old CCJ mortgage shortfall now + CO - sb'ed? - dca adding yrs of backdated interest - is this legal?

[BradB]

Hope this is the right section to ask this question in, if not sorry.

 

I had a forthwith court judgement made against me in 1994 for a mortgage shortfall (although I was not made aware of it until 1995).

 

Two years ago my husband put my name on the mortgage of the property we currently live in (we have been here 5 years).

 

He had previously bought and sold 2 properties and put down a 50% deposit.

 

Over the last 2 years this property has dropped in price by £30,000.

 

I have now received an interim charging order for this property and will be going to court on 14th March.

 

My question is if there is not enough capital in the property to cover what my husband put in and as I have only been a joint owner for 2 years

will they be able to put the charging order on when I have no capital in it yet?

 

This has been issued by Asset Recoveries Ltd acting on behalf of Phoenix Recoveries (UK) Ltd S.a.r.l

 

Thanks in advance for any answers.

[debbbbsy]

I had a forthwith court judgement made against me in 1994 for a mortgage shortfall (although I was not made aware of it until 1995).

 

If you were not aware of the judgement, you could have applied to have it set a side. Was it sent to a different address ? however you are out of time, but because they are seeking to further enforce the original claim you are entiltled to challenge the CCJ.

 

Take a look at.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2003/1574.html&query=title+%28+southern+%29+and+title+%28+district+%29+and+title+%28+finance+%29&method=boolean

 

If they got a forthwith judgement in 1994, did they try and enforce it then ? There must be some time limitations on when they can further enforce a claim.

 

How much was the judgement, have they added post judgement interest.

[debbbbsy]

Okay doing a bit of research. A ccj does not become statute barred, however

 

A CCJ was issued but not followed up

 

You have a debt

 

A CCJ is issued WITHIN six years of that date

 

6 Years pass without you being pursued for the debt

 

After the 6 year point the holder of the CCJ (which is transferable to a debt buyer from the original creditor) MUST PRODUCE a copy of the ORIGINAL CCJ to enforce it. No Copy – No CCJ

 

Exceptionally the creditor can apply to the court to get a new CCJ, but will have to show just reason why they were not able to deal with it at the time, i.e. you skipped the country!! This ONLY applies if a CCJ has ALREADY been issued, and they can PRODUCE to the courts a copy of the ORIGINAL CCJ to enforce it. No Copy – No CCJ

 

If they attempt to return to court to renew a CCJ and do not produce a copy of the ORIGINAL CCJ, then it is treated as a Section 5 of the SoL 1980.

 

However it is YOUR responsibility to inform the Judge of S5 of SoL1980, in respect of the copy of the CCJ, if you DON’T then a CCJ can be granted!!!

 

and

 

If they can produce the copy then the next question is to acertain whet PROVEABLE actions were taken for enforcement in the 6 year period. If they cannot provide this proof, then again Section 5 appies and they have to return to court.

 

However, if they can produce Proof that enforecment action has been attempted, such as baliff visits, etc, then you are on a loosing streak, as if you forced them back to court the Judge would almost definatly side with the CCJ holder and not the defendant.

 

2. If a creditor or DCA CANNOT produce a copy of the original CCJ Judgement, then it is treated as if no CCJ existed. Hoewever, YOU must tell the Judge about Section 5 as it is your defence, if you do not then you will have failed to offer a valid defence, and the judge may side with the creditor and issue a CCJ.

 

If you use your Section 5 Defence, then it falls on the claimant to PROVE that you have acknowledge the debt or serviced the debt within 6 years. If they cant prove it then there is no case and no CCJ.

 

You must remember that the legal system requires YOU to provide the defence not the judge or the court clerks.

 

So. What to do.

Request from the claimant a copy of the CCJ, (and all documents provided to support the claim).

Find out why you never recieved the court docs.

When the Forthwith Judgement was granted.A copy of the letter from the claimant and the courts demanding the payment.

Copies of all correspondence from the claimant since the CCJ was granted.

 

Although it does not become statute barred. They have some explaining to do.

[debbbbsy]

County Court Judgments

 

If the creditor has previously taken the debtor to court and a CCJ has been awarded, the debtor will not be able to use the Limitations Act 1980 to dispute the debt. If the CCJ is over 6 years old, the creditor will need the permission of the Court to enforce the debt.

 

Have they sought permission from the court to further enforce the claim. Perhaps a phone call to the court .

