Attachment of Earnings (2)

greenspun.com : LUSENET : Repossession : One Thread

Further to my original posting (Attachment of Earnings), I have now received the documents from the court, which were served at my old address. This summons is dated 1st May 1996 and is for the repossession of my previous house, which I left in 91 due to my partner's violence.

I now know that the house was repossessed in 1996, sold and the shortfall allegedly owing is 26,334. The debt was 'assigned' to PSPC from Citibank, and the former went to court in November 2000 to get their name substitued as the claimant. In this document, they were granted an order to enforce the judgement 'to include permission to enforce by way of warrant execution'. There was also a clause within this that the application to set aside the order should be within 7 days - I of course was not served this order.

The court office tells me that I should apply to have the judgement set aside, on the grounds that I did not live at the address at the time (I have proof of this) and therefore did not receive the papers, and it seems that my ex has not replied at all to the summons either (originally i was told that he had). The 'Claimant' seems to have reverted back to Citibank.

The office also told me that i should fill in the attachment of earnings form and send this back, and if the judgement is set aside this would automatically be set aside too.

This shortfall debt has not yet been proven - they have sent me nothing to substantiate the claim, and I am reluctant to declare my earnings prior to the debt being proved - knowing what my incomings/outgoings would give them an unfair advantage in any negotiation.

I'm really lost as to what to do next - I am applying for the judgement to be set aside today before the deadline runs out, but should I be writing to PSPC's solicitors to get them to prove the debt in the meantime?? And what about the attachment of earnings?

-- (kgc096@hotmail.com), June 26, 2001

Answers

Assuming that you have the judgement and the attachment of earnings set aside, as per your post above, I would suggest you see a proper legal advisor to tell you what the implications of this are. A starting point is your Citizens' Advice Bureau, or, if you live in a large town, a Legal Advice Centre or a Law Centre. Even if you walk into a solicitor's off the street, the first half an hour consultation will often be free.

You presumably want to know if getting a judgement set aside simply takes you back to square one, or if it in fact confers an advantage on you. I think you are asking whether you therefore ought to asking for evidence of the claim?

If it is the case that having the judgement and attachment set aside takes you back to square one, then, if it were me, yes, I'd want the lender of the debt collection agency to prove its claim with solid evidence, as per the advice and ideas offered on this web site (especially under 'Repossession'.) In fact, if it were me, I'd insist on this under any circumstances. But you're not me, and you might not have experienced what I did.

What progress have you made since you last posted?

-- Eleanor Scott (eleanor.scott@btinternet.com), June 30, 2001.


Hi - thanks for your answer. I have applied for the judgement to be set aside, and have sent evidence that I was not at the address at the time, and hadn't been since 1991. I also know that the property was sold, so I could not possibly owe the full amount of 63k

I spoke to the court who said that I should fill in the attachment of earnings form and it would be held until the outcome of the setting aside was decided

I have taken legal advice, but keep getting conflicting messages - one solicitor said that i had no defence, even if i was unaware of the repo, as i was jointly and separately liable (which I know) - and that the lender (or debt collector in this case) could sell the property for what it liked, at auction if necessary, and whatever it got would be proof enough to the court that it had made attempts to 'mitigate their loss' - I believed, from what I have read from this site, that they had to show that they had properly marketed the property etc - so this is a little worrying. If the shortfall was 26k, it means that they would have sold the property for less than 40k - we paid 64k for it in 91, and it was in prime location, so this seems a little low..

The solicitor then recommended that I call up PSPC's solicitor and try and negotiate - and get them to set aside the order - I'm not sure I want to do this on the phone, but maybe I should write to them - I did write when I received their letter in December 2000, asking for proof of the debt, but they did not answer, and I heard nothing until this bombshell from the court landed on my mat.

What I find difficult to understand is that a court can order an attachment of earnings and not allow the defendant to study proof of the debt and question as necessary - surely they must have supplied this to the court to substantiate their claim? If this is the case, then why shouldn't I too be able to see what they are claiming for?

Any guidance or advice you have from your experience would be greatly appreciated - I believe that I shouldn't be ordered to pay a debt that is unsubstantiated - but where do I go next???

-- (kgc096@hotmail.com), July 02, 2001.


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