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

[Gaston Grimsdyke]

Restrictions are useless. All the selling solicitor has to do is give notice to the holder of the restriction that a sale has taken place, so it's a fait accompli and there is nothing the restriction holder can do about it. Not that most conveyancing solicitors know that.

[debbbbsy]

I think were moving on from the original issues raised.

 

Can a 3rd party Creditor make an application for a CO in respect to a CCJ issued in 1993. When no contact has been made regarding the CCJ for way more than 6 years.

The DCA has successfully made an application to be replaced as the claimant. But the plaintiff was not informed of this. Has recieved no paperwork from the Original claimant or this company to prove they legally 'Own' this account.

The Courts will not have a record of the CCJ.

The new claimant does not have a copy of the Original Judgement Order. An essential court requirement to further enforcing the claim. Just as a CCJ is not enforceable without a copy of your agreement. The CCJ becomes your agreement.

 

I would imagine that the case has been transferred at some point in the last 15 years or so.

 

If it was, then documents to support such an application will need to be supplied.

 

BradB, they refused to comply with your SAR. Did you send the CPR Part 18 request ?

 

Debs

[debbbbsy]

House of Lords - Lowsley and Another v. Forbes (Trading as L.E. Design Services)

 

A CCJ does not become statute barred, the 6 year time limitations do not apply. This is because the 6 year rule is only discretionary. However, the plaintiff must "obtain leave from the Master to enforce the judgement under R.S.C. Ord. 46,2(1)(2). Leave was necessary because over 6 years had lapsed since the date of the judgement".

Charging orders are not considered a new "Action", but merely an enforcement of an existing claim.

 

However, there is a 12 year rule, which prevents enforcement by execution .At 12 years a CCJ is covered by a 'Statutary Absolute Bar'.

 

Either way, in this case, this DCA has failed to seek permission from the courts before making this appliction. On these grounds alone, the case should be dismissed.

[sequenci]

However, there is a 12 year rule, which prevents enforcement by execution .At 12 years a CCJ is covered by a 'Statutary Absolute Bar'.

 

 

That's an interesting piece of information, is there authority for it anywhere? I've not come across it before on my travels.

[BradB]

Hi Debs, yes I sent exactly what you posted to the solicitors. I got a letter back off the saying and as I do not have a scanner at home I will type out what it says.

 

We acknowledge receipt of your letter dated 2 February 2011,

which appears to have crossed with our letter to you of 3 February 2011.

(This was the SAR request and contained documents from

08.11.94 which is the original court summon's that I did not receive to 19.07.01

19.07.01 all from National Home Loans and no assignment notice and

then a big gap until January 2011 which is the interim charging order).

 

We have already provided you with copies of a number of documents,

although it is not incumbent upon our client to do so,

and your requests for further information are of no relevance to the proceedings before the Court.

 

In your letter you contend that leave is required from the Court to take enforcement action in respect of a Judgement that is more than 6 years old

and you state that you require proof that the Claimant has been granted permission to make an Application for a charging order.

 

It is settled law that, unlike other methods of enforcing

a Judgement debt,

there is no statutory time limit within which a judgement creditor should apply for a Charging Order

and that the provisions of section 24(1) of the Limitation Act 1980 do no apply to Charging Order Applications

(as confirmed in the cases of Lowsley v Forbes (1991) 1 AC 329; Yorkshire Bank Finance Ltd v Mulhall & Another (2008) EWCA Civ 1156).

 

It is also settled law that permission is not required from the Court to enforce a Judgement debt by way of a Charging Order

when the Judgement debt is more than 6 years old and accordingly the provisions of RSC Order 46 and CCR Order 26

are not applicable (as confirmed in Westacre Investments Inc v Yugoimports SDPR (2008) EWHC 801 (Comm)).

 

According we are instructed to proceed with our client's application for a charging order, which as you are aware has been listed for hearing on 14 March 2011.

 

This is the letter word for word.

[debbbbsy]

hi,

 

What utter utter morons. They clearly haven't even read these judgements, both Lowlsey & Westacre refer to the original claimant making an application to reinstate the CCJ beyond the 6 years, only with the permission of the court can they then make an application to further enforce the CCJ.

 

I've put a post on another forum, it has more legal help....

[the_shadow]

hi,

 

What utter utter morons. They clearly haven't even read these judgements, both Lowlsey & Westacre refer to the original claimant making an application to reinstate the CCJ beyond the 6 years, only with the permission of the court can they then make an application to further enforce the CCJ.

 

I've put a post on another forum, it has more legal help....I don't think were getting enough support from the site team on this forum.

 

The Site team are no more legal experts than yourself I'm afraid, we are a group of volunteers who aim to help people who need advice and where we've trodden the path before we will advise where possible. Its a bit unfair to expect the Site team to do the donkey work on a self help site is it not?

 

S.

[debbbbsy]

The Site team are no more legal experts than yourself I'm afraid, we are a group of volunteers who aim to help people who need advice and where we've trodden the path before we will advise where possible. Its a bit unfair to expect the Site team to do the donkey work on a self help site is it not?

 

Were dealing with a serious issue, a clear breach of procedures.....and getting no imput. Were not asking for anyone to do any donkey work, but atleast someone please throw us a bone.

[debbbbsy]

BUT CPR rules are "supposed" to be the answer to getting everything right before getting to court, during and after.

 

HOWEVER in reality "this is direct from a Solicitors mouth" CPR is "TOOTHLESS" ie if they dont comply nothing really happens.

 

I suggest that you get an "Unless Order" and categorically ask for a copy of the first NOA from OC to DCA1.

This means that "UNLESS" they provide it within, say 7/14/21/28 days (reasonable timescale) that you want the claim Struck Out (or Dismissed) as they have not evidenced a legal chain of ownership from the original OC to DCA1 to DCA2.

 

That make sense? - dont bother "pi**sing" around with CPR requests.

 

and

 

Unless Order Needs to be applied for via the court and set out;

 

IN THE XXXXXXXXXXXXXXXXX COUNTY COURTClaim No. X

 

BETWEEN:

XXXXXXXXXX

Claimant

- and –

XXXXXXXXXX

Defendant

_________________________________

DRAFT ORDER FOR DIRECTIONS

_________________________________

 

I XXXX request that an Unless Order be granted in respect of.................

[debbbbsy]

Spoke to Court and they couldn't help so gave me the number for Registry of Judgments, Orders and Fines (RTL Home)

 

Very nice lady there said that YES it is acceptable, but the DCA CANNOT ask for more than the original judgement or vary payment terms.

Obviously a call/letter to the OC would be a good move to ensure that the CCJ has indeed been sold to the DCA.

 

This is how to contact Trust Online for public enquiries.

By email to info@trustonline.org.uk

By telephone:

 

 

• UK on: 020 7380 0133
  
• ROI on: 1890 81 20 48
  

 

By post at: 153 - 157 Cleveland Street, London, W1T 6QW

By DX courier to: Registry Trust Ltd, DX134211, Tottenham Court Rd 2

Office hours

 

Our office hours are 9am to 5pm, Monday to Friday

 

Its worth a go, they may be more helpful and knowledgeable than the court clerk.

[the_shadow]

Were dealing with a serious issue, a clear breach of procedures.....and getting no imput. Were not asking for anyone to do any donkey work, but atleast someone please throw us a bone.

 

I understand its a serious issue... most of the legal forum is filled with serious issues. It may be the Site team have no knowledge of what you are seeking or the specific team member isnt available at present, rather than chastise for no input from the site team being given, tell me what you are asking in a concise way and I'll ask the rest of the site team to take a look.

 

S.

