What a mess - CCJ to be fought

[savbs]

Hi Everyone

 

Helping my daughter with her bank. She split from her partner late 2005 and ran into deep financial trouble when she then lost her job. Back on her feet now, but debt ridden - and he pays £5 a month for kids.

 

LTSB have a CCJ against her for her own account and a joint loan, which was finalised in Oct 2006.

 

She also has a jnt acc, which she has reached a payment agreement with them on.

 

Anyway, sent off for details on charges, Jnt acc will see a reduction and that is no problem to sort.

 

Interestingly, the sole account has accumulated charges of £2641.10, but her od stood at £2639.91 when they pulled the plug, since then the only activity has been the o/d interest each month.

 

So she has a CCJ on the back of their charges over the last six years! I have trawled the site, but have not seen a case like this. Does the fact that a CCJ has been issued, which she effectively ignored by not challenging it, now present a problem for claiming the monies back (debt written off)?

 

We have sent off for details of any charges levied on the loan as well so will tackle both together, any advice, in addition to the usual process would be welcome.

Thanks

SAVBS

[aqua2]

Am I right in summising your question regarding the single account as follows...

 

She had a single account OD by £2639, when Lloyds pulled the plug.

 

They obtained a court judgement against her for this amount.

 

Is she repaying this amount, or have they written it off?

[savbs]

They serverd her with a Warrent of Execution for this debt, plus a loan.

 

I paid that demand for her and she has applied to the courts to pay a lesser amount, so no write off, still awaiting the courts decsion on what she must pay.

 

Total CCj is for 7K+, we have sent the stage one letter requesting info on the any charges that may apply to the joint loan as well.

 

I am fairly sure the loan is all due to be paid to the tsb, however the solo account was all their damn charges!

[aqua2]

Sorry, we'll keep going with the questions to make matters clear.

 

First off, I cant see how their having a judgement against her, prevents her from now claiming back the penalty charges.

 

However, there is the possibility, that any amount of penalty charges will be taken towards any money outstanding, but even that is a good thing as it releases her from some debt.

 

How long ago was judgement entered against her and did she defend the case or not, because there is a procedure to set aside a judgement, but there can be time constraints.

 

You could still have an argument that the bank misled her on the charges they were making and couldnt apply for set aside earlier, because they had withheld the facts of the charges.

 

This sounds like a possibility, I am hoping someone with more experience than me can jump on this bandwagon to assist you.

 

Anyone out there experienced setting aside a judgement???

[savbs]

No, she did not do anything about all the debt mounting up against her. Ostrich head, comes to mind. When I asked her why not, she said because she was just out of abusive relationship, had to get court orders etc to get him out of family home, was applying legal aid etc etc. On top of this she lost her job so knew she could not keep up any payment plans and indeed defaulted on those she did make, so when things got heavy, she thought well fair cop I owe it and let things take their course. She has managed to keep paying the mortgage and other household bills to keep a roof over her and the three kids heads - just. But when she finally gets him off the house deeds - waiting on the courts for that - she will need to remortgage and the debts keep piling up. The old vicious circle. I will read up about claiming against a CCJ, it was Oct 2006 I think, but in truth she should have argued it before the event, but on the other hand, these facts were not known to her then - and yes, just to reduce the debt would be wonderful!

[nearlythere]

I tried it nearly six years ago. CCJ entered against me and if I paid within one month the judgment would be cancelled. Originally offered to pay back at £40/month on the CCJ form (their claim form) and it was accepted, and then came into some money just after the month was up. Offered to settle CCJ but was told that doing so would make no difference so kept the money in my pocket and paid £80/month. It was going to be on my CRA files for 6 years whether it was paid or not

[savbs]

Thanks Nearlythere, can understand that point of view and agree with it!

 

However, I found the following on the web, worth a go

THE REMOVAL OF COUNTY COURT JUDGEMENTS

Much of the information and advice in this area is designed to please rather than help. What appears here is what you can and cannot do. The process is clear and straight forward.

 

The County Court will remove a judgement to correct an obvious injustice. This process is known as setting aside a County Court Judgement.

