CCJ Jugement in England reside in Scotland help

[jssandy01]

I need some help with this situation.

 

 

Got into a financial mess 3 years ago and still sorting things out.

 

 

Being chased for large debt by First credit.

 

 

They obtained judgement in the English courts (cardiff) in 2008.

 

 

I originally applied for set aside in 2008 due my living in scotland domicile etc. as we moved here in 2006.

They then took further action in 2008 and tried to get a charging order over my last address.

This failed as we had sold the house by the time action was taken,

however judge refused to set aside as I was partially disputing debt but mainly that I had not notified them of my change of address.

 

 

I did not notify the DCA as I did not know they had taken it over at the time.

 

 

Received new order from county court today (26th October) dated 22nd October stating

that we should pay balance by 22nd october ( a bit strange with dates I thought as this give no time to pay etc.

and date already passed is there a technical issue here?)

 

They have what I think is an enforceable agreement for credit relating to a house improvement .

Not sure what to do now as on jobseekers due to redundancy.

Can I re-apply to get set aside as I am note sure judge understood domicile issue previously.

 

Would appreciate some help on this and not sure what enforcement action they can take so very worried.

[rory32]

I would start by reading the following link which fully explains the issues surrounding domicile and jurisdiction as well as a sample defence Can I be sued in England? | free help from Govan Law Centre , Glasgow

 

Regarding getting it set aside I would hit the report button (the little red triangle on the left hand side of your post) and ask the site team for help with the process of setting it aside in an english court.

[Joemcm35]

The Civil Jurisdiction & Judgements Act 1982 covers jurisdiction issues in relation to court actions.

 

For individuals, jurisdiction is based upon where they are 'domiciled'(their place of residence) although there are a few exceptions but these are quite rare.

 

Accordingly, where a creditor is pursuing an individual for a debt then they should do so at the sheriff court within whose jurisdiction that the debtor resides.

 

Rory32 has given a good link to the Govan Law Centre which confirms the above.

 

On the face of it it appears that First Credit have erroneously obtained a CCJ and that should be challenged.

 

Depending on other household income, you may be able to get Legal Aid to challenge the CCJ.

 

Contact a local community law firm or solicitors who are capable of dealing with such issues.

 

Please note that even if you are successful in challenging the CCJ on jurisdiction grounds, First Credit may then commence legal action at your local sheriff court.

 

To enforce a CCJ in Scotland, the creditor has to register it for enforcement at the Books of Council & Session (Court of Session)

which will then give the authority for a Messenger-at Arms (Officer of Court similar to a Sheriff Officer)

to serve a Charge for Payment then after 14 days:

 

serve an earnings arrestment (does not affect JSA);

 

bank arrestment;

 

attachment of possession outwith your home (ie a car provided it is valued in excess of £1,000).

 

Alterntively, a creditor may pursue a creditors sequestration (bankruptcy) at the sheriff court.

 

You should also seek money advice from your local CAB or local council.

 

Depending on your financial circumstances (you did state that you are on JSA),

your housing status and whether you have assets

- there could be other options to defeat possible enforcement of the CCJ.

[jssandy01]

Hi, many thanks again Joe & Rory for this valuable information.

 

 

The CCJ is in joint names of both me and my husband as the debt is in joint names.

 

 

I am on JSA he is currently on a temporary contract, on a smallish income,and we own our own house with a mortgage.

I doubt we would qualify for legal aid.

 

 

As mentioned previously we did apply to get set aside once before but it was refused

and the domicile issue was not really taken into account as the judge considered the fact we had not informed anyone of chsnge of address

which was the key point.

 

 

It all went quiet for a long time after that and it has now just popped up with the order from the court.

 

 

Do we need a scottish Solicitor to make the callenge on our behalf?

 

 

Just concerned about costs.

 

 

Also would we be aware in advance if they decided to register at the Books of Council & session.

 

 

What other circumstances could there be to defeat enforcement as mentioned?

 

 

 

 

Many thanks. Great to have someone battig on your side with great advice.

[Joemcm35]

Challenging the CCJ could be done by one of 2 ways

(1) writing to the county court manager quoting the relevant information as detailed on the Govan Law Centre website as provided by Rory; or

(2) through a Scottish solicitor but they would have to instruct an English solicitor to make representation at the county court; or

(3) instruct an English solicitor directly to represent you.

 

Whichever of the above options you take,

a county court judge will have to decide on setting aside the CCJ but you stated that a judge has alreday done so

- "the judge considered the fact we had not informed anyone of chsnge of address which was the key point".

I find this to be peculiar but that would depend on the legal arguement at the time of the judgement.

 

As for legal aid, there are solicitors who provide an intial appointment for free during which they can assess

whether you would qualify for legal aid - bearing in mind that legal aid may only cover some of the costs.

 

Regarding the CCJ being registered at the Books of Council & Session,

the creditor's solicitor may not do so as this is not required by law.

 

 

The first that you might know about it is when a Messenger at Arms serves a Charge for Payment (COP)

which gives you 14 days to find a solution otherwise First Credit will then consider enforcement as I have previously mentioned.

 

Given the fact that you are homeowners, an insolvency option is not feasible unless you were in a negative equity situation.

 

Other options are:

 

An Application for a Time to Pay Order at the local Sheriff Court can be made

but this must be done within the 14 days of the date of the COP

but you will have to be able to offer a reasonble repayment for the application to be successful.

 

The Scottish Government Debt Arrangement Scheme is a possibility but you will have to be able to offer a reasonble repayment for the application to be successful.

 

The fact that you are on JSA and your husband is on a "smallish income" may not make those two options as being feasible.

 

An alternative option is to propose a payment plan which is realistic to your circumstances.

 

I would strongly recommend that you consult a money advisor at CAB or your local council - you can find one at the following link:

http://www.moneyadvicescotland.org.uk/debtadvice/find_agency.php

 

You can also find useful information on the National Debtline website:

http://www.nationaldebtline.co.uk/scotland/.

 

First Credit may be prepared to come to a reasonable arrangement with you as they are under the watchful eye of the Office of Fair Trading

as they were found to be in breach of the Debt Collection Guidance.

 

Do not wait any longer, make urgent contact with First Credit preferably through a money advisor.

 

Best of luck.

Edited October 29, 2009 by Joemcm35