Not sure if debt is enforceable

[Aaron]

Hi Everyone, I'm new here, and looking for some help if I may.

Many years ago, I had lots of financial difficulties and have spent the last 10 years trying to put everything in order.

Various creditors were paid, some have become statute barred. Which leads onto now.

I was under the impression that I was finally debt free, until this weekend when I checked my Credit File with Experian, and found that on the 3rd July, a CCJ was registered against me from Howard Cohen & Co, chasing an old joint current account overdraft of £1811.23.

I haven't had any dealings with this debt since 2008 I would say, have never been contacted for it, and moved from the address around 2007 I think.

On my credit file, the default date was 05/11/2008, and has since dissapeared. However, after calling Howard Cohen & Co this morning, they have informed me that a payment was paid into the account on 07/11/2009, meaning it is within 6 years and not stature barred.

I don't recall making any payments and have requested proof of this. They told me they would need to request this from Santander, and would let me know in due course. In the meantime, the account is on hold with them.

The thing is though, it is all well and good that the account is on hold with them, but if it turns out the debt is enforceable, and I don't pay it in full before the 3rd August, I will have the CCJ on there for 6 years. This isn't something I can let happen as we are trying to put ourselves in the best possible financial shape for a mortgage.

I called Santander myself, and asked if they had any record of this payment, and was initially told no, they do not. However he then asked their collections department if they could see the payment and was told that yes, they can!

I asked by what method was the payment made, and by whom, and was told that they do not have this information. I was told to go into a branch and request a statement from that time period to see the payment that way. So off I went to a branch this morning and on their system, there is no activity whatsoever after 12/11/2008, where it just says "account closed contact collections".

The branch assistant then called the collections team from the branch, and put them over to me. I was told that they can see the payment, but it just says that it has come from a 'Debt Collection Company'.

I then did a little more investigating and have been told that they can see that the debt was with DMS Debt Managers, and then Credit Security, but no other info. They have told me they would see if their back office has any more details but it would be extremely unlikely.

So I called Howard Cohen & Co again, and explained that there is no evidence of the payment, and as such the default date remains and the debt is statute barred. I have also scanned in and sent them the statement I was given showing no activity after 12/11/2008.

My questions right now are;

1. If they can't see who exactly made the payment on 07/11/2009, does it still count?

2. If they can see it's a Debt Management company, do they still need more than just the companies name?

3. If Santander can provide no more evidence, again, is it unenforceable?

If it turns out the debt is enforceable, I will pay it before 3rd August so as to get it removed from my credit file asap. But if I am not legally obliged to pay it, I won't be.

Any questions to clarify anything please ask or if I need to give any more info I can do.

Many thanks in advance to anyone who is able to help.

[FlamingParrot]

Re: Not sure if debt is enforceable

Welcome aboard

First of all, a CCJ cannot be unenforceable - the judgment amounts to enforcement of the debt. However, it may be possible to apply for the judgment to be set aside on the grounds that you did not receive the claim form and that you would have been able to successfully defend the claim, in this case because it was SBd at the time the claim was issued. The burden of proof is on the claimant to show that a payment was actually made and not on yourself to prove that it wasn't, anyone can say that a payment was made. In the end, if it progresses that far, it would be for the judge to decide whether, on the balance of probabilities, you would have made a random payment into an account you'd not used for nearly a year. :confused2:

You should start by writing to HC stating your intention to apply for set aside and asking them to consent to the set aside to save everyone costs and hassle. If they refuse, you have to fill in an N244 and pay a fee of £155, however, you may qualify for fee remission if you are on benefits or on a low income. Form EX160 has full details on this: http://hmctsformfinder.justice.gov.u...ex160a-eng.pdf

You may want to look at these threads for more info about set aside applications:

• http://www.legalbeagles.info/forums/...ants-in-Person
• http://legalbeagles.info/library/how...-judgment-ccj/
• http://www.legalbeagles.info/forums/...lication-notes

[Aaron]

Re: Not sure if debt is enforceable

Hi FlamingParrot, many thanks for the reply.

It has come to light this afternoon, that regular payments of £20 were being paid into the account, and the last one was 07/11/2009. So it seems that I was using a DMP at the time.

However, neither Santander, or HC, are able to tell me which DMC were paying into the account, or who was paying the DMC in the first place.

With this being the case, do they need to prove that it was an authorised agent instructed by myself? At the moment they are simply saying that it doesn't matter who was paying in, as long as there was activity on the account.

I challenged this and said that it would then be possible for literally anybody to pay £1 in and reset the 6 years, to which he replied, well I don't think that is the case.

- - - Updated - - -

Just to add, on the statements held by Santander collections, it simply says £20 'debt collection'.

They are asking their back office if they have any further info, and i was told (I quote) "it is extremely unlikely they have any info at all".

[nemesis45]

Re: Not sure if debt is enforceable

1. Yes this was a joint account you say so both parties are jointly and severally liable, it's possible the other party made the payment.
2. It depends on the information available were you a party to the debt management plan.
There is detail of a payment it seems, it matters not if it was not you who made the payment I suspect this may have been a one off payment made by the other party to the account perhaps when pressed by a DCA.

You need to push for more evidence of the payment and who was in the arrangement with the debt management company.

nem

[FlamingParrot]

Re: Not sure if debt is enforceable

With regards to payments resetting the clock, they need to be made by either yourself or someone acting as an agent for yourself, i.e. with your authorisation. This often comes up when creditors themselves credit money into your account, for example by issuing a refund for something you didn't even request, an adjustment or when you send £1 for a CCA request and they pay the money into the account. In those cases, the clock wouldn't be reset or else all creditors would pay themselves small amounts to keep the debts alive forever. However, if you were using a DMC you would have authorised to make payments on your behalf, they would effectively be acting as your agents. It is unlikely a DMC would have made payments without your authorisation.