[sequenci]

It is settled law that, unlike other methods of enforcing a Judgement debt, there is no statutory time limit within which a judgement creditor should apply for a Charging Order and that the provisions of section 24(1) of the Limitation Act 1980 do no apply to Charging Order Applications (as confirmed in the cases of Lowsley v Forbes (1991) 1 AC 329; Yorkshire Bank Finance Ltd v Mulhall & Another (200 EWCA Civ 1156).

It is also settled law that permission is not required from the Court to enforce a Judgement debt by way of a Charging Order when the Judgement debt is more than 6 years old

 

This is 100% correct, sadly.

[debbbbsy]

It is also settled law that permission is not required from the Court to enforce a Judgement debt by way of a Charging Order when the Judgement debt is more than 6 years old

 

This is not correct.As stated in Lowsley V Forbes.

Since more than six years had passed they needed leave to issue execution under Ord. 42, r. 23(a).

 

There is in law a discretionary bar at 6 years. An application MUST be made if a 6 year period has lapsed. I really really don't know where this solicitor seems to feel they are exempt from this procedure.

A Statute Bar, exists beyond 12 years.

 

Thus the position after the Limitation Act 1939 came into force was that a judgment debt became statute barred after 12 years. This was the meaning which the courts had given to the language of section 2(4) of the Act of 1939 and its predecessors for over 100 years. The existence of the statutory bar was not regarded as being in any way inconsistent with a discretionary bar on execution after six years under Ord. 42, r. 23(a) of the Rules of Court, now Ord. 46, r. 2(1)(a).

[sequenci]

This is not correct.As stated in Lowsley V Forbes.

Remember the differences between 'execution' and 'enforcement'

 

Also remember that the 1939 Act was repealed, in full.

[Ganymede]

WESTACRE INVESTMENTS INC (A company incorporated under the laws of Panama) v THE STATE-OWNED COMPANY YUGOIMPORT SDPR (AKA JUGOIMPORT-SDPR) (2008 )

 

 

At the date on which registration of an English judgment was initially permitted in Singapore, the English court would unhesitatingly have permitted enforcement by way of a third party debt order against a presumed debt situated in England.

 

 

The claimant judgment creditor (W), in the context of enforcement proceedings in Singapore, sought a declaration that on certain assumed facts the English court would have made a third party debt order. W had obtained an award in Switzerland against Y and the English court had entered judgment in terms of the award in March 1998. W took steps to enforce the judgment. In July 2004, it discovered that Y had a shareholding in a Singapore company (D) which had a Singapore bank account containing funds held by D for Y. Y disputed that it had a beneficial interest in those funds. In October 2004, W applied ex parte to the Singapore court for registration of the English judgment with a view thereafter to obtaining a garnishee order in respect of the funds held at D's bank, and garnishee orders to show cause were made against D and the bank. The Singapore court then set aside the registration of the judgment on the ground that it was not just and convenient that the judgment should be enforced in Singapore. W appealed and the Singapore Court of Appeal directed W to apply to the English court to determine whether it would have made a third party debt order in respect of an assumed debt in England at the date on which registration of the English judgment was initially permitted in Singapore. Y argued that the body of authority to the effect that the lapse of six years after judgment would ordinarily justify refusing a judgment creditor permission to issue a writ of execution should apply by analogy to the regime for third party debt orders under CPR Pt 72.

 

 

