Help - In Court Tommorrow !!! New Member

[butts]

I am new to this forum and would appreciate some advice as I am confused.

I was issued a CCJ by the Bulk Court in Northampton by Restons Solicitors acting on behalf of MBNA. A defence was submitted by Payplan on my behalf. I received the N30 Judgement for Claimant form asking me to pay £132294 by installments of £486 per month with the first payment to reach the claimant by 21st May 2008.

I applied for redetermination long before the first payment was due and continued to make payments to Restons via my DMP with Payplan.

The Claim was transferred to my Local County Court for Redetermination with the hearing being tommorrow afternoon.

However in the intervening period Restons have applied for an interim Charging Order with a date for the hearing being held one week Tuesday in the same County Court as the redetermination hearing.

Once again Payplan have submitted the appropriate defence for the Charging Order Hearing.

I have been in a DMP with Payplan for 15 months paying £700 per month shared between 20 odd creditors whom I owe about £150 K plus. Most have frozen interest , some have been tx to DCA'S but all are accepting propotionate payments INCLUDING RESTONS. I had a review in May and increased payments to all creditors by about 3%.

The reason I am worried is because Last year Nationwide attempted to get a charging order on my property but went about it in a more civilised manner.

1. CCJ granted in Swindon
2. Redetermination tx to Birmingham County Court
3. Judgement Forthwith issued at Birmingham County Court
4. Variation Order - Installment Order awarded payments set at level set suggested by Payplan

Nationwide then did not proceed with the Charging Order applicaion as I believe due to a famous Court Case a Charging Order will not be granted if a court has awarded an installment order that has not been defaulted on.

In other words Nationwide waited for the outcome of the Redetermination process before starting the wheel rolling on the Charging Order Front.

With regard to Restons has anyone ever heard of a reputable Solicitor with an 0870 number..................


What I am worried about is when I go to court tommorrow if Restons go for a Judgement Forthwith I won't have the chance to have it Redetermined and hopefully be awarded an installment order before the Charging Order Hearing takes place.

Is it legitimate for a Creditor to apply for Charging Order before the outcome of the Redetermination process has been completed.

Can I apply for the court to award an installment order at the hearing tommorrow.

The last stage of the process (installment order) with Nationwide was done by paperwork and payment of a £35 fee- no Court Appearances involved.

One last question at the first stage of the CCJ process why do Courts award such a ludicrous level of payments even though they can see from the I&E submitted that the defendant won't possibly be able to afford the payments set thus requiring continual redtermination.


Many thanks for reading my post ....please help and advise

[MARTIN3030]

Not my area but will ask for you.

[butts]

Thanks Martin 3030- hope to hear soon

[caro]

This is just an idea, but I wonder if you could request an adjournment on the basis of the redetermination next week.

What time is your hearing?

[butts]

Thanks....

The redetermination hearing is tommorrow the charging order hearing is a week tuesday.

Do you mean I should request an adjournment at the charging order hearing if I wish to contest the outcome of the redetermination hearing tommorrow - i.e they get a forthwith and I wish to redetermine it and get it changed to an installment order which will take longer than the week between the hearings.

Anyone .....

[caro]

Sorry I misunderstood that. I was thinking the redetermination was next week.

Have Payplan given you any advice?

[butts]

Payplan have been very helpful in filling out and submitting all the forms but unfortunately you don't speak to the legal department only a case advisor who tend to speak in generalities when things get technical.

What I need is someone with some nous about the actual procedural issues in an individual set of circumstances.

I have read and experienced that a Creditor backs off from applying or making a charging order final if a court has varied a judgement and awarded an installment order that has not been defaulted on.

This is due to a precedent set in Mercantile Credit v Ellis (i believe)

Hence the urgency in attempting to get my CCJ onto the above footing as I managed to do with Nationwide.

Just to summise the problem being I may not have time to have a Judgement Forthwith redetermined into an installment order if I am unable to or unsuccessfull in obtaining an installment order tommorrow.

Cheers

[letitbeme]

Hello Butts, Could you request a stay of the charging order hearing until such time as the redetermination hearing has been concluded. You may have to submit your request using a N244 whilst in court today, bring the matter up in your hearing today and have the n244 at hand.

[butts]

Well I'm not a happy bunny !!!

I turned up this afternoon for the Redetermination and Restons didn't.

The Judge assured me they were intending to attend The Charging Order Hearing next week (well theres a suprise)

I asked her to award an installment order but she declined and adjourned it to next weeks hearings so the Redetermination and Charging Order hearing will be held together !!!!!

She was quoting from a letter they submitted about queries on some of the I&E items and seemed suprised I did not have a copy - they have not sent me one !!!

Also I am getting really worried she said that Restons would have informed the other creditors to give them a chance to object. I don't believe this is compulsory unless the court orders it.

