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Mortimer Clarke Letter alleging CCJ – Please Help

indebtman asked:

Hello All

I have 2 questions that I would appreciate an answer too.

The one below is particularly worrying as is for a fair amount BUT after checking my credit file today there is no record of a CCJ. Can they do this or is this just a scare letter as I wonder why it is titled – WITHOUT PREJUDICE.

(1) – I have received a letter today from Mortimer Clarke Solicitors who have apparently secured a CCJ even though I have not received any court paperwork for this: Looking through old letters this debt is from around 2001 and a default was registered years ago that eventually expired on my credit file.

The letter is as follows:

WITHOUT PREJUDICE:

Our Client: ME III Limited

We refer to the above matter and note that you have not contacted us with suitable repayment proposals. As you are aware, this judgement debt has been secured against your property.

Our client wants to work with you so that you can deal with this debt. With that in mind, our client has instructed us to offer you a 30% discount on the amount you owe. This offer is only valid for 14 days after which will be automatically withdrawn.

Further, upon settlement of this debt, the appropriate steps will be taken to request the charging order registered against your property to be removed and your credit file updated.

END:

(2) – I have a few outstanding debts that I have been following advice and dealing with and the last was a CCJ letter back in April which I sent a defence and received a letter from the court saying received and since then I have heard nothing. It now seems that even though no paperwork that I requested as part of my defence has been received, Cabot have issued a default on my credit file even though the debt is from the year 2000 and they are not the original creditor. It looks as though they registered the default 3 months ago which is about the time that the court replied. How can I get this removed and does anyone have a template letter I could use.

Any advice is greatly appreciated.

Thanks

Faljay replied:

In regards to (1):

I have little doubt this is a LIE. You can do one of two things-

1. If you have not paid anything and not contacted the Original Creditor or any DCA in 6 years, then this alleged debt is Statute Barred and as such, they cannot even pursue you, let alone obtain a court claim and definitely not a CCJ. If this is the case, you can send this letter, if you wish:

Creditor/DCA name and address:

Your name and address:

Account/Reference No:

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY IN ANY FORM WHATSOEVER

Date:

FAO: [Name of person on letter]

Dear Sir/Madam,

I in no way admit any liability for this alleged debt, which is Statute Barred.

The last payment was made over 6 years ago, and since then I have not acknowledged any liability or made any further payments.

As this debt is Statue Barred, you cannot take court action unless you can provide documentary evidence of payment or written contact from me acknowledging any alleged debt within this period, as per s5 of the Limitation Act 1980, and any court claim will be defended and counter claimed against on this basis.

The Financial Conduct Authority state in CONC 7.15.4: Notwithstanding that a debt may be recoverable, a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland, if the lender or owner has not been in contact with the customer during the limitation period.

Also:

7.15.6: A firm must endeavour to ensure that it does not mislead a customer as to the customer’s rights and obligations.

Furthermore:

7.15.8: A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred.

If you are unable to provide factual and accurate documentary proof of any payment or contact then you must tell me and confirm in writing this matter is now ended, that you will no longer pursue any recovery action, including discontinuing any court claims, and that the account is closed and you will remove all remarks from my Credit File. Failure to do so, or any further communications pressing for payment of any kind without proof, will be reported to the Financial Ombudsman Service, the Financial Conduct Authority, the Trading Standards Board, the Solicitors Regulation Authority and the Information Commissioner’s Office, without further recourse to yourselves.

Yours Etc.

2. Respond by requiring them to produce a copy of the claim form, copy of the hearing transcript and the Judgement within 14 days, otherwise you will report them to the FOS, the FCA for their records and the courts for fabricating legal facts, which may result in criminal proceedings being made against them.

In regards to (2):

If they did take out a claim then it has almost certainly been stayed. You can apply to have the stay lifted and force Cabot to proceed and produce the required documents, or apply to have their claim struck out with prejudice [ meaning permanently] via Form N244 [£50 fee without hearing, £150 fee with hearing] on the probability they do not have the documentation to prove any alleged debt or legal ownership. You can also demand that Cabot remove their default as they are a DCA and cannot issue defaults and if not, you will report them to the ICO.

