CCJ Urgent Help needed - Can't tell if I have a case to argue in court

calatheanetwork

Hi there all,

I've reached the end of my tether, and a little lost in the maze of advice I've been seeking. Thanks in advance for any help here, I'm so anxious about what to do.

I checked my credit report lately and it notified me that a CCJ was being filed against me by Lowell Solicitors. I haven't had any paperwork, and after calling the court and paying to see the CCJ register it has been sent to my old address. The action is being taken on a debt (a small student overdraft) that is over ten years old, and has been sold on to Lowells, even when I sent a letter to statute barred the debt in 2013. They claim I made a payment on 23 May 2014, which isn't true as I would not have paid a penny following the statute barred notice in 2013, and each correspondence I have not acknowledged the debt. I've asked them for evidence of payment and they said they can't provide me with this, and that I need to provide evidence I haven't paid (I have a closed coop account that could prove this but I have no idea how to gain access to closed account bank statement).

I'm now over the 30 days for the response, as it took so long to get any response from Lowells on the debt, I can't afford a solicitor and I need to know if it's worth filing an N24 to appear in court to get the CCJ set aside. I can't afford the repayments they've asked for me to make, and I don't think it's fair that they are chasing me on a debt that is over a decade old. I've worked very hard in the last few years to be debt free and this feels like I'm going back to stage one again.

Please help!

sourcrates

Hi,


Setaside would cost a court fee of £255.00 however remision is available on the fee, if you are on a low income, you must apply for setaside promptly, and you must have a defence with a reasonable chance of success, in your case it looks like the debt was statute barred,

Lowell, having secured judgement by default, have no liability to prove anything now, but if you had caught them at the pre-CCJ stage, the onus was on them to prove the debt, not you.

WhenIam64

They claim I made a payment on 23 May 2014

2 tests for a set aside. Did you get the papers and is the case defenable.

Solid on test 1 and perhaps solid on test 2.

If you pay for the set-aside and you can convince the judge that you made no payment and the debt was statute barred, he/she will agree the set-aside. You ask for costs (£255) to be reserved for the rehearing and the judge will usually do this.

Now comes the tricky part. What then happens is that Lowell either in the belief they were wrong/misled by the company that sold the debt, will discontinue. There will be no rehearing and no refund of the £255. You are down £255 but you have a clean credit score.

So question is where did this mysterious payment come from. Did you forget? Did the bank make a mistake and mis-sold your debt to Lowell? Or is there an issue at Lowell that needs exposing?

You'll never know but is risking £255 to get a CCJ off your record worth it?

calatheanetwork

I have asked Lowell to provide me with evidence of this transaction on the 23 May 2014, and they replied:

'As a County Court Judgment was entered against you, our client is not obliged to provide documentation.

To enable us to investigate the matter further, please provide proof such as bank statements or correspondence.'

This doesn't seem right? I shouldn't have to prove it, it's now up to them. I definitely didn't forget or make it in error as I wrote to themin 2013 to explain it was statute barred and would have had no reason. I don't have any correspondence with them about paying eiher.

So, for my N244, should I write 'The paperwork was never received and the debt itself is statute barred'.

Should I notify Lowell that I am applying for set aside?

WhenIam64

This doesn't seem right? I shouldn't have to prove it, it's now up to them.

You are correct in the sense that there is an identifiable problem with default CCJ's. There have been MoJ consultations about it.

To enable us to investigate the matter further, please provide proof such as bank statements or correspondence.'

You can reverse this by making a Subject Access Request to Lowells and to the original lender. This has two effects. Firstly it should show the evidence Lowell might have had IF they decided to fight a contested claim. Secondly it should show how much effort they put in to finding you before they issued the claim. If non-existant then it will help your recovery of the set-aside fee.

should I write 'The paperwork was never received and the debt itself is statute barred'.

You might want to put a bit more effort into this as this will be the only opportunity to convince a judge the court should grant you extra time. Courts are under pressure. A set aside hearing is not a gift - certainly not at £255 - but you have to show how you meet the two tests described above.

Should I notify Lowell that I am applying for set aside?

If you want. They'll likely make a paper plane out of it. The court will advise them of the set-aside request and they may send a template to the court asking for your hearing not to be granted as they made stringent efforts to find you and they have excellent proof of why their claim is justified. It will be the same template they send to all set aside hearings.

