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Judgment by Default/ Telling a DMA to get lost...


Penfold92
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Hi,

 

Can anyone please give me some help here? I have another friend who I am trying to help out with his current debt situation. I am fine with all of it except one debt. It is a CCJ he got against him that was issued via default (he did not challenge or turn up...bless him!)

 

Anyway can he still CCA it or because of the judgment he cannot ask to see the paperwork anymore?

 

Please advise....

 

 

Also on a side not can someone just cancel a DD with a DMA and tell them they are now dealing directly with the lenders?

 

Thanks,

 

Penfold

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How long ago was the CCJ?

Why did he not defend it?

 

Was in 2005. Do not know why it was not defended, but my guess is the usual ignore and it will go away. The point is he is making a load of payments through a Debt Management Agency (DMA) and they are taking a cut and at this rate he will pay debts off in 15 odd years!

 

So before he remortgages himself to the hilt to pay them all off I just wanted him to make sure he was only paying those enforceable debts. I know the moral arguments (been down that road before). I am just wondering that even though judgment was granted as it was undefended surely proof of the debt would need to be there for them to enforce the CCJ?

 

Maybe I did not clarify before, he has been paying the CCJ off in monthly payments and will be paying it off for another 10 odd years at this rate! That's why I wanted to see if he could CCA them and check the paperwork was in order and not unenforceable.

 

Thanks,

 

PEnfold

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If he is paying off the CCJ to a DCA then he should only be paying off what the court ordered and only the amount that the CCJ is for. How the DCA and OC split the payments is not his problem, he does not have to pay any more than original judgement.

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So before he remortgages himself to the hilt to pay them all off I just wanted him to make sure he was only paying those enforceable debts.

 

It's not usually a good idea to take out extra secured lending to pay what are currently unsecured ( so low priority debts

 

he is making a load of payments through a Debt Management Agency (DMA) and they are taking a cut and at this rate he will pay debts off in 15 odd years

 

You could look at switching to a free debt management provider like PayPlan or CCCS - you aren't legally tied to a particular company you can just advise them in writing that you want to end the arrangement.

 

Useful links below; yourself or your friend may also benefit from getting specific advice from a free confidential organisation like National Debtline on 0808 808 4000. Your friend should certainly try the attached budget sheet to check he is making affordable payments once he has covered essential bills etc

 

National Debtline England & Wales | Personal Budget Sheet

 

National Debtline England & Wales | Debt Advice | Factsheet 29 Debt Management Plan

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Thanks guys useful stuff. Basically he made an agreement through this Debt Management Agency to pay a small amount of the CCJ back each month and the DMA are also distributing to 6 other debts his £120 per month.

 

I appreciate the comment about secured for unsecured, but he just wants to get rid of everything and start again and if we negotiate with the lenders reduced amounts he can do it with a guilt free concience as well...

 

I just need to know if after a CCJ has been granted the creditor must still have the agreement or be able to prove its agreement? I have to assume this is a yes otherwise it makes a farce of the legal system. Get a CCJ through on someone and if it slips by them though it is a court order and no longer challengable...

 

Views please..

 

 

PEnfold

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I just need to know if after a CCJ has been granted the creditor must still have the agreement or be able to prove its agreement? I have to assume this is a yes otherwise it makes a farce of the legal system. Get a CCJ through on someone and if it slips by them though it is a court order and no longer challengable...

 

The problem you have is that he didn't defend the original claim. In theory you can apply for a CCJ to be ' set aside' this puts it back to the claim stage giving you the option to defend. However you have to have grounds for this eg original paperowrk not received. Link below may be useful to give an overview:

 

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

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I just need to know if after a CCJ has been granted the creditor must still have the agreement or be able to prove its agreement? I have to assume this is a yes otherwise it makes a farce of the legal system. Get a CCJ through on someone and if it slips by them though it is a court order and no longer challengable...

 

No they only have to have it at the time it goes to court - the debt is then enforced.