HELD: (1) Conceptually a judgment, although interest bearing for only six years, remained enforceable without limit of time, A v Hoare (2008) UKHL 6, (2008) 1 AC 844 considered. Different procedural rules applied to the different methods of enforcement. The power to make both an interim third party debt order, and the final order, was discretionary. The rule made no reference to the time elapsed since the date of the judgment. The difference in the provisions governing garnishee orders and writs of execution had existed for well over 100 years. There was no warrant or support in authority for applying the law applicable to writs of execution to third party debt orders by analogy. That would run counter to the scheme established in CPR Pt 72, which expressly placed upon the judgment debtor the onus of making good any objection to the making of a final order. There had never been any practice of declining to grant the interim order on the ex parte application on the ground alone that the lapse of six years since the judgment cast upon the judgment creditor the onus of showing why the order should be made. The lapse of six years since judgment enjoyed no special significance and was simply one factor to be taken into account in the overall exercise of discretion, Fellows v Thornton (1884-85) LR 14 QBD 335 QBD considered. (2) The court would have made a third party debt order in the instant case, on the assumption that there was a debt within the jurisdiction. Neither CPR r.72.3 nor CPR PD 72 required the judgment creditor to explain when precisely it had learned of the existence of the third party debt or to justify any lapse of time between the judgment and the application to enforce. Had the judgment debtor objected to the making of an order on the ground that six years and seven months had elapsed since the judgment that would of itself have been a factor of very little weight. The court would have been most unlikely to regard as of any great significance arguments directed to showing that the judgment creditor might, with the exercise of greater diligence, or had it prioritised its efforts differently, have been able to discover the existence of the debt sooner. In the absence of some compelling evidence of prejudice to the judgment debtor accruing from the delay in enforcement, the court would regard the grant of garnishee relief as virtually axiomatic. Even if the court had concluded that it should adopt by analogy the approach in the writ of execution cases, still in the circumstances of the instant case the court would have permitted enforcement by way of a third party debt order. W had made active efforts to enforce the judgment, Society of Lloyd's v Longtin (2005) EWHC 2491 (Comm), (2005) 2 CLC 774 and Patel v Singh (2002) EWCA Civ 1938, (2003) CPLR 149 considered. Y did not suggest that it had been led to believe that W was not intent on enforcing its rights, Good Challenger Navegante SA v Metalexportimport SA (2003) EWCA Civ 1668, (2004) 1 Lloyd's Rep 67 considered.

 

Declaration granted in favour of claimant

[BradB]

Having read all of the above

 

am I right in thinking they do not have to re-apply to the court after 6 years and there is no 12 year Statute Bar limit?

 

Does the waiting 9 years to substitute themselves as the claimant have any bearing on the case?

 

I have a least got my head around what they can and can't do and as my husband has no intention of ever selling this house they will have to wait a very long time for their money!!!

 

Just seems wrong that a company that doesn't even trade in this country can by a debt, double it and then try and get the debt back from a house that you have no capital in!!

[debbbbsy]

Westacre Investments Inc

1. 154.

   
   .... Since .... the [English] [J]udgment is dead and can only, at best, be revived in England for the purposes of execution with the leave of the English Courts, and this leave has not been given by the English Courts, it would not be possible for this Honourable Court of Appeal to allow registration and give the English Judgment the same effect as a judgment of the Singapore Courts. As such, registration of the English Judgment under [the] RECJA should and must be denied. ....
   ....
   171.
   
   Notwithstanding the clear evidence on this issue, at the first instance the AR proceeded to take the mistaken view that in England there was no time limit for the issue of third party debt orders such as garnishee orders and no requirement to obtain the leave of [the] court. According to the AR, [the] leave of [the] court was only required for writs of execution. In a misapprehension of the evidence before her, she held that the English Judgment could be registered for the purposes of garnishee proceedings without [the] leave of the English Courts.
   172.
   The learned AR’s finding was with respect, wrong. A charging order or garnishee order (third party debt order) if applied [for] by the [Appellant] in England can only be issued with [the] leave or permission of the English Court. This was common ground between the parties and their experts on English law ....
   

   
   

   [emphasis in original]

   
   

2. It was apparent to us that the Respondent’s submission about the English Judgment being metaphorically dead was simply another way of saying that it was unenforceable in England without the leave of the court and was therefore unenforceable for the purposes of the RECJA. We agree entirely with this argument as a general statement of principle in so far as enforceability of a Commonwealth judgment in the jurisdiction in which it was obtained (“the originating jurisdiction”) is a prerequisite for registering that judgment in Singapore. This is indirectly reflected in, inter alia, O 67 r 3(1)(c)(i) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).
   