This is why you a) make the Subject Access Request and b) put a bit more effort into your request.

ciderboy2009

If it was statute barred in 2013 (make sure that your dates are correct) then it remains statute barred even if a payment was made after this date.

I would make the application to set aside the judgment asap.

calatheanetwork

Thank you, this is hugely helpful. I'm planning to make a SAR to Lowell and to Halifax (who they bought the debt from) to find out more about what has happened, and subsequently make a case to explain the process. As it's a very old account I'm struggling to find details on when it was closed (around 2011), the only information I have is from asking the court for them to email me the claimant papers (which I've just called them to request), which merely says 'THE AGREEMENT WAS LATER ASSIGNED TO THE CLAIMANT ON 17/06/2015 BY BANK OF SCOTLAND'. In the claim papers they do not indicate how and when the last payment was made, but their email quotes a payment in May 2014.

For my witness statement I was going to write the following:

- Upon checking my monthly credit report, I was notified that a CCJ by an Unknown source was filed against me on the 1st July 2019. I called County Court Business Centre to ask what the CCJ was assigned to, and they indicated that it was by Lowell Solicitors on behalf of Halifax. I have not received any papers, and on requesting information from Trust Online it was evident that Lowell had sent these to a previous address, and not correctly pursued a recent address to send these papers to me, despite being on the electoral register, and with several utilities such as council tax and mobile phone accounts registered to my current place of residence.

- The alleged debt in question is from an account that was, to the best of my knowledge, closed around 2011, with no payments made in over 6 years, rendering the debt statute barred.

- On contacting Lowell Solicitors to ask for further details on the alleged debt, and to indicate that it was statute barred, Lowell replied that a payment was made on 23 May 2014. I have no such knowledge of the alleged payment, and on requesting transactional evidence, Lowell refused to give further details. I have since placed a Subject Access Request to Lowell in order to determine the validity of this claim.

- I would wish for this County Court Judgement to be set-aside as it is unenforceable, and the cost of the set-aside fee renumerated by the claimant.

Does this sound right? I'm trying to be as comprehensive as possible, and take all the advice I can but it's all quite confusing!

ciderboy2009

If you're relying on a statute barred defence then you're going to need dates to show that a period of 6 years passed without you making a payment or otherwise acknowledging the debt. Approximate dates will do (such as "May 2007") as long as they show clearly that there was the 6 year gap.

ie: If you're certain that it was statute barred in 2013 then you must have last made a payment or otherwise acknowledged the debt in 2007 or sooner.

I've got horrible feeling that overdrafts may be slightly different though. I've got a vague memory of reading somewhere that the six years starts when the bank recalls the debt (I'm not 100% sure of this though).

If this is the case then the statute barred clock may not have started until the account was closed - which you think was 2011 (so statute barred in 2017).

My main concern is that Lowells state that you made a payment in 2014 - why would they make up a payment that was after the debt was already statute barred?

calatheanetwork

I think you might be right on the statute barred for overdrafts. The 2014 payment I can’t find anywhere on any old bank statements, though I’ll have to check another. I’ve checked my letters and emails and can’t find a thing.

Here’s more from the email they sent me, re overdraft:

The relevant provisions are found in section 5 of the Limitation Act 1980 which provides that “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

The date the cause of action accrues in matters which are regulated by the Consumer Credit Act 1974, is the date on which the creditor is entitled to terminate the agreement and seek payment of all sums due under it. This is the date when the period set out in the Default notice required by s87 (1) expires, or the date of the last payment or written acknowledgement of the debt, whichever is the later.

In this case, we are instructed that your last payment was made on 23 May 2014 and would therefore have expired no earlier than 14 days later on 6 June 2014.

sourcrates

The “cause of action date” is now deemed to be the date of default (recent appeal court ruling) that’s the date the statute barred clock runs from.

You may want to add “the debt is statute barred under section 5, limitations act 1980”, but don’t get too “legalese”, you are a layman, and are not expected to know the exact wording of the law.

WhenIam64

@Frank77 and @Ola2019

You should start your own threads as you have different issues. To get clear advice you want to have your own thread as getting mix messages can be costly.

If you PM Sourcrates he may be able to split this for you.