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

[debbbbsy]

Okay,

 

The CCJ was gained undefended because she never recieved the court docs.

 

Now, after 16 years the court will have destroyed the file, and the CCJ will have disappeared off the system.

 

Have also read, that the Claimant must produce a copy of the Judgement order.

That they must apply to the court for permission to instigate further proceedings.

 

with the right to bring a new action based upon an existing Judgment.

 

Also, as they have sought to further enforce the judgement, couldn't she also make an application to the court for a "Declaration of Enforceability". To challenge the original CCJ. Any failure by the claimant to provide documents to support the original POC, stating that "due to the passage of time we are unable to locate the documents" cannot be used, as it is they that have failed to bring this action sooner.

[sequenci]

I think that's the angle to go down for sure. 16 years is a VERY long time and I'll be surprised if the claimant has a copy of the original judgment

[hutson]

I tried to post a reply yesterday but I don't think it worked. According to Companies House, Phoenix Recoveries (UK) Ltd dissolved themselves on 21 December 2010 so if they don't exist, how can Asset Recoveries act for them?

[BradB]

I have a print out from companies house showing Phoenix Recoveries (UK) Ltd was dissolved on 21.12.10. but they are registered in Luxembourg so I don't know if this will make any difference.

[debbbbsy]

Phoenix Recoveries (UK) Ltd

 

Was it this company that instigated the original claim ?

[debbbbsy]

Did you speak to the courts today?

[BradB]

No, I'm afraid I got home from work to late. Spoke to National Debt line and they weren't to clear on the 6 year rule but said to ask the court the same question re granted permission to take action. Asset Recoveries have received my SAR this morning so I have emailed them to see how long they will take and told them if it is going to be 40 days I will ask the court for a new date. Will hopefully finish work earlier tomorrow and get home before 4 so that I can phone the court (I did email them last Friday but they haven't replied).

[BradB]

The name on the court paper dated 05.01.11 is Phoenix Recoveries (UK) Limited S.A.R.L. - acting in the name and on behalf of it compartment "AR Recoveries". Can't really work out who I am dealing with!

[hutson]

In my case,

looking through my papers now I'm a little less stressed, firstly I cannot find any Notice of Assignment.

 

It appears initially I was contacted by Marlin Financial Services and I also received correspondence from Phoenix

but the letterhead was weird and non-standard.

 

Once they pursued me through the Courts, Mortimer Clark were acting of behalf of their clients namely, Phoenix Recoveries (UK) Sarl Marlin.

 

I wrote to both Marlin Financial Services in West Sussex and also to Phoenix Recoveries (UK) Sarl Marlin

at 25B Boulevard Royal L-2449 Luxemburg as this was the address on their court papers claim form.

 

I duly got my letter to the latter returned some weeks later by Royal Mail.

 

Inside was my original letter and envelope with a pink sticker saying 'Retour' and the box that was ticked was 'Parti'

which I understand to mean that company was not there as they had left?

 

I brought this up in court but never managed to get an answer.

 

I just wish then that I know what I do now.

 

Also if it helps, when you look up Phoenix at Companies House, it states

'There are No Overseas Details associated with this company'?

This is also the case with Asset Recovervies.

 

I am going to ring the court tomorrow to find out what, if anything, I can do and will let you know how I get on. I

feel we all have a right to know who is dealing with our debts and that they are doing

so lawfully and so far none of this makes any sense to me.

[debbbbsy]

The name on the court paper dated 05.01.11 is Phoenix Recoveries (UK) Limited S.A.R.L.

 

use CPR 18.

 

Preliminary Request for Further Information or Clarification

 

1.1

 

Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the response to the Request should be served. The date must allow the second party a reasonable time to respond.

 

1.2

 

A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.

 

1.3

 

Requests must be made as far as possible in a single comprehensive document and not piecemeal.

 

1.4

 

A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document.

 

1.5

 

If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case,

(1) state that it contains a Request made under Part 18, and

 

(2) deal with no matters other than the Request.

