Expired CCJ on Student Loans now being pursued by Link Financial

[PointyFacedCat]

I got a letter today from a Student Loans company demanding a little under £5,000.

(This isn't the normal Student Loans Company but a company that buys Student Loans.)

 

I have 3 pre 1998 Student Loans (old-style loans).

After I left Uni I deferred for a year or two but then I got ill (mental health issues) and even though I wasn't earning anything/enough to pay back the loans I stopped deferring them.

I got letters for a while which I ignored and after a while I even stopped opening letters that looked like bills/debt letters etc.

 

After a while the letters stopped coming and I haven't heard anything about student loans for years and years.

(Although not totally better I am recovering slowly and do now open my post!)

 

As I haven't ever paid this debt and haven't acknowledged it for 6+ years I was going to use the Limitations Act to say they were Statute Barred.

 

However I was searching a pile of old unopened post today to try and find more details about my student loans as the reference number on the letter is not a student loan number.

I did eventually find some student loan paperwork and the 3 loan numbers I have are all different to the referance number on the letter,

but the amount seems about right if you added them altogether and added some costs on.

 

while doing this I came across a CCJ for my student loans that was decided in their favour by default as I didn't respond to the claim.

This CCJ is dated 2001.

I did not know I had this CCJ until today.

The amount on the CCJ is about £500 less than what they are now asking for.

 

They have not enforced this CCJ.

I have never had bailiffs come round.

I have only lived here and at my parents house since leaving Uni, so it's not like they couldn't find me.

 

Now I'm not sure what to do.

 

I can't use the statute barred route because of the CCJ.

(Kind of wish I'd never found the CCJ letter - the CCJ does not appear on my credit report, so if I hadn't found the letter I wouldn't have known about it).

 

However from reading forums online/calling helplines

I have discovered that CCJ's that are over 6 years old cannot be enforced unless they go back to court again.

The general consensus seems to be that courts rarely let them renew the CCJ as they should have enforced it sooner.

 

Some forums advise asking for a copy of the original CCJ,

then if they cannot provide this,

they say you can the go down the Statute Barred/Limitations act route

as when you do this the creditor has to prove that there's been a CCJ & been payment/acknowledgement,

and as they can't do that the debt then cannot be enforced.

 

If this is true please could someone talk me through how to do it?

Doesn't asking for an original CCJ document prove that you know there was a CCJ destroying the whole statute barred argument?

Or can I just request all documentation - would the CCJ be included in this?

 

Other places advise that I should just write saying I do not acknowledge the debt and accept no liability for it and therefore won't be paying it, then wait and see what happens.

 

Other advice was just wait till the bailiffs come,

don't let them in (advisor said they have no right to come in), and then apply to court to vary the CCJ to an amount that I can afford.

(They said I shouldn't do this yet, as I might end up paying money I don't have to.

This is because when they apply to renew the CCJ they might be turned down).

 

How can I tell if they have been back to court to get the CCJ renewed?

Are they allowed to chase me now if they haven't already got the CCJ renewed?

Would I be told if they were planning to go to court to renew the CCJ, in which case could I defend myself from it?

 

Sorry it's such a long post, but I think that explains everything. Hope it all makes sense. I'm really confused and very stressed about this.

 

Please can someone help me with this and advise what I should do and if possible point me in the direction of sample letters?

 

Thank you very much

Edited July 17, 2012 by PointyFacedCat
wanted to make sure I can't be identified

[cerberusalert]

A CCJ doesn't become SB, but unless they enforce it within six years they will have to apply to a court for permission to do so however;

 

Section 24 of the Limitations Act 1980....

 

(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

 

(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

 

For this reason alone, cc judges would not normally allow enforcement.

[cerberusalert]

How can I tell if they have been back to court to get the CCJ renewed?

Are they allowed to chase me now if they haven't already got the CCJ renewed?

 

Check with http://www.trustonline.org.uk/ if there's no record then the CCJ has expired and has not been renewed.

[PointyFacedCat]

Thank you Cerberusalert,

 

Ok, so assuming I check trustonline and the CCJ hasn't been renewed, what should I do?

 

Could I just write to the creditor saying something like:

 

"RE. ref number xxxxxxxxxxxxxxxxxxxxx

 

I do not acknowledge this debt. I accept no liability for it.

