What do I write on my N9B following a CCJ being set aside?

[geth76]

Hi, I'm new to all of this so advice would be hugely appreciated.

I had a judgement set aside last week in my local county court. It was an old style student loan, and by their solicitor's own admission there was a period of more than six years whereby no payments or written acknowledgement of debt were made. They argued that they had written to me at a number of addresses and hadn't made a claim against me to give me time to respond to these letters and agree a repayment plan. They say I deliberately avoided them because I knew of the limitation act.

In reality I moved relatively frequently to avoid an abusive partner, certainly not to avoid letters from the Student Loans Company Ltd. For obvious reasons I never left a forwarding address. I bought a house and moved in March 2009 and am now very settled. The SLC claim they wrote to me in May 2010 at my new address (14 months after moving in). I never received that letter ( I had a lot of problems with post as it is a new development - I made calls to Royal Mail and so could ask for the call reference if it would help).

The next I heard was July 2010 when I received court papers from Northampton. Following some online research I sent back a defence saying that the debt was statute barred but they say they didn't receive it, as I found out when I received a judgement in default in November. I had kept a copy of the accompanying letter (which was obviously dated) which I took to court last week.

The judge ordered me to resubmit an N9B form to the court as the case is now back at claim stage. I am still unsure whether or not the SLC will continue to pursue this, but I have to have the court papers in by 2nd Feb.

I don't know how much detail I need to go into on the form or how to word it. I have spoken to National Debtline who have been great so far, but have now said that I need to get legal advice. If anyone is able to help I would be very grateful.

Many thanks

[geth76]

Re: What do I write on my N9B following a CCJ being set aside?

If anyone has any advice I really would be grateful.

Thanks

[leclerc]

Re: What do I write on my N9B following a CCJ being set aside?

When you stay old style Student loan, what do you mean?

When was the last time you heard anything at all from the Student loans company prior to November 2010?
------------------------------- merged -------------------------------
"Student loan agreements are simple contracts and this gives the Student Loans Company (SLC) 6 years from the date you last paid or acknowledged the debt to go to court to enforce the agreement. There are two sorts of student loans and different rules apply depending upon when you took out the loan.
Old style or “mortgage” student loans are consumer credit agreements. Payments cannot be automatically deducted from your wages. The SLC has to go to court before they can enforce the debt against you. This means that the Limitations Act can apply if you have not paid or acknowledged the debt for over 6 years. (Asking for the loan to be deferred could count as acknowledging the debt and start time running again).
From September 1998 new style or “income contingent” student loans include rules to say that repayments are automatically deducted directly from your wages or through your tax return if you are self employed. This means that the SLC are still allowed to take money from your wages for a loan over 6 years old as they do not have to go to court to do so."


Debt Factsheets - Liability for Debts and the Limitation Act


Have they given dates and copies of letters they wrote to you?
Can you be certain of the addresses you lived at in those intermittent dates?


It would be reasonable under your circumstances to be moving around the area.

[Nibbler]

Re: What do I write on my N9B following a CCJ being set aside?

They argued that they had written to me at a number of addresses and hadn't made a claim against me to give me time to respond to these letters and agree a repayment plan. They say I deliberately avoided them because I knew of the limitation act.

Makes not one jot of difference what they did.

The only thing that prevents the debt becoming statute barred is them starting court action, or you acknowledging the debt in writing or by making a payment.

Utterly irrelevant when or where they wrote to you, and to what purpose.

If they wished to stop the debt becoming statute barred, then they could have quite easily started legal proceedings by issuing claim forms to your "last known or usual" address.

Instead, they have dropped the ball and messed up big time by not doing so.

Sounds like the judge in the set aside recognised that as well.

[geth76]

Re: What do I write on my N9B following a CCJ being set aside?

It was a 1997 student loan, hence the 'old style'. I believe they brought copies of letters that they sent to the set aside hearing though I didn't see any of them other than the one sent in May 2010. There is quite a long list of addresses which I did live at but I didn't receive any letters. As I said I moved with relative frequency as I had no choice. I had lived in my current property for 14 months before they sent the letter that I didn't receive. As I said, I can get the reference number from Royal Mail following my calls about missing bank cards, insurance docs etc if you think it would help.

I just want to be careful about what I write on the form as I don't want to waste this opportunity after having successfully had the judgement set aside.

Many thanks

[leclerc]

Re: What do I write on my N9B following a CCJ being set aside?

To add to the questions: did they obtain a CCJ at any previous properties you stayed at?
Is the hearing to enforce a CCJ?
Did you defer payments?
------------------------------- merged -------------------------------
Did you graduate pre September 1998?

[geth76]

Re: What do I write on my N9B following a CCJ being set aside?

No, I don't think they did. Certainly none showing on my credit file. I had a judgement made in default in July, which is the one I have had set aside. The judge ordered my to resubmit a defence to the original claim, which is what I am trying to do.

Many thanks
------------------------------- merged -------------------------------
I didn't graduate pre 1998 but I pay post 1998 student loans via my salary.

[Nibbler]

Re: What do I write on my N9B following a CCJ being set aside?

MIB Issue Legal Proceedings over Statute Barred Claim

A defence based on a different section of the LA1980, but still gives an idea.

[geth76]

Re: What do I write on my N9B following a CCJ being set aside?

Thanks Nibbler - I had drafted something along the lines of:

As confirmed by the representative of the claimant during the set aside hearing (19th January 2011) no payment request or written acknowledgement of this debt has been made within a 6 year time frame and therefore as per The Limitation Act 1980 the claim is Statue Barred.

I request the claim be struck out for the above foresaid reasons.

What do you think?

Cheers

Geth

[Nibbler]

Re: What do I write on my N9B following a CCJ being set aside?

Payment request?

As said, a payment request is irrelevant. It's your last payment or acknowledgement in writing that counts for the 6 years.

The creditor could make a "payment request" every day for the entire 6 years, but it still wouldn't stop the debt becoming statute barred at the end of it.

[geth76]

Re: What do I write on my N9B following a CCJ being set aside?

That's what I thought - a poster on another forum said the following:

No payment sounds like you have deliberately avoided but no payment request means the Claimants have not bothered to request or try to collect.

Perhaps I should just take the word request out of my statement. I don't want to make it any more wordy than needs be, but equally I don't want to miss anything. I don't even know if the SLC will continue with this as they were denied costs at the set aside hearing. The judge told them that they had come to the hearing "in the knowledge of there being more than six years between the last payment and their starting legal action."

[Nibbler]

Re: What do I write on my N9B following a CCJ being set aside?

Exactly. It sounds as if you are arguing the wrong thing if you leave it like that.

But as a heads up.......

What SLC will often try to do is fool you or the court into thinking that trying to contact you before the debt is statute barred, stops it becoming so.

There is a clause in the Limitations Act 1980 that prevents a debt becoming barred if "concealment or mistake" effects the claiments right of action.

From Money Advice Trust training material.

'It is for claimants to prove that they could not reasonably have discovered the facts concealed by the defendant (Paragon Finance v Thakerar 1999).

The mere fact that a defendant cannot be traced, with the result that the claimant does not commence proceedings, does not prevent (a cause of action from accruing and) time from running.

Even where a person is deliberately hiding from a claimant the 'concealment' provisions relate only to concealment of the cause of action and not to cases where debtors conceal themselves from the claimant (Lowsley v Forbes 1999)'

In other words, it only applies where such "concealment" prevented the creditor from knowing that they actually had a right to take you to court.

Just them not having an up to date address, or you not responding to letters does not effect their right to the court action.

But as said, certain DCAs (and the SLC) will try to mislead you and the court over that point.

[geth76]

Re: What do I write on my N9B following a CCJ being set aside?

Thanks Nibbler, you're being a great help. Should I address that in my defence statement do you think? I worry that if I have to go back to court I will be somewhat 'bamboozled' by legal speak and if they bring that up I'm not sure I'd know how to defend myself (although being pre-warned will certainly help!).

I would hope that the judge would see through any attempt to misinterpret the law but from my experience last week I'm not convinced I won't be completely lost if it is brought up!!

Or should I just send in the statement I previously posted (after dropping request and go from there? Perhaps I will come back to the forum if a court date is set.