Can a CCJ be overturned?

[Mortitia]

Hi there,

This is the ongoing saga of the tenant who finally left my flat and is taking me to court for 'violent entry' into my property where gas cert had expired. That case is due in court in Nov and I am pleading not guilty.

I got a CCJ for part of the unpaid rent of £2800 and set debt collector on him as advised by Rodent. Tenant has now gone to back to the county court and paid £75 for an application to overturn the judgement using his statement to the police on the upcoming case of 'violent entry 'as a reason why he should not pay the rent. To my mind the 2 are not connected. He has got a hearing on 31st Oct - about 6 days before the 'violent entry' case.

Does this mean DC cant collect? We were having trouble locating tenant but sirry irriot put his details in with police statement and court sent it to me!! LOL

Or has he done this to prevent me/DC serving him with court order to collect debt or impound his car - he is a taxi driver. How should I proceed - anyone had experience of this type of thing? Mega stress!

Mortitia

[Preston]

Hi

It sounds to me like he is attempting to counter claim for damages which he hopes will offset the amount he owes you. If you are found to have entered the property unlawfully he will probably be awarded something, but if it was a quick in and out simply to do a gas service and you can prove that, it may not be much.

Alternatively, he could try arguing that you have effectively evicted him - but from what you say it sounds like he was in possession for some time after the gas servicing incident, so that seems unlikely?

Have you seen the details of his claim?

Exactly what you are entitled to do about his arrears depends upon the precise details of the order you have been granted. Most CCJs can be enforced without further leave of the court (if this isnt the case it will say so on the order) so unless or until he successfully counter claims you are entitled to pursue recovery.

The most important thing at this stage, though, is to defend his counter claim as effectively as you can.

Hope this is of interest.

Preston

[Mortitia]

Hi

It sounds to me like he is attempting to counter claim for damages which he hopes will offset the amount he owes you. If you are found to have entered the property unlawfully he will probably be awarded something, but if it was a quick in and out simply to do a gas service and you can prove that, it may not be much.

Alternatively, he could try arguing that you have effectively evicted him - but from what you say it sounds like he was in possession for some time after the gas servicing incident, so that seems unlikely?

Have you seen the details of his claim?

Exactly what you are entitled to do about his arrears depends upon the precise details of the order you have been granted. Most CCJs can be enforced without further leave of the court (if this isnt the case it will say so on the order) so unless or until he successfully counter claims you are entitled to pursue recovery.

The most important thing at this stage, though, is to defend his counter claim as effectively as you can.

Hope this is of interest.

Preston

[Mortitia]

Thanks for that Preston,

There were no special conditions to the original CCJ but debt collector could not find him by the usual methods and so I had paid out for an 'electronic trace'. They have already been in contact with him by email and he told them the case was 'overturned' - well he would do wouldn't he.

Tenant left the flat 7 days after gas survey incident of his own accord and by then I had a posession order (well I did have before but courts lost it). Police had been called on the entry day just after the incident and their statements are in my favour indicating he was grossly exaggerating what happend. It took him a further 6 weeks to make any statement of complaint and there are no witnesses.

The details of his claim are only a copy of HIS statement to the police which is a fantasy of himself as a victim. If my brother and I had inflicted the damage on him he claims he would have been taken away on a stretcher. The police, on the day only found he had a small cut inside his mouth where he bit his lip at some point.

I called in at my local county court yesterday for advice and they suggested I write to the Listings Officer at the issuing court explaining the circumstances. I don't want to have to travel 100 miles for a 10.30am hearing on this overturn issue that may be a waste of time.

I agree that he is trying to get damages if his case is successful but I would ask that to be set aside until he pays what he owes me in full. I am setting out to win though.

Mortitia

[Melboy]

Shame you didn't call Transco and tell the visiting gas engineer you could smell gas because the Transco Guy would have shut down the meter to the house which then would have given you the right of access to enter to check for gas leaks legitimately.

The more power you have with evidence as to why you had to enter, and most contracts have emergency entry clauses, then the better it is for you if some Scumbag Tenant tries it on in Court to rip you off.

Good luck anyway and PS is it coincidental that for some reason I have always placed taxi drivers as a high risk Tenant and personally I would never have one as a Tenant as looking through the bankruptcy notices taxi drivers do appear far to often.

Mel.

[Mortitia]

Thanks Mel - advice from this site has really sharpened me up but too late to avoid the courts and the ridiculous situation I am in now.

I agree about taxi drivers in general, this one is quite well spoken, was working for the Home Office and religious. We did not meet him until first day of tenancy (came thru an agency) and instinctively I was not happy - something about him. He was with us 18 months relatively trouble free until his Mrs left and took kid and that seem to make him flip.

Mortitia

[Mortitia]

Are there any legal types out there who have county court experience?

My ex tenant applied in Sept to have a CCJ I had got for rent arrears of £2885 overturned due to 'an administrative error' and I was told to attend a hearing.

I wrote to the court (Wandsworth) and sent letter registered saying that I was not travelling 100 miles (think carbon footprint) for a 10.30 am hearing when he does owe the debt, I got the original judgement in the proper manner and tenant is using this 'overturn' as way of not paying and manipulating me. ( Debt collector still can't trace him and a 'statutory demand ' cannot be issued (to bankrupt him) whilst there is a dispute.