 

The CCJ you took out in 2001 has expired therefore you are no longer able to enforce this debt. This is backed up by:

 

Section 24 of the Limitations Act 1980....

 

(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

 

(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

 

Therefore I will not be paying it.

 

I await your written confirmation that no further contact will be made regarding the above account and now consider this matter closed"

What do you think?

 

Any other comments would also be appreciated.

 

Thank you so much

Edited July 17, 2012 by PointyFacedCat

[cerberusalert]

Unless they've mentioned the CCJ I wouldn't bother bringing it up, go for the kill & send the SB letter, it is up to them to prove it isn't. If they do come back and mention the CCJ then hit them where it hurts with s.24 of the Limitations Act 1980.

[PointyFacedCat]

Ok, thank you very much

[dx100uk]

great advise

 

i take it this is link financial posing as the SLC?

 

dx

[PointyFacedCat]

No it's actually a company called Honours Student Loans. Which I don't think is a normal DCA but a company that specialises in buying student loans off the government. They say they're reviewing my account for a home visit.

 

However my partner (he's had a lot of issues too) is in almost the exact same situation as me (pre 98 student loans, haven't paid or acknowledged for more than 6 years and has an unenforced 2001 CCJ) and he is being contacted by Link Financial Outsourcing.

 

They say he's been trying to evade them (he's lived at our address for 13 years and they have that address, so he hasn't evaded them) and say their next course of action would be to increase what he owes. It says the balance will increase if they have to add interest, legal fees and court costs.

 

I can't afford to check trustonline until tomorrow, so am going to check it tomorrow for me and my partner and assuming they haven't already been back to court and got the CCJ's renewed I'm going to first of all send the statute barred letter.

 

Hopefully they can't prove they got a CCJ way back when. If they say they have got one I'm going to ask to see a copy of the original CCJ judgement. From what I understand from checking other online debt forums is that if they can't provide a copy of this then they can't prove there was a CCJ so it counts as statute barred.

 

If they do have a copy of this then I'll send the letter saying that as it is over 6 years old it cannot be enforced.

 

If they do go back to court to get it renewed then hopefully they'll loose, and I'll be ok as they can't enforce on the debt.

 

If they do manage to get the CCJ renewed then I'll apply to the court to vary the conditions of the CCj to an amount that I can actually afford. At the moment this'd be about £1 a week or something really small like that.

 

Does all this sound ok to everyone?

 

Again any comments and advice are greatly appreciated. Thank you.

[cerberusalert]

Hopefully they can't prove they got a CCJ way back when. If they say they have got one I'm going to ask to see a copy of the original CCJ judgment.

It really doesn't matter whether they can prove they obtained one or not, if the six years have elapsed and they haven't applied for an extension (which is highly unlikely) they're stuffed as per post #2. A court deems that six years is adequate time to apply for enforcement & unless they can prove extenuating circumstances such as fraud they would not get the courts permission to pursue.

 

Even if they were daft enough to try and get a courts permission because of the age of the judgment all documents will be archived so they would have to provide the case number. They will not be the ones who initially applied for the CCJ so it won't even be registered in their name so again would have no claim.

If they do manage to get the CCJ renewed then I'll apply to the court to vary the conditions of the CCj to an amount that I can actually afford.

No need as it ain't going to happen.

[dx100uk]

it very very rare for a CCJ to be re-activated after 6yrs

 

me thinks in both cases they are just phishing for a mug that knows no better

 

if the CCJ's we that long ago, the'll not b on trust site either.

 

if they had been back to court & they got any of the ccj's re-activated under THEIR name

 

i can assure you, they would not be sending simple threat-o-grams!!

 

time to ignore totally me thinks!!

 

both companies are trying to spoof the two of you.

 

dx

[PointyFacedCat]

OK, thank you for reassurance.

 

Sorry to keep asking questions but I just want to be totally clear in my mind what I should do.

 

So to confirm, do you both think the best course of action is just to ignore the letters totally? Or should I send the statute barred letters as per post #5?

 

For peace of mind I sort of feel like I should send some sort of letter so I can hopefully get one back from them saying something like "This matter is now closed we won't be contacting you any more". Or am I being a bit naive/hopeful that they'd cave in and admit that they don't really have a leg to stand on so easily. Link financial sound like a bit of a nightmare judging by some of the other posts I've read.