Come on you experts out there I really need some good advice for next weeks Double Whammy hearing.

How do I avoid the Charging Order

[butts]

Still looking for help on this one....

If Restons claim some of my I&E levels are to high but have failed to send me a copy of the letter is it inadmissable ???

Does the fact that 20 other creditors including their client MBNA did not object to them hold any credence??

Is the fact I have just increased payments to creditors by 3% after an annual review worth anything ??

Is the fact a different Court refused a charging order to another creditor have any relevance - with the same circumstances?

Why did the Judge adjourn it when they couldn't be bothered to turn up..

If I don't turn up next week it won.t be the same story I bet..

Any help and advice on a defence greatly received

[caro]

I've reported your post to see if any of the site team may be able to offer some advice.

In the meantime I think you should ask Restons to email you copies of any documentation you haven't had so far. Also presumably they should have some kind of bundle of documents that they will be relying on next week. Assuming you haven't received them then ask for those too. Have you done a court bundle of documents yourself? If not you need to consider that too. It may help you to clarify your thoughts on how to deal with this.

[butts]

Thanks Caro

My defence was handled by Payplan and they sent the standard forms and a letter listing all my creditors and the payments made to them since my DMP started 15 months ago.

I believe the letter the Judge was referring to was the one Restons sent to the Court saying they were not going to attend the redetermination hearing - should they have sent a copy to me !!!

I phoned Restons today to see if they were willing to settle out of Court as my son had offered to lend me 25% of the amount owing which represents 10 years payments at the level the court is likely to set the payments at-they politely declined is this worth putting in writing to them?

How would I go about asking for a bundle of documents all I have received from Restons is a copy of the N86 Interim Charging Order

Your help is greatly appreciated

[ukaviator]

The court must consider whether it is reasonable to make a charging order. Under The Charging Orders Act 1979 the court has to consider all the circumstances of the case and in particular your personal circumstances. Also other creditors would be "unduly prejudiced". The court has to decide if making a charging order would disadvantage other creditors.

The arguments you can use against the order being made will vary depending on your circumstances, whether you have equity in your house, and whether you own your home in joint names or on your own.

Some factors the court may consider:

Whether any member of your family has a disability or serious illness.

Where you have a number of debts, whether making a charging order in favour of one creditor would give them unfair priority over other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be affected by a different arrangement being made.

Whether there are any other creditors who might object to the order being made. The charging order nisi should be sent to all your other creditors. If they have not been informed of the hearing you can ask for the application to be dismissed or at least adjourned to allow creditors to be notified and make an objection if they wish.

If the debt is small you can argue it would be unfair to make a charging order on your home if it is worth a lot in comparison. This is based on a case called Robinson v Bailey.

Whether the creditor could have given you a secured loan when you first took out the loan. If they decided to give you an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made.

Whether there are other ways the court could enforce payment of the debt. You could ask the court to make an instalment order or an attachment of earnings order so that the instalments would come directly from your wages. This only applies if you are employed and your employment would not be at risk.

If you owe less than £5000 in total to all your creditors you can argue that the debt should be included in an administration order rather than the charging order being made absolute.

If you are likely to be made bankrupt you can argue that a charging order would give the creditor an unfair advantage over other unsecured creditors.

If your home is not worth as much as your mortgage, known as "negative equity", then you can argue it is not worth a charging order being made as the creditor would not be paid off even if they forced your home to be sold.

You should point out any particular hardship which your family would suffer if a charging order was to lead to the sale of the home. This is particularly important if the debt is not in joint names, as it is not then your partner’s debt.

If none of your arguments are successful and the court makes a charging order absolute, you can still ask them not to allow your house to be sold as long as you pay monthly instalments.

A charging order may be made against any item in which you have "an interest". This usually means property that you own or partly own and will usually be your home. If you own your home in your sole name then the house will be covered by the charging order absolute. If you own your home in joint names with someone else then the charging order will only cover your share or "interest" in the property.

These should be typed out as bullet points to take into court with you. It is very easy to forget certain pieces of information in court, especially when you are stressed out. Remember Barristers do this for a living and take no prisoners, you have to do the same. I don't think there is much more i can add.

Uk

[butts]

Thanks for that UK

My unsecured debts are about 150K

The equity in my house (my half) about 30K

Debt Management Plan 700pm through Payplan Running for 15months

One installment order in place(failed CO application by Nationwide)


Anyone had similar experience with a redetermination and charging order on the same day - what happened !!!

p.s has anyone thought a charging order effectively turns an unsecured debt into a secured one does this mean you should get a refund of the difference in interest between what you have paid as a credit card and what it would have been had it been a secured loan .... my god they'd probably owe me money

[creditcardmug]

Yes on that point in your last para,the courts should really take this into account, its just another example of what kind of society were all living in in this country nowadays
Sorry for rant, couldn't resist