Can I be taken to Court of Protection for my debts?
If your debt spirals, can your creditors take you to court to get the money back? If so, what would happen? And is there any way of avoiding court action from Court of Protection ?
Can my creditors take me to Court of Protection over debt?
Yes. Court action is rarely a first step. A creditor (a person to whom you owe money) will usually first have attempted other, less drastic ways of getting their money back, but if these have failed they can take you to court. The specific details of the action – and the specific details of the court – can vary depending on the type of debt and where you live.
Which court will handle my debt case?
Search the court finder on this page and you’ll discover a wide range of UK courts, from magistrates courts and the court of protection to county courts. In England and Wales, HMCTS (Her Majesty’s Courts and Tribunals Service) runs the court system. County courts deal with most matters of debt and issue orders via a CCJ, a County Court Judgement.
In Scotland, HMCTS is largely replaced by SCTS (the Scottish Courts and Tribunals Service) and the role of the County Court is replaced by the Sheriff Court. If you are facing court action as a result of debt, it will be the Sheriff Court that handles your case, unless your debt is greater than £100,000.
So if a creditor wants to take you to court in England or Wales, they’ll do it via the County Court. If the creditor takes you to court in Scotland it will be via the Sheriff Court. In the remainder of this article, we’ll explore the position in Scotland.
What is County Court Business Centre?
The County Court Business Centre or CDDC is a centralised ‘small claims court’ designed to help speed up debt actions in England and Wales. It deals with electronic applications submitted via the Money Claim Online service and does not hear cases.
If you live in England and Wales, you may find that court action begins with a letter from the County Court Business Centre, but the CDDC does not operate in Scotland.
What should I do when I get a summons to Court of Protection?
A court summons or writ from the Sheriff Court will set out:
- Your details
- The details of the creditor
- The amount you owe
- The instructions of the sheriff
The Court of Protection summons will also set out your options. At this stage, you have 5 choices:
- Confirm you owe the money and pay it in full
- Confirm you owe the money but ask for time to pay (see below)
- Confirm you owe the money but don’t offer any repayment. If you choose this route the court will issue a decree (the equivalent of a CCJ or County Court Judgement in England and Wales) demanding full repayment of the debt with expenses and interest, within 14 days
- Challenge the creditor’s claim that you owe the money – this will lead to a hearing where both parties can make their claim (see below)
- Do not respond – but the outcome of this will be as at 3.
Do I have to attend Court of Protection?
If you dispute the case a date will be set for a hearing. You don’t have to attend the hearing unless the sheriff orders it but, if you choose not to attend court, the chances are you’ll simply have the decree awarded against you (as at 3 above). Even if you do attend that may still be the outcome, but attending does at least give you the option of challenging your creditors if, for example, you believe a mistake has been made.
Do I need a solicitor if I have a Sheriff Court hearing?
Not necessarily. For relatively small amounts of less than £5,000, Scottish courts offer the ‘Simple Procedure’ which, as the name suggests, makes it easy to bring a claim and defend it without the need or cost of a solicitor.
You can, however, use a solicitor if you wish. For more complex cases, or if you appeal your case, you will need a solicitor.
Can I get support through court?
Even if your hearing is more complex or involves a larger debt, you may still be able to represent yourself, but you don’t have to go it entirely alone. You can ask for help from the following who, whilst they may not be able to represent you, will be able to offer moral support, help in preparing your case and gathering paperwork:
What happens when you go to Court of Protection over debt?
A Sheriff Court hearing isn’t like a grand criminal trial of the sort you might see on TV. There won’t be a jury and the sheriff will usually make decisions alone.
A solicitor will usually represent the creditor and they will start proceedings by explaining some background to their claim and stating that they want the sheriff to issue an order for payment. You (or your legal representative) will then have the chance to make your case. Once both parties have spoken, the sheriff will either make a decision there and then or ask for more time or information in order to reach a conclusion.
What happens if I ask Court of Protection for Time to Pay?
One of your options when you receive your court summons to Court of Protection is to ask for Time to Pay. By asking for this you are agreeing that you owe the money claimed – you simply need more time to pay in instalments, rather than by lump sum. If you don’t agree that you own the money, you shouldn’t take this route but take the matter to a hearing instead.
If the creditors agree to your request for Time to Pay, the sheriff will approve it without a court hearing. If they don’t agree there may be a hearing at which you will have the opportunity to explain why you believe your offer is fair.
If Time to Pay is agreed, your creditor won’t be able to take any further action to recover your debts – but other creditors will.