 

The defendant named in the County Court Judgement (C.C.J ) can apply to the court for the judgement to be set aside. For such an application to be successful you would have to be able to satisfy the court that one of the following happened:

 

You did not receive the original Claim form

 

You changed address and mail from the previous address was not sent to or redirected to your new address

 

an order was made against you whilst you were unavoidably absent

 

the judgement contained an error

 

You want to raise a defence that you were not able to present during the proceedings

 

certain rule of procedure were not followed.

 

DEFAULT JUDGEMENT

If you choose to completely ignore the proceedings and not send back the "Acknowledgement of service" form then a default judgement will almost certainly be recorded against you.

 

A default judgement may have also been recorded against you if you did not, within the stated time allowed , send in the reply form asking for time to pay. This type of judgement means that the court has disposed of the case before it by deciding against you without hearing anything about you or your defence.

 

A default judgement MAY be set aside if you did one of the following:

 

Sent back the acknowledgement of service within the time limit.

 

Entered a defence within the time limit

 

Sent in the reply form asking for time to pay within the time limit

 

 

 

The court May set aside the default judgement if despite the fact that you did not send in the reply form within the time limit if it thinks that:

 

You have a valid defence to the claim.

 

There is some "good reason" for the judgement to be set aside

 

MAKING THE APPLICATIION

You need to obtain the form N244. Such a form can be obtained from the Court Office.

 

FEES

a fee of £60 is payable to the court when you make this application . If you are on a low income or receiving certain benefits you may not have to pay the fee

 

THE PROCEDURE

The Court will tell you if a hearing is necessary to decide your application. If this is to happen the application will be transferred to you local county court.

 

If the matter can be dealt without the necessity of a hearing than you will hear back from the court that the judgement has or has not been set aside.

 

THE EFFECT OF A JUDGEMENT BEING SET ASIDE

If the judgement is set aside the proceeding are put back to the claim stage. A claim form is sent to you for your response. It is important to appreciate that having a judgement set aside does not eliminate the proceedings. The details will be removed from the County Court register until a new judgement is made.

Will let everyone know how we progress

[aqua2]

You found it, well done, CPR Part 13.

 

"The defendant named in the County Court Judgement (C.C.J ) can apply to the court for the judgement to be set aside. For such an application to be successful you would have to be able to satisfy the court that one of the following happened:"

 

"You want to raise a defence that you were not able to present during the proceedings"

 

The bank have been misleading you as to their charging regime and you had no knowldge that the charges were unenforceable penalties at the time of the original trial.

You have only just discovered this through the media, hence your late application to set aside.

The court May set aside the default judgement if despite the fact that you did not send in the reply form within the time limit if it thinks that:

 

You have a valid defence to the claim.

 

There is some "good reason" for the judgement to be set aside

You have a valid defence, they owe you as much in charges and interest (or almost as much) as they have claimed from you and therefore effectively you have already paid the debt.

Whilst the unlawful charges have not been confirmed at trial, this is because historically the banks have always settled pre-trial (attach the spreadsheet of settled claims) which shows that although not proven, they have been shown to be unenforceable.

You could probably issue the application straight away, if you also explain that you are waiting for the bank to respond to your request for details of the penalties levied under the Data Protction Act and that these will be served as soon as available.

Also it would probably help to explain the circumstances your daughter faced at the time, not head in the sand, but suffering severe anxiety at that time due to personal circumstances and thought "well I must owe it, cant pay it, might as well let things take their course" just keep it brief to give the judge an idea of why she would not have responded to original summons.

 

OK, so if you get friendly judge that agrees to set aside, the original hearing is back on track, with daughter having to defend the banks claim, you simply counterclaim with the penalty charges.

Hey Hey Hey, we could be in business.

Are you comfortable completing the N244 form?

 

 

 

[savbs]

Hi Aqua2

 

I am quite happy with the form and will make use of the wording you have suggested and the spreadsheet also.

 

I am just putting the finishing touches to her claim, I am using the complex spreadsheet as we can claim the overdraft interest on charges element now, but wonder if she is entitled to do so as the charges equal the debt? I am still trying to get my head around the question of - has she suffered any actual financial loss or is this all a paper exercise?