 

Also Honours Student Loans have phoned my Mum a few times in the last few weeks, they actually started phoning her before I got the letter from them, this is another reason I'd like to get the matter sorted as I feel like if I ignore it they'll keep pestering my Mum. If the advice is to ignore them totally and they keep phoning my Mum shall I get her to send a letter threatening to go to OFT?

 

Thanks again for all your help and for being so patient.

[cerberusalert]

Once you've determined there are no active CCJs send the SB letter. The onus is then on them to prove otherwise.

 

If they continue to pester anyone they will be in breach of OFT guidelines and could also be prosecuted for harassment.

[PointyFacedCat]

Thank you ever so much.

 

Will let you know how I get on.

[PointyFacedCat]

Hi

 

I checked trustonline today for both me and my partner and both of us have nothing registered! Am really pleased! (Just searched on England & Wales Order & Judgement, that's enough isn't it?)

 

Have got statute barred letter ready and am going to post recorded delivery tomorrow.

 

Thanks again, will let you know how it goes.

[dx100uk]

ruddy fleecers.

 

dx

[PointyFacedCat]

Lol

[cerberusalert]

Send the SB letter & see what they come back with. They may try to say a phantom payment has been made but it is still up to them to prove it.

[PointyFacedCat]

OK, thank you,

 

You've been gr8, very helpful!

 

Definitely know we've never paid, (or acknowledged) - didn't even have bank acct for years(!) so think they'll have their work cut out there!

[PointyFacedCat]

Hello again,

 

I have not yet heard back about my debt from Honours Student Loans, but my partner got a response from Link Financial today. (He's in exact same situation as me).

 

The letter went:

 

"Loan account number: XXXXXXXXXXXXXXXXX

 

Thank you for your recent letter regarding your student loan.

 

Whilst we acknowledge your assertation that the matter is statute barred, a simple contract matter only becomes subject to limitation after six years has expired with no acknowledgement of the debt.

 

However if an account has had a County Court Judgement secured, an account cannot be cancelled under the Limitation Act 1980. As a County Court Judgement was secured by the Student Loans Company under claim number XXXXXXXX with a Judgement balance of £XXXX.XX which was transferred to XXXXXXX County Court (our local Court), your account cannot be cancelled under section 5 of the Limitation Act.

 

Therefore, please contact our account officers with your proposals to redeem your remaining Judgement balance of £XXXX.XX by return.

 

If you have any questions or queries in relation to this letter please feel free to contact our office today on XXXXX XXXXXXX; our Account Officers are avaiklable to assist you from......"

It goes on to list their opening hours.

 

 

So - what do you think?

 

Please see below my preposed response followed by some questions I have regarding the letter they've sent and what my reply should be.

 

I'm thinking of sending something back which is along the lines of the following (I'm writing it on behalf of my partner so an going to write it as though I am him):

 

"Re. Loan number: XXXXXXXXXXXXXXXXX

 

I do not acknowledge this debt.

 

You state that there has been a CCJ obtained to enforce this debt. However on 19/07/12 I checked my credit report and The Register of Orders, Fines and Judgements and neither of these show a CCJ. This means that the alleged CCJ that you obtained must be over 6 years old and as such it is un-enforceable. This is because....

 

Section 24 of the Limitations Act 1980 states that:

 

(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

 

(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

 

As you are currently legally unable to enforce this judgement I suggest that there is no further action you can take to recover the alleged amount claimed. Therefore I will not be paying it.

 

I understand that you can apply to the court to extend the CCJ, however as there are no extenuating circumstances as to why you did not enforce the debt within the allocated six year period, it is extremely unlikely that any judge would find in your favour. (Not sure whether to include that or not?)

 

I await your written confirmation that this matter is now closed and that no further contact will be made concerining the above account after that last confirmation letter."

 

Questions:

1) What do you think of the letter they sent? It seems ever so polite which makes me think that they know they haven't really got a chance, do you agree?

 

2) I find it odd that they do not state the date of the CCJ!! (2001). Do you think I should acknowledge the fact that I know the CCJ was obtained in 2001? (Even though I didn't know there was a CCJ until last week?) Would that improove or hinder my case? Why on earth have they waited 11 years?

 

3) Does it make a difference that the CCJ was obtained by the Student Loan Company and not by Link Finance?