What happens if I can’t pay the decree to Court of Protection?
If Court of Protection accepts the creditor’s claim you will be issued with a court order known as a decree. Following the decree you’ll be issued with a ‘charge for payment’, giving you 14 days to pay the debt in full.
If you can’t pay in full the court can enforce the decree (known as diligence) by using one of the following options:
- An earnings arrestment: The court will take a regular amount from your wages each month
- A bank arrestment: The court will freeze funds in your bank account and use the money to pay the debt
- An attachment: Rather than seizing money, the court can take goods outside your home – for example, a classic car in a garage – and use the proceeds to pay your debt.
- An inhibition: This prevents you selling, transferring or remortgaging your home, and if you do want to sell your property the proceeds of sale will be used to settle the debt. As the inhibition is against you, not your property, your creditor cannot seize the property or force you to sell.
Can I avoid going to Court of Protection over debt?
Yes. Whilst paying off the debt in full is the most obvious way to avoid court action, this is rarely an option when you are facing mounting debts. There are, however, several other ways to avoid being taken to court for the money you owe.
In some circumstances, an IVA or Scottish Trust Deed can stop court and legal action completely. The two do much the same job. An IVA (an individual voluntary arrangement) is a ‘legislated debt solution’ that can help you avoid bankruptcy and court action in England and Wales.
In Scotland, a protected trust deed (also knows as a Scottish Trust Deed) performs a similar role.
How do I get a Scottish Trust Deed or IVA?
You’ll need to:
- Live in Scotland (or England, Ireland or Wales for an IVA)
- Have debts of more than £5,000
- Show you cannot afford to pay off your debts in a reasonable time
- Be able to afford at least £100 towards your debts (£70 if an IVA)
You’ll also need to apply via a professional insolvency practitioner. Complete the form below and we can help you.
How can a Scottish Trust Deed or IVA stop me having to attend Court of Protection?
A trust deed can help prevent court action in two ways:
- Just by applying, you can pause court action: Even if you’re only thinking about setting up a trust deed, you can press pause on any court action (and any other steps to recover the money) by applying to the Accountant in Bankruptcy for a six week break. This is known as a moratorium. With a moratorium in place, all creditor action against you must stop temporarily.
- Once agreed, you can freeze action: If you then proceed with an application and it is successful (that is, the trust deed becomes ‘protected’) all your unsecured creditors will be bound by it. They will not be able to push for court action. Nor will they be able to charge further interest, penalties, fines or send bailiffs (sheriff officers) to collect the debt. As long as you continue to meet the terms of the trust deed by paying a set monthly amount for the life of the deed, your creditors won’t be able to take you to court, and you’ll eventually have the remainder of your debt wiped clear.
It's important to note that the above can only happen when the trust deed is protected – which means most of your creditors have to agree to it. If they don’t agree, your trust deed can’t be protected and it won’t have the same effect.
What other legislated debt solutions are there?
An IVA or Scottish Trust Deed isn’t your only potential route out of debt and away from court action from Court of Protection. Explore other options, such as a Debt Management Plan, a Debt Arrangement Scheme or sequestration (bankruptcy) with us.
Stop Sheriff Court action in its tracks
If you’re being threatened with Court of Protection action, use our court finder to find out where your case is likely to be heard. Then talk to us about ways of avoiding it.
How do I find out what my CCJ is for?
The simplest way to find out if you have a CCJ is to get a free copy of your credit report by clicking this link; https://www.finance.co.uk/cr1. That gives an overview of most of your debts, showing defaults, balances and creditor details as well as any CCJs – and it's free!
Summoned To Court of Protection For Unpaid Debts? - Legally Write Off Up 90%
If you have been summoned to Court of Protection for unpaid debts then you may be able to write off up to 90% of the debt using a legislated debt solution such as a IVA or Scottish Trust Deed. You can check you eligibility online today here; https://www.scottishtrustdeed.co.uk/apply-now/
How do I defend a Court of Protection claim?
You will need to fill in the defence form which you would have received from Court of Protection. Once completed send the form back to the Court of Protection within 14 days of the claim being served on you; or. fill in the 'acknowledgement of service' form and tick the box to say you wish to defend all of the claim. Send the form back to the court within 14 days of the claim being served on you.
Do you have to attend Court of Protection for a CCJ?
To obtain a CCJ, a lender has first to issue a Notice of Default. If you do not pay the default, the lender can then ask the Court to issue a County Court Summons for you to attend court. ... You can attend if you wish, or just send the information the court asks for by post.