The court has lost the letter, lost the file and when I phone and get thru am told they can't give me advice. What will happen if I don't appear? Will it go against me? I have just emailed all the stuff all over again and sent it by post. Has anyone ever had a CCJ overturned on them?

Mortitia

[Preston]

Hi

My court experience was some years ago but I can say that, although its not very common, it is quite possible for a defendant to make a successful application to have an order set aside. There are various websites which can give you more information; my advice would be to have a look at a few (such as the CAB or the National Debtline sites) which advise defendants, that way you might get a feel for the angle they will be taking.

The county court rules set out when a defendant can apply to set aside a judgment. For example:

• an order was made against them in their absence in certain circumstances;

• there was an error in the judgment;

• the defendant wants to put in a defence and did not have the opportunity to do this;

• the proceedings did not follow the court rules.

It is definitely in your interests to turn up. If your ex tenant tries one of these arguments you will, hopefully, be able to explain why its not correct. Quite apart from this, judges dont like it if they feel you arent taking the court process seriously.

Your journey may be wasted - for example, any initial hearing may just be used by the judge to give directions (on whats going to happen next)- but I dont think its worth the risk.

Good luck

Preston

[Mortitia]

Thanks Preston, I'll check those sites out. I hadn't thought of looking at it from the tenants point and what he may say (if he turns up).

He has used the words 'administrative error' in his counter claim and is still harping on about what happened to his deposit.

The tenancy started before Deposit Protection so I kept it to offset rent owed and all this was explained to get the original CCJ.

It is hard to have respect for the courts when they mess you about sooo much over paperwork and the judges seem to fall into the 'looney left' bracket of an improbable world alien to me. These well paid, non productive civil servants would just not survive in a business setting.

At least the court manager did call me back to apologise and finished with asking if I needed wheelchair access at court!! (no offence to disabled readers) What I thought at that moment I could not possibly write here!

Mortitia

[odecar]

Taxi drivers have to work ......thereby they have to be registered at an address for local licensing council is a good way of finding him.

[SPEEDTWIN]

I have just cut and paste this from another site, dont know if if helps.

Landlord and Tenant Act 1985 s.11(6)

Every letting of residential premises for less than seven years [unless first granted before 24 October 1961, or covered by exclusion order under s.12(1), or excepted by s.13(3) or s.14] contains implied term that L may, at reasonable time of day and on 24hrs. notice, enter premises to view their condition and state of repair.

Housing Act 1988 s.16

Every AST/SAT contains implied term that T must give L access to the premises and all reasonable facilities for carrying-out repairs which L is entitled to carry-out [NB: does not say 'obliged' to carry-out].

L can enforce these rights against T, by litigation if necessary.

[Preston]

Hi

The statutory references are very useful background, but its important to remember that the remedy for the landlord if the tenant breaches these implied terms is the right to apply for a court order compelling tenant to allow access. Rightly or wrongly, the landlord does not have a right to let him or herself in without a court order.

Preston

[SPEEDTWIN]

Unless it is a emergency.

[Preston]

Hi

Its an important question you raise, but I dont think you are correct. Private landlords have no statutory right of entry without a court order that I am aware of. Other individuals or organisations do; police officers and utlity companies, for example, have certain emergency powers of entry and landlords can sometimes enlist their help in an emergency when necessary (floods and gas leaks for example).

I'd be very intersted to know different if I am wrong on this issue, because it could be very useful.

Preston

[Mortitia]

Hi all,

I have just logged on after a week away and amazed to see this still going.

Thanks Speedtwin for that info - I am in court later this week on a charge of 'violent entry' to my own property so will give that snipet to my barrister and see what he makes of it. My solicitor suggested the course of action I should have taken was to get Transco in ugently saying there was a gas leak (it turned out there was) along with the police to gain entry. Rodent also recommended this method.

On the CCJ - On Preston's recommendation I made the 200mile round trip to central London for 7 minutes of verbal abuse from a judge who's name I still do not know. He had no nameplate on his desk and even the defendant had to ask his name twice before he could hear it. I had a heavy cold and could not hear it so have emailed the court for clarification before I make an official complaint to the Office for Judicial Complaints. (as if I don't have enough to do).

Judge seemed unhappy at the outset that I had started the case off in B'mouth then flew at me, by this time standing and shouting 'well what have you done with his deposit?' 'you should have invested it and invested it wisely, how many deposits do you have, tell me!?'

What was all that about- absolutely nothing to do with the case? As my solicitor pointed out at a later meeting I could have lost his deposit on the stock market or at the bingo thinking I was being a wise investor. Instead I just let it languish but in the two years T was with me I never increased his rent and he left 5 month in arrears which is where the deposit went. There is a chance that T has never received this in the post- not helped by him refusing to give his current address.

Although Judge had the file in front of him he seemed unwilling to delve more than 2 sheets of paper into it and he accused me of not providing a schedule of the debt giving me 14 days to provide another one with a further hearing in January. Tenant left the room and I asked why I had been awarded a CCJ in the first place - answer 'because you asked for it'. My reply was 'well surely a judge must have seen the schedule of debt in order to grant it, has it now been lost?' His reply- 'that is quite possible' and I was waved away towards the door.

I know the schedule was in the file earlier in the week when I phoned the court and an officer said she could see it.

I find this whole thing disgraceful and unacceptable. All comments welcome.

Mortitia