[debbbbsy]

Okay, this from The Limitations Act 1980.

 

http://www.legislation.gov.uk/ukpga/1980/58

 

24 Time limit for actions to enforce judgments.E+W

 

(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.

 

Having looked at various links, some say that a CCJ does not become statute barred. But what is clear, the claimant must apply to the court to reinstate the CCJ if 6 years have passed. They must provide proof that attempts were made to enforce the claim.The courts only keep records for 3 years,so they must provide a copy of the CCJ.( you have already stated you didn't recieve any court docs).

It would appear, and hopefully we will get clarification, they have to seek permission from the court to apply for a charging order, when a CCJ has not been enforced for 6 years.

 

Debs

[BradB]

Thanks for these replays. I have sent off a SAR request this morning to obtain the whole file. Hopefully in there it will have a record of how they informed me of the 1994 court date, although I'm not holding my breath. I did move in April 1994 but had a post direction on for 12 months. Prior to that I was at the same address for 3 years and they did have that address.

[debbbbsy]

The charging order, does it give the exact date when the CCJ was granted.

[BradB]

yes, 30th November 1994

[debbbbsy]

Thanks for these replays. I have sent off a SAR request this morning to obtain the whole file. Hopefully in there it will have a record of how they informed me of the 1994 court date, although I'm not holding my breath. I did move in April 1994 but had a post direction on for 12 months. Prior to that I was at the same address for 3 years and they did have that address.

 

The problem with the SAR is they have 40 days too comply ( and even then may withhold documents). Your case goes to court in @ 44 days.

 

You have to find a way to force them to comply sooner.

 

yes, 30th November 1994

 

Ok, so they should have initiated proceedings before 30th Nov, 2010. When did they do it ?

[BradB]

If I am reading this right are you saying that in November 2000 ( 6 years after the forthwith CCJ was made) they had to apply to the court to have it reinstated and that they need to provide copies of those requests?

[BradB]

Interim charging order is dated 23.1.11

[debbbbsy]

The court system seems to feel that 6 years is long enough for a creditor to try for enforcement and it would be only due to exceptional circumstances that they would allow leave for enforcement after this time. Most forms of enforcement would require an additional hearing where the time delay could be raised. The only exception to this is the use of bailiffs but CPR Schedule 2 CCR Order 26, Rule 5 states that a creditor would need the court's permission to go down this route.

 

In the cases of Duer V Frazer [2001] 1 All ER 249 and Patel V Singh [2002] EWCA Civ 1938 both requests to enforcment after 6 years were refused.

 

:whoo: There out of time. You must speak to the court tomorow to find out if they made an application to reinstate the claim. If not, and there should have been a hearing ( which I assume you should have been made aware of), explaining why, if they got a forthwith judgement they waited so long to further enforce it. Without permission, I don't think they can go for a charging order.

 

Have PM'd site team.

[payingonlyencouragesthem]

Statute barred for mortgage debt is 12 yrs....even so this CCJ looks defunct at best and enforcement should be rigorously challenged. You should really be seeking legal advice here and not relying on internet chat rooms to sort this out - even one as good as CAG.

[BradB]

Thanks for this, I will phone the court tomorrow and get the dates of all hearings. Fingers crossed!!!

[BradB]

I am only trying to find a bit of advice. As is always the case this turned up in the post on Friday and I did not get it until I came home from work, too late to speak to anybody. Have spent the whole weekend stressing about it. Didn't finish work until 4.30 again today so too late to speak to anybody. I will seek proper advice once I have obtained all the documents, may apply to have the date moved if it is going to take 40 days to get it.

Thanks for the concern.

[debbbbsy]

may apply to have the date moved if it is going to take 40 days to get it.

 

There are court procedures for requesting documents.

 

I have used CPR 31.14, but this is a Pre-Action Protocol. You could ask the court, you might be able to seek disclosure through the court system.

 

You should really be seeking legal advice here and not relying on internet chat rooms to sort this out

Solicitors don't always provide the advice & service that you expect. I would gather as much info as you possibly can from the forums. Speak to the courts. If you go to a solicitor, ask him basic questions about your case, the limitations act, etc.....if he doesn't have the answers...walk away.

 

Debs

[BradB]

Just wanted to add that a forthwith order was made which I have not made payment on as I did not have that amount of money. I have never been asked to make payment by instalments and therefore no payments have ever been made on this debt since the ccj was awarded in 1994. Don't know if this makes a difference.

