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

[BradB]

This is a High Court Judgement although it was transferred to the county court when they went for an attachment of earnings so is it not still a High Court Judgement and if so is a charging order an execution of the judgement?

Thanks

[BradB]

Can anybody answer re is this still a high court judgement or is it now a county court judgement.

Thanks in advance

[BradB]

Does anybody have any answers to the questions I have asked. I am penning my case today and would be grateful of any help offered.

Thanks

[PriorityOne]

Crikey!! I've just scan-read your threat and this is horrendous.

 

Although I've handled a repossesion shortfall debt myself,

this scenario is a little out of my comfort zone due to the stage it's currently at

but the key to getting some answers for yourself appear to lay in SAR info.

form the original creditor;

which I read in one of your posts that they seemed reluctant to give you.

That doesn't surprise me at all....

 

I appreciate that you don't have 40 days to wait around for this information now

but at the CO hearing you need to mention that you are disputing the alleged balance

and the rocketing post-Judgement interest that's accrued in just 4 years..

.. and as such, are still waiting for paperwork from the OC to confirm any right to add this.

 

Having just been made aware of some major anomalies on a debt that is spiralling out of control,

you need more time to get your facts together.

 

If the date of you sending the original SAR to your OC was ages and ages ago,

it might be prudent to start again with a fresh one and go from there (in my opinion).

 

The situation you describe has a bad stench to it....

and if you can prove that the pre-assignment shortfall figure was incorrect,

or that paperwork was missing, etc.,

you may be able to challenge the whole Judgement on these grounds.

It's certainly worth a shot.

 

Others need to comment at this point though because this one is complicated...

[BradB]

Hi, thanks for your response.

 

i have already had the CO hearing and it was awarded (even though my name has only been on our property for 2 years

and my husband has owned it for 7 years and paid the deposit and all the mortgage payments)!

 

Think I may have used up my allotted 10 minutes with the judge so he didn't look into it properly!

 

We did ask at the end about freezing interest and he just said no.

 

That is why I have now started looking at all the paperwork re the amount of the debt.

 

Copy of High Court Judgement (and looking at it I am not 100% sure it is a true copy)

it does not mention judgement and all documents from OC state amount of judgement and no increase made due to interest.

 

Interest only appears to have been added once the DCA took it over and I am sure I have read somewhere that as they did not take me to court they cannot do this.

 

They have added 6 years interest even though they have only owned it for 4 and did not substitute themselves as the claimant unti Dec 10.

 

This is the point I really need clarification on as how can they charge interest for a period they did not own the debt?

[PriorityOne]

When you say that you're "penning your case today", can you elaborate on this please? Apologies if I've missed it... but are you penning a complaint or are you considering court action yourself?

[BradB]

I completed an N244 to request that the interest be stopped and my court date is this week. I stated that if interest continues to be added at the rate the debt will never be cleared.

[the tinkerman]

Hi, thanks for your response. have already had the CO hearing and it was awarded (even though my name has only been on our property for 2 years and my husband has owned it for 7 years and paid the deposit and all the mortgage payments)! Think I may have used up my allotted 10 minutes with the judge so he didn't look into it properly! We did ask at the end about freezing interest and he just said no. That is why I have now started looking at all the paperwork re the amount of the debt. Copy of High Court Judgement (and looking at it I am not 100% sure it is a true copy) it does not mention judgement and all documents from OC state amount of judgement and no increase made due to interest. Interest only appears to have been added once the DCA took it over and I am sure I have read somewhere that as they did not take me to court they cannot do this. They have added 6 years interest even though they have only owned it for 4 and did not substitute themselves as the claimant unti Dec 10. This is the point I really need clarification on as how can they charge interest for a period they did not own the debt?

 

been reading this thread with some interest as have very similar situation but with an unsecured loan.

 

As like Brad B i would like clarification on the point made regarding how the DCA can add any interest at all up until after Dec 2010

when they where substituted as the new claimant

 

as I always thought a CCJ was a legally binding agreement between you and the company named on it

as in my case i have been paying my CCJ via the OC solicitor without fail,

 

DCA then bought it back in 2003 re absolute assignment

but only asked to be substituted in court as the new claimant in 2010,

 

plus they have added £12000 statutory interest from the date of the CCJ was originally granted back in 2000

and now have applied to the court to vary the order as well:x

 

 

Sorry didn't mean to hijack thread but from what I can see Brad B seems to have asked this question a few times on this thread

but as yet I cannot see a definitive answer

 

,like in Brad B case how can they add interest beforehand if they were only substituted as the new claimant back in 2010

or is a NOA from 2003 good enough and they can just ignore being substituted as the new claimant until they get round to doing it

as also in my case payments have been going to this DCA for the last 7 years as well.