He should be paying what was agreed at the time the judgement was made, not any reduced payments by the DMA

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As I understand things, from getting a CCJ set aside for my OH, the information supplied by the DJ at the time is that if the claim is uncontested the judge does not actually get to see any paperwork other then the original claim form (N1), the judgement is entered as the defendant hasn't supplied any defence or counterclaim.

 

By the sounds of it the process is almost totally impersonal, the judge does not ask to see proof that there is any legality to the claimants contention that the money is owed and certainly does not ask to see the original credit agreement.

 

As this debt is the subject of a CCJ there is no real point in applying for the CCA unless he intends to apply for set aside of the judgement.

 

I agree with Gizmo, the payment of the CCJ, even if it's to a DCA, should only be for the amount of the judgment order, no more and no less. Any change in the payment must be applied for through the courts, for which a fee is charged. He should also keep a total of how much he's paid off as he only pays the total amount entered on the judgement.

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Earlier this year I CCA'd a DCA which was subject to a CCJ which had just passed the 6yr mark, it was a struggle to get any sense out of them as they kept sending standard printed letters and no CCA so I involved the original creditor aswell and CCA'd them and SAR'd both, I also asked both for details of the CCJ, which neither could supply, other than saying to contact Northampton Bulk Centre, the SAR's did not show anything either.

I contacted the court and they could not supply copies either.

 

Subsequently after much too'ing and fro'ing between the OC, DCA and myself I sent a final strongly worded letter and I had a reply from the DCA that they were closing their file on me and would not contact me again. I also received a letter from the OC saying that the DCA had informed them the file was closed and the balance of over £4000 had been written off.

 

This might be a slightly different situation as the CCJ had already dropped of the public register and my credit file, but it shows if you persist and hope that the OC and DCA have a crap filing system then it is possible to successfully tackle an account with a CCJ on it.

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As I understand things, from getting a CCJ set aside for my OH, the information supplied by the DJ at the time is that if the claim is uncontested the judge does not actually get to see any paperwork other then the original claim form (N1), the judgment is entered as the defendant hasn't supplied any defence or counterclaim.

 

By the sounds of it the process is almost totally impersonal, the judge does not ask to see proof that there is any legality to the claimants contention that the money is owed and certainly does not ask to see the original credit agreement.”

 

I agree 100% and so cannot see why at a later date, whilst conforming with the CCJ, the debtor does not have the right to say “actually I’d like to see some proof on this please”. I agree that morally this may be incorrect, but he should have a right to see the paperwork since they have used the CCA 1974 as breached in the N1 form…

 

I was also interested to read Grobbo’s post as that is the route I expected I would go down for him…Write to and fro until they realised they could not enforce the debt and he could set it aside saying he did not get the paperwork due to being out of the country, moving or whatever…

 

Thanks Penfold

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As I understand things, from getting a CCJ set aside for my OH, the information supplied by the DJ at the time is that if the claim is uncontested the judge does not actually get to see any paperwork other then the original claim form (N1), the judgment is entered as the defendant hasn't supplied any defence or counterclaim.

 

Absolutely and judgement is gained by default.

By the sounds of it the process is almost totally impersonal, the judge does not ask to see proof that there is any legality to the claimants contention that the money is owed and certainly does not ask to see the original credit agreement.”

 

If it is MCOL ie Northampton then the judge doesn't even see the paperwork, as judgement is requested online and the system lets you if the time is up or refuses if a defence has been entered.

In any court case the judge will not ask for proof of the claim, it is up to the partied to the claim to put the proof in front of the judge and submit any relevant evidence viabundles etc.

 

I agree 100% and so cannot see why at a later date, whilst conforming with the CCJ, the debtor does not have the right to say “actually I’d like to see some proof on this please”. I agree that morally this may be incorrect, but he should have a right to see the paperwork since they have used the CCA 1974 as breached in the N1 form…

 

The debtor does have the chance to request the paperwork, when the claim is issued. In this case he has paid it without question so whatever was on the N1 is irrelevant as the debt has been enforced and accepted and is being paid, no court IMO wil lset this aside now some 2 years down the line.

