Set aside CCJ 27 June 2018 at 4:56PM edited 27 June 2018 at 5:07PM in Debt-free wannabe 5 replies 979 views

bassett111

Hi, I'm hoping someone can clear this up for me.
I had a rough 2 years. Parents died, siblings stealing all inheritance etc. I was on a lot of medication for pain and depression during this period. No work or money. I have started to work my way through some CCJ's that were put on that should not have been.
I sent an N244 off and recieved paperwork last week from the credit card company. I went into arrears in 3 aug 2010. This was my last payment. 3 dec 2010 the account was terminated by them. They found out about a property I was renting out through a letting agent and sent letters to this address. Not the address on the credit agreement. Then I moved into the property in summer 2015. I started to get paperwork from them regarding this debt but I really could not deal with it at the time ( Mum and Dad had cancer etc) so I put it in the draw to sort out later. Well they put a CCJ on me.



Looking back It looks like it was statute barred as the 6 years had lapsed from my last payment aug 2010 and the notification dated sept 2016.
They claim it was not statute barred. They say the termination date DEC 2010 is the start of the 6 years not the date of my last payment to them in AUG 2010.
They also go heavily on the fact that I have responded now almost 2 years later and say i should have responded "promptly" quoting some case whereby 30 days was deemed not quick enough.
There is no legal definition of "promptly" and the Government web site did not mention this when I filled out the N244 form.
justice.gov.uk/courts/procedure-rules/civil/rules/part13

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.


My suspicion is they know it was wrongly applied and hope to keep the CCJ in place due to when I challenged it. With no money for legal advise it takes an age to save and see a Solicitor for one hour so this was as prompt as I could manage.

any thoughts? Am I correct?

sourcrates

Hi,

These things are never clear cut, and you have no guarantee the court will side with you, yes you are supposed to deal with these things promptly, if you have good reason why you have waited so long, the court may take notice of that.

You are correct that the cause of action date is the date of your last missed payment, not the default date, although it can depend on the judge you get, as always, each may have an opinion different to yours.

Set aside costs £255.00 (remission is available for low earners) you can gauge opinion on here, but the only way to find out is to go ahead with it.

bassett111

This "promptly" seems wrong to me. Why no firm timeline? Statute barred has...6 years exactly.
At the moment I can't handle doing all of them together and thought one at a time is the best approach but it seems this would be used against me!

National_Debtline

Hi bassett111,


These situations can be difficult, when there are multiple judgements to challenge. I appreciate that saying the court will assess how prompt you were leaves you in a grey area, as there is no clear guidance, but unfortunately, it is the nature of the application. They will also consider why you didn't respond to the original claim forms (please be aware that the claim forms will be sent to the last known UK address, so if you moved and updated the address, that is where the forms would be sent) and whether or not you have a realistic prospect of a defence.


With regard to the limitations act, you need to be aware that the 6 year clock starts from when the first payment was due and missed or from when the last payment was made or from when the last written acknowledgement was made - whichever is the later. So, if you had an arrangement to pay monthly, and the first missed payment was September 2010, that could be the start of the limitations act !!!8211; not the August or the December. And if the judgement was obtained by September 2016, they may have started the court action just within the 6 year time frame.


You really do need legal advice, because if you do apply, but are unsuccessful, you can incur costs of the other side. I appreciate this can be pricey so you could try and find cheap or free legal advice from a Law Centre. You may be able to find one close to you at https://www.lawcentres.org.uk


Laura
@natdebtline

bassett111

sourcrates wrote: »

Hi,

These things are never clear cut, and you have no guarantee the court will side with you, yes you are supposed to deal with these things promptly, if you have good reason why you have waited so long, the court may take notice of that.





You are correct that the cause of action date is the date of your last missed payment, not the default date, although it can depend on the judge you get, as always, each may have an opinion different to yours.



Set aside costs £255.00 (remission is available for low earners) you can gauge opinion on here, but the only way to find out is to go ahead with it.

I was only aware this year when I did a credit check, I was on a lot of medication previously for pain and depression and the last 2 years feel like a blur. The Court papers were sent apparently the week my Father died from Cancer, Anything that came during this period I really did not look at or care about. Previous to that they did not right to me at all at my address. only when I moved. But like I said I was quite ill and under medication.

I need to find the Terms and Conditions of Capital One but I cannot find any online.

bassett111

section 6 (3) of the statute says:-
"this act shall apply as if the cause of action to recover the debt accrued on the date on which a demand was made"
They say it starts from a letter they sent (to wrong address-proven) some 3 months after my missed payment.
Surely the statement demanding the next payment is the actual demand as you say?