Should I apply to get a CCJ set aside?

[JackieJ]

Hi there, thought I had posted this but it appears to have disappeared? Anyway, hope you can help. In March 2010, my employer advised me that for the second time in my employment with them, they had made a mistake and overpaid me for 2 years. (I had repaid the first overpayment which happened when I returned from maternity leave and changed my hours). This time, the overpayment was around £4K. I had adjusted my working hours for childcare reasons and had only dropped a couple of hours so didn't expect to see much of a change in salary. Further to that, I had received a pay rise so didn't notice the overpayment. Then in June 2010, they advised me that they had made a further mistake and the debt was now nearer £5k!.

I agreed to repay £50 a month which they took as a gross repayment and I repayed £950 before taking redundancy. This worked out around £32 per month net.

On leaving work, I went to college to re-train and therefore had no salary. I entered into discussions with my ex-employer who were demanding £60 per month net. I explained that I felt it was unreasonable for them to demand repayments that were double what they had accepted while I was in employment when I was not earning.

I made an offer of £20 per month which they rejected demanding £30 which again I disputed saying that they could not expect me to pay the same amount of money that I had when I was employed when my circumstances had changed so dramatically. (The problem is that I cannot find this e-mail anywhere - a number got lost when I moved from BT internet to gmail). I heard nothing then until a letter came saying they were taking me to court; which I am embarrassed to say that I ignored. I have now had a letter saying a CCJ has been registered against me and if I do not pay by 28 March, they will commence legal enforcement.

I work as an actor now but I have no regular income and am currently not working other than some casual front of house work at a local theatre but there is no guarantee that I will have regular work. My husband has an income so I am not entitled to any benefits but things are not good between us and I do not receive money from him as he pays all the household bills, mortgage and food etc. I don't know whether to just start paying them the £20 a month I originally offered or to apply to the court to get the judgement set aside. Can anyone advise me please?

[BRIGADIER2JCS]

You will have to have a good reason to get the judgment set aside and be able to defend the original claim.

 

 

Having ignored the claim originally will not be a good reason for set aside.

Is the judgement for the full amount within say 7 days, with no repayment schedule?

You have no income it seems, no employment so they cannot apply for an attachment of earnings

 

 

Is the house in joint names?

 

 

If you have no assets or income enforcing the judgement will achieve nothing.

 

 

I suggest writing to the boss of your ex employer laying out your financial status and offer only what you can reasonably afford to pay, a court would order only what you can afford anyway.

[JackieJ]

Thanks for getting back to me. Our house is in my husbands name. Our car is in my name but that's just because it was cheaper to insure it on my name but I'm sure we could change it to be in his name?

Judgement just says 'pay forthwith' but the letter from my employers legal dept states "failure to make payment in full or alternatively make an offer to pay on on before Friday 28th March will result in further legal enforcement action being taken.."

What will happen if they reject my offer?

[AndyOrch]

Thread moved to the appropriate forum.

 

Regards

 

Andy

[BRIGADIER2JCS]

Hi if the ex employer rejects the offer then you can apply for the judgement to varied to allow a repayment plan.

 

 

As said there is little enforcement action they can take, you simply cannot pay what to have not got.

[JackieJ]

Thats put my mind at rest a lot. Thank you so much Brigadier2JCS.

[BRIGADIER2JCS]

Thats put my mind at rest a lot. Thank you so much Brigadier2JCS.

Happy to help!!

Just come back if you need more advice.

[JackieJ]

Thank you! I'll do what you suggested and see what they say!

[BRIGADIER2JCS]

Thank you! I'll do what you suggested and see what they say!

You could point out to them clearly that enforcement action will not achieve the result they hope for.

[JackieJ]

Just one more question if you don't mind! Is it worth me making a payment with the letter so that it's obvious that I am willing to pay, just not able to make higher repayments? Sorry to be a pain!

[BRIGADIER2JCS]

Just one more question if you don't mind! Is it worth me making a payment with the letter so that it's obvious that I am willing to pay, just not able to make higher repayments? Sorry to be a pain!

No problem with asking questions!!

 

 

You could send the first payment with the letter certainly it shows good faith. Please make sure what you pay/offer is affordable.

[JackieJ]

I will. Thanks again!

[steampowered]

I am sure others will be much less bullish than me. But I do wonder if it is worth having a go at getting this set aside, particularly if you qualify for exemption from court fees. Obviously it doesn't sound like you have a very good reason so I am not sure your chances would be good ... but if you can think of a reason and can paint your employer's behaviour and incompetence bad enough I wonder if it is worth a shot.

 

 

It sounds like they have been pretty pathetic and I think you would be able to fight this had you responded to the claim properly, so you may well get lucky in the county court judge lottery.

 

Given that they would incur legal costs in fighting it, it would give you negotiating leverage.

[mjt2013]

I don't wish to be over dramatic but one enforcement method would be bankruptcy which, although perhaps rather futile if you have no assets, could be used precisely because there are no other real enforcement options. I would be way about applying to set aside the judgment even if you're exempt from the court fee because you wouldn't be exempt from the other side's legal costs and unless you can at least run some argument that suggests a defence I think you may just end up increasing your debt.

 

I'm not really sure where this information gets you to be honest but I would ultimately suggest that you really try to negotiate payments with the creditor because if you are too bullish in saying that you can't pay then they could consider bankruptcy just to spite you.

[steampowered]

A statutory demand followed by bankruptcy proceedings would indeed be an option if the debt is over £750, but my understanding is it could be warded off with an N245 to set monthly payments.

[mjt2013]

Yes, that's true. Perhaps a redetermination would be the OP's best bet.

[BRIGADIER2JCS]

Given the OPs situation redetermination would I believe the best course.

[JackieJ]

Thanks all. I wrote to them making an offer of £20 per month and on the same day I made a direct payment of £20 to them via BACS and set up a standing order. They've since written back saying my offer is not accepted but is being considered and I have a form to fill in which is an EX140 which is asking for what assets I have, how much money I have etc. Its very hard for me to fill in as I do a bit of casual work on minimum wage but I'm also a self-employed actor and if you are lucky enough to get a paying job, it's usually offset by having to pay for all the auditions you've had to travel to that are either not paid or you don't get!

I've filled it in as best I can but its also asking me to complete my bank details - and as the form is to be returned to my ex-employer, not the court, I really don't want to give them my bank details? I can get a letter or print out from the bank confirming my balance but I really don't want them having my details? Can you advise me? Thanks again!

[JackieJ]

Just seen on HMRC site that it's IMPERATIVE that the document EX140 should only be used at court and not sent out to debtors. Should I write back explaining this and send in my own income and expenditure document?

[steampowered]

EX140 is when a debtor is required to attend court for questioning about his assets. A more appropriate form would be an N245 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n245-eng.pdf.

[AndyOrch]

It would be prudent to get the N245 submitted ASAP Jackie...obviously they are looking at various enforcement strategies even though they have used the wrong forms...which you must not complete under any circumstances.

 

As you are aware County Court forms EX140 & EX141 are used only at court hearings. They must not be used as income and expenditure forms and they should not hand or send them to the judgment debtor by post for completion.

 

Regards

 

Andy

[genie101]

If you aren't getting anywhere with the other side, you might just want to put this in the hands of the court. Some Judges can be very lenient and bend over backwards to help people who need time to pay. Some however, believe creditors should not be deprived their money.

 

The court may be prepared to permit payment to be made by instalments under CPR 40.11(a) if it is satisfied that the payments are likely to be met.