 

Likewise with the 8% later? We could of course try and let them dispute it!

 

Now the other question is this - should they have taken her to court in the first place, they know full well that charges can be reclaimed, so were they making a false/fraudulent claim for payment?

 

In cases like these, would not a prudent (one of the criteria of accounting) bank reduce a claim by any charges the defendant has incurred to ascertain the true value of the debt?

 

Will await your opinions with interest lol

[aqua2]

...but wonder if she is entitled to do so as the charges equal the debt?

 

I'm sorry, i'm confused by the question.

 

I am still trying to get my head around the question of - has she suffered any actual financial loss or is this all a paper exercise?

Ok, so the bank took her money in penalty charges and then just to be really nice, they charged her interest on those penalties.

 

Now, obviusly she needed help, so they gave her a loan (or overdraft) to make up for the money they took.

 

I think she may have suffered a just a little financial loss.

 

I actually do see your point about a paper exercise, BUT, if she is now expected to pay back the debt, which was initiated by the charges and have a CCJ hanging around her neck and from your other notes, it sounds like she has suffered far more than just financially.

 

Likewise with the 8% later? We could of course try and let them dispute it!

 

As you are going straight back to court, with form N244, then the 8% doesnt come later, put it in straight away.

 

Now the other question is this - should they have taken her to court in the first place, they know full well that charges can be reclaimed, so were they making a false/fraudulent claim for payment?

Not really a false claim, the banks maintain their charges are fair and have yet to be proved wrong (because they always settle). It was up to her to counterclaim, if she felt she had reason, which she now has.

 

Remember the spreadsheet of settled claims doesnt prove they are unfair, it just shows that historically they have been unenforceable.

 

If you want to post the details of your n244, before you send it in, you may get some valuable feedback.

[aqua2]

As you are going straight back to court, with form N244, then the 8% doesnt come later, put it in straight away.

Actually, strike that, presumably your n244 is just an application to set aside judgement.

 

If you are successfull, then you will have an oopportunity to counterclaim and put it in there.

[savbs]

Hi Aqua 2 and others

 

Thanks for all your advice, the ccj against my daughter is made up of two elements , her solo account and a loan. We have now sent off for details of this loan as well, with the aim of fighting them together as they are both the subject of the ccj. So a delay here, but hopefully a prudent one.

 

In the meantime we have sent off the PBA letter for the joint account and await the outcome of that, claiming interest pertaining to the charges element of the outstanding debt, so 14 days and counting.

 

I also figure if they pay back charges on the one acccount that is not the subject of a ccj - that just adds weight to our claim to have the ccj removed.

 

Will keep you all posted as to progress.

[savbs]

Hi everyone

We have had a response to out LBA request for payment as follows

The Office of fair Trading has published new guidelinesd on credit card default charges. We're still talking it through with them, but the important point is that the guidelines are about 'default' charges that people pay when they break an agreement with us. This doesn't apply to your charges as these were for dealing with your request to go over your agreed overdraft limit. They are not default charges because you haven't broken your agreement. They are our prices for the service we provide in the situations.

This seems slightly diferent to the standard responses I have seen on the forum - sure it is just a response but how do we respond? The claim was for all the usual stuff - returned DD, SO as well as od fees and interest claimed on the charges.

Thanks in anticipation

[aqua2]

Hiya,

 

Just to clarify...

 

Are you going back to court to try and get the old judgeemnt lifted, or are you planning to just go ahead with a new seperate claim for bank charges?

 

The paragraph you quote is just the new standard Lloyds blurb and you can safely ignore it.

[savbs]

Hi Aqua 2

We are claiming for the joint account at the moment as we had all the information we needed to progress that claim - the standard response above is the response we got. So do we wait the 14 days to expire and then take the next step or is there a template letter to respond to this response (if so please point me in the right direction).

 

For the solo account and her personal loan, which are the subject of the ccj, we are currently awaiting a full list of statements (not available on the net as a closed account) and any notes to make sure we are claiming every penny we can. They responded and said as no charges on the loan account, they would not cash her £10 as they could not provide anything - we used the clock ticking template latter and reminded them we asked for notes etc. We have also sent for form N244, so once we get everything in order we will hit from all sides.