 

I do not argue, that case law clearly exists that charging orders are granted beyond the 6 year limitation period. But in all the cases I have read, before such an application can be made. The Claimant must first seek permission from the court to apply to further enforce a claim that is beyond the 6 year limitaions. In this case, a CCJ that is 16 years old, Assett feel that they are exempt from this law, and have applied for a charging order WITHOUT the courts permission.

 

Also remember that the 1939 Act was repealed, in full.

 

This clause of the 1939 act was referred to in Lowsley V Forbes. It is not referred to in the 1980 act, because there was an assumption in common law, that any issue of the 12 year statutory limitaion would be addressed at the application to reinstate the CCJ beyond the Discretionary 6 year limtations. A requirement before making an application to apply for the charging order.

[sequenci]

 

 

I do not argue, that case law clearly exists that charging orders are granted beyond the 6 year limitation period.

 

Yorkshire Bank v Mulhall.

 

' LLOYD LJ said the House of Lords had held in Lowsley v Forbes (trading as L E Design Services) [1999] 1 AC 329

that no provision of the 1980 Act applied to the enforcement of a judgment debt by making a charging order,

which might be made at any time while the judgment debt was outstanding.

 

The Court of Appeal in Ezekiel v Orakpo [1997] 1 WLR 340 had held that enforcement of a charging order was not affected by s 24(1) of the Limitation Act 1980,

 

which provided:

“(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.”

Applying that decision by analogy to the instant case, it followed that the defendants could not rely on s 20(1) of the 1980 Act (“(1) No action shall be brought to recover

– (a) any principal sum of money secured by a mortgage or other charge on property .

.. after the expiration of twelve years from the date on which the right to receive the money accrued.”)

 

There was no provision in the 1980 Act which affected the enforcement of the charging order on the part of the claimant,

and the defendants were not correct in contending that the charging order could not now be enforced because of the lapse of time. '

[debbbbsy]

According to the LPA act 1925 sec 136 and 196 If no NOA sent to the defendant then it is not valid or absolute

 

a Court Judgement is not transferrable without the permission of the court and a court order declaring the name change

 

The background being the now Claimant Merit Finance ltd bought this CCJ debt back in 2002 from a company called Orion Asset Finance Ltd then name changed to ICF Loans Ltd who Originally called bought the debt from the Original Creditor Imperial Consolidated Financiers Ltd as they went into administration and my CCJ payment has always gone to the solicitor, but I was only acknowledged in the way of a Notice of Assignment a year later back in 2003 that Merit had bought this Debt from ICF Loans Ltd, Then in December 2009 I received a notice of a application for a hearing with a date time but nothing else, so I sent a letter to the Court to ask what it was about in case I needed to form a defence and could I have it transferred to a Local Court.

 

The Court acknowledged receipt of my letter but I only received a copy of the Claimants application which was for Merit to be substituted as the new Claimant and witness statement the day before the hearing was about to take place thus giving me no time in which to form a defence so I rang the Court in a blind panic to explain this and ask could they at least adjourn the hearing giving me time to form a defence to which I was told that it would go before the judge.

 

Two weeks later I received a letter back from the court to inform me that the substitution has been granted in my absence:-x so I then applied for a Set aside which was granted to be heard in my local Court as allot of things came to light in the claimants witness statement that either I did know about like the first sale of my CCJ from Imperial Consolidated Financiers Ltd to Orion Asset Finance ltd whom then had a name change to ICF Loans Ltd which up to the now Claimants Merits witness statement I had no prior knowledge of this sale either in the way of a Notice of Assignment or any letters from the solicitor, and what is strange is the fact ICF Loans Ltd you could take in short for the Original Creditor Imperial Consolidated Financiers Ltd yet they do appear to be two separate companies?

