Quick question about a CCJ that was set-aside

[just_jue]

Hi everyone,

 

After getting some excellent help off here regarding a CCJ which was set aside due to the paper work being sent to old address I have one question.

 

Even though when I put in my defence I didn't admit the debt does this start the SB clock ticking again due to the original court proceedings as in January the debt becomes Statue Barred. I have been looking around this forum and the web but cannot see anything

 

Thanks

 

JJ

[broken arrow]

I would say no.......

[just_jue]

Hi, thanks for that so if we have a hearing after the SB date can I write back to the court and solicitor saying the debt is now SB?

 

JJ

[the_shadow]

I think you should get professional opinion on this, most legal firms run surgeries or free sessions.

 

The reason I say this is cos something is stuck in the back of my mind that the SB clock stops when court action is initiated, I could be wrong and I hope so but I have a nagging doubt. The fact the documents were sent to an invalid address I dont think will help. They have six years to commence legal action not six years to obtain the judgement.

 

 

S.

[Jasper1965]

They have six years to commence legal action not six years to obtain the judgement.

 

 

S.

 

In a nutshell sadly.

[broken arrow]

You can argue that the creditor is out of time or “statute barred” from taking you to court for this debt:

if

• The creditor has not already obtained a judgment against you
  

and

• You, or any one else owing the money (on a debt in joint names) have not made a payment on the debt during the last six years
  

and

• You have not written to the creditor admitting you owe the debt during the last six years.
  

[just_jue]

Thanks for your opinions, this is what was making me think.

 

The way I look at is if it 6 years between payments or acknowledgement surely and DCA or solicitor could start legal proceedings 5 years 363 days to reset the SB clock then this would go on and on.

 

It seems through reading this forum site that a lot of DCA are sending documents to old addresses to get judgements via default s

o I would expect that their will be quite a few people in my position

and some people who don't even know they have a judgement against them.

 

JJ

[just_jue]

Just searching came across this web site (someone doesn't like the CAG!): http://www.csa-uk.com/csa-news/6/statute-barred-debt%E2%80%A6-to-collect-or-not-to-collect-that-is-the-question

[the_shadow]

Thanks for your opinions, this is what was making me think. The way I look at is if it 6 years between payments or acknowledgement surely and DCA or solicitor could start legal proceedings 5 years 363 days to reset the SB clock then this would go on and on.

It seems through reading this forum site that a lot of DCA are sending documents to old addresses to get judgements via default so I would expect that their will be quite a few people in my position and some people who don't even know they have a judgement against them.

 

JJ

 

No you misunderstood me... bringing legal proceedings doesnt restart the clock but it brings it to a head... if you win its null and void anyway, if they win they get a CCJ. They cant initiate court activity on 5 yrs 363 days and then discontinue and expect to be able to bring proceedings again as the sb limit would have passed. In this case they got the default judgment which is now set aside and it puts you back to the stage of trial.

 

S.

[the_shadow]

Just searching came across this web site (someone doesn't like the CAG!): http://www.csa-uk.com/csa-news/6/statute-barred-debt%E2%80%A6-to-collect-or-not-to-collect-that-is-the-question

 

Ooo yes, it seems we're not liked there, I wonder why

 

S.

[just_jue]

So would it be a dangerous path to go down saying the alleged debt is statue barred when and if the court date comes?

 

JJ

[the_shadow]

Well if you claim it, it would be up to the claimant to prove otherwise... a letter from you acknowledging the debt or a payment of some kind within the 6 year period prior to legal action would suffice.

 

As I say it may be worth getting professional opinion on such a key issue, I'll ask the rest of the site team.

 

S.

[just_jue]

Thank you Shadow. I will seek some professional advice as the amount they are claiming and the amount via the statement they have sent in my eyes is completely wrong to what I think it should be.

 

JJ

[the_shadow]

If the amounts differ you can demand a breakdown of the debt and hows it built up by sending a request under CPR18, these are formal requests but we can help you put them together and send. What stage is the claim at at the moment?

 

Like I said, I've asked the other members of the site team for there thoughts on the SB issue.

 

S.

[just_jue]

At the moment I have sent back the AQ and had a letter back from the court saying the that the creditor had to send their AQ back before 16th or it will be struck out.

 

JJ

[Ganymede]

They have six years to commence legal action not six years to obtain the judgement.

 

 

This is correct. The claim cannot be SB now.

[DonkeyB]

Elmes v Hygrade.rtf

 

Unless... the claimant KNOWINGLY instigated proceedings without due cause to get around the SB. You cannot instigate proceedings purely to avoid the debt becoming SB. If the claimant had ANY knowledge of the claimant’s true address, then it could feasibly progress to SB stage. The correct process would have been for the claimant to request an extension of time to serve papers.

 

There is case law on this.

 

Elmes v Hygrade, attached.

 

A claim submitted in time, but incorrectly, can be invalid. There’s some other, more relevant case law that I’m trying to find.

 

However, you would have had to have cited such evidence of malpractice in support of your set aside application, I think, and included the case law.

Edited December 22, 2010 by DonkeyB

[DonkeyB]

So did the claimant or claimant’s solicitor deliberately send the claim to an old address? Were they aware of your true location? Clearly they found you after judgment.

 

Sounds like a Bryan Carter trick.

Edited December 22, 2010 by DonkeyB

[sillygirl1]

Also if you proved that they had written to you at your new address then issued the claim at your OLD address this could also be considered for a complaint to the Court Users group and the OFT and Trading Standards. I bet you could also use your credit files to prove they had searched and knew where you lived....

[just_jue]

Hi, thanks for all your input. The solicitor and the OC did have my new address as I had correspondence from them which I showed to the judge in the set aside hearing. The gun for hire solicitor argued that the ccj should be set aside but the judge said he had no option as they had my new address.

 

JJ

[DonkeyB]

In which case you could possibly have argued that this blatant abuse of process should be completely disallowed. Bit late now probably.

 

Was the claim properly formed, ie. did they have documents to back it up, or was it a weak claim with little chance of success? Or were they struggling to get documents in time? If it’s the latter, that too is an abuse of process which relates to the other case law I’m looking for – the point being a strike out may have been possible rather than just a set aside.

[just_jue]

Here's the original post: http://www.consumeractiongroup.co.uk/forum/showthread.php?262706-help...got-a-CCJ-on-the-full-balance-for-a-car-they-got-back-after-4-weeks!!

[DonkeyB]

01 Pickthall v Dickinson.rtf

 

Here’s another bit of case law that relates to someone bunging a claim in to try and avoid going out of time, and getting their fingers burned.

 

Having read through your thread I don’t now think it’s relevant, but always worth tucking away for a rainy day.

Edited December 22, 2010 by DonkeyB