Edited January 31, 2011 by BradB
error on date

[debbbbsy]

statute barred for mortgage debt is 12 yrs

 

With mortgage shortfalls the statute of limitations runs for six years for the interest due and twelve years for the capital. Basically that means that the lender puts the money from any sale first towards the interest so what usually remains outstanding is the capital. The Council of Mortgage Lenders have an unofficial policy of not chasing any debt after six years but some still do.

If the lender has gone for a CCJ then the statute of limitations does not apply but the lender would have to go back to court after six years if he wanted to enforce to explain why he had not done so before.

 

The original claim was for mortgage arrears, and clearly they got judgement (undefended because bradb never recieved the docs) within the timescale required. But, to further enforce the CCJ, after a period of 6 years, were there has been no payments/contact. The claimant should have applied to the court for permission before applying for a charging order. The court needs to be made aware of this, and the interim charge removed.

[debbbbsy]

I have never been asked to make payment by instalments and therefore no payments have ever been made on this debt since the ccj was awarded in 1994. Don't know if this makes a difference.

 

It makes all the difference. They never asked you for the money because they new you didn't have it. It is grossly unfair for a claimant to get judgement, never ask for the money, but instead sit back and wait many many years until you have an assett, & then sieze it. This is why we have the Limitations Act, to prevent this type of claim.

Every thread I have looked at says the same, if it is 6 years +, they HAVE to apply to the court for permission. Clearly they knew this when they applied for the charge, and should be reprimanded for this failure to follow the lawfull route. Probably hoping you would be ignorant of the Court Procedures.

[BradB]

Well thank's to you I'm not now! I shall contact the County Court tomorrow and ask if they applied for permission to pursuing it after 6 years - hopefully they didn't. When I have researched both of these firms the common theme is that they do not do things by the book and I know that Asset Recoveries have been reported to the OFT by the Independent Banking Advisory Service.

[debbbbsy]

hopefully they didn't.

 

IF, & its a huge big if. Shouldn't you have been informed.Afterall they were able to get your address for the charging order.

 

Was it Asset that initiated the CCJ ?

[sequenci]

Looks like Debbbsy is on the right track here

 

An objection needs to be raised on the grounds that 15 years have passed since the granting of the original order. I do have concerns though as I've been reading information that has arisen out of Yorkshire Bank Finance Ltd v Mulhall [2008] EWCA Civ 55 that seems to insinuate that once a CCJ has been obtained there isn't a period of time in which a Charging Order can be applied for. I'm still reading in to this and will report back once I've found out more.

 

Edit; just reading para 24: which is quoting an earlier case of Nat West v Ashe

 

'' Only in the exceptional case of an action on a judgment is there any statutory time limit on enforcing a judgment debt. Otherwise, and apart from the separate provision as to interest in section 24(2), judgment debts are outside the scope of the limitation legislation. There are constraints on enforcement by writ of execution after six years: see RSC Order 46 rule 2(1)(a) in Schedule 1 to the Civil Procedure Rules, and remedies such as charging orders and third party debt orders are subject to a judicial discretion, but these have nothing to do with the Limitation Act 1980. He argued that the fact that a charging order has been made to secure the debt cannot bring the underlying judgment debt within the ambit of the Limitation Act. ''

[sequenci]

Here's the full judgment:

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2008/1156.html&query=title+(+mulhall+)&method=boolean

[debbbbsy]

24 Time limit for actions to enforce judgments.E+W

 

(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.

This is from the Limitations Act 1980.

 

judgment debts are outside the scope of the limitation legislation.

 

This CCJ is 16 years old. No contact whatsoever with the claimant during that period. Only now have they made an application to further enforce the judgement order.

[sequenci]

It's an interesting point. Under s38(1) 'Action' is defined as 'any proceedings in a court of law'. According to Lamb and Sons v Rider [1948] 2KB 331; [1948] 2 ALL ER 402 CA and Lowsley v Forbes [1999] 1 AC 329 s24 is not concerned with procedures to enforce existing judgments but only with the right to bring a new action based upon an existing Judgment. My initial view was that there could be an argument that the CCJ is 16 years old as per Duer v Frazer and Patel v Singh but the commentary I've read surrounding Mulhall seems to think that a CO may be possible. Perhaps the judgments distinguished between execution and enforcement?