[Aaron]

Re: Not sure if debt is enforceable

1. Yes this was a joint account you say so both parties are jointly and severally liable, it's possible the other party made the payment.
2. It depends on the information available were you a party to the debt management plan.
There is detail of a payment it seems, it matters not if it was not you who made the payment I suspect this may have been a one off payment made by the other party to the account perhaps when pressed by a DCA.

You need to push for more evidence of the payment and who was in the arrangement with the debt management company.

nem

Thanks very much for the reply.

1. I do know for certain, that no payment has been made by my ex partner. This can absolutely be taken as fact.
2. I believe that at the time, I was in a DMP. My question is now though, without details of said DMP, can they still use these last payments as effectively resetting the 6 year clock? Santander can't tell me who paid it in, they simply have it as £20 paid in - debt collection. HC also cannot tell me who paid it in. They can also see that a payment was made, no more.

- - - Updated - - -

With regards to payments resetting the clock, they need to be made by either yourself or someone acting as an agent for yourself, i.e. with your authorisation. This often comes up when creditors themselves credit money into your account, for example by issuing a refund for something you didn't even request, an adjustment or when you send £1 for a CCA request and they pay the money into the account. In those cases, the clock wouldn't be reset or else all creditors would pay themselves small amounts to keep the debts alive forever. However, if you were using a DMC you would have authorised to make payments on your behalf, they would effectively be acting as your agents. It is unlikely a DMC would have made payments without your authorisation.

Thanks again for the reply.

I do believe that at the time I was in a DMP. However no details of the DMP are available to Santander, HC, or myself. They are simply stating that as money went in by 'somebody', it is not statute barred.

[nemesis45]

Re: Not sure if debt is enforceable

If the claimant has evidence of the DMP but not the origin of the payment it will
be a question of who under the balance of probabilities is correct .

There is only a slim chance but still a chance that a judge will agree with you but
I think this will have to be tested in court.

nem

[Aaron]

Re: Not sure if debt is enforceable

If the claimant has evidence of the DMP but not the origin of the payment it will
be a question of who under the balance of probabilities is correct .

There is only a slim chance but still a chance that a judge will agree with you but
I think this will have to be tested in court.

nem

If I defend on this basis, and lose, I risk having the CCJ on my file for the next 6 years, is that correct? I am trying to put myself and my partner in the best financial position to apply for a mortgage at the moment so could not afford for this CCJ to remain. I am able to pay it (not that I want to if I don't need to of course), and if that is what needs to be done, I will do.

[nemesis45]

Re: Not sure if debt is enforceable

If I defend on this basis, and lose, I risk having the CCJ on my file for the next 6 years, is that correct? I am trying to put myself and my partner in the best financial position to apply for a mortgage at the moment so could not afford for this CCJ to remain. I am able to pay it (not that I want to if I don't need to of course), and if that is what needs to be done, I will do.

Hi Aaron,

This is a tight rope situation which can be argued till the cows come home on a public forum,
the outcome I would not like to bet on.
It's a choice for you given your circumstances, a mortgage ap would be doomed to fail.
Even an offer of a " settlement " of less than amount claimed leaves a continuing foot print
on credit files.

I hope every thing works out for you!!

nem

[Aaron]

Re: Not sure if debt is enforceable

Hi Aaron,

This is a tight rope situation which can be argued till the cows come home on a public forum,
the outcome I would not like to bet on.
It's a choice for you given your circumstances, a mortgage ap would be doomed to fail.
Even an offer of a " settlement " of less than amount claimed leaves a continuing foot print
on credit files.

I hope every thing works out for you!!

nem

Agreed. It's great to have forums such as this where somebody like myself can get some advice so quickly though and for that I'm very grateful for you and the other posters here so thank you very much.

I think, given the info I have received thus far, I am going to pay the debt and be done from it. At least this way I can continue on the road to mortgage with the best possible chance.

Let's just hope there is no other debts waiting to come out of the woodwork! I'll be checking my credit file regularly.

Thanks again everyone.

[nemesis45]

Re: Not sure if debt is enforceable

Agreed. It's great to have forums such as this where somebody like myself can get some advice so quickly though and for that I'm very grateful for you and the other posters here so thank you very much.

I think, given the info I have received thus far, I am going to pay the debt and be done from it. At least this way I can continue on the road to mortgage with the best possible chance.

Let's just hope there is no other debts waiting to come out of the woodwork! I'll be checking my credit file regularly.

Thanks again everyone.

In my opinion ( however much I hate to see the parasites getting paid) you are doing the right thing, then when you are ask have you ever had a CCJ when interviewed for a mortgage you can honestly answer no.

Best wishes,

nem

[FlamingParrot]

Re: Not sure if debt is enforceable

If I defend on this basis, and lose, I risk having the CCJ on my file for the next 6 years, is that correct? I am trying to put myself and my partner in the best financial position to apply for a mortgage at the moment so could not afford for this CCJ to remain. I am able to pay it (not that I want to if I don't need to of course), and if that is what needs to be done, I will do.

If you didn't succeed in getting the judgment set aside because the court considered the payments in 2009 as being made by someone acting for you, then yes, the judgment would sadly stay on record for six years. If you are able to pay it in full within a month of the judgment being made, then it would be wiped off the record. It's up to you to decide whether to take the risk or not. :decision: