SD Served Against CCJ Debt: Help Please!

[Welshwoofs]

My OH has just been served an SD through normal post this morning from Mortimer Clarke acting on behalf of Phoenix Recoveries.

 

We've read a lot of the SD information here but this case has one confusion which is making us unsure of what to do. In essence, the debt is the subject of a CCJ in 2004 with the repayment terms of £10 a month to Yorkshire Bank. My OH had been dutifully paying that £10 a month until he got a letter in the post one day from Phoenix Recoveries stating they had purchased it and would be in contact shortly regarding repayment. They got in contact to demand full repayment immediately.

 

Here are the facts from our side:

 

1. Terms of CCJ (£10 a month repayment) had been honoured from 2004 until the point Yorkshire started refusing payments, stating the debt had been sold but not saying who to.

 

2. 14th Jan sent a CCA and Subject Access Request by registered post with applicable payment after receiving a letter from Phoenix stating they now owned the debt and demanding full and immediate repayment. We have confirmation of signed receipt but no response to the request.

 

3. 19th Jan we received a reply from Northampton CC to a query we sent about the CCJ stating that according to their records the debt is still owed by Yorkshire Bank and they have no application from Mortimer Clarke/Phoenix to amend it. They also stated that should the ownership of the debt be amended the terms of the CCJ would still stand and my OH would be liable only to continue paying £10 a month unless and until such time as the claimant applied through the courts to change that.

 

 

So.... as it stands Mortimer/Phoenix have supplied no proof they now own this debt, the CCJ isn't in their name, they've ignored the CCA and Subject Access Request and they've served an SD.

 

I can see a lot of info on setting aside an SD that's not been subject to a CCJ but can't find anything on setting aside a debt that is subject to a CCJ which was being satisified to the letter up until the point the creditor sold the debt. Could someone advise on what grounds we'd use to have this SD set aside?

Edited January 30, 2009 by Welshwoofs

[Shawn0109]

The best thing you can do in this situation is go to your local country court and have this set aside asap as they only allow you 18 days from the date you recieve it to apply to have it set aside, you will have to fill out forms 6.4 and 6.5 saying they you are disputing the debt for non compliance of a cca request and state if there are nay charges that you think are on there that shouldnt be, you will have to swear an affidavit after you have filled in the paperwork at the court, then thats it you will have then to wait till you hear back from the court where you will attend a Set Aside Hearing which is very informal just you and the Judge and the other side if they even turn up. May I ask how was the Stat Demand served was it by hand or by recorded delivery or just normal 1st or 2nd class post?

[Welshwoofs]

May I ask how was the Stat Demand served was it by hand or by recorded delivery or just normal 1st or 2nd class post?

 

It was sent by first class post.

 

Is the fact that this debt is subject to a CCJ whose payment plan has been honoured enough grounds for a set-aside?

 

It seems bizarre to me that a County Court can issue a CCJ, the debtor honour the repayment terms stipulated by that CCJ and still have a face a SD simply because the original creditor sells the debt on!

[Shawn0109]

Yes as long as the agreement on the CCJ is all up to date I dont see the logic in going down the Stat Demand route when a CCJ is already in place I think this DCA is trying to pull a fast one, really Stat Demands are to be either hand delivered to the person or sent recorded delivery at least as proof it has been served correctly, but I think you should also mention in it that there has been non compliance with your CCA request from this particular debt collector and maybe also state that as far as you are concerned that the debt is still with the original creditor and is up to date on payments, on the form they have sent you does it say which court you have to go to to get it set aside or does it just say "Your local County Court" and who has signed it is it the original creditor or the dca and also if they have purchased the debt is it showing when they did? Sorry I know alot of questions but as with some Stat Demands they are scare tactics nothing more but get it set aside.

[Welshwoofs]

as far as you are concerned that the debt is still with the original creditor and is up to date on payments, on the form they have sent you does it say which court you have to go to to get it set aside or does it just say "Your local County Court" and who has signed it is it the original creditor or the dca and also if they have purchased the debt is it showing when they did? Sorry I know alot of questions but as with some Stat Demands they are scare tactics nothing more but get it set aside.

 

To answer your questions:

 

1. The payments are now not up-to-date. The last payment was made in Sept 08 and October's payment was returned by Yorkshire with a note that they had sold the debt on and the new owners would be in touch in due course. The next thing received was a letter from Phoenix in November demanding full and immediate repayment of the whole debt. We did the following:

a) Emailed them stating the debt was subject to a CCJ with repayment terms of £10 a month and as far as we were away they had to accept that. That email, though read, was ignored.

b) Sent off a CCA and SAR with appropriate payment. Both were received and signed for, but ignored.

2. SD gives the address of our local County Court

 

3. SD gives a contact name and address for the claimant, which is NOT the original creditor (Yorkshire Bank) but Phoenix Recoveries.

 

4. SD states that the debt was assigned to Phoenix in Sept 2008 though we have had our request to see that notice of assignment ignored.

 

The issues for us are:

 

• We've had no copy of the notice of assignment to prove they even owe this debt (CCJ is not in their name)
  
• The figure they are requesting is different to the amount of the CCJ minus 4 years of payments so we want a full breakdown of the account
  
• We've been given no option or avenue to continue forfilling the £10 CCJ repayment terms as Yorkshire refuse it and Phoenix demand full repayment instead. Repayments are now 4 months behind (ie £40 in arrears).
  