Take Care.

😀

indebtman replied:

Hello

Thank you very much for your advice which I greatly appreciate.

Looking at your answers for Question 1 it seems that your second option may be best but wanted to check with you first as I have since found out more information.

It seems that this debt was awarded a CCJ that was removed about 12-18 months ago ( I think) but definitely expired. As part of the original CCJ, I had agreed and was paying money each month to this debt but since the CCJ was removed I have not paid or had any further contact until now. Looks as though the debt was sold on.

Looking at your advice I cannot go down the route of statue barred but:

Can a CCJ be issued again on the same debt?

If I respond asking for the proof as you suggest, wont they just ignore that and then start pushing me harder for repayment as I would of responded to them? These alleged solicitors took me to court previously for the case below that was stayed so I am very wary of them.

On Question 2 – Do you think the best option is to send the form N244 rather than hope they don’t have the documentation if I was to request the stay to be lifted?

Do you have a template for writing to Cabot about the default being removed please in the correct legal language?

Many Thanks Once Again.

Tiggy replied:

Do you know when the CCJ was awarded against you and why you didn’t respond to the claim pack and then the Judgment sent out by the Court?

The documentation issue is a secondary line of defence, your first being that this Judgment should been brought against you, as it was clearly statue barred and as such the claimant would have known that, therefore, the claim was an abuse of the Court process.

A 2nd CCJ can’t be brought for the same debt, but it does stay on your credit file and can be chased for 6 years.

indebtman replied:

Hi Tiggy

Thank you once again for your reply.

I think I have confused matters here.

There is no current CCJ, only a letter threatening that I have one and asking for reduced settlement. I have not received any court letters and my credit file does not currently show a CCJ.

I have had a CCJ for this debt previously which stayed on credit file and then was removed after 6 years, about 12-18 months ago I think. I originally didn’t know what to do when I received the original court paperwork about 7-8 years ago but attended a hearing and lost as I had no defence.

Hope that makes sense

Many Thanks

Tiggy replied:

This is what the Limitations Act 1980 says about enforcing a CCJ

24 Time limit for actions to enforce judgments.

(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

They could try to enforce the Judgment, BUT it would have to go in front of a Judge for permission to enforce after 6 years, so to me it’s dead in the water, they can’t start again and they’d need a VERY good reason why the original CCJ wasn’t enforced within the 6 year time limit.

Faljay replied:

Also, if the CCj was cancelled, then obtain the proof and send it to these idiots, who believe they can call you on a cancelled CCJ, and tell them to cease and desist all contact or you may well take out proceedings against them for harassment under the Protection From Harassment Act 1997, as well as report them to the courts for abuses to the legal system.

Take Care.

😀

indebtman replied:

When I say it is cancelled I mean it expired after 6 years and no longer showed on my credit file. Is there a way to get proof of the old credit file on experian that would of shown previous ccj and previous defaults. This would also help with the Cabot default that has been placed as I could then show proof that the debt had already been defaulted by the OC.

Sorry to all if I am inconsistent with my replies and information. I have an illness that requires very strong medication which sometimes makes it difficult to engage my brain properly! I’m not really as stupid as I come across – well that’s what I tell my wife…

Many Thanks everyone for your continued advice and support

Tiggy replied:

Right the Court up and ask for the claim no. and any details they may have to prove you’ve already been taken to Court once against this debt / account no. If they attempted new proceedings you can then defend it and get it Struck Out on the basis of it being an abuse of the Court process.

You can also use the information with Credit Agencies to say this has been on my credit file as a CCJ, now lapsed and shouldn’t have been registered again.

Faljay replied:

Then that’s it, it’s a done deal and they cannot obtain another CCJ for the same matter.

Take Care.

😀

indebtman replied:

Thank you all very much, I shall follow the advice given and write some letters today and also check with the court.

I will let you know how I get on.

Thanks once again

williams2583 replied:

Shit, talk about being devious trying to collect on an expired ccj. This cant be legal anyway so must be a try on, if thats the case i would report the bstards.

indebtman replied:

Yes it seems these so called solicitors have really upped their game since the last court case that I contested, which was “stayed “, this did not Cabot putting a default on my credit file for that one, straight after the courts decision! I shall be writing to them today as well as this was defaulted by the OC many years ago.

