Ccj. Settlement figure has added interest. Can I dispute?

[scousebird]

I had tills on lease purchase

- put in lump deposit towards finance and then paid monthly.

 

it was a 3 year deal, but unfortunately recession hit and i stopped paying, so only about 1yr in.

 

initially they chased for cash and repossession of tills

- havent got a problem with that but was reluctant to give back asset until a written agreement reached.

 

meanwhile they have now served court papers going for a CCJ to recoup monies. but no mention of actual asset.

 

MY QUERY is this...

... if they win CCJ

[which to be honest is the least of my financial worries at the moment and my credit is shot to hell anyway; but I will put in an I&E to show difficulties with repaying to request a pay plan] are they still entitled to the asset?

 

they do not mention it at all in their CCJ

- do they waive their rights by doing the CCJ and not referring to the asset.

 

selling the asset will not repay the whole debt.

 

thank for any help.

[AndyOrch]

Could you type out the Particulars of Claim (verbatim..less any identifiable data)

 

Regards

 

Andy

[scousebird]

the claim states basically that they loaned the money for the purchase of the tills [and printers, drawers etc] and gives a figure of the loan.

it refers to their attempts to contact me and notice served for default etc.

it then shows the balance as at date of court application, subject to the payments already made and the charges for missed payments etc.

 

EDIT: particulars of claim

point 1. commercial hire agreement dated ..... minimum term 36mths............ initial advance payment........ full particulars provided to the defendant by a copy of said agreement...

point 2. agreement contained express terms providing that in the event of termination the claimant may recover all sums already accrued due at date of termination plus sum equal to the value of rentals ....... up to the expiry of the agreement. it was also agreed that defendant to pay all clamants edxpenses and legal costs for taking steps, including court action, to recover the equipment or to obtain payment for it.

point 3. on date.... there were rentals due, but not paid in the sum of ..... in accordance of terms claimant sent default notice requiring arrears to be paid within 16 days....... failure to comply so Agreement terminated as per letter dated.....

point 4. as a result of the above, claimant is entitled to recover from the defendant the following sums.

....outstanding balance xxx

....less arrears xxxx

....less VAT xxx

....add arrears xxx

....add arrears interest and admin charges pursuant to the agreement xxxx

LESS NET PROCEEDS of SALE OF THE EQUIPMENT RECEIVED BY THE CLAIMANTS [if any] £0

....sum due from the defendant to the claimant £xxx

 

point 5. in addition claimant claims interest pursuant to the terms of the Agreement at the rate of 2% per month from date of termination upto issue ...... as the Court shall deem appropriate and costs.......

signed by SOLS; greenhalgh Kerr, Wigan.

 

at no point does the claim also ask for the return of the asset, just a nil value from the asset/proceeds.

 

on a seperate issue, the finance guy approached me to collect the tills - i said i had his court papers, but i told him that as his company was way down in the things i was dealing with i would get round to replying by the deadline. he said, yes thats just for the money but they still wanted the asset!! obviously they would reduce the debt if/once they sold the tills on................. hmm...!

Edited November 13, 2012 by scousebird
to highlight the Finance Figures showing £0 proceed of sale

[AndyOrch]

You would have to check the T&Cs of the lease purchase agreement..default key information.

[scousebird]

i am happy they have complied accurately with default and termination notices etc.

the agreement was for outright ownership at end of term. no admin/balloon payment at the end.

 

having read the court papers again though, and to see LESS net proceeds from the sale of the equipment [if any] as £NIL - i would imagine that this is almost tantamount to waiving their rights to the asset?

[scousebird]

hi all.

had a business debt for till equipment. defaulted due to business failure.

claimant [and his solicitors] knew i had vacated business premises as claimant visited on 'exit' day and i had spoke with solicitors who also very kindly wrote to me at my home address whenever they wanted to let me know about their costs awarded !!

 

original court claim docs for full amount outstanding etc were sent to business premises - i didnt know a thing.

'court log' shows forms returned unticked [presume new occupier returned to sender?]

judgement made without my knowledge.

i then got Northampton CC docs to my home address to which i emailed an AOS and subsequent Defense and Payment Offer.

in my ignorance i did not realise it was too late to Defend as judgement already made.

'court log' shows that this Defence was returned due to judgement in place - but returned to old business address !! [i had put my home info on form - so court messed up]

 

so i was happily sat at home waiting to hear about a date for me to support my defence; unaware that another hearing went ahead and a CCJ granted.......

THEN under a difference claim number they now going for order for sale...

