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

[2Grumpy]

Do you still have a copy of the judgement?

I didn't think that it was usual to charge interest post judgement.

 

Anything that can be done should be in the judgement (the original contract might also have clauses about post judgement interest though).

 

You should receive notices of assignment from both parties.

 

Are you sure that the assignment has take place

(the DCA could be collecting on behalf of their "client")?

[BradB]

Hi, thanks for the response.

The DCA definitely owned the debt as I raised this at the Charging Order hearing and the judge said the paperwork was in order

even if I had not received a copy of it although he never mentioned one from the original creditor to myself.

 

I do now have a copy of the judgement issued by The High Court of Justice in Leeds.

 

It states the amount payable forthwith as

 

DCA have now increased this to £30k since they purchased it in 2007.

 

But as I said earlier if they did not substitute themselves as the claimant until 2010

 

can they claim interest for a debt that as far as the court are concerned they did not own until 2010?

[dx100uk]

is interest mentioned in the judgement?

 

if it aint they cannot add it!

 

dx

[dx100uk]

re-named & moved to legal forum

 

dx

[BradB]

Hi, thanks for the quick response again.

The judgement states

 

"It is this day adjudged that the defendant do pay the plantiff £**** debt

being £**** as claimed on the Writ,

plus £**** interest since issue and £*** costs.

Total £19k

 

but Charging Order is for £30k.

 

Does it make a difference that it is a High Court of Justice judgement?

Thanks

[alangee]

BradB

 

Was this a loan? You will have to check your agreement/terms & conditions to see if it is liable for post judgement interest.

 

Alan

[BradB]

Hi Alan, no this is for a mortgage shortfall dating back to 1992.

[dx100uk]

it say nothing about post judgement interest so they cannot charge it

 

dx

[alangee]

I would try to find out what the debt was worth when the DCA bought it.

If the original creditor had not charged post judgement interest,

I would be surprised if the DCA would be allowed to.

I think you need to send a Subject Access Request to the OC to get all the relevant information you need.

 

I realise that time may not be on your side,

so maybe a letter to them as well,

asking what the debt amount was when the OC sold it.

 

Does this debt still come under the original mortgage or as it was a shortfall was it put into another account?

Either way you should have some T&Cs which should tell you whether you can be charged post judgement interest.

It has to state it in the agreement/terms & conditions.

 

Alan

Edited April 27, 2011 by alangee

[alangee]

dx

 

My daughter was charged post judgement interest on a loan she had, and when it was queried they said that they can claim interest after judgment and quoted Office of Fair Trading v First National Bank Plc, Neutral citation - (2001) UKHL 52. Reported All England - 2002 - 1 All ER at p97.

 

Alan

[dx100uk]

they can only charge post judgement interest if it is IN THE JUDGEMENT BOX.

or you do not pay the CCJ as in the the agreed schedule.

 

once a CO is granted they cannot charge it at all.

 

see the legal forum

 

dx

[BradB]

Thanks for this.

The judgement was a forthwith judgement,

is 16 years old and no payment has ever been made on it.

 

The DCA gave me a breakdown of the account in 2008 quoting £15k owing as the mortgage shortfall.

 

The judgement carried interest up to date of judgement making the total judgement £19k.

 

The interest appears to have been added on by the DCA not the original creditor.

 

The original judgement document definitely does not say interest can be added.

 

But again is this different with a High Court Judgement?

 

I have been looking round the web but am finding conflicting evidence.

[BradB]

http://www.legislation.gov.uk/uksi/1991/1184/article/2/made

 

I meant to put this link with my last post and am wondering if 2 3 b ii would cover a mortgage shortfall?

Edited April 27, 2011 by BradB
mistake in numbers

[dx100uk]

i still dont think they can demand anything now. too late.

The judgement was a forthwith judgement, is 16 years old and no payment has ever been made on it.

hit the red triangle and ask for help

 

dx

[BradB]

Thanks dx. I accept that they are entitled to the amount of the judgement (although it is 6 weeks since they obtain the CO and they have still not approached me for payment!). It is the interest I am concerned about. Sorry don't know where the red triangle is. still finding my way around this excellent site.

[dx100uk]

what was the time cap between the CCJ and the CO?

 

the triangle is the one bootom right on any msg black thing with a ! in it

 

dx

[BradB]

Hi, CCJ was granted 30th November 1994 and Co was granted 14th March 2011. I did question this at the hearing but it was still granted. Will the N244 just cover what I have asked (for interest to be stopped) or can I raise the whole issue again?

Thanks for your advice.

[dx100uk]

this does not look right

i'll someone to pop in with more knowledge

 

dx

[alangee]

These quotes are taken from the National Debt Line.

 

Interest up to the date of the judgment

 

The creditor may get a county court judgment that includes court fees and interest up to the date of the judgment. Once you have paid the full amount owing on the actual judgment, as long as there is no clause in the original agreement that allows the creditor to claim interest after the county court judgment, that is the end of the matter and you do not have to pay any more interest.

Contractual interest on judgments before 1 October 2008

 

If you have a county court judgment that was made before 1 October 2008 then the rules on how your creditor may add interest to the debt are not very clear. Some credit agreements allow a creditor to add contractual interest on to the county court judgment. There must be a term in your credit agreement that states that the creditor is allowed to add interest after the judgment is made.

There has been a court of appeal case called Director General of Fair Trading against First National Bank in 2001. This decision said that in some cases while you are paying the county court judgment, contractual interest may be charged on the amount that you still owe on the judgment. This may not be made clear to you by the creditor.

The rules post October 2008 have changed.

 

Did the OC inform you that post judgement interest would be charged?

 

Alan

[BradB]

As far as I can remember the OC has never mentioned interest and it is not mentioned in copies of correspondence I received off them. It is only the DCA that has added on the interest taking the debt from £19k to £30k (in only 4 years) and this during a time when they had not substituted themselves as claimants with the court. Really don't understand how they can do this.

[alangee]

Brad

 

Can I ask who the DCA is?

 

Alan

[BradB]

Didn't really want to name them as I think they read this site - the debt is owned by Phoenix Recoveries S.a.r.l. and Asset Recoveries are collecting on their behalf. I have never had any correspondence with of Phoenix (surprise surprise) and Asset are the ones that send all the letters.

[dx100uk]

from a learned member:

 

If they hadn't taken enforcement action within six years they would have needed to seek permission from the court to do so, it's a mortgage shortfall & it's 12yrs to be SB.

 

Did they make the judge aware that it was a forthwith judgement which was sixteen years old?

 

 

and another:

 

Leave of the court is only needed for a warrant of execution, they would have needed to have raised the time issue at the final charging order hearing.

 

 

dx

[alangee]

A CCJ negates a debt being statute barred.

 

Alan

[sequenci]

It's important to bear in mind that the rules surropunding interest-post judgment are complicated, and that much of the information posted above is specifically fordebts that are Consumer Credit Act regulated, this shortfall debt is unlikely to be regulated.

 

Both the cases of Duer v Frazer [2001] 1 All ER 249 and Patel v Singh [2002] EWCA 1938 state that enforcing a CCJ within six years is sufficient, anything longer than that shouldn't be. The problem lies with the type of action being taken; in Yorkshire Bank Finance v Mulhall [2008] EWCA Civ 55 it has held that there is NO time limit for a CO to be applied for.

 

You should certainly raise the argument of interest. In accordance with s24(2) Limitation Act 1980 only the last 6 years worth of interest can be claimed for.