Faljay replied:

Report them to the Solicitors Regulation Authority and the courts.

Take Care.

😀

indebtman replied:

Hello All

After many rounds of letter writing I have managed to get the Cabot default removed from my credit file so thank you for your advise.

The alleged CCJ is now clearer after I wrote to Mortimer Clarke and asked for proof of a final charging order and they replied in October 2016 saying it is on hold while they request the documentation BUT that a CCJ was obtained mid 2006 and a Final charging order was secured in late October 2006. I have heard nothing from them since.

I would of thought that I would of been notified if a final charging order was given and also there would be an entry on the Land Registry saying this?

I have checked Land Registry and there is this entry:

(11.09.2006) RESTRICTION: No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to Egg Banking PLC care of Drydens (Ref.xxxxxx) at Pennine House, 39/45 Well Street, Bradford, BD1 5HS being the person with the benefit of an interim charging order on the beneficial interest of xxxxxx made by the Bradford County Court on 23 August 2006 (Claim Number xxxxxx).

There are a few really important questions from this:

Does this mean that I cannot sell my property until the other party agree?

Will what I owe automatically be deducted by the sale?

If I contact Mortimer and suggest a settlement figure as full and final will they then pursue other debts that are not secured?

Can this debt legally be passed around as this is about the 3rd creditor who this has been assigned to but more importantly is the interim or final charging order allowed to follow the debt to the new creditors?

Many Thanks as always.

Tiggy replied:

As it’s an interim order only, You need to read the order:

No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to Egg Banking PLC care of Drydens (Ref.xxxxxx)

So only written notice of the disposition is required. The problem you may however, face is if you sell, the purchaser may note the charge (and require under the sale contract) for the charge to be discharged (paid) upon completion.

The other point of course, is that I don’t think Egg Banking Plc exists any longer as a legal entity.

Faljay replied:

Hi,

Egg went the way of the dodo a few years back and I believe Barclaycard bought them out, but as to whether they will have purchased this along with any and or all other outstanding alleged debts, etc., assuming the paperwork still exists, I cannot say. I would say don’t mention it to anyone and if you do decide to sell you may not hear word one from Barclaycard.

Take Care.

😀

Tiggy replied:

As they haven’t changed the name of the charge on the Land Registry to Barclaycard, then how can you discharge the charge to an entity that legally no longer exists –

just thinking aloud, but I wonder if you could apply to get the charge removed on that basis ? Also, how can Drydens act for and take instructions from an organisation that’s ceased to exist?

Faljay replied:

Hi,

Agreed, as far as I am aware you cannot legally transfer a Charging Order or any court order or judgement, even if the original alleged debt is sold. So as Egg are Kaput, then I would suggest you do as Tiggy says, but your choice, of course.

Take Care.

😀

indebtman replied:

Hi All

Thank you for all your replies and the late response.

It does seem that whenever there is light at the end a big cloud comes straight back over. Applied for mortgage and refused as default on my credit file even though Experian show perfect score. Looked on noddle and it shows the Cabot (MCE Portfolio)default that I thought had been removed! Seems Experian only supressed this after I complained about it.

So house sale and purchase has all fallen through now.. absolutely gutted.

What is the best way to get this removed permanently as I had contested the originally CCJ claim last year and as they made no response to provide all the requested documents the order was stayed. If I now use form N141 (I think) to get this removed from the court will it automatically get the default removed from my credit file?

Please advise the best and fastest way to have this default removed so nothing shows on credit file.

Thank you as always

Tiggy replied:

Totally confused now, are you referring to two completely different debts, one in 2006, with a charging order and another one currently stayed at Court?

You say you’d managed to get ‘Cabot to remove the default’ but it’s still there, really not sure now what’s going on.

indebtman replied:

Hello, they are 2 separate debts.

The charging order was with Egg and you have answered that question so thank you.

