakes wrote: »

David, thanks.

Although I would suggest her payments started 6 years after it should have be statute barred anyway ?? does this help ??

If there was a period of more than 6 years where neither of you paid anything towards the debt, and neither of you acknowledged that you owed the debt - then yes it would be statute barred.

jamesd

If she agreed that the debt was valid even without making payments that would be sufficient to restart the clock each time. If there ever was a six year period with neither payment nor acceptance of the debt then that would have caused it to become statute barred.

If she can't say what she did or didn't do with sufficient certainty you could try asking them for a copy of their records using a subject access request. Looking through those would tell you whether their own records ever show the required six year gap.

kevoakes

Thanks.

To further complicate matters, I am a Company Director. My more pressing concern is my credit rating and the implications that has, rather than the debt. I would rather pay off the debt at agreeable terms than have the CCJ over me for 6 years.

My argument mainly is that had they taking the offer of payment from me, which I made and they refused, prior to court, then I would never have received the CCJ. I would still have the debt, but a manageable non-hostile debt, unlike now.