 

4) I have no idea what they mean when they say that the CCJ was transferred to my local court - I have no knowledge of this. The only paperwork I found mentioned Northampton County Court. Does this matter?

 

5) What do you think of the letter I've written? Are there any template letters for this sort of circumstance? Is there anything else I should put?

 

6) Do you think I should include the paragraph where I mention that I know they could apply to extend the CCJ but that they're unlikely to succeed?

 

7) Do you have any other advice/tips etc - any help you can offer me is greatly appreaciated.

 

That's all for now I think. Once again I'd like to thank you for your help and apolgise for such a long waffly post!

[Mike_hawk]

PFC

 

They can rely on RSC 46 http://www.justice.gov.uk/courts/procedure-rules/civil/sched_rsc/rscorder46 but, as you point out above they would have to rely on extenuating reasons for the delay.

 

One other issue for them is that they are not the judgment creditor, they'd need to make application to the court and you'd assume apply to enforce at the same time. It would be a fairly substantive matter for the court to consider so would/should be afforded a hearing. You'd have the opportunity to address their supporting statement/evidence and rebutt as necessary.

 

Personally I wouldn't give them any more information than they already have, if they're inclined to drag this back to court they'll do it anyway.

 

You could question the veracity of their recent correspondence, ask them for the details of the CCJ [case number etc], date of judgment, value of judgment, date they applied to be sustituted as party to claim ....... they may come unstuck with this if they haven't acted to substitute within 6 years of judgment see CPR 19.5 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19#IDAIHKCC

 

Just read your letter again in the previous post, would keep it simple and ask them the date they applied to be substituted in the case.

 

As always, state that you do not acknowledge any debt to them

 

Phil

Edited July 25, 2012 by Mike_hawk

[Mike_hawk]

I suppose it would help if I made an attempt to try to explain the effect of limitation on substitution.......

 

CPR 19.5 relies on the substitute claimant making application within the 6 year limitation period. The act of application is entirely within its control, any prejudice for failing to apply sits squarely on its shoulders. There is nothing within the judgment debtors control which could prejudice the claimants failure to act within the period.

 

Whereas, for the claimant to rely on RSC order 46 rule 2, it would need to show that it has actively attempted to bring enforcement within the limitation period. For the court to subsequently deny it relief due to a 'gone away' or untraceable debtor would/could be deemed a prejudicial act by the judgment debtor.

 

Westacre http://www.bailii.org/ew/cases/EWHC/Comm/2008/801.html at para 26 sort of sums up the courts position:

 

"It seems to me that in this case there are facts which take this case out of the ordinary. From the very outset, Judge Longtin must have known that Lloyd's remained intent on enforcing their rights against him. There can be no prejudice to him. Lloyd's have remained active in seeking to have recognised and enforced the many judgments which they have obtained. In the course of this massive task they must be allowed time to consider their position and to adopt stances which reasonably appear to them to be the best way of proceeding."

[dx100uk]

i note with some surprise upon your inferance that an alleged & now expired CCJ by the SLC somehow gives link financial magic powers to chase a debt that is statute barred.

When and if you manage to convince a judge that you can be substituted as the claimant on the alleged & expired CCJ & convince him to enforce it, i will be pleased to provide my statute barred defense.

In the meantime, & until i receive such a court document, your letter of the xxxx & any further commnication from yourselves will be forwarded to the relevent bodies in a complaint regarding your unlawful actions upon this alleged debt.

 

i would send the above

 

KISS

 

dx

[Mike_hawk]

i note with some surprise upon your inferance that an alleged & now expired CCJ by the SLC somehow gives link financial magic powers to chase a debt that is statute barred.

When and if you manage to convince a judge that you can be substituted as the claimant on the alleged & expired CCJ & convince him to enforce it, i will be pleased to provide my statute barred defense.

In the meantime, & until i receive such a court document, your letter of the xxxx & any further commnication from yourselves will be forwarded to the relevent bodies in a complaint regarding your unlawful actions upon this alleged debt.

 

i would send the above

 

KISS

 

dx

 

I like your thinking, lol

[PointyFacedCat]

Wow - you guys are great!

 

I need a bit of time to get my head around this - I really struggle with all the legal stuff,

 

Just to clarify - unless Link applied to the Court to become substituted as the claimant (instead of SLC) within 6 years of the original CCJ, then they cannot enforce the CCJ and there's nothing they can do to recover the alleged debt?