[BradB]

Hi Tinkerman, sorry you are in the same position with a DCA.

 

I really hope that somebody on here can point us in the right direction as this is so unfair

(the DCA have only owned my debt for 4 years but have added 6 years interest on).

 

I have also just noticed that right up until the court documents in December 2010 they have been using my maiden name instead of my married name.

 

If my maiden name is on the NOA does that make it invalid

( OC has always used my married name)

 

as I had been married for 14 years when they started corresponding with me and my file must have contained my married name.

[PriorityOne]

It's my understanding that unless you bring up a point of law in front of a Judge, then a Judge will not "look into it properly".

 

It's up to you to defend your case; the Judge is only there to hear both sides and reach a decision beased upon what is in front of him/her.

 

So with that in mind...

. you need to raise the issue of post-Judgement interest at the rate of xx% (added by a purchasing company)

during your hearing and question its legality on the basis that,

despite repeated requests,

there appears to be no paperwork that gives this company the right to do it after a CCJ has been granted.

 

Also..

. before the hearing,

I would write to the DCA and ask them to provide documentary evidence of their legal right to add post-Judgement interest

under The Consumer Protection from Unfair Trading Regulations (CPUTR) 2008.... by rec. delivery.

 

You can then mention that you have done this at your hearing and that to date, you have not received a response.

 

This seems to be the 1st course of action.... questioning the interest.

 

We may be able to look at the rest of this mess afterwards.

[BradB]

Thanks PriorityOne.

 

As I have stated my hearing re the judgement is this week so I do not have time to obtain any further information from the DCA

(this post has been running since 27th April and not really had many pointers on how to proceed).

 

The hearing is to raise the issue of excessive interest and I am at the moment writing my case so any comments are gratefully received.

[PriorityOne]

I realise that you don't have time to get the info. fom the DCA.... but the point is,

that you will have asked for it and will be waiting for it..

.. so when you go to the hearing,

you can state that you have made a request under CPUTR and the DCA has not responded (as yet).

 

This is complicated because of the stage it's at....

Although you are going into the hearing to try and get the interest stopped because the debt is not reducing,

my suggestion is that you also mention that you're trying to co-operate with the DCA (even if you really want to poke their eyes out... lol)

by asking them to provide paperwork giving them the legal right to charge it after Judgement..

.. in an attempt to try and find a realistic way forward with the matter.

 

A two-pronged argument, if you like..

 

.. Whether you go into the hearing with a reply from the DCA or not is neither here nor there.

 

Personally, I don't think you'll get any confirmation under CPUTR because the DCA won't want to do that...

. but that's a bit further down the track, so don't worry about it for now.

 

[the tinkerman]

You also need to know in case the interest is granted,

as the judge seems to think in my case statutory Interest after Judgement is legal regardless of the 1991

IAJ law for some unknown reason.

 

CAN this DCA get away with applying interest backdated,

when they where only substituted in a court of law as the new claimant in 2010

how can that be right.

 

In my case I have been paying the OC solicitor

whom in turn has been sending my payment to this DCA

as well as them adding statutory interest from the date of the original judgement,

 

re the DCA assignment back in 2003

so should this DCA have been entitled to collect my payment and add statutory interest from the date of the original judgement

given the fact that they only applied to the court to be substituted as the new claimant in a court of law in 2010.

 

Surely to collect on this debt legally and add any sort of interest then the change of ownership to be substituted as the new claimant

should have taken place when they first bought the debt as in both BradB and my case

 

or like I stated previously is the fact that they sent a NOA sufficient in a court of law (good enough proof)

to give them the right to both collect on the CCJ and add interest regardleess of the fact that the CCJ was not in their name.

[PriorityOne]

Tinkerman... I'm not able to answer your questions at this stage but would suggest waiting for the outcome of BradB's hearing. In both cases, the main problem is the stage that each one is at for questioning what might have gone on in the past.....

[the tinkerman]

Hi BradB

 

i would also definably raise the issue of the interest being backdated before the DCA was substituted as the new claimant, It beggars belief as to how they can get away with this!

 

My own hearing is in a few weeks time again regarding the issue of the excessive interest plus I would like to raise the issue of adding backdated interest and collecting on the CCJ when not being substuted as the claimant until 7 years later.