 

I hope that makes sense and thanks for your patience - I get confused and I understand (I think) what we are trying/hoping to do lol - and now for my sins my sister in law is beating a path to my door for help - but hay thats what makes the world go round, folks helping folk.

[GLADSTANES]

Hallo.

 

I have had several county court judgments registered against me because I was not able to meet loan repayments.

I would just ask you to clarify in your own mind exactly what you are hoping to reclaim.

 

If your daughter had a loan agreement and could not meet the repayments, was warned about impending court action and then taken to court in the correct process then it is unlikely you can dispute that.

 

I would suggest that there would have to be a very good reason to get a decision in your favour for that side of things.

 

However, as regards the unlawful charges on her CURRENT ACCOUNT then as you will realise from reading this site you are presently entitled to claim all of them.

 

For example, if your daughter did not have sufficient funds in her current account to meet the loan repayment and she was charged for that in the usual way then I am sure you can claim.

 

Please do not confuse defaulting on the loan account with charges on the current account.

 

Should you be successful in reclaiming bank charges please insist on a cheque.

 

My belief is that LTSB cannot just deduct these charges from a loan balance because the court , i.e. the law , has set the monthly payment.

 

All the very best to you.

 

Gladstanes

 

Please seek professional legal advice.

 

This is only my opinion.

[savbs]

Hi Gladstanes

 

As far as I can ascertain (hence why I want all the notes), LTSB lumped my daughters solo account which was in arrears (by £2 less than 6 yrs of charges) and her personal loan as one debt and achieved a cjj upon it as she did nothing to stop them. As she did not enter a defence, the payments set by the court led to a warrent of execution being issued as she could not meet the payment required. With my help she is applying for a new payment to set that she can afford - all closing the gate after the horse has bolted - but some people just need help with all this stuff when life overwealms them. I should maybe say we are abroad, so she hid a lot of this from us, but mama is fighting now lol.

I am hoping by proving that part of the ccj is unsound that we might get the whole thing cancelled and she can enter into a payment plan for the loan. Might be wishful thinking, but worth a shot.

[GLADSTANES]

HALLO.

 

Please consider consulting a solicitor and applying for legal aid if applicable.

 

Alternatively contact Citizens Advice whom I have found to be extremely helpful.

 

In any event you can still get the bank charges refunded.

 

Regards

 

Gladstanes

[aqua2]

Hi Aqua 2

We are claiming for the joint account at the moment as we had all the information we needed to progress that claim - the standard response above is the response we got. So do we wait the 14 days to expire and then take the next step or is there a template letter to respond to this response (if so please point me in the right direction).

 

For the solo account and her personal loan, which are the subject of the ccj, we are currently awaiting a full list of statements (not available on the net as a closed account) and any notes to make sure we are claiming every penny we can. They responded and said as no charges on the loan account, they would not cash her £10 as they could not provide anything - we used the clock ticking template latter and reminded them we asked for notes etc. We have also sent for form N244, so once we get everything in order we will hit from all sides.

 

I hope that makes sense and thanks for your patience - I get confused and I understand (I think) what we are trying/hoping to do lol - and now for my sins my sister in law is beating a path to my door for help - but hay thats what makes the world go round, folks helping folk.

 

Hiya...

 

 

I think i'm clear in my head now becuase the two issues were a little confused...

 

The solo account and loan of your daughter is one claim, you are awiating statements in that respect, to see if charges amount to lifting of CCJ.

 

Seperately you are claiming on the Joint account, you have sent the prelim letter and recieved the standard brush off response.

 

If this is correct, then your next step is to send the LBA, from the bank templates section, again include the schedule of charges.

 

If the above was not correct then please try and clarify more for me..

 

Regards,

 

Aqua..

[savbs]

Hi Aqua2

 

Yes, you have it in a nutshell.

 

LBA went off yesterday, with schedule. 13 days and counting....

[aqua2]

Excellent..

 

On this one I guess it's time to start preparing your Claim, as per the FAQ's...