The Cabot one was where they took me to court last year and after I requested further information it was stayed. Originally this debt had a CCJ from around 2006 that expired and then the debt was passed on and they applied for a fresh CCJ last year. I t hen complained to Experian that there was a default still on my credit file and it was removed. ( now found out it is supressed and not removed). Question is how to get this removed permanently.

Hope that makes more sense.

Thank You

Tiggy replied:

So you’ve been taken to Court twice for the same debt and defaulted twice, once back in 2006 (CCJ on credit file – which will have been removed in 2012) and then again when Cabot purchased the debt in ???

– presumably without realising there was already a CCJ against It ?

indebtman replied:

I am very sorry as I have got myself confused as well, this is separate 2 debts

May I start again:

(1) – This was originally a default and NOT CCJ on my credit file from MBNA that dropped off after 6 years. It has since been assigned to several DCA’s and the latest being Cabot – Marlin.

Optima Legal on behalf of Cabot -Marlin sent CCJ claim letter back in April 2015 which I sent a defence and received a letter from the court saying received and case is stayed after not receiving any supporting documents and since then I have heard nothing. It now seems that even though no paperwork that I requested as part of my defence has been received, Cabot have kept issuing a default on my credit file even though the debt is originally from the year 2000 and they are not the original creditor. It looks as though they registered the default (June 2015) which is about the time that the court replied, although on the credit file it says defaulted in June 2014!

The CCJ and charging order was with Egg originally, this was from 2006-2012 – Mortimer Clarke then sent a letter which I responded to asking for proof and they also replied saying on hold while they get documents.

williams2583 replied:

All rather confusing but does not statute barred come to your assistance as its over 6 years since you paid or acknowlegd the debt.

Tiggy replied:

OK so for the CCJ currently stayed, when did you actually default on that one with the Original Creditor – was it 2000 or was that when you took out the loan / credit card ?

Also, you said ‘Cabot agreed to remove it from your credit file’ when was that and did they say so in writing ?

indebtman replied:

The year 2000 was when I originally took out the c/c. I can’t remember exactly when it defaulted originally but I was paying a nominal fee each month until the original default expired from credit file. The DCA I was dealing with at the time requested much higher payments which I could not afford so did not pay any further. A while later it was assigned to another DCA and then it was assigned to Cabot-Marlin who then took me to court and tried to obtain the CCJ. I followed the advice on here and contested the claim and then sent letter CPR 31.14 requesting proof of all documents which have not provided hence getting the court case stayed.

They obviously do not have the documents that prove this case but I would like to know what I can do next as I don’t think statue barred will work as I had made payments.

indebtman replied:

Hi All

I am very sorry for the confusing information – it is not intentional and my fault as getting mixed up with these various debts.

I am thinking of writing to the DCA and the solicitor who started the claim and ask for the default to be removed as they have not provided the documentation as per the CPR Request.

This is what I am thinking of sending – is this ok or should I follow another route?

START:

I refer to my previous correspondence – dated xxxx 2015 requesting proof of the documents under CPR 31.14 which you have not been able to provide. I believe that your client has had ample time to provide this evidence.

Despite my request for this evidence, your client xxxx continue to register this as a default on my credit file.

If you are unable to provide factual and accurate documentary proof within 7 days then you must tell me and confirm in writing this matter is now ended, that you will no longer pursue any recovery action, including discontinuing any court claims, and that the account is closed and you will remove all remarks from my Credit File. Failure to do so, or any further communications pressing for payment of any kind without proof, will be reported to the Financial Ombudsman Service, the Financial Conduct Authority, the Trading Standards Board, the Solicitors Regulation Authority and the Information Commissioner’s Office, without further recourse to yourselves.

END:

Tiggy replied:

You mare get want to give thought to applying to the Court for summary judgment against the claim, lift the stay and strike out With Prejudice, then you’ve greater power to get them to remove the default.

indebtman replied:

Thanks Tiggy

So in your opinion do not send these letters yet – i will hold back for the time being.

Can you remind me of the procedure again please for doing this – i seem to recall it is form N411 or similar and do I just apply stating they have not provided the documentation as requested and apply for this to be struck out without prejudice with NO court hearing or with?