 

SO; i have applied to have a SET ASIDE for all original claim based on incorrect address info and 'court log/file' supports this.

i have got a date for the hearing.

my question is this. do i need to provide a more 'full' evidence case and submit prior to hearing to court and claimant or just produce on court date?

should i take/submit a copy of my original defence [which was not allowed] and offer for payment?

 

ALSO; i have defended order for sale, based on my health, financial etc; and that i was willing to make payment proposals but due to mis-communication and post errors my defence was not considered. also put that to force sale would put claimant at a disadvantage due to other priority debts !

in this defence i also referred to a request to consider postponing hearing until after my application for Set Aside heard.

 

Any Pointers/Advice as to what may happen, or what I should take/submit to hearing PLEASE?

[Ganymede]

Hi,

 

When you say "i emailed an AOS and subsequent Defense and Payment Offer" what exactly did you send/say?

 

The offer of payments could been seen as an admission by the Court...

[scousebird]

RE Set Aside

Had I received the original claim form [rather than it go to the wrong address] then I would have admitted to part of their claim and make an offer.

So my AOS and Defence, was not considered and returned as a judgement had already been entered - but again to the wrong address! - so i was unaware that matters were proceeding due to not being informed.

 

so I have applied for a set aside - basically to take it back to the beginning, citing admin errors and that solicitor knew i wasnt at the old address used.

*************************

 

the Order for Sale, they have put under a different claim number, so I have Defended on 2 points.

firstly, there is a set aside hearing so to at least schedule OoS hearing after this date -[just in case i win !]

secondly, that i would be severely disadvantaged should i be forced to sell and the claimant would also be at a disadvantage due to other priority debts.

i did state that I was still willing to negotiate and reach a payment solution with the claimant to avoid an OoS.

*************************

i have a date in july for the Set Aside hearing. just need to know if i should be typing up a more 'refined' defence, take original copy of defence and offer? [in case judge asks?] - just info as to how hearing will proceed?

 

thanks.

[Ganymede]

If you were going to admit part of the debt you would have automatically got a CCJ agaisnt you for the admitted amount and then you would have had to Defend the rest.

 

So a full admission or part admission both get you a CCJ. They only way to avoid it is to tick "Defend All".

[scousebird]

thanks for clearing that up.

 

i think for me the main part is that all along the solicitors have been very vicious - they knew my home address but continued to send papers to the old address [unless it was their bill!] i personally feel they wanted to go down the forcing me to sell route.

 

i accept that a CCJ is probable. but would have liked to be given the option to pay.

or indeed, if they accepted my offer/defence, then maybe pay in full - with no ccj.

however due to the admin errors, i wasnt given these options and now they pushing for sale.

so the set aside is at least - hopefully - giving me the chance to sort it out and hopefully at a reduced bill.

[scousebird]

Ccj. 6k.

£50 Monthly Payments agreed in court order with reviews annually;

with wording that no guaranteed increase/decrease at review.

 

 

1st review left payment as is.

Now 2nd annual review solicitors have asked for proposals

and said they think it unreasonable their client should have to wait another 8 years...

.. they hope i agree and they wait my offer to settle more quickly.

 

I am happy that if i provide i&e it will show no more disposable income.... plus i have other debts.

 

Just wondering how far they can push......

 

My house is up for sale 2yrs.

Price drop twice.

 

 

One offer recently but they pulled out.

Should i advise them of my attempts to sell when outlining my inability to pay anymore.

[Bazooka Boo]

I'd remind the sols, that unless they take you back to court and seek a redetermination, that they should not open themselves up to a formal complaint from yourself to the SRA regarding contempt of court.

 

If they wanted to be paid off earlier than 8 years then they should have given the judge clearer direction, and NOT agreed to his findings in the first place.

 

In essence tell them to jog on, I would however be mindful of reporting them to the SRA anyhow, and most definitely if they insist on upping the court order.

 

Just send them the annual review that the court ordered.

[silverfox1961]

Hi

What it sounds like to me is that the client has asked the solicitor to push for an increased payment and you are quite quite able to question this.

 

As mentioned by BB, if they want to force you to pay more, they would have to go back to court so they are asking if you can increase payments.

 

As the economy stands at the moment, I would think it highly unlikely, when you have completed their forms that you will be able to offer more.

 

Don't forget that you have rights too. If you are struggling to pay this amount, you can apply to the courts for a redetermination for lower payments.

[BankFodder]

I think it is reasonable to say that the court intended that reviews should be carried out in order to see what the state of your disposable income has become – and not simply to accelerate the date of final payment.

 

This is evidenced by the fact that the court has clearly said that they could be a decrease in payments as well as an increase.