 

So I need to ascertain if/when they substituted, (seems unlikely that they did to me).

 

If they did substitute within 6 years of the CCJ then they could try and use RSC order 46 rule 2? Is that right?

Also would the 6 years re-start when they substituted (if they did) or does it go from the original date of the CCJ?

 

Quote from post 21: "Whereas, for the claimant to rely on RSC order 46 rule 2, it would need to show that it has actively attempted to bring enforcement within the limitation period. For the court to subsequently deny it relief due to a 'gone away' or untraceable debtor would/could be deemed a prejudicial act by the judgment debtor."

 

Sorry to be thick but I don't understand the sentence in italics. Does this mean that if the claimant could prove that they couldn't trace the debtor to enforce the CCJ then the Judge would find in their favour?

( If that's the case then fortunately I don't think they can use this defence as my partner has lived at this address for 13 years and gave the Student Loan Company this address when he moved in).

 

Also I'm afraid I don't quite understand the Westacre para 26 quote (in post 21). Could you explain this a bit more for me? Thank you so much mike_hawk.

 

Also D thank you for your suggested letter - is great, lol. Although also want to check about the statue barred defence bit. Didn't think I could use a statute barred argument any more as there has been a CCJ on this debt? (Even though it's expired and was taken out by different people to those chasing me now.)

 

I will probably back again with more questions and maybe another draft letter soon!

 

Thanks again for all your help,

 

PointyFacedCat x

[Mike_hawk]

Ooer, that's a lot of questions with far too many variables that could impact any decision you make

 

You could have a scenario where Link entered into equitable assignment with a put back option [sLC would persist as claimant], they could try to convince the court that [on the balance of probability] they had been attempting to contact you with a mind to enforcement during the limitation period. They could argue that Link were an extension of their attempts.

 

Could all hang on the toss of a coin if it went back before the court.

 

Tried to answer as best I can below

 

Phil

 

 

Wow - you guys are great!

 

I need a bit of time to get my head around this - I really struggle with all the legal stuff,

 

Just to clarify - unless Link applied to the Court to become substituted as the claimant (instead of SLC) within 6 years of the original CCJ, then they cannot enforce the CCJ and there's nothing they can do to recover the alleged debt?

 

Not necessarily, the court may be persuaded to grant it relief now or in the future. Depends how it pleads the issue, and how any application were defended.

 

So I need to ascertain if/when they substituted, (seems unlikely that they did to me).

 

I think it would be helpful to ask them for a copy notice of assignment, whether equitable or absolute and confirmation of the date they applied [if any] to substitute.

 

If they did substitute within 6 years of the CCJ then they could try and use RSC order 46 rule 2? Is that right?

 

Correct, they'd rely on caselaw upheld on Supreme court rules

 

Also would the 6 years re-start when they substituted (if they did) or does it go from the original date of the CCJ?

 

As I understand it, yes.... s35 of the limitation act would apply, hard to believe they wouldn't have applied for some measure of enforcement at substitution though.

 

Quote from post 21: "Whereas, for the claimant to rely on RSC order 46 rule 2, it would need to show that it has actively attempted to bring enforcement within the limitation period. For the court to subsequently deny it relief due to a 'gone away' or untraceable debtor would/could be deemed a prejudicial act by the judgment debtor."

 

Sorry to be thick but I don't understand the sentence in italics. Does this mean that if the claimant could prove that they couldn't trace the debtor to enforce the CCJ then the Judge would find in their favour?

( If that's the case then fortunately I don't think they can use this defence as my partner has lived at this address for 13 years and gave the Student Loan Company this address when he moved in).

 

Also I'm afraid I don't quite understand the Westacre para 26 quote (in post 21). Could you explain this a bit more for me? Thank you so much mike_hawk.

 

There's a few cases listed at the following link, may assist ........ then again may confuse

 

http://www.parkcourtchambers.co.uk/seminar-handouts/20707%20Substituting%20party%20after%20limitation.pdf

 

 

 

Also D thank you for your suggested letter - is great, lol. Although also want to check about the statue barred defence bit. Didn't think I could use a statute barred argument any more as there has been a CCJ on this debt? (Even though it's expired and was taken out by different people to those chasing me now.)

 

I will probably back again with more questions and maybe another draft letter soon!

 

Thanks again for all your help,

 

PointyFacedCat x