CCJ from guarantor loan company. Options/possible 'set aside'?

mukach72

Hello forum,
I'm in tricky situation and need some advice so here goes!
I took out a 'guarantor loan' in 2018 with my wife as the guarantor. We are separated and everything proceeded well until I had ill health earlier this year and she had to cover my payments for a short period of time. I recovered and continue to pay a slightly reduced weekly amount. Apparently, a money claim came in for the total amount of the loan and now my wife has received a CCJ dated last week. We have 3 children together and if we don't sort this problem out, it will be catastrophic for her and them! I only know of two options - pay the judgement, over £10,000 or set the it aside! There is no chance of the former and I don't really know about the latter. I understand we have 30 days from the date of the judgement before it appears on her file. Any advice would be greatly received.

Willing2Learn

Are you sure your wife was actually served with a CCJ? Are you sure it was not Pre Action Protocol documentation (letter before claim)?

https://debtcamel.co.uk/letter-before-claim-ccj/

Assuming it is a letter before claim, then there is a questionnaire included. You would complete the questionnaire, including the bit where you can make an offer to pay by instalments. If you return the questionnaire before the due date, then they may accept your instalment offer and there will be no CCJ.

boo_star

If this is genuinely a court form relating to a small claims track debt you have a third option. Fill out income and expenditure and offer them what you can.

It's certainly never "pay the full amount or else."

Ben8282

How could the lender have obtained a ccj on a loan which you have not defaulted and have continued to make payments on, even though you claim to have been making 'slightly reduced' payments. I assume you have an arrangement to pay?
Also I don't think loan defaults and ccj's are dealt with by the courts as money claims.
The loan would have first had to have been defaulted. There would then have been a period of letters and other contact from a DCA and some contact with your wife by the lender or DCA to tell her she has to pay. Not suddenly a money claim out of the blue for over £10,000 to your wife.

mukach72

Hi and thanks for the comments. It turns out that when I couldn't pay the weekly amount, the lender takes from the guarantor. This happened a few times earlier this year and it turns out that my wife stopped the lender taking payments, this created a default I assume. As far as I am aware, she received nothing else until this Judgement arrived last week. I have been living on sofas at friends houses since May and my redirection from my old property ended in February. I understand she/we have 30 days to do something, I'm just at my wits end what to do. If the CCJ appears on her credit file, the ramifications for my relationship with my kids and her, for that matter will be devastating! Do you think 'setting aside' could be an option and if so ,how long does it take to process? Thanks in advance.....

Willing2Learn

A CCJ [STRIKE]cannot[/STRIKE] should not be served without prior notification via Pre Action Protocol documents. Please check the paperwork received and confirm exactly what it says. Pre Action Protocol documentation also give you 30 days to complete and return the questionnaire.

[Deleted User]

I can't see on what basis you would apply for it to be set aside.

If it's that critical she avoids it. does she have any chance of raising the finds via a loan or selling something? If her credit files are generally ok then she may have a chance before the CCJ goes on.

whitepaper

Ben8282 wrote: »

How could the lender have obtained a ccj on a loan which you have not defaulted and have continued to make payments on, even though you claim to have been making 'slightly reduced' payments. I assume you have an arrangement to pay?
Also I don't think loan defaults and ccj's are dealt with by the courts as money claims.
The loan would have first had to have been defaulted. There would then have been a period of letters and other contact from a DCA and some contact with your wife by the lender or DCA to tell her she has to pay. Not suddenly a money claim out of the blue for over £10,000 to your wife.

This was not a joint and several loan agreement, but rather a loan agreement with a guarantor.

The original loan agreement was between the lender and the OP.
When the OP was unable to pay due to ill health, it was defaulted, and the guarantor was called upon to pay.

It seems the creditor was prepared to continue with the terms of the agreement whilst the guartantor was paying the full periodic amount, rather than the credor calling the loan in for breach.

However, when the OP regained their health, they resumed paying the loan agreement but, in their own words "continue to pay a slightly reduced weekly amount"

This again, on the face of it, is a breach or default of the original agreement, and probably 'the final straw' that led to the loan being called in.

whitepaper

Willing2Learn wrote: »

A CCJ cannot be served without prior notification via Pre Action Protocol documents. Please check the paperwork received and confirm exactly what it says. Pre Action Protocol documentation also give you 30 days to complete and return the questionnaire.

Yes it can. Just go onto moneyclaimonline and you can serve a claim against anyone you wish without any notice.

If that person fails to respond, then you can apply and will be almost invariably be granted a CCJ againt that person.

It is up to the court to decide what sanctions, if any, are to be imposed by the failure to follow the expected Pre Action Protocol .

Willing2Learn

Guidelines state a business should use the Pre Action Protocol


https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/debt-pap.pdf

whitepaper

Willing2Learn wrote: »

Guidelines state a business should use the Pre Action Protocol


https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/debt-pap.pdf

They are guidelines, not tram lines.

Failure to follow them does not, as you previously indicated, prevent a CCJ from being issued