 

 

1.6

 

(1) A Request (whether made by letter or in a separate document) must –

(a) be headed with the name of the court and the title and number of the claim,

 

(b) in its heading state that it is a Request made under Part 18, identify the first party and the second party and state the date on which it is made,

 

© set out in a separate numbered paragraph each request for information or clarification,

 

(d) where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates,

 

(e) state the date by which the first party expects a response to the Request.

 

 

(2)

(a) A Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document.

 

(b) To do this the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right.

 

© Where a Request is prepared in this form an extra copy should be served for the use of the second party.

 

 

 

 

Use this to request disclosure, give them 7 days to respond.

1. A copy of the Default Notice issued by the Original Creditor to the Plaintiff.

2. A copy of the Notice of Assignment sent by the Claimant to the Plaintiff.

3. A copy of the POC issued by the claimant.

4. A copy of the original agreement between the Original Creditor and the Plaintiff ( which should have been attached with the claim).

5. A copy of the Judgement order.

6. Copies of all correspondence between the claimant and the plaintiff since judgement was granted xxxx1994.

7. Statements for the account referred to in the POC and the charging order, inparticular for the period of xxxx1994 to 05.01.2011.

 

The 1980 time limitations act 24(1) states that if the claimant seeks to enforce a judgement debt beyond the 6 years limitation an application must be made to the court prior to any further enforcement.

 

8. The Plaintiff did not recieve any court documents in 1994, has never at anytime since judgement was granted recieved any demands for payment, has never made any payments towards the judgement order since it was granted ( 16 years). The plaintiff requests proof that the claimant has been granted permission by the courts to make an application for a charging order dated 05/01/11, approximately 16 years since the CCJ was granted.

 

 

just a start. but we need to get discolsure.

[BradB]

Sorry, who am I to send this to?

[sequenci]

If you're going to take this on you MUST be familiar with the following (read para's 23 and 24 especially)

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2008/1156.html&query=title+%28+mulhall+%29&method=boolean

[BradB]

I have contacted the Court today and

 

they have advised me to send in a letter to the District Judge asking him to look again at the decision

to issue an interim charging order due to the age of the case.

 

I should get a decision within 2 weeks.

 

Spoke to Asset Recoveries solicitor who said I should have a letter within 7 days acknowledging my SAR request

but could not advise how long it would take to process,

 

just that I would get it before the court date, then he hung upon me!!

[debbbbsy]

Sorry, who am I to send this to?

 

Send it to the solicitor. State on the request, give them 7 days.

 

Spoke to Asset Recoveries solicitor who said I should have a letter within 7 days acknowledging my SAR request but could not advise how long it would take to process, just that I would get it before the court date, then he hung upon me!!

 

Send them the CPR 18. They have absolutely no intention of responding to your SAR. Do not trust these scumbags.

 

I have contacted the Court today and they have advised me to send in a letter to the District Judge asking him to look again at the decision to issue an interim charging order due to the age of the case.

 

You can submit a defence to the CO application. I'm not entirely sure about this, but with CCJ's that are contested you can submit a " Draft order Directions" to the court, disclosure of documents prior to proceedings. The judge sends the request to the claimant . He gives them 21 days to comply. Any failure halts proceedings.

Perhaps with your letter to the judge, as advised also attach a "Draft order Directions.

 

I have contacted the Court today and they have advised me to send in a letter to the District Judge asking him to look again at the decision to issue an interim charging order due to the age of the case. I should get a decision within 2 weeks.

 

So, they haven't made an application to the courts for permission to enforce the claim. This is a blatant abuse of the court procedures.

 

Debs

 

Debs

[sequenci]

So, they haven't made an application to the courts for permission to enforce the claim. This is a blatant abuse of the court procedures.

 

They only need leave of the court if applying for a warrant of execution as there isn't a hearing for that particular method of enforcement. All other methods have a hearing where the issue of time can be raised.

[BradB]

I have sent a letter to the solicitor's (recorded delivery) to ask for the documents

and a letter to the District Judge asking for the case to be looked at again due to the time that has passed (can but hope!).

 

Am I right in assuming that the solicitors must present a copy of the original order to continue with the case.

