Statute Barred? Consent Order

[Gaston Grimsdyke]

I would assume Donkey its to enforce the judgment with view to a CO.Their only sticking point is why leave it so long hence the DJ discretion that there must be an hearing.Just for clarity its the claimants responsibility to arrange payment mandate with regards to Consents and TO,s.

 

Andy

 

No it is not the Claimant's responsibility. It is settled law that it is the debtor's duty to seek out his creditor, not the other way round. Anyone using the excuse of "Oh I didn't know how I was supposed to pay, and they didn't chase me so I didn't bother" will get short shrift from a judge.

[DonkeyB]

Well, not paying the amount agreed on the consent order would mean they were entitled to apply for judgment. What you are saying is you would want a new consent order agreed, which is (a) unlikely without negotiation and (b) has no legal base, afaik.

 

The point is that once the consent order was agreed, SCM made no attempt to provide you with the info you needed to pay. You could well argue that their failings have prejudiced you, and your worse financial circumstances now mean you are in no position to repay as per the consent order. Moreover, they have made no attempt at all to contact you – have they sent any annual statements regarding the account? Are they adding interest? This works against them, their non-contact.

 

Your willingness to share the blame is commendable, but why bother? The ball was in their court and they have not even sent the legally-required annual statements of account!

[DonkeyB]

No it is not the Claimant's responsibility. It is settled law that it is the debtor's duty to seek out his creditor, not the other way round. Anyone using the excuse of "Oh I didn't know how I was supposed to pay, and they didn't chase me so I didn't bother" will get short shrift from a judge.

 

Can you point us to the ‘settled law’, GG? Would be useful for future reference. Ta.

 

However, adamski has received ZERO contact – not even an annual statement as required by law! So it cuts both ways, IMO.

[adamski]

If it was my responsibility by law to seek out the creditor why has judgement simply not been issued against me?

[DonkeyB]

Because I imagine the judge wants to hear both sides.

 

Could you pay the monthly amount specified in the consent order?

 

I’m still puzzled how a consent order could have been agreed without you interacting with SCM. Did you sign one?

[DonkeyB]

... and I imagine a question the judge should ask of them is ‘why have you not acted on this matter sooner, or contacted the defendant?’

 

or... ‘Why have you not sent the annual statements that the law requires?’

 

Actually, the judge may not ask these questions – so you MUST!

[adamski]

I could afford it at a push maybe £20 would be better, I seem to remember just interacting with the court I may well have defended the action, yes I signed the order but it was from the court im sure

[DonkeyB]

Mate, you have some huge, gaping holes in your recollection of all this, which makes giving solid advice a bit difficult.

 

Haven’t been infected by Leveson, have you!

[AndyOrch]

No it is not the Claimant's responsibility. It is settled law that it is the debtor's duty to seek out his creditor, not the other way round. Anyone using the excuse of "Oh I didn't know how I was supposed to pay, and they didn't chase me so I didn't bother" will get short shrift from a judge.

 

Every Consent/TO I have had dealings with, a DD or a SO mandate is pre enclosed with the creditors account details and authority signature amount agreed of mthlt/wkly payment and the date of payment commencement.

[AndyOrch]

Consent/Tomlin orders are drafted by the Claimant not the court, they just seal them.

 

Andy

[DonkeyB]

Indeed. adamski, you would have had to receive the draft consent order & schedule, sign it, then send back to SCM for them to take it to court and have it sealed. Do you still have a copy of the consent order? You should have been sent a sealed copy.

[adamski]

sorry guys then I guess it was from SCM sorry it was over 2 and a half years ago and the account was last used nearly seven years ago not an excuse I know, I cannot find the consent order, I remember sending it to county court though

[DonkeyB]

No worries – I am just concerned that your lack of documents and detail could make arguing against them a bit difficult. My previous suggestions of questions for them remain valid, however.

[adamski]

I will try to find the order thanks for your time guys

[Gaston Grimsdyke]

Can you point us to the ‘settled law’, GG? Would be useful for future reference. Ta.

 

However, adamski has received ZERO contact – not even an annual statement as required by law! So it cuts both ways, IMO.

 

It's an established principle - just Google it and you'll find dozens of cases where it's been applied.

 

As for annual statements, it's an overdraft not a fixed sum credit agreement so no requirement to send them.

[Gaston Grimsdyke]

Every Consent/TO I have had dealings with, a DD or a SO mandate is pre enclosed with the creditors account details and authority signature amount agreed of mthlt/wkly payment and the date of payment commencement.

 

Yes, of course it is good practice for the creditor to give these details to assist with payments, but if for any reason they don't it's down to the debtor to chase them up. At the very least the debtor can send a cheque.

[blondie 27]

I totally agree with Gaston, its your debt you agreed to pay a reduced figure so why should they chase you, the whole point of a consent order is if you dont pay they get judgment!!!

 

Unless on the consent order it states they will give you extra time to pay if you miss your payments?

 

just saying!

[AndyOrch]

Part of the Consent/Tomlin agreement lays out the timing/amounts of payments.The drafts man includes the payment method and mandate to initiate the payment.Try ringing a creditor for their bank details see if they will divulge.

 

Andy

[blondie 27]

Well f your ringing the creditor then pay!!!!!!

 

Looking forward to see what the judge says about this!

[AndyOrch]

2 and half years they have done nothing, now why would that be I wonder, of course to enforce judgment with a view to attaining a CO.Look at the bigger picture.

[AndyOrch]

Looking forward to see what the judge says about this!

 

 

So do I thats why he as insitsted on an hearing against the Claimants wishes!

[DonkeyB]

blondie, the OP acknowledges the debt and is not trying to avoid it. The claimant has not exactly done this by the book. Why should adamski not have the right to oppose judgment, or defend a request for a CO? Just a bit puzzled... would be interesting to see a copy of the actual schedule though.

[Gaston Grimsdyke]

Can't see where it says in the book that a Claimant must enforce a breach as soon as possible. When the judge hears that the OP decided not to pay, despite signing a consent order saying he/she would, because no one chased him/her up for it I think it is highly likely judgment will be entered. However, it is also likely that the judge will disallow accrued interest since the consent order because of the delay in applying for judgment. I suspect that is the reason the application has been listed.

[AndyOrch]

Common sense would prevail, shouldn't need to be in any book, the schedule will state in case of default we reserve the right to enter judgment not (in or around 2 and half years when it will look better for our case and more supportive of a CO application)

 

Devils advocate here, yes Adamski should have queried the payment arrangement but the overall responsibility lies with the Claimant.

[Gaston Grimsdyke]

Sorry the OP's failure to pay is the fault of the Claimant?