 

You were never made aware of the application until after it had been granted & they applied for a CO.( & u should have known about the 1st DCA). It would appear that you should have recieved notification about this. As you did not, you could apply to have there application to be substituted as the claimant set a side.

Until this is resolved, would it not bring a halt to the CO.

 

Having read all of the above am I right in thinking they do not have to re-apply to the court after 6 years

 

They do have to apply. But have chosen not too.

 

Just seems wrong that a company that doesn't even trade in this country can by a debt, double it and then try and get the debt back from a house that you have no capital in!!

 

debsxxxx

[BradB]

Well today is my day in court and I am chomping at the bit!

 

I have found 2 further pieces of information.

 

The last correspondence I received from Asset Recoveries was a letter dated 18th April 2008

stating that the information I had requested (previous SAR request) was stored in the central archive and they would have to retrieve it and would be in touch shortly.

Guess what, nothing ever received.

 

From the date of that letter until Dec 10 the debt has increased from 15K to 30k!!

50% increase in 3 years, what a return!

I bet savers wish they could get that interest rate!!!

I can't wait to meet the ****** in court that thinks this is acceptable!

 

I would like to thank all of you for your advice and I have learnt an awful lot from your site,

and hopefully after this I can offer some advice to people.

I will post the outcome later on so fingers crossed.

[diddydicky]

havent read the whole thread but............ the fact that they have not complied with a SAR is not one that they can be held to account for in the trial (IMO) - it is not like a s78 or CPR request which are obligatory

 

good luck

 

dick

[BradB]

Well the dirty deed is done.

Charging Order made final today.

 

Must say he was a very good judge but as the paperwork was in order (even if my copies weren't) he had to allow it.

 

Did sort of advise to get a legal document set up showing how much equity I have in the property (probably nil as my husband paid all the deposit and makes the mortgage repayments)

 

so that if they ever go for a forced sale I can prove I have no capital.

 

Just got to wait for the very nice people at Asset to contact me re payment.

 

Only worrying thing was that judge said interest will still be charged so I cannot see debt ever being cleared.

 

National Debt Line advised that they can only claim the amount of the judgement and that anything over that (interest and charges) must be applied for via the court.

 

Has anyone else had this problem?

[BradB]

Diddydicky - objection had nothing to do with not replying to the SAR, the whole thread explains what my objection was.

 

Am I right in assuming that even though all the way through this process Asset have pursued a charging order they actually only have a restriction as it is a joint mortgage but I am the sole debtor?

[Cadbury1879]

Hi BB,

Sorry things didn't work out as you would have wished.

Been through similar myself.

 

You will only have a restriction, which will be worded exactly the same on the Land Registry.

 

Lots of info on restrictions on the net.

IMHO not the security, faked by the creditor.

More to do with accountancy,bad debt becomes asset.

All the best

Cadbury

[BradB]

I recently had a charging order (restriction really as my husband is not a joint debtor)

and have completed a N244 to have the interest stopped.

 

I have a date for the hearing and am looking for some advice.

 

The CCJ is very old and they have already applied 6 years interest (£9k).

I have a couple of questions that I could do with some help with.

 

The DCA purchased the debt in Aug 07 but did not substitute themselves as the claimant with the court until Dec 10.

Can they charge interest for a period that they did not in the eye's of the court own the debt?

 

I also found the following text on the debt help uk website.

 

If the DCA bought the "benefit" of your contract with the claimant (so the DCA took you to court)

they will be able to claim any interest that the claimant could have claimed if the contract had stayed with them.

 

If the Claimant took you to court, and subsequently assigned the benefit of the judgement and / or the CO to the DCA,

the DCA will not be entitled to claim interest after judgement.

 

As I did not received a Notice of Assignment off either the Original Claimant or the DCA how do I find out if they sold the benefit of the contract?

 

Any advice gratefully received.

Thanks