 

Do not know if this is any use to you re the interest but it is what I quoted at my first hearing although mine was Statutory interest that they stated that they were applying:

 

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Millett Lord Rodger of Earlsferry

 

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

THE DIRECTOR GENERAL OF FAIR TRADING

 

(ORIGINAL RESPONDENT AND CROSS-APPELLANT)

 

v

 

FIRST NATIONAL BANK PLC

 

(ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)

 

ON 25 OCTOBER 2001

 

[2001] UKHL 52

 

LORD BINGHAM OF CORNHILL

 

My Lords,

 

1. First National Bank plc ("the bank") is licensed to carry on consumer credit business. It is a major lender in the market and has lent large sums to borrowers under credit agreements regulated under the Consumer Credit Act 1974. Such agreements are made on its printed form which contains a number of standard terms. The Director General of Fair Trading ("the Director"), in exercising powers conferred on him by regulation 8 of the Unfair Terms in Consumer Contracts Regulations 1994 (SI 1994/3159) ("the regulations"), sought an injunction to restrain use of or reliance on one such standard term on the ground that it was unfair. The bank resisted the Director's application on two grounds. The first, rejected by Evans-Lombe J at first instance ([2000] 1 WLR 9 and the Court of Appeal (Peter Gibson, Waller and Buxton L JJ) ([2000] QB 672), was that the fairness provisions of the regulations did not apply to the term in question. The second, accepted by the judge but partially rejected by the Court of Appeal, was that the term in question was not unfair. In this appeal to the House the bank again relies on both these arguments. The Director seeks to uphold the decision of the Court of Appeal but contends that the term was more fundamentally unfair than the Court of Appeal held it to be. Thus there are two broad questions before the House:

 

(1) Do the fairness provisions of the regulations apply to the term in question?

 

(2) If so, is the term unfair and, if it is, on what ground?

 

2. By its standard form of regulated credit agreement the bank agrees to make a sum of money available to the borrower for a specified period in consideration of the borrower's agreement to repay that sum by specified instalments on specified dates with interest at a specified rate. Condition 4 of the bank's standard form provided that:

 

 

"The rate of interest will be charged on a day to day basis on the outstanding balance and will be debited to the Customer's account monthly in arrears . . ."

 

and provided that the rate of interest might be varied. Condition 8 of the agreement was in these terms:

 

 

"Time is of the essence for making all repayments to FNB as they fall due. If any repayment instalment is unpaid for more than 7 days after it became due, FNB may serve a notice on the Customer requiring payment before a specified date not less than 7 days later. If the repayment instalment is not paid in full by that date, FNB will be entitled to demand payment of the balance on the Customer's account and interest then outstanding together with all reasonable legal and other costs charges and expenses claimed or incurred by FNB in trying to obtain the repayment of the unpaid instalment of such balance and interest. Interest on the amount which becomes payable shall be charged in accordance with Condition 4, at the rate stated in paragraph D overleaf (subject to variation) until payment after as well as before any judgement (such obligation to be independent of and not to merge with the judgement)."

 

Emphasis has been added to the last sentence of this condition, since it is to that sentence alone that the Director's objection relates. I shall refer to this sentence as "the term".

 

3. The bank's stipulation that interest shall be charged until payment after as well as before any judgment, such obligation to be independent of and not to merge with the judgment, is readily explicable. At any rate since In re Sneyd; Ex p Fewings (1883) 25 Ch D 338, not challenged but accepted without demur by the House of Lords in Economic Life Assurance Society v Usborne [1902] AC 147, the understanding of lawyers in England has been as accurately summarised by the Court of Appeal at p 682 of the judgment under appeal:

 

 

"It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

 

4. To ensure that they were able to recover not only the full sum of principal outstanding but also any interest accruing on that sum after judgment as well as before, it became the practice for lenders to include in their credit agreements a term to the effect of the term here in issue. If such a provision had not been included, a lender seeking to enforce a loan agreement against a borrower in the High Court would suffer prejudice only to the extent that the statutory rate of interest on judgment debts at the material time is lower than the contractual interest rate, because the High Court has, since 1838, had power to award statutory interest on a judgment debt until payment.

 

5. But a lender seeking to enforce a regulated credit agreement is in a different position. He is obliged by section 141 of the 1974 Act to sue in the county court. Until the Lord Chancellor, exercising his power under section 74 of the County Courts Act 1984, made the County Courts (Interest on Judgment Debts) Order 1991 (SI 1991/1184), the county court lacked power to award statutory interest on any judgment debt and, when such a general power was conferred by the order, judgments given in proceedings to recover money due under agreements regulated by the 1974 Act were expressly excluded from its scope. It was further provided in the order:

 

 

"3 Where under the terms of the relevant judgment payment of a judgment debt -

 

 

(a) is not required to be made until a specified date, or

 

 

(b) is to be made by instalments,

 

 

interest shall not accrue under this Order -

 

 

(i) until that date, or

 

 

(ii) on the amount of any instalment, until it falls due,

 

 

as the case may be."

 

6. Thus a lender under a regulated credit agreement who obtains judgment against a defaulting borrower in the county court will be entitled to recover the principal outstanding at the date of judgment and interest accrued up to that date but will not be entitled to an order for statutory interest after that date, and even if the court had power to award statutory post-judgment interest it could not do so, in any case where an instalment order had been made, unless there had been a default in the due payment of any instalment. The lender may recover post-judgment interest only if he has the benefit of an independent covenant by the borrower entitling him to recover such interest. There is nothing to preclude inclusion of such a covenant in a regulated credit agreement, unless it falls foul of the fairness requirement in the regulations.

7. Section 71 of the County Courts Act 1984 conferred a general power on the county court, where any judgment was given or order made for payment of a money sum, to order that the money might be paid "by such instalments payable at such times as the court may fix". The 1974 Act also conferred on the county court three powers relevant for present purposes. First, the court was empowered to make a time order. Sections 129 and 130 of the Act, so far as relevant, provided:

 

 

 

To tell you the truth after them reading the above, I don't think nobody neither the Judge Or the Claimants Solicitor new then whether or not this 1991 Act applied to my Judgment or not Which reading it I think it definitely does, after all mine is a regulated credit agreement and I am at a loss as how you could read it any other way.

 

Got the Impression I hit a nerve or two with the questions I raised, especially in relation to the The County Courts interest on judgment debts order 1991 regarding Statutory Interest, not to mention other issues,also got the impression though that their solicitors will try and do there best to come up with a reason why this act does not apply to me, but at the end of the day as I said to their solicitor it either does or it does not full stop.

 

GOOD LUCK TINKS:-)

Edited May 29, 2011 by the tinkerman

[BradB]

Hi Tinks,

at the hearing for the charging order I was very nervous and didn't want to rock the boat too much,

 

but I must admit I am going for the jugular with this one.

 

If I put money in a 5 year bond and then asked the bank for 8 years interest they would tell me to bog off so why on earth do a DCA think they can do it!

 

Makes my blood boil. Rant over...

[paulwlton]

As has previously been posted,

when one finds ones self in a position where the creditor's practices are questionable

sending a DSAR is the best step to take.

 

Also remember if the agreement/CCJ is CCA regulated no interest accrues post judgment unless there's a clause allowing for it furthermore,

 

if the CCJ doesn't specifically stipulate that interest is payable post judgment

then the creditor would need to sue again for the interest element once the CCJ amount had been repaid.

 

The best way to find if there's a PJI clause in the original agreement is by sending A CCA request.

[the tinkerman]

You and me both BradB.

 

must admit my ass was twitching at first hearing especially when your representing yourself, but as time goes on and with the help from people on this site you get use to their solicitors antics, trouble is not being a solicitor or having one represent you is a big disadvantage, seems to be the case on many occasion of who do we believe here Joe Blogs or the solicitor only one winner their regardless of the law.

 

Sorry edited my last post before you posted yours, just have a read re interest see if this would apply in your case.

 

Tinks

[BradB]

Hi Tinks, thanks for that (thought I was going mad when the post suddenly became longer)! Don't think this would apply to me as it is for a mortgage shortfall with National Home Loans and I can't seem to find out if it was regulated under the CCA.

[the tinkerman]

Like paulwlton stated then I would send a DSAR or put them to strict proof in court to see if the agreement/CCJ is CCA regulated or not, nothin to lose because if it is then its a whole new ball game.

[BradB]

Is there a possiblilty a mortgage would have been regulated under a CCA, I've never really got to the bottom of it as all the info on the net seems to relate to credit cards and loans being regulated by them.

[the tinkerman]

Nothin ventured nothin gained do not know the answer to that one, maybe someone on here might know but failing that suppose you could ring a mortgage company and ask them.

[the tinkerman]

Explore all angles even what you may think is ridiculous, I have been shot down in flames a few times on cag but it has not stopped me asking or giving an opinion, if you do not ask you do not know

[paulwlton]

The link below highlights the importance of DSAR and CCA requests.

 

 

http://www.guardian.co.uk/money/2008/feb/02/banks.consumeraffairs

[PriorityOne]

Paul.... you're famous!

 

Not in a way you'd like though, I'm sure....