Currently living abroad and got CCJ default judgment. Want to pay lump sum and get set aside.

[NoWantCCJ]

Hello everyone,

 

In 2009, I got a job in another country and moved away from the UK.

I informed my bank of my relocation, but allowed them continue to send my post to my old address because I visited the address whenever I returned to London from time to time.

 

 

In 2012, I requested that the bank begin sending all correspondence to a new UK address where my wife's family resided and where I would have more regular access to post.

 

In late September this year, a resident at my former apartment (who happens to be a friend of mine) informed me that I had numerous letters there.

 

 

Upon retrieving them, I found that Mortimer Clarke Solicitors had filed a CCJ application against me.

MCS is acting on behalf of Cabot Financial (UK) Limited.

CF had issued me a credit card through my bank Citibank (who was also my employer at the time).

There was an outstanding debt on this card that I had neglected to pay whilst away.

 

MCS had been attempting to reach me at my old address and had taken action since I had not responded.

I took a few days to read through the various letters they had sent me and research the implications of a CCJ.

 

 

I then contacted them by email to explain the circumstances above, but they informed me a default judgment had already been obtained on 15/09/2016 ordering me to pay £50 a month.

 

I would like to pay this debt and have my record clean again.

The total debt is £3308, so at this rate it would take 67 months to clear it.

 

 

As £3308 is a rather large sum and I cannot afford to pay it all right away,

I would like to offer them a lump sum payment of £2000 or maybe £2500 (if I can stretch that far), on the condition that they will consent to having the CCJ set aside.

 

I have not made any proposal or payment to them yet and I realise that the one-month window for payment to clear the CCJ has already passed.

 

I understand that I may be able to have the CCJ set aside whether or not they consent if I can prove my circumstances, but I do not want to have to deal with the court proceedings.

 

 

From what I have read, if both parties consent to having the CCJ set aside and both parties are represented by legal counsel, the set-aside would be routinely carried out through an administrative procedure, not requiring the discretion of a judge.

This sounds to me like the set-aside would more or less be automatic in such cases, so this is my preferred route.

 

So, my question is how do I make this happen.

 

 

More specifically:

1. If I make this proposal to MCS and they agree, they might ask me to pay the agreed sum before beginning the process.

Could this affect the set-aside in any way?

 

2. Is it out of the ordinary to propose to pay after the set aside has been obtained?

 

3. If they consent to my proposal what legal paperwork needs to be filed?

 

4. Who is expected to file this paperwork — defendant or claimant?

Can I request that they file the paperwork as part of our settlement agreement?

 

5. Is my understanding correct — that a set-aside by consent where both parties are represented by legal counsel is carried out routinely without the requirement of approval by a judge and therefore is automatically approved?

 

I just want to get this matter resolved and have my file clean.

I am still working and living abroad, so I will be unable to attend court appointments, hence my preference for an automatic route and for not filing paperwork myself.

 

If you kind folks can answer the questions above and possibly provide any additional insight on the matter and process, I would be very grateful. I need to decide and act quickly — I would like to have this resolved by the end of the month.

 

Thanks in advance.

[AndyOrch]

Hi NoWantCCJ and Welcome to CAG

 

I have moved your thread to the correct forum...please continue to post here as normal.

 

Regards

 

Andy

[NoWantCCJ]

Thanks Andyorch.

[AndyOrch]

More specifically:

1. If I make this proposal to MCS and they agree, they might ask me to pay the agreed sum before beginning the process.

Could this affect the set-aside in any way? Yes...impossible to set a side once payment has started..its an admitance

2. Is it out of the ordinary to propose to pay after the set aside has been obtained? Why would you if set a side ? but yes its possible

 

3. If they consent to my proposal what legal paperwork needs to be filed? You file an N244 Application Notice (see legal Library) fee is £255 with hearing £100 without or you could get their consent to set a side and ask they do it by way of a Consent Order

 

4. Who is expected to file this paperwork — defendant or claimant? See above can be both but normally the defendant

Can I request that they file the paperwork as part of our settlement agreement? Yes

 

5. Is my understanding correct — that a set-aside by consent where both parties are represented by legal counsel is carried out routinely without the requirement of approval by a judge and therefore is automatically approved?

Correct

 

Regards

 

Andy

[NoWantCCJ]

Hi Andy,

 

Thanks for your reply.

 

Re-reading my post now, it seems I wasn't very clear (also seems the line breaks got all messed up). I'll just clarify a couple things.

- I do owe the debt, so I don't intend to fight that fact.

- I am concerned about having the CCJ on record and would like it to be reversed or set-aside.

- I am willing to pay a lump sum, but cannot afford to pay the full amount and would like to propose a concessionary sum.