Any idea how long this would take once I have submitted the form.

Many Thanks

Tiggy replied:

You use Court form N244 to apply for summary judgment, costs £50 or free or on low income. That stops them bringing proceedings and you can then try to use that to get the default lifted from your credit report, can’t say how successful you’ll be though.

indebtman replied:

Thank you very much – I will give that a try and keep you posted.

indebtman replied:

Hi Tiggy

Before I send this off can you confirm the wording for section 3 ( What order are you asking the court to make and why) as I have read that it should include some legal wordings?

I was going to put that I request” summary judgment against the claim as the documentation has not been supplied despite my request using form CPR 31.14. I also request for the court to lift the stay and strike out With Prejudice.

Is there a better way of wording this as I want to make sure that I do not miss anything.

Thanks

Tiggy replied:

As the claimant has failed to proceed with this claim for xx months. I, the defendant, respectfully, apply to the Court to lift the Stay and apply Summary Judgment to Strike out the claim, with prejudice, under CPR Part 24.2.(a) (I). In that the Claimant has failed to respond to requests of proof of claim, as such has failed to provide the evidence which can reasonably be expected to be available at trial and have failed to proceed with the claim against the defendant.

24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue;

You have to write in your witness statement the efforts you’ve gone through to obtain proof of claim.

Also, If you’re going to use summary judgment you MUST also serve an application notice to the claimant (with a copy of the application) which includes the phrase:

In accordance with Practice Direction 24.2(5) I hereby, draw your attention to Civil Procedure rule part 24.5(1).

Cope that notice to the Court with your application.

You’ll need 3 signed copies of the form and 3 copies of each of the attachments you’re sending with it.

indebtman replied:

Thank you for your quick reply as always;

What I right to the court now makes perfect sense.

What is an application notice that I send to the Claimant? Is it a copy of the N244 that I am sending to the court or is this a separate form?

Why do I send 3 copies of the N244 with attachments to the court.

Thank you as always, just making doubly sure I understand everything correctly.

Tiggy replied:

An application notice is simply a letter which has the heading Application Notice and says

With regard to the above case no. find attached a copy of an N244 General Application Form, please take this as Notice of my Intention to apply to the Court for Summary Judgment under CPR Part 24 , please accept this by way of Service upon You.

In accordance with Practice Direction ……

indebtman replied:

All forms now completed and almost ready for posting tomorrow but 2 things to check:

On the Application form should I put in the address of the Claimant and Defendant in the top right corner or simply the name. I have put the name and address and don’t want it rejected.

Question 4: What is the draft of the order? Should I be writing a separate letter for this to attach and if so is there a template please? I have outlined what order I am seeking in my witness statement.

Many Thanks

Tiggy replied:

Just name, tick no order attached.

indebtman replied:

Hi All

Court papers were submitted last week and today they were returned as incomplete:

* Your papers are returned for the reasons indicated below;

You must state in section 3 of the N244 application notice exactly what you are applying for; e.g.: to set the judgement aside; strike out the defence.

If you wish to lift the stay and apply for summary judgement the fee is £155.00 the court will need additional fee of £105.00. If you wish to strike out the claim without a hearing the fee is £50.00 your fee of £50.00 is retained within the court.

I filled in section 3 as you suggested but it seems they will not accept this as it has 2 possible options – which should I apply for?

Section 3 filed by myself:

As the claimant has failed to proceed with this claim for xx months. I, the defendant, respectfully, apply to the Court to lift the Stay and apply Summary Judgment to Strike out the claim, with prejudice, under CPR Part 24.2.(a) (I). In that the Claimant has failed to respond to requests of proof of claim, as such has failed to provide the evidence which can reasonably be expected to be available at trial and have failed to proceed with the claim against the defendant. filed

Thanks

Tiggy replied:

Bit bizarre, I can only suggest you pare it down to:

As the claimant has failed to proceed with the claim, the defendant applies for the Stay to be lifted and the claim stand to be Struck Out under CPR Part 24.2 (a) (i) and Judgement awarded in favour of the Defendant.

And put all the reasoning into your Witness Statement. Must admit I’m not keen on applying for Summary Judgment, you appear to have to jump through loads more hoops then for an Unless Order.