 

I was also interested to read Grobbo’s post as that is the route I expected I would go down for him…Write to and fro until they realised they could not enforce the debt and he could set it aside saying he did not get the paperwork due to being out of the country, moving or whatever…

 

Thanks Penfold

 

No chance he is paying it so has admitted it, this is only a 2 year old judgement so the paperwork would be very easy to trace however rubbish the creditors filing system is.

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No chance he is paying it so has admitted it, this is only a 2 year old judgement so the paperwork would be very easy to trace however rubbish the creditors filing system is.

 

OK Gizmo,

 

Do you think the CCJ creditor would accept a full and final from him rather than waiting 10 years for payment? Would make financial sense...

 

Penfold

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OK Gizmo,

 

Do you think the CCJ creditor would accept a full and final from him rather than waiting 10 years for payment? Would make financial sense...

 

Penfold

 

You can ask, the worst they can do is say no. But at the end of day barring Bankruptcy occuring they are going to get the full amount owed.

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  • 3 weeks later...

OK,

 

The Company that have the CCj on him rejected an offer of half the debt as full and final settlement.

 

I have advised him to reply saying he will still to the £45 per month as he has been doing for the last 2 years... Hopefully they will realise that maybe they should be taking the lump sum. Any thoughts on this tactic or is he unlikely to get them to reduce the debt as a full settlement?

 

Thanks,

 

Penfold

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Waste of time CCAing against a CCJ as they already have a judgement.

Have a read of this: How can I get a CCJ removed?

Apologies for hi-jacking this thread Penfold92, but I would like to ask Curlybens advice on a similar matter. :)

 

CB, following the link you have given above, at Section 3, Bullet point 9, [.....Possible valid reasons to have a CCJ set aside are:-], it says "Acceptance of full amount of the judgement at the time, but now only agree partially". :confused:

 

That is the situation I find myself in. Having not yet discovered the wonderful world of CAG at the time of my court case a few months ago, I objected to the "collection fee" which had been added to the outstanding credit card debt which I was being sued for, but admitted the debt itself. (This was following a phonecall by me to the claimants solicitors in which I was told that they would drop their claim to the collection fee if I paid (admitted?)the rest of the debt).

 

I obviously realise now that I was foolish and gullible, that my admission was a serious mistake and that the claimants solicitors jumped at the chance to get an easy result.

 

If I had known then what I have found out since discovering and joining CAG things might (probably would) have turned out very differently.

 

Following the advice available on this site, I would have CCA'd the creditor, and in the (unlikely) event that they produced a valid agreement, I would have then gone on to challenge the amount being claimed as it would have included unfair charges etc.

 

Using the quoted reason above, do you think I have grounds to appeal the CCJ which was given against me?

 

Rob

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Yes, certainly possible.

Get a S.A.R - (Subject Access Request) into BOTH the DCA and OC and work out how much in unlawful charges they have added.

Thanks for the swift reply CB!

 

If I went ahead with a S.A.R. and the records then showed that during the life of the account unlawful charges had been added and included in the amount sued for (and foolishly admitted by me) in the court judgement, and I subsequently submitted an N244 on those grounds, would this take the whole situation back to square 1 (ie would the claimant have to start again with a fresh claim)?

 

Would the unlawful charges also being included in any default notice be relevant?

 

Would the S.A.R. also require the creditor to produce the CCA (would save me also CCA'ing them)?

 

If the claim had to start again from scratch that would suit me just fine as it would enable me to start on a level playing field wielding that double edged sword which you have been sharpening for us! ;)

 

One thing I should point out is that the CCJ has been backed up by a final charging order against my house, and although the court did not order how much I should repay per month (it said "treat as insolvency"), the solicitors agreed a very small sum (under £3) per month, to be reviewed periodically (I am currently unemployed and receiving Job Seekers Allowance). I obviously do not want to incur their wrath and give them a reason to possibly "force a sale" of my home, but if there was a good chance of me having grounds for having the CCJ set aside and starting the process over again I would probably go for it.

 

I've also just remembered that I think interest may still be accruing on the debt. (If I could start again it would become "alleged debt" !).

 

Thanks for your help,

 

Rob

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