[Shawn0109]

Get your set aside filled in and just state what you say there is a ccj in place but you are disputing the claim of the DCA involved for non compliance with your CCA and SAR request you also dispute on grounds that you have not recieved a Notice of Assignment and also no Default Notice from pheonix prior to them issuing a stat demand if the CCA 1974 request has not been replied to it's pheonix that are now in default with your request and maybe you should send account in dispute letter to them be recorded delivery and keep all the reciepts proof of postage and copies of all letters you send them for some reason I dont think the judge will look happy about this because DCA's are issuing stat demands as threats and really it just wastes your time and the courts time preparing everything and then find out they have nothing to back up their claim to the debt, if you are paying a ccj every month then thats where it should stay not being passed around from one to the other. If you need any more help I'm right here.

[Welshwoofs]

Many thanks for the help on this Shawn

 

Having had a really good look at this SD they are issuing it under section 268 (1) (a). We're going to apply for a set aside under #8 listed in the set aside application:

 

"Say that the Demand does not comply with the Insolvency Rules in that....(and then highlight the following from Section 268 in red)...the complainants have failed to a) demonstrate the debtor is unable to pay the debt and b) the debt is subject to a CCJ repayment order of £10 a month and NOT immediate repayment"

 

Section 268 says:

268. Definition of “inability to pay”, etc.; the statutory demand.

(1) For the purposes of section 267(2)©, the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either

 

Does that fit the bill in terms of satisfying that the Demand doesn't comply with the Insolvency Rules do you think? Should we also attach a copy of the CCJ to the affidavit do you think?

[Shawn0109]

Yes that looks good to me oh and another thing what you can di is apply for costs that you can submit 24 hours before any court hearing to set aside Stat Demand look at my thread http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/177871-me-lowell-financial-costs-6.html#post1946625 there is a post on there from 42man he is great on this stuff also he told me to get costs from the DCA I won my case and that was yesterday like I say when you attend the hearing just make sure you have done your research and be prepared incase the Judge asks you a certain question or 2 regarding it. You guys will be fine.

[palomino]

You're completely in the clear on this one. The CCJ supersedes the original debt and you have been complying with terms of the CCJ. They simply can't unilaterally vary a court order.

 

This is your reason for having the SD set aside.

 

You should also ask for reimbursement of the costs involved in researching and preparing for the set aside hearing. You can also include your travelling expenses for attensing court.

 

PS. When Phoenix reared their ugly heads you should have immediately started paying them the amount order by the court. You would be 110% in the clear then!

[Shawn0109]

This is what I said before ring them up for costs it has already beed said in the other posts, the debt with this company is disputed and it is also under an order of a CCJ with the original creditor so the Stat Demand is just set aside and you win with the costs you claim from the other side and also what the bet the other side wont turn up.?

[Welshwoofs]

PS. When Phoenix reared their ugly heads you should have immediately started paying them the amount order by the court. You would be 110% in the clear then!

 

 

Very true. OH was thinking about doing that but was rather suspicious that this company may not have anything to do with it at all and be pulling a fast one, especially after querying Northampton CC and hearing that the CCJ was still in the name of Yorkshire and no application had been made to change the creditor's details. That's why we sic'd a CCA and SAR on them to see if they had, in fact, been given notice of assignment and what exactly they were claiming for.

 

As their name is on the SD as assignee of the debt, is it worth popping them £40 of postal orders at this point to bring the payments up to date?

 

Oh and Shawn - well done on clobbering Lowells! Those buggers came after me a year back for a debt on a credit card I'd never owned after I had a tracer phone me to ask if I'd ever lived at an address I've never heard of. I managed to make them disappear back into the woodwork with a CCA and a further threat of reporting them to TS and the FSA.

[Shawn0109]

I dont know if you should send them anything it just dont sound right if North Hampton County Court is saying that the debt is still with Yorkshire it's a really confussing situation, considering this is the first you heared of them no default notice before action no notice of assignment nothing, it just sounds odd to me, I think they are pulling a fast one, I would still do the set aside if I were you and hand it in to your local court before the end of the week

[Welshwoofs]

Well we had information sent from them today which they're saying fulfills the SAR but I think otherwise.

 

There's a copy of a letter they supposedly went to my OH (but he's never received) which informs him that they've been assigned the debt but it's not a copy of the Notice of Assignment. The full statement of accounts appears to consist of a print-out of their account information which simply states my OH's name, info that he's a home-owner (he isn't), an employer name he's never worked for and a total amount of debt. There is absolutely no break-down of what this figure is made up of.

 

A note on the attached letter says they've applied to the lender for a copy of the credit agreement (so they obviously don't have that either).

 

So along with the set-aside going into the local court, Mortimer Clarke are going to get a nice little reply stating they have NOT fulfilled the requirements made under OH's SAR and they have still failed to prove they own the debt.

[palomino]

You should also lodge a formal complaint with them about providing someone else's details. This is a breach of the Data Protection Act which is considered to be serious.

Plan on taking this to the Information Commissioner.

[Shawn0109]

The first step is to get this set aside first come to the other details later like FOS and the OFT and the ICO.