 

So, if I understand you correctly, if MC/CF agree to settle out of court, then the easiest way is to do so is for them to file a Consent Order, after which I can pay them directly without the adverse impact of a CCJ on record. Is that correct?

 

Also, what does a Consent Order essentially mean? Is it still some sort of court order against me?

[AndyOrch]

Hi Andy,

 

Thanks for your reply.

 

Re-reading my post now, it seems I wasn't very clear (also seems the line breaks got all messed up). I'll just clarify a couple things.

- I do owe the debt, so I don't intend to fight that fact. Okay so no need to set a side

- I am concerned about having the CCJ on record and would like it to be reversed or set-aside. On what basis ? the only way to remove it is to set a side and successfully defend the claim from the beginning

- I am willing to pay a lump sum, but cannot afford to pay the full amount and would like to propose a concessionary sum.They will accept it but it will then be marked partially satisfied but still show for 6 years

 

So, if I understand you correctly, if MC/CF agree to settle out of court, then the easiest way is to do so is for them to file a Consent Order, after which I can pay them directly without the adverse impact of a CCJ on record. Is that correct?

Possible but they would want the full amount...even then they may not remove the CCJ

Also, what does a Consent Order essentially mean? Is it still some sort of court order against me?

A Order basically agreed between parties without court intervention...apart from sealing the order

 

Regards

 

Andy

[BazzaS]

 

Also, what does a Consent Order essentially mean? Is it still some sort of court order against me?

 

Also known as a Tomlin Order, a Consent order is agreed by the parties, who take it to the court to say "no need to proceed with the claim". It:

1) sets out the terms of a contractual agreement,

2) allows court proceedings to be stayed (suspended), by agreement,

3) Allows confidentiality, if the parties desire, which court proceedings do not.

 

So, there would be no CCJ registered if the other side agree a set-aside and consent order, but you'd need to stick to the terms of the consent order or they could restart proceedings (either unedr the orginal proceedings, or for breach of the contract that the Consent order creates).

 

What you need to "sell" to them is that they may have a CCJ but they'll never get any money out of it, and what they can have instead is a consent order that benefits you (no CCJ), and benefits them (they get paid under the consent order).

You'll need to watch out, as they may consider why it is important to you not to have a CCJ registered against you if you are going to be out of the country for 6 years, but then, if you aren't going to be out of the country for that long, why would they accept a set-aside and consent order instead of the CCJ that they might later enforce.

You need to show that there is "something in it for them", but at they same time they'll be wondering what is in it for you, and if what is in it for you means the benefit for them is as great as you say!.

[NoWantCCJ]

Interesting perspective.

 

So, I am out of the country for six years, so you are practically unable to enforce. But during this time, my position with my employer could be compromised by the fact that I have a CCJ, so I have a real incentive to set aside. So we meet half way -> you file a CO and set aside the CCJ and I pay a concessionary lump sum amount as agreed between us.

 

What's in it for them - (i) get the cash (ii) get it upfront, albeit slightly reduced

What's in it for me - have no CCJ and protect my position with my employer

 

Is that sensible?

[NoWantCCJ]

Quick question, folks.

 

If MC/CF(UK) do not consent to having the CCJ set aside, and I opted to file the N244 nonetheless, would it be sufficient to demonstrate that I had provided Citibank (original card issue) with my new postal address, but CF(UK) neglected to send notices to this address? Or would I be required to have sent this address to CF(UK) as well for such a defence to be tenable?

 

As proof, I have some correspondence sent by Citi to the new address - one of those sheets onto which they stick on your new debit card. The letter has a date stamp on the bottom right corner of the reverse side showing "01/2016" — well before the dates on the court notices sent by MC to the old address.

 

Furthermore, in my first (and only) communication with MC since retrieving mails from my old address I brought to their attention the fact that I no longer resided at that address and that I had informed Citi of this. In their subsequent letter to me (which was sent by email), they addressed me at the new address. Could this be taken as an admission of error on their part?

 

Could these facts be sufficient grounds for a set-aside?

[BazzaS]

You need a clear "game plan". A set aside just re-opens the court case: you either need a defence or ensure that you can achieve a consent order.

If they won't agree to a set-aside, they may not agree to a consent order .......

 

There seems little point in getting a set-aside if all that happens is the case is re-heard and the CCJ again issued.

[NoWantCCJ]

Hi everyone,

 

I have drafted a response to MC/CF(UK) in this matter in which I explain that (i) I had notified the card issuing bank of my new postal address long before receiving any notices from CF(UK), (ii) All notices from them and the claim form from the court were sent to the old address, and (iii) as such I do not find the CCJ to be a fair outcome.

