Have you contacted the Court to try to get a copy of the Judgment? This now has added importance! New authority hot off the press - A claim for a 'mortgage shortfall' was correctly struck out as an abuse of process where the bank already held a money judgment it had been awarded at the same time as the possession order - Alliance & Leicester Plc v Reynolds (14 Nov 2008) His Honour Judge Platts, Warrington County Court. I will do a separate longer post on a new thread once I finish typing up the judgment, probably on Monday. Pls PM or email em for more details. Regards

More information will help: 1. did B&B obtain a possession order way back? You need to get a copy of this asap to see whether or not the court made a money judgment. This is vital because it may affect (1) whether the current claim is an abuse of process and (2) the amount of interest recoverable. 2. How have B&B calculated the interest? 3. what documentation do you have about the agreement reached? 4. If possible, please scan & post the claim form. Regards Nick. PM me if you need to.

I agree with you that s.24(2) does seem quite clear. This may be a case of people reading what they expect to be there rather than what is actually written. In many cases of course there will have been no payments, so there is no difference. On Ezekiel v Orakpo, the decision was not based on the policy justification (that otherwise there would be encouragement to apply for an order for sale). The decision was that a charging order creates an equitable charge. That equitable charge then has a life of its own. Just my thoughts... All interesting but difficult areas of law. My concern is that many many people appear in person in shortfall disputes and similar, even though the amounts in issue are often £20,000+.

To reply to wellmeant advice, Your interpretation of s.24(2) does make sense, which is interesting because the usual interpretation is that interest only runs for the first 6 years. You are right that in a case where payments have been made, given the 1991 regulations, this may mean that the interest is less. (I cannot see how s.29 can be applied to extend the period by a part payment - do you agree?) I appreciate your point on Ezekiel v Arakpo. My concern is that a CCJ for under £5000 does not attract interest, but it seems that if the judgment is secured by a charging order, then interest would appear to accrue under the charge. There is of course one additional danger: there is no limitation period at all on enforcement proceedings - only the exercise of discretion.

I agree with wellmeantadvice's point about the interest, but again this argument only works if there was a judgment way back when the possession order was made. In the only other historic A&L case I have seen there was a money judgment, so the likelihood is that there would be one (lenders are normally consistent in what they ask for).

Yes, wait for the replies before making any offer. An offer in writing is an acknowledgment of debt, and thus reactivates the limitation period if relevant. N

On s.24(2) limitation act, have a look at the House of Lords decision in Lowsley v Forbes. Technically I suppose it is arguable whether it is the most recent 6 years' interest which is recoverable or the first 6 years, but of most practical prposes there may be little difference. On the other issue, the case is Ezekiel v Orakpo. I still have trouble with that decision, as its logic would suggest that even a charging order to secure a CCJ under £5K would attract interest, even though the judgment doesnt.

The solicitors are trying to make out that this is a new debt based on the shortfall. My point is that this is not so, and the chances are that there was a judgment made. Send the letter requesting info to both the debt collectors and to Beers. You might as well do the SAR direct to the bank - you never know what might result! If you are considering a small offer then do that by phone and dont put anything in writing (just in case of any limitation argument later).

Yes they should.

The situation is very different depending on whether or not the court gave a money judgment. Interest only runs on a judgment for 6 years - s. 24(2) Limitation Act at Limitation Act 1980 (c. 58) - Statute Law Database and also note that payments come off capital first under the 1991 Order - reg 6(2) Enforcement now is a different question. The 12 year limitation is irrelevent, as that is relevant to bringing new proceedings not to enforcement. I am trying to write an article on the fascinating subject of enforcement 6 years after a judgment. Without boring you with the detail: 1. The House of Lords ruled that s.24(1) Limitation Act only applies to an 'action on a judgment' and doesnt operate as a bar to other forms of enforcement; 2. A judgment creditor has to seek permission from the court before issuing a warrant of execution (ie instructing bailiffs) for a judgment that is more than 6 years old (it is actually still RSC O.46). Permission will not normally be given in an ordinary case and the judgment creditor will have to show some exceptional circumstances. 3. interestingly there is no similar rule for charging orders or TPDOs. Some people seem to think this means that a charging order cannot be made for an old judgment, but I think that is not correct. A charging order is always discretionary so the passage of time must be a factor in the exercise of judicial discretion, and I would hope a court could be pursuaded that similar principles apply as under RSC O.46. Certainly where a creditor has been happy to accept £50 a month, and is still making payments at that level, I think the creditor will have real difficulties pursuading a court many years on to let it have a charge. An interesting (and dangerous) aside on interest. I recall a recent (ish) case which says that because a charging order is an equitable charge then interest runs forever - ie the rules on interest are different on sums secured by a charge than on the judgment that led to the charge. I agree with Ell-enn and wellmeantadvice that you need to get info, but think that if the lender do try to adjust the amount, you may have some ammo with which to defend if this is a case with an old CCJ. Regards, Nick

Where abouts are you based?

