My Last Hope

[car2403]

It sounds as if the ex made a F&F some years ago and B&B then decided to pursue you for the rest, but whether the statute-barred element comes into it or not needs to be answered first.... because although your ex may have re-acknowledged the debt within the 12 years for mortgage shortfalls, you don't appear to have. This may mean that they don't have a leg to stand on, despite all that's gone on.

 

I think the first thing you need to do here is to send a PM to either pt2537 (Paul) or tomterm8 to see if you can get a set aside to this CCJ.

 

Once we have an answer/opinion to this question, we can take it from there.

 

 

Sounds to me like the debt was acknowledged when the CCJ was entered - especially as he's asked for it to be transferred to his local court, which implies the claim was acknowledged. As the CCJ was entered, I can only assume that it wasn't defended. (Default Judgment)

 

So, lets take this one step at a time.

 

Putting the debt to one side (I know, we wish!) for a moment, lets look at the CCJ. To get it set aside, one of the following must apply; (CPR Part

13)

 

Cases where the court must set aside judgment entered under Part 12

 

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because –

 

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

© the whole of the claim was satisfied before judgment was entered.

 

So, questions that need to be answered are;

 

Was the claim form received?

 

It would seem so, but can you confirm this?

 

Was the claim acknowledged and/or defended?

 

Again, seems not, but can you confirm?

 

The debt clearly wasn't satisfied before a CCJ was entered.

 

Cases where the court may set aside or vary judgment entered under Part 12

 

13.3 (1) In any other case, the court may set aside (GL) or vary a judgment entered under Part 12 if –

 

(a) the defendant has a real prospect of successfully defending the claim; or

 

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

 

(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.

 

So;

Is there a prospect of successfully defending the claim?

Is there a reason the CCJ should be set aside or varied?

Should the defendant be allowed to defend the claim?

 

and - if any of these apply - has he made an application promptly to have the CCJ set aside?

 

IMHO, prospect of defending the claim is probably quite poor. There clearly was a mortgage in place and the court probably isn't going to wipe this debt out. Having said that, you may be able to successfully defend part of the claim, as I'm thinking along these lines;

• Reclaiming penalty charges applied to the account;
  
• Challenging their right to continue applying interest post judgment, unless there's a clause in the original contract that allows for PJI (post judgment interest) to be applied to the account, or the fact the Court order allows it to be applied, (which is unlikely) they can't apply PJI. Also, if they do apply PJI, they shouldn't apply it to the Judgment debt, meaning that you can't "owe" £88k - what you could owe is the original outstanding balance of the CCJ, (Judgment debt) and then the PJI (Judgment interest) whatever that amounts to. If they've lumped the Judgment debt and Judgment interest together, they will have a problem enforcing it as they will have applied contractual compound interest on the whole balance, not just the Judgement debt. This is quite confusing - and, to be totally honest, is way out of my comfort zone too - but there is more background on PJI on Paul Walton's thread, which is also similar to your circumstances, if you care to read it; http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html
  

I really do think that you are better off getting proper legal advice on this - there is so much at risk (seemingly over £50k in interest) and it would be worth getting professional advice. You should especially do that before going for bankruptcy! In fact, you can't declare yourself bankrupt without doing it, to my knowledge.

 

There is also the option of an IVA, which would probably allow you to keep your home assets, but again you need professional advice before even considering it.