 

We have just been looking through the papers sent from the solicitors (have received nothing from the court regarding this)

and noticed that the copy of the judgement received in 1994 is typed out by them and not a true copy.

Does this make a difference?

[sequenci]

Am I right in assuming that the solicitors must present a copy of the original order to continue with the case.

If you raise it within your challenge then they should certainly have to. The courts are unlikely to have a copy and it will no longer appear on the register of court orders, judgments and fines. If they cannot prove that the CCJ exists then you can argue that the entire debt is statute barred.

 

 

We have just been looking through the papers sent from the solicitors (have received nothing from the court regarding this) and noticed that the copy of the judgement received in 1994 is typed out by them and not a true copy. Does this make a difference?

 

Certainly may do, ask for a copy of the stamped court order.

 

I've undertaken a little more research. The key argument to use is that (if there IS a CCJ) the creditor is out of time to enfore their judgment, although there is nothing in the limitation act to prevent them applying you should argue the length of time as per Duer v Frazer and Patel v Singh.

[BradB]

I have been reading the National Debtlline website and have found the following.

 

If the creditor has been to court and there is a county court judgement outstanding then you cannot use the Limitation Act

to dispute you owe the debt.

 

It does not matter how many years ago the creditor went to court, the ccj will still exist.

 

However, the creditor may not be able to enforce the judgement without the court's permission if the judgement is over six years old.

 

I assume I need to find out when (and if) Asset Recoveries applied for permission to continue to try to get payment.

[sequenci]

That's correct. The argument you need to use is that 6 six years is sufficient for a creditor enforce a ccj and that waiting beyond that and then trying to enforce is unreasonable.

[BradB]

What I am really trying to do is just stop the charging order. This is not a joint debt with my husband and as he put all the deposit into this house and I have only been on the deeds for 2 years I think it is unfair to put a charging order on his home. Hopefully is I find enough flaws in the case when I get the papers I can stop it happening.

[BradB]

I have received a bit more information today.

 

The court appearance I made in 1995 was for an attachment of earnings.

 

As I was on Maternity Leave the judge dismissed the claim.

 

National Homes Loans passed on the debt to Phoenix Recoveries (UK) Ltd S.A.R.L on 06.08.07 but I have not yet received the Notice of Assignment.

 

They passed it onto Asset Recoveries on 21.12.10.

 

They did not contact me to see if I could make payment

but went straight to the court to apply for the interim charging order

(only 20 working days from the notice of assignment!!).

 

I'd have thought they would have made some contact with me,

I could have won the lottery for all they knew!

 

As they don't know my circumstances I would have thought they would have contacted me first before going straight for the order.

[diddydicky]

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.

 

 

To take exception with the generality of your comments

 

 

i think you will find ( certainly with CCA issues) that your "average high street solicitor" knows diddly squat and certainly not as much as many contributors to this forum

 

the legal profession now "specialise" as the law has become such a broad subject- and the fact is that consumer debt legislation does not provide any rich pickings for the legal profession which is why so few sols bother with it

 

99% of sols consulted will tell the client they would be wasting their time defending (when what they mean is that the sols dont want to waste THEIR time)

 

 

in the case stated- it is in fact a relatively straightforward matter

 

the claimant MUST have a copy of the original judgement (and i can bet a pound to a bucket of pigsh*t that he will not get one of those from the court registry after 17 years!)

 

before he can do ANYTHING

 

the courts are quite strict on the 6 year rule and are reluctant to agree to any application for action after that time except in exceptional circumstances....... the courts take the view that if the creditor cannot be bothered in 6 years to chase a debt- he is usually not really all that interested

 

to grant permission to enforce after 17 years- well i would be looking for a star to appear in the East

 

this does not need a solicitor (unless the poster can afford it) - it just need a few hours researching the plethora of information that is available on the net on this subject

 

 

there would have to be proof of the transfer from the original claimant named in the ccj to someone else

 

this is a try on by a debt collector

Edited February 6, 2011 by diddydicky

[BradB]

Still have some documents missing but have made a time line of events from what I have.

 

Included is a copy of the High Court Writ dated 08.11.94 which I never received.