On the application did you tick the box ‘without a hearing’?

indebtman replied:

Hi All

Apologies if this is a duplicate but posted this morning and not showing up yet.

My strike out claim is due at court next week and solicitors have contacted me offering to cease all legal proceedings with an “out of hands” settlement.

Do I do this or not as not sure if this means they can then pursue at a later date?

Also would it mean the default would no longer be registered on my credit file.

Any advice welcome as they have only given me 2 days to respond to a consent form.

Many Thanks

Tiggy replied:

Hmmmmm, I wonder why they’ve only given you two days, in actual fact you can ask to settle any time upto a final hearing. Are they offering a discount?

Faljay replied:

Hi,

Due to the time limit of this spurious offer, it seems highly likely to me they have little or no confidence of winning in court.

Your choice, but personally I would proceed to court and go for a 100% discount, as they seem to be desperate for you to accept their offer.

Take Care.

😀

indebtman replied:

In the consent order form it says:

The defendants application to strike out the claim be withdrawn.

The hearing to be vacated.

The claimants claim be dismissed.

Do you think that this means that no further action can ever be taken by them?

If their claim is dismissed would the default be wiped off?

I wonder if I should contact the solicitor and ask these questions and request in writing that there is no further action ever and default permanently wiped off credit file OR just go to court and see what happens.

I did request no hearing but it has been transferred to my local court so guess I have to attend.

I am thinking that it will cost money for them to send a solicitor and without the proof I have previously requested it will probably be dismissed as no evidence.

Many Thanks

Tiggy replied:

Is it a one off payment they’re proposing? If so, then there will obviously be no need for them to commence proceedings again.

You could ask for the default to be removed as a part of your accepting their offer.

I think they’ll probably have either have made a written submission or send a local rent a solicitor to the hearing.

If they’ve called a hearing if you don’t attend they’ll simply dismiss the application.

indebtman replied:

There is no mention at all of any payment to be made.

Just says they will bring their legal proceedings to an end on the basis that my strike out application is withdrawn and each party bears their own costs.

Tiggy replied:

Seriously!! Wow, I’m shocked – sounds almost too good to be true, that’s a real success, I think!

Faljay replied:

Hi,

I’m not trying to burst any bubbles, but before celebrating victory, can you post up their offer, as this sounds too good to be true. I am of a mind, if what they’re offering is genuine, they know they cannot win their case and are hoping to get away with only paying their costs.

Take Care.

😀

thor replied:

It does indeed look that way they want out of this if it was me and not saying you should I would tell them to bugger off look forward to seeing them in court. but I am sadistic ass anyone will tell you that. Just ask Lowell 😆

williams2583 replied:

Very unusual but either way it looks like you are on a winner.

indebtman replied:

Faljay – I have PM you.

You are all correct, it does sound too good to be true but will advise further later today once I have reviewed some documents.

Many thanks

indebtman replied:

Okay so I am wondering what they are missing friends m their defence to make this offer.

I replied back to them saying I needed some conditions in writing:

That they would no longer pursue me for this alleged debt.

That they would not sell on or transfer this alleged debt.

That the default be immediately removed.

They responded with a letter agreeing to the first 2 points but refused to remove the default as their client has a responsibility to record correct information etc.

They also enclosed a copy of the original credit agreement from 2000 which I have been requesting along with the other documents for CPR request but until now had received nothing.

What can they be missing to want to avoid this court hearing?

How do I play this out at court as the basis of the strike out from me was because of no documents from them.

Pleased to hear thoughts.

Tiggy replied:

My view, accept the offer, don’t let a Judge decide, especially if they’ve got a copy of the agreement.

indebtman replied:

Thanks Tiggy

It is only an original credit agreement between me and the original creditor.

They have not supplied any assignments or any of the other paperwork so how can they prove that I owe them the money.

The main problem for me is the default as even agreeing to their offer I would be no better off as this would not be removed.

Faljay replied:

Hi,

Replied to your PM.

Take Care.

😀

indebtman replied:

Hi Faljay,

Replied to message.

Thanks