Also, if they continue to harrass you by phone, when you have asked them to stop calling you, you need to take action. Harrassment of a debtor is a CRIMINAL OFFENCE. see s.40 Administration of Justice Act 1970. There is a very helpful factsheet about this, and to whom you should complain at Debt Factsheets - Harassment of people in debt by creditors Regards Nick

Yes, my view is that if the building society obtained a judgment way back when they got a possession order, then it is an abuse of process (technically 'issue estoppel') for them to bring a new county court claim for the same money. This is because they already hold a judgment for the amount due. I have recently been in court in two such cases (one brought by A&L the other C&G) and in both the judge struck out the claim and ordered that the lender pay the costs. This isnt a complete solution to the problem, however. Although the banks all seem to think that an old judgment is not enforceable, regrettably I dont think that is right - I keep thinking about writing an article on this, but I dont really want to help them Anyway, I wouldnt get hung up on an SAR. Just do a short letter: To enable me to take proper advice on your demand for monies, please can you let me have: 1. a copy of the Possession Order, which I believe was made in YEAR. 2. a full statement setting out how much you allege is due, showing how the amount has been calculated. at the same time you might as well contact the court to try to get the copy from them. On this argument, it doesnt matter that you have been making payments. They cause you difficulties on a defence based on the limitation acts but that isnt a defence you would be running.

I have just had a thought. You said that the 2001 Order was a Tomin Order. If this is right - that it was a Tomin order and not a judgment payable by instalments - then the situation is very different. A Tomlin Order is a binding contractual agreement - on both sides. If it did stated the amount due but did not mention interest, then interest cannot be added in my view. If you have kept to the payments, then there is nothing the lender or their debt collectors can do. They cant add interest. They cannot even apply back to court to vary the payments upwards as they could with a judgment payable by instalments. Make sure payments are made and ignore anything from them - and keep the copy of the Tomlin order in a very safe place (make a few copies) just in case... NIck

Unfortunately interest usually is added to CCJs over £5K - see The County Courts (Interest on Judgment Debts) Order 1991 but note the exception for CCA loans. Note also that interest only runs for 6 years - limitation act 1980 s. 24(2) AND that any payment come off the capital - 1991 regs - above - reg 6(2). Not the answer you want, but it might help...

I suggest you do some research before you correspond any further, to get your ammunition ready. You need to see if you still have a copy of the original possession order. If not, contact the court to try to obtain a copy. This is because many lenders at that time obtained a judgment for the sum outstanding under the mortgage at the same time as obtaining a possession order. Note: 1. It is difficult to enforce a judgment after 6 years (most lenders think it is impossible, but this is in my view a misreading of the law). 2. interest on a judgment is limited to 6 years from date of judgment However it does mean that the lender cannot bring new proceedings on the debt. If it does, the proceedings should be struck out as being an "abuse of process" as they are for the same debt. I have run this argument twice recently in different courts and the outcome was the same: lender's claim struck out and the lender ordered to pay the costs!

I agree. But he also needs to obtain a copy of the original possession order. Many lenders obtained a money judgment at the same time as the repo order. Does he recall having a CCJ against him. If the lender did obtain a money judgment then: 1. this would have fixed the amount due (and the amount realised on sale would be deducted) 2. interest only runs for 6 years from the date of the order 3. the lender may have difficulty in enforcing now. It may be debarred from bringing new proceedings as these would simply be a repeat of previous proceedings.

valuation - you can try nethouseprices.com but this will only give you prices from 2000. Before that you will need to spend some tiem at your local library going through local papers or instruct an expert.

If you have sent in the acknowledgement of service, you get an extra 14 days. I have an extra suggestion for your Defence. Have you still got a copy of the possession order made in 1994? If not, you should send a letter to the claimant solicitors asap: "Please can you send me a copy of the 1994 possession order referred to at paragraph 2 of the particulars of claim. This request is made under Part 18 CPR". (also ask the relevant court for a copy) The reason is this: 1. When taking possssion proceedings, a mortgage lender can ask for a money judgment for the outstanding balance in addition to possession of the property. 2. some mortgage lenders asked for a money judgments; others did not. 3. if the mortgage lender asked for and was given a money judgment then the current proceedings are liable to be struck out as vexatious and/or an abuse of process, because they are proceedings for the same debt in respect of which the lender already holds a judgment. Effectively the current proceedings are an attempt to re-litigate the previous proceedings. I have brought this argument for clients twice in the last 3 months. In both cases the Court has struck out the bank's claim (and awarded costs against the bank). If the 1994 order did make a money judgment, you may then want to add a paragraph to the draft defence along the lines of : 7.1 The Defendant avers that by an Order made on [date] in case number [number] the [xxx] county court made an order that the Defendant pay to the Claimant the sum of £[amount] being the sums due pursuant to the mortgage. 7.2 The Defendant avers that the claim is for the same monies which were the subject of the abovementioned previous proceedings in respect of which the claimant already holds a judgment against the Defendant. 7.3 Accordingly this claim is vexatious and/or an abuse of process and should be struck out pursuant to Part 3 CPR. If you have already sent the defence - dont worry. Make the part 18 request and then if the 1994 proceedings did include a money judgment, make an application to strike out. NOte that this doesnt get you totally out of the woods - old judgments are still enforceable subject to judicial discretion. However the lender may be stuck with the amount of the judgment less sale proceeds and payments plus interest for 6 years from date of judgment. Hope this helps! Nick.