 

• November 1990 – I moved out of ****** and contacted National Home Loans immediately to give them my new address.

No correspondence received from National Home Loans until judgement below received.

• 30th November 1994 – High Court of Justice awarded plaintiff (National Home Loans) £19664.55.

• 21st December 1994 – Application for Attachment Of Earning received off ******** County Court.

• 17th January 1995 – Attachment of Earnings form completed and returned to ***** County Court.

• 28th February 1995 – Attended ****** County Court for hearing re Attachment of Earnings. Case dismissed by Court as on maternity leave from work and receiving under the protected earnings limit.

• 8th November 1995 – Contacted by National Home Loans. Still supported by my husband and pregnant with my 2nd child.

• 4th December 1995 – Letter from National Home Loans asking them to contact them to discuss repayment proposals.

• February 2001 – Telephone call off National Home Loans and case discussed with my husband. Letter received from them stating they will register a default against me .

• 26th February 2001 – I sent a letter to National Homes Loans advising them that I no longer lived at ************* which was due to a trail separation from my husband. I had a redirection on my post for 6 months.

• 2nd July 2001 – Letter sent to National Homes Loans confirming that my situation had still not changed, I was still supported by my husband and had 2 small children to look after.

• 19th July 2001 – Further letter received asking for income and expenditure form to be completed.

 

 

In the documents supplied by Lawsmiths Solicitors there is a gap from 19th July 2001 until 21st December 2010. These documents have been requested but to date have not been received.

Lawsmith Solicitors confirmed over the telephone that Phoenix Recoveries took over the debt on 6th August 2007.

 

• 21st December 2010 – Phoenix Recoveries (UK) Limites (sic) S.a.r.l acting in the name and on behalf of its compartment “AR Recoveries” received order to be substituted as the Claimant.

• 11th January 2011 - Phoenix Recoveries (UK) Limited S.A.R.L – Acting in the name an on behalf of obtained an Interim Charging Order against ********.

 

Have noticed on general form of judgement or order dated 21.12.10 they have spelt limited limites so in effect have passed it onto the wrong company.

 

Any advice on what line of defence to take to stop charging order becoming final as I have said before it is not a joint debt and I have only been on this mortgage for 2 years. If it comes to it I do not mind an attachment of earnings as long as my husband's house is not at risk.

[BradB]

Have not yet heard from court re reconsideration of enforcement as over 6 years old. Will be sitting down tonight to pen my objection to the charging order so any advice after reading time line above gratefully received.

Edited February 10, 2011 by BradB
spelling

[debbbbsy]

1.They must provide a "True" copy of the judgement. With the court stamp. This is an essential pre- requisite to get the charging order. And should not have further enforced the claim without it. This hand typed document is not proof that a CCJ existed.

2. It appears, that although the OC got a CCJ. The judge never actually made an order as too how much you should pay each month. The CCJ becomes your agreement, and if you fail to adhere to the payments set by the court, then & only then can the OC go for a charging order. You never deafulted on the CCJ. I suggest you ask them how much the court stated you pay each month.

3.The CCJ does not become statute barred. But they do have to make an application to the courts before instigating any further action.

4.

30th November 1994 – High Court of Justice awarded plaintiff (National Home Loans) £19664.55.

If the CO is for more than this sum ( i think you said £30K).

a) The CCA 2006 states that if post judgement interest is being applied they must provide statements.

b) You can also request a copy or your Original Agreement with National Home Loans, this agreement needs to contain a PJI clause.

5.If the OC was National Home Loans. Whoever has instiagted this claim, must provide proof that they legally own this 'alleged' debt.

 

As I said, put in a defence. Include the CPR request & the response.

But also attach with it a " Draft order Directions".

 

This is important,the CCJ became your agreement, and just as many consumers defend a CCJ on the grounds that the claimant does not have a true copy of the agreement that they rely upon to get judgement. So it is with a CCJ, inorder to further enforce the claim, they must provide a true copy of the judgement order issued by the court, the amount of the claim, and the repayments set by the court,dated & stamped ( not a reconstituted piece of crap that anyone could create on there PC).

 

Debs