I've been chased by B&B for 5 1/2 years, they contacted me 7 1/2 years following repossession -- which adds to a total of 13 years following repossession.

However after all this correspondence they suddenly decided that one of my letters was an acknowledgement of debt - they suddenly switched solicitors from hammond suddards aka drydens to Wragge and Co. I got a solicitor who contacted them telling them they were out of time.

Next thing I know I have had a ccj against me for £60,000 -- double the intitial (made up) sum that they were asking £30,000. My solicitor has applied to get this CCJ set aside. Somehow all the court paperwork never made its way to me or the solicitor - which I find quite frankly sinister. Is this something other people have experienced?

I was interested to see on the site that when they wont supply documents this may help me (or it may all be too late), as I have asked for the mortgage deed many times and not had it.

I have no income or assets and will have to go bankrupt, which they are well aware of, so it doesnt necessarily seem to just be whether its worth suing someone that will propel them into court action, possibly its because I said there had been an unnecessary and prejudicial delay in one of my letters, and yet somehow (so far) I have been denied my chance to have this matter heard by a judge.

Even after being in contact which them for 5 1/2 years I am still amazed that they seem to be legally able to make up these debts and then chase you for them, its nothing short of criminal.

I'm so angry.

-- suzannah Jones (suzannah@homedawlish.eclipse.co.uk), September 06, 2004

Answers

Hi there

It sounds as if your solicitor is doing the right things. Applying to set aside the CCJ is the correct move. It should be set aside if (1) you have a reasonable prospect of successfully defending the case and (2) you have applied promptly. Also, it is necessary to explain why you didn't respond to the claim (which is because you didn't get it).

It sounds as if you do have a reasonable prospect of defending the claim from what you say. Once you defend a claim on the basis of it being statute barred it is up to the lender to prove that it is not - in legal jargon, the 'burden of proof' shifts to the claimant.

There may be an issue about acknowledging the debt but it isn't possible to comment without knowing more about it. Solicitor's have been known to inadvertently acknowledge debts on behalf of their clients (I am not saying that this has happened here) but creditors (and their solicitors) have also been known to claim there has been acknowledgment when there hasn't.

Ultimately, providing you get the CCJ set aside and have an opportunity to defend the claim, it may be that the judge will have to make a decision on whether there has been an acknowledgment or not. Over the years there have been many cases, old and new, on what amouts to an an a knowledgment and what does not.

If you are permitted to defend the claim, you will be able to ask for 'disclosure' of any relevant documents that you need from the claimant, e.g. the mortgage deed.

If the limitations/statute barred defence fails, there may still be a defence against some of the interest that the lender is claiming. There is good case law to say that where a claimant unnecessarily and unreasonably delays the issue of proceedings, it may be deprived of some of its interest, which is at the discretion of the court. This is the same as the 'unnecessary and prejudicial delay' that you mention in your post. This could possibly reduce the interest element of the claim by perhaps 50%. I can provide details of the cases if you would like them.

I would think that there is a good chance of the CCJ being set aside but can't be more positive without knowing more about the case. It would in my view be a miscarriage of justice if you have an arguable defence and are not allowed to put it to the court. This would be contrary to the 'overriding objective' of the Civil Proceedure Rules' (CPR 1), one of which is to deal with cases 'justly'. There is also lots of case law on set asides that makes the same point.

Please post again or email me if you have any more queries.

All the best

Guy

-- Guy Skipwith (guy@skipwith107,freeserve.co.uk), September 07, 2004.

Thanks so much for all that detail, its helpful to have the immediate step ahead, plus the next few options, laid out. No doubt I shall contact you in the future!

I appreciate your time. Suzannah

-- suzannah Jones (suzannah@homedawlish.eclipse.co.uk), September 08, 2004.

Hello, I just wanted to day that I also did not receive a claim when I was told it had been sent 2 months previously. I only knew about it when I received a Stay from the court. I responded immediately to B&B solicitors, who eventually re-issued the claim so that I could respond to it. I have only just managed ot do this in time before my 'case managment conference' which is happening on Monday. I am expecting B&B to want a CCJ, but I will have to wait and see. They have also doubled the original figure for 'interest' as they call it. How are you getting on anyway? Any advice from anyone about case management conference would be gratefully received. Many thanks Hester

-- Hester Deackes (hesterd@tiscali.co.uk), November 24, 2004.