What is enforcement

[jon1965]

Just a question, at what point does enforcement start?

My understanding that anything up to and including starting a claim was not enforcement but anything from a CCJ upwards was.
So for example if a claim were issued a perfect defence would be this is unenforceable because xxxx and provided you were right they couldn't get a ccj.

It has been suggested to me that the award of a CCJ is not enforcement and that only starts once action is taken on that such as a attachment of earnings or bailiffs or whatever.

I would be interested on peoples views and if possible an example or two

[FlamingParrot]

Re: What is enforcement

As far as I understand it, obtaining a CCJ IS enforcement, but anything else, up to issuing proceedings, is not, hence you can have cases that go all the way to court and turn out not to be enforceable, as no CCJ is obtained (when the consumer wins :whoo.

Attachments of earnings, bailiffs and third party orders are ways to enforce a judgment previously obtained.:juge:

This is from McGuffick v RBS: http://www.wragge.com/analysis_5241.asp#.UoPdBj8hFyQ

The meaning of enforcement

The Act does not define what constitutes "enforcement" and therefore does not define what actions a creditor may not undertake during a period when the agreement is unenforceable. The debtor argued that any coercive action to compel or secure performance of the removed obligation or liability of the debtor to make repayment amounted to "enforcement" including any reporting to CRAs.

Mr Justice Flaux concluded that not only did reporting to the various CRAs not amount to enforcement, but that a number of other activities did not constitute enforcement either, such as:

• reporting to CRAs without also telling them that the agreement is currently unenforceable
• disseminating or threatening to disseminate the debtor's personal data in respect of the agreement to any third party
• demanding payment from the debtor
• issuing a default notice to the debtor
• threatening legal action
• instructing a third party to demand payment or otherwise to seek to procure payment
• bringing proceedings.

[des8]

Re: What is enforcement

Interesting point.
But isn't a CCJ just a judgement that a debt is due?
The debtor may be ordered to pay in full or in instalments.
A debtor then has 14 days to pay AFTER which enforcement action may be sought by returning to court.
This appears to mean "judgement enforcement" is separate and distinct from the judgement itself.

The judgement just confirms the debt is enforceable, but doesn't actually enforce it.
The judgement orders the payment, but if the order is not complied with then an enforcement order may be sought.

Sorry but no examples, just my thoughts.
Any chance we may be told the reason for the question?

[jon1965]

Re: What is enforcement

I know what you are saying Des but HHJ Flaux said that issuing proceedings wasn't enforcement .

Maybe this is one for PT although why anyone would issue proceedings when they couldn'tt enforce. On that basis old Henrietta could have given PlanB a ccj even though the case had no merit

[charitynjw]

Re: What is enforcement

So it's illegal to blacklist a construction worker who is standing up for his/her rights, but it's ok to blacklist someone who perhaps baulks against a creditor's inflated charges? (especially when that creditor, or the new owner of the debt, often can't find the paperwork needed to substantiate their claim).

[jon1965]

Re: What is enforcement

Des my question in part relates to many of my debts that are unenforceable. I am sure they apply to others as well. I was paying these prior to looking at the UE route so they are far from SB. The defaults have fallen away so month by month my file is looking less bad. If a creditor could now get a ccj that would ruin it for another 6 years. On top of that if I were say arrow and got ccjs on lots of ue debts they would show as assets and inflate the value of the company

[FlamingParrot]

Re: What is enforcement

I know what you are saying Des but HHJ Flaux said that issuing proceedings wasn't enforcement .

Maybe this is one for PT although why anyone would issue proceedings when they couldn'tt enforce. On that basis old Henrietta could have given PlanB a ccj even though the case had no merit

The answer is very simple. They do not expect people to defend their claims. A lot of CCJs are obtained by default when the debtor fails to respond to the claim, many people don't open the post (I used to be one of them ) or simply ignore everything. Many don't know the difference between a real claim and a threat-o-gram. There's no requirement for court papers to be sent recorded delivery so they are often sent to old addresses.

If you don't know about the CCA, etc., you wouldn't think you could defend a claim. If you had the card/loan/catalogue account and you got court papers, you would admit the claim (automatic CCJ for the full amount ) or, if you didn't agree with the amount, dispute part of it (CCJ for the rest ).

Claims can be issued even for statute barred accounts, the court won't check whether an account is SBd or not, it's up to you to submit a SBd defence.

[FlamingParrot]

Re: What is enforcement

Interesting point.
But isn't a CCJ just a judgement that a debt is due?
The debtor may be ordered to pay in full or in instalments.
A debtor then has 14 days to pay AFTER which enforcement action may be sought by returning to court.
This appears to mean "judgement enforcement" is separate and distinct from the judgement itself.

A CCJ changes everything:

• The creditor no longer has a duty to respond to a CCA request once judgment has been obtained. :ohwell:
• CCJs never go statute barred, although they can be difficult to enforce if no attempt has been made to enforce them in 6 years.
• The creditor can make the debtor pay by applying to the court to enforce the judgment in various ways (bailiffs, AoE, third party orders). Without judgment, all they can do is demand payment and issue threats, which they can't carry out without first obtaining judgment.
• Unsecured debts can be secured against property.
• A CCJ is a matter of public record, meaning anyone can search the register to see if you've got one or not, :ohwell: whilst not everyone can search your CRA file.
• A CCJ supersedes a default, so if you defaulted 4 years ago and a CCJ is obtained today, the CCJ will stay on record for 6 years from TODAY, not from the original default date.

The defaults have fallen away so month by month my file is looking less bad. If a creditor could now get a ccj that would ruin it for another 6 years.

It would, and the CCJ would be in the public record for 6 years, as opposed to a default which is only visible to those who share data with the CRAs. For example, I couldn't search your credit file but I could search the public record via trustonline. See above.

[des8]

Re: What is enforcement

HI Jon,
I've just come back to this and think that your queries have been answered.
As has been said, if you don't defend & defeat a court claim a CCJ follows, and as night follows day, so will enforcement.

[jon1965]

Re: What is enforcement

Thanks all.
So what we are saying is that providing a claim is defended (with a proper defence) then no CCJ would be granted.

I was after clarity as I had been told by someone(not on here) that even with a valid defence of UE a CCJ would be granted . I suppose I knew in my own mind I was right but it is a comfort to have other opinions from people I trust

[FlamingParrot]

Re: What is enforcement

Thanks all.
So what we are saying is that providing a claim is defended (with a proper defence) then no CCJ would be granted.

I was after clarity as I had been told by someone(not on here) that even with a valid defence of UE a CCJ would be granted . I suppose I knew in my own mind I was right but it is a comfort to have other opinions from people I trust

It all depends on how good your defence is and how poor the claimant's case is. :decision:

What is a valid defence of UE? Now that's the real question! Most successful UE defences have been based on the fact that the debtor did not sign a properly executed agreement in the first place.

Then there's the case of the storecard turned credit card without a new agreement, but there's only been one case that we know of so far. The co$t$ awarded against Santander in this case may well be putting off any other creditor (such as HSBC/M&S). :bounce: :bounce:

Other cases have been won on the basis of defective DNs, bad assignment, harassment, etc. :grin: :grin: :grin: