Not sure if debt is enforceable

Aaron8219

Hi Everyone, I'm new here, and looking for some help if I may.

Many years ago, I had lots of financial difficulties and have spent the last 10 years trying to put everything in order.

Various creditors were paid, some have become statute barred. Which leads onto now.

I was under the impression that I was finally debt free, until this weekend when I checked my Credit File with Experian, and found that on the 3rd July, a CCJ was registered against me from Howard Cohen & Co, chasing an old joint current account overdraft of £1811.23.

I haven't had any dealings with this debt since 2008 I would say, have never been contacted for it, and moved from the address around 2007 I think.

On my credit file, the default date was 05/11/2008, and has since dissapeared. However, after calling Howard Cohen & Co this morning, they have informed me that a payment was paid into the account on 07/11/2009, meaning it is within 6 years and not stature barred.

I don't recall making any payments and have requested proof of this. They told me they would need to request this from Santander, and would let me know in due course. In the meantime, the account is on hold with them.

The thing is though, it is all well and good that the account is on hold with them, but if it turns out the debt is enforceable, and I don't pay it in full before the 3rd August, I will have the CCJ on there for 6 years. This isn't something I can let happen as we are trying to put ourselves in the best possible financial shape for a mortgage.

I called Santander myself, and asked if they had any record of this payment, and was initially told no, they do not. However he then asked their collections department if they could see the payment and was told that yes, they can!

I asked by what method was the payment made, and by whom, and was told that they do not have this information. I was told to go into a branch and request a statement from that time period to see the payment that way. So off I went to a branch this morning and on their system, there is no activity whatsoever after 12/11/2008, where it just says "account closed contact collections".

The branch assistant then called the collections team from the branch, and put them over to me. I was told that they can see the payment, but it just says that it has come from a 'Debt Collection Company'.

I then did a little more investigating and have been told that they can see that the debt was with DMS Debt Managers, and then Credit Security, but no other info. They have told me they would see if their back office has any more details but it would be extremely unlikely.

So I called Howard Cohen & Co again, and explained that there is no evidence of the payment, and as such the default date remains and the debt is statute barred. I have also scanned in and sent them the statement I was given showing no activity after 12/11/2008.

My questions right now are;

1. If they can't see who exactly made the payment on 07/11/2009, does it still count?

2. If they can see it's a Debt Management company, do they still need more than just the companies name?

3. If Santander can provide no more evidence, again, is it unenforceable?

If it turns out the debt is enforceable, I will pay it before 3rd August so as to get it removed from my credit file asap. But if I am not legally obliged to pay it, I won't be.

Any questions to clarify anything please ask or if I need to give any more info I can do.

Many thanks in advance to anyone who is able to help.

sourcrates

Hi,


Very fluid area regarding statute barred debt payments, did the DMC act on your behalf, or don't you know anything about them ?


If there was a period of 6 years with no acknowledgement or payment by you, then it would be SB, the fact a CCJ has been registered changes the game somewhat, it now becomes a legal argument, as to weather the payment made by them constitutes a payment under the limitations act or not.


You really need to ask this question on Legal Beagles, they are more geared up to answer questions of a legal nature :


http://www.legalbeagles.info/

Aaron8219

Hi sourcrates

Thanks for the reply, I have registered and posted on the site you have suggested. Many thanks for the info.

DandelionPatrol

2 comments

Firstly, did you receive court papers? Because if you did not, then you should be able to get the CCJ set aside, although this will probably mean that you have to fight it all over again.

Secondly, concerning whehter the debt is statute barred, if it was a joint account, the other holder could pay and break the statute barring period. Are you sure that the other account holder would not have paid or admitted the debt in writing?

Aaron8219

Thanks for the reply.

1. No, I didn't receive anything as I haven't lived in the address for about 7 years. I only knew about this CCJ as I checked Experian over the weekend.

I have been told by the DC that the fact I didn't receive them doesn't matter as I didn't update my address.

2. There is a joint account holder, but I know for absolute certain that she had not paid any monies into this account, or towards the debt, for at least six months before my last payment. She left the house, and lots of debt, all in my hands as a lovely gift

Aaron8219

It seems now that it doesn't matter who made that last payment on 07/11/2009, it is simply that the payment was made by 'somebody', which means the debt is not statue barred. I challenged this and said "surely you need to state who paid it and by what means?" and was told that this isn't the case at all.

fatbelly

They got the ccj by sending the court papers to an address you left in 2007?

You should be able to get this set aside as you did not get the chance to present your defence which had 'a real prospect of success', and you have acted promptly

Aaron - the payment has to be made by 'the debtor or his agent' to 'the claimant or his agent'

Otherwise the creditor could just dump £1 into it or make up a fictitious payment.

Aaron8219

Yes, all paperwork relating to this account, by DC's and Original Creditor, all sent to an address I left years ago. I have been told that as I didn't update my address with the original creditor, this doesn't make any difference.

My opportunity to dispute this was lost as I didn't receive paperwork or 'claims pack' I think it's called?

Santander think the payment was made by a debt management plan, but can provide no evidence of this. Statement just says "Debt collection" next to the ingoing payment. They have requested more info from their back office, but they told me (I quote) "It's very unlikely we have anything".

I said to Robinson Way (Howard Cohen), the exact point you raise. A payment could just be thrown in by anybody (including an unscrupulous DC) in order to reset the 6 year timer! Apparently this doesn't matter, and the payment stands, despite no evidence as to who made it.

I must point out though, that the payment (£20) was being made monthly up to the 07/11/2009, and then stops. They just can't say who was making it and by what means.

Angry_Bear

Aaron8219 wrote: »

2. There is a joint account holder, but I know for absolute certain that she had not paid any monies into this account, or towards the debt, for at least six months before my last payment. She left the house, and lots of debt, all in my hands as a lovely gift

However, if she has since tried to sort out her finances and gone through a debt management company for a DMP, then that would explain the small regular payment.

My 0.02 is that you need to apply to the court for a set-aside of the CCJ ASAP - as if you are using the grounds that you didn't know about the proceedings, you have to show that you've done this as soon as you became aware.

You can then raise the Statute Barred issue with the claims company, and use the fact that the account is in dispute as part of your defence if they try to re-register the CCJ.

Aaron8219

Angry_Bear wrote: »

However, if she has since tried to sort out her finances and gone through a debt management company for a DMP, then that would explain the small regular payment.

My 0.02 is that you need to apply to the court for a set-aside of the CCJ ASAP - as if you are using the grounds that you didn't know about the proceedings, you have to show that you've done this as soon as you became aware.

You can then raise the Statute Barred issue with the claims company, and use the fact that the account is in dispute as part of your defence if they try to re-register the CCJ.

I appreciate what you're saying, but I am absolutely certain that she didn't, and wasn't able to deal with her finances. This account hasn't been on her radar since she left. I still speak to her on occasion due to family/work/friends and am aware of her situation etc. I am 100% confident that no payment has been made into this account from her. Ever.

Using the grounds that I didn't know about the CCJ is not a defence as I didn't notify change of address. This is what I have been told by court, and by Robinson Way (Howard Cohen). Is this not the case?

sourcrates

Aaron8219 wrote: »

Yes, all paperwork relating to this account, by DC's and Original Creditor, all sent to an address I left years ago. I have been told that as I didn't update my address with the original creditor, this doesn't make any difference.

They are talking rubbish, you have a good case to get the CCJ set aside, you need to pay a fee for this, info here :

http://www.masonbullock.co.uk/need-to-set-aside-a-default-county-court-judgment/