 

I continue to explain that I am an entrepreneur in a startup company that is currently not paying me a regular monthly income; however, I am able to raise sufficient funds to make a full and final settlement offer of about 30% of the outstanding amount in one lump sum payment as a gesture of good will, conditional upon them consenting to set aside the CCJ and file a Consent Order to stay further court proceedings. I remind them that I am not currently living in the UK, have no property in the UK and have no plans to relocate to the UK in the next six years (i.e. the CCJ may be unenforceable).

 

I am banking on my offer being more attractive to them than holding onto a CCJ which they are unable to enforce to any financial benefit for them.

 

However, I have been doing some research into statute barred debts. The CCJ was obtained on 15 September 2016, but the claim form sent to me by the court is dated 24 August 2016. I have good reason to believe that the last payment I made on this account was before 24 August 2010 and I have been in contact with my bank to verify this. Since that date, there has been no official communication (bearing my signature) from me or anyone representing me to any creditor or debt collector with respect to this debt nor any payment made whatsoever. Upon learning of the court claim, I contacted MC by email 04 October 2016, by which time the CCJ had already been obtained.

 

So, my questions are:

- Could it be that this debt is statute barred?

- Is it even possible that the court would have issued a CCJ if the debt were actually statute barred or does the court not do any search to determine this?

 

If indeed the debt is statute barred, I intend to strengthen my leverage over MC/CF(UK) to get them to accept my offer (I would probably offer less than 30% in this case).

 

Looking forward to your thoughts. Thanks in advance.

[BazzaS]

Hi everyone,

 

I have drafted a response to MC/CF(UK) in this matter in which I explain that (i) I had notified the card issuing bank of my new postal address long before receiving any notices from CF(UK), (ii) All notices from them and the claim form from the court were sent to the old address, and (iii) as such I do not find the CCJ to be a fair outcome.

 

I continue to explain that I am an entrepreneur in a startup company that is currently not paying me a regular monthly income; however, I am able to raise sufficient funds to make a full and final settlement offer of about 30% of the outstanding amount in one lump sum payment as a gesture of good will, conditional upon them consenting to set aside the CCJ and file a Consent Order to stay further court proceedings. I remind them that I am not currently living in the UK, have no property in the UK and have no plans to relocate to the UK in the next six years (i.e. the CCJ may be unenforceable).

 

I am banking on my offer being more attractive to them than holding onto a CCJ which they are unable to enforce to any financial benefit for them.

 

However, I have been doing some research into statute barred debts. The CCJ was obtained on 15 September 2016, but the claim form sent to me by the court is dated 24 August 2016. I have good reason to believe that the last payment I made on this account was before 24 August 2010 and I have been in contact with my bank to verify this. Since that date, there has been no official communication (bearing my signature) from me or anyone representing me to any creditor or debt collector with respect to this debt nor any payment made whatsoever. Upon learning of the court claim, I contacted MC by email 04 October 2016, by which time the CCJ had already been obtained.

 

So, my questions are:

- Could it be that this debt is statute barred?

- Is it even possible that the court would have issued a CCJ if the debt were actually statute barred or does the court not do any search to determine this?

 

If indeed the debt is statute barred, I intend to strengthen my leverage over MC/CF(UK) to get them to accept my offer (I would probably offer less than 30% in this case).

 

Looking forward to your thoughts. Thanks in advance.

 

If it was statute barred and they were better by sneaky in going for a CCJ : why offer them anything?. It makes it look like you aren't certain of your defence ....

 

If it was statute barred, then let them know you will

a) get it set aside, with or without their consent. If they don't consent and you later defend it (see below), you'll inform the court of the extra cost of the set aside due to their lack of consent.

b) defend it, on the basis it was statute barred.

 

When did you inform them of any change(s) of address, and did you make any acknowledgement of the debt (as opposed to saying e.g. "Alleged debt, which remains in dispute").

Statute bar date can be "reset" by either a payment or acknowledgement of the debt.

 

The court that issued the CCJ won't have checked if it was statute barred. It would be for a defendant to raise this as a defence.

[NoWantCCJ]

Hi BazzaS,

 

I would like to offer FF settlement on the condition that they (i) consent to set aside (ii) file Consent Order to stay proceedings (iii) agree to mark credit files as ‘Settled’ and not ‘Partially Settled’, ‘Satisfied’, or ‘Partially Satisfied’. It matters to me that I repair the credit record in whatever way possible, as it may impact ability to raise money as a startup from UK-based VC funds. But considering it may be SB, the costs to me must be minimal (including my FF offer - perhaps 10% or 15% max).

 

I informed Citibank (original card issuer) of the address change before the date on which the debt was transferred to CF(UK) - I have the account statements from CF(UK) indicating this date. I made no mention of the debt, only of the fact that I was relocating and that I would no longer be reachable at the old address.

 

Beyond the above, I have no irrefutable evidence that it is SB, but I understand that the burden of proof is on them, not me.

 

Do you think based on this information that it is SB?

[NoWantCCJ]

BazzaS ?