 

I would suggest that you write back to the solicitors and point this out. Tell them that in your view it is clear that the repayment figure was intended to be based upon your ability to pay and not to accommodate the wishes of the judgement creditor.

 

I would be careful at this point about locking horns with the solicitors over this and inviting them to go back to court if they disagree. If you happen to find yourself in front of a judge who is less favourably disposed to you, you could end up with a higher payment rate and also some extra costs.

[scousebird]

Thank you all.

i did think they would need to go back to court for any formal changes.... ie speedier settlement especially if i had advised i was unable to incease payments.

also by asking me to agree it was unreasonable for their client to wait so long!

Im happy my figures show i cant increase....

should i mention im trying to sell house.... could they try to force a sale?

My understanding is they could only push for this if i wasnt paying?

[Bazooka Boo]

I wouldn't mention anything about what ''might'' happen down the line with regards to the sale of the house, it hasn't happened yet, and it may never be so.

 

Don't give them information they've not asked for.

 

They would need to get a charging order on your property first anyhow.

[scousebird]

Ccj is secured on the house. Isnt that the same as a charging order?

 

But i wont say house up for sale. Thx

[scousebird]

Update.

Sent i&e which showed deficit funds. Didnt say house for sale but that their client was secure due to ccj. As per terms of court order for review (up or down) I wasnt able to offer more but conversely so i wasnt asking to reduce payments either.

They have replied saying will look to review again in 6mths.

so bit of breathing space.

thx all for advice.

[Bazooka Boo]

OK, like you say a bit of breathing space, at least! see you in six months....

[panther12]

Update.

Sent i&e which showed deficit funds. Didnt say house for sale but that their client was secure due to ccj. As per terms of court order for review (up or down) I wasnt able to offer more but conversely so i wasnt asking to reduce payments either.

They have replied saying will look to review again in 6mths.

so bit of breathing space.

thx all for advice.

 

£50 Monthly Payments agreed in court order with reviews annually;

They'd be a bit early if they come back in 6 months so as per the order, if nothing's changed I don't think you need to complete another i&e till 12 months.

[Ganymede]

I'd remind the sols, that unless they take you back to court and seek a redetermination, that they should not open themselves up to a formal complaint from yourself to the SRA regarding contempt of court.

 

If they wanted to be paid off earlier than 8 years then they should have given the judge clearer direction, and NOT agreed to his findings in the first place.

 

In essence tell them to jog on, I would however be mindful of reporting them to the SRA anyhow, and most definitely if they insist on upping the court order.

 

Just send them the annual review that the court ordered.

 

There is no valid complaint to the SRA as the Order allows for a review of the payments so no contempt of Court either.

 

In any event, the OP cannot complain to the SRA as they are the opposition and not the client.

[scousebird]

Thx all for input.

i will let sleeping dogs lie for now! In six months if they push again i will refer them to the order and the advised review interval period of 12mths. I didnt want to quote too much in my initial letter so not to get their backs up. In fairness this is the first time they have had a full i&e as even the court hearing wasnt as thorough when i offered payment so they probably got a shock when i proved ive got no £.

[Bazooka Boo]

They'd be a bit early if they come back in 6 months so as per the order, if nothing's changed I don't think you need to complete another i&e till 12 months.

 

Ooh! Agree, forgot about that, 12 months it is then

[scousebird]

Had a loan for shop equipment.

Defaulted.

business closed.

 

Formal letter received advising of arrears and loan/account in default etc.

Ccj obtained and monthly payment made. Secured on house.

 

Solicitors acting, usually communicated by email and every 6mths asked for payment review as was their right.

Order allowed for up or downward.

On one occasion I asked for 3 month half payment which was granted and then reverted back to normal amount.

 

Their usual emails advised of money paid so far off the court order and excessive time it would take to pay off debt and this wasn't fair to their client and I needed to increase payment or they would go back to court.

 

My replies where that I was paying and that court would not look favourably at their threats to which they normally said carry on paying.

 

I have not missed a payment but acknowledge they were usually late.

Meant to be 15th of month but due to how I was paid and tight finances usually month end.

That said I never missed and had advised via email that my payments would be month end.

 

So crux of this query!

Asked for a settlement and they have added extra interest based on a daily rate.

I don't recall order advising they could do that.

And at no time in their emails to me have they ever informed me of their intention to do this or provide a balance which referred to additional interest being added or % rate charged.

 

 

When challenged they said they could as I have made late payments.

Can I object or just bite the bullet?

 

Ccj was for 5.5k approx and I recall it had interest and fees included at the time.

Thanks.

[dx100uk]

not unless its written in the judgement box

I don't think they can.