Northern Rock Charging Order/eversheds

[Shrimpette]

HELP!!

I have been lurking for a while and need to ask for advice on a situation.

We had been paying Debt Release Direct (3rd party) to manage our debts since Sept 2006 (we had a lot of them!) They were paying NR £81.16 a month. In January 2008, all our creditors started ringing and contacting us again, saying they had not received payments. I contacted Debt Release, who said the cheques must have been 'lost in the Christmas post'. They told me they had re-sent them in January. I kept contacting Debt Release, as well as the creditors (who still had not received anything by February). Things came to a head in March, when I terminated my agreement with Debt Release (they had ignored several telephone messages and emails, claiming their cheques had been cashed by my creditors). Then I contacted my creditors and set up agreements with them directly. Everyone agreed except Northern Rock! The only missing payment was for Christmas but they claimed this was a breach of our agreement and they were taking us to court. The debt is in my husband's sole name and was unsecured (taken out in 2004).

We wrote to Northern Rock offering them a higher amount (£100). they refused and said it was in the hands of their legal team (we had to phone them, they didn't reply to our letter). We wrote to the solicitors when we received the original notification to ask if we could pay by instalments (this was an option on the acknowledgement of service) The next thing we knew, we received an order stating that the claimant had rejected our offer and we had to pay the entire amount (£29k and odd - not something we have lying around!)

We then received a hearing for a charging order against our property (which is in joint names). We wrote to the court to request that they move the hearing to our local court, so we can appear. In the meantime, we received notice of the charging order from the Land Registry. We then received notification of a hearing at our local court - unfortunately, it is scheduled for 1 August 2008, and we are going away with my parents for their anniversary (a trip which was booked last year, before we knew anything about this!) I spoke to the court manager, who said I can send a letter explaining that we cannot attend but the hearing may go ahead anyway. I prepared a letter to the court outlining our case (with statements) and asking for an adjournment but thought I would try you guys first!

Basically, I need to know 1) can we adjourn the hearing 2) should I send the 'particulars' letter requesting copies of documents from the solicitor, or is it too late? 3) is there any chance at all we can get the charging order removed? We never disputed the debt and paid it regularly for 2 years and now this happens!

Thanks ever so much

[Shrimpette]

bumping it up, in the hope of a reply...

Am going to send that letter requesting copies of all transactions etc, coz I hope it will have an effect on the solicitors! Was thinking about sending a request to adjourn the case as I have not received any documents yet?

[Shrimpette]

bump!

Anyone out there? Please help - any advice on what to do would be greatly appreciated!

I have sent a letter requesting adjournment to the court (saying that I requested info and havent received it yet so cant prepare a defence). Was this the right thing to do? I have also sent the letter requesting info from Eversheds.

Has anyone else been through this with Northern Rock? Has anyone been able to get their charging order removed? Have done a search on 'charging orders' but came up with everything containing orders!

THANK YOU!

[morteee]

HI there, I think your post may be in the wrong forum (if memory serves there is a mortgage specific forum) so have clicked on report post to ask a Moderator to move it if needed so you get the help you need

Morteee

[Shrimpette]

thank you Mortee!! I hope that will help - although this isnt a mortgage, was originally just an unsecured loan. Am really worried....

[OnMyWayOut]

Hi Shrimpette - click the red triangle in the bottom left of your post to alert one of the site team to give you some more help.

[MARTIN3030]

Thread moved-what did you say in your letter to the Court you should have asked the court to order them to disclose using draft directions.

[Shrimpette]

Thanks Martin, thats great! I wasnt sure if I was doing something wrong...

In my first letter (which was sent to Bradford County Court) we objected to the rate of payment (as Northern Rock demanded full payment) and also asked for the case to be transferred. We enclosed statements and proof of income, as well as copies of statements showing payments to NR.

In our second letter (to our local court), we explained that we could not attend but enclosed papers (a copy of the letter requesting disclosure to eversheds and a defence based on the fact they did not produce any evidence to substantiate their original claim). I am unable to post attachments at the mo (not sure why) but will attach a copy when I have clearance? I got it from another post... think it was restons and HSBC?

However, there have been some developments: (1) I rang the court to find out what was going on - they said this hearing next friday is a 'redetermination' hearing - I guess thats due to the letter I sent originally to Bradford? (2) the court said they have already received paperwork from me for next friday (the original letter again?), but will put the most recent letter with it for the judge to consider and (3) Eversheds have replied to us to say that we gave an admission to the CCJ, so there is no case to answer and they do not have to supply anything! I guess this is because we offered to pay them £100 per month?

I am going to drop off the CAB statement tomorrow (we leave on tues) and hope for the best. Will this be enough for the judge as proof of our commitments and income - the CAB guy said that this would stand up better in court than our own statement?

Also, I am joint owner of the house, whereas debt is only in husbands name - can I object to charging order? There would not be enough equity in his half to cover it... the charging order is interim - what does this mean? Can I challenge it before it becomes 'final'?

Thanks for any help and advice - VERY gratefully received!!

[MARTIN3030]

Heres a pretty simple explanation


A charging order can only be obtained in respect of an ascertained sum, but this would include a sum ordered to be paid at a future date. An order can be made on stock standing in the name of a trustee in trust for the judgment debtor, or on cash in court to the credit of the judgment debtor, but not on stock held by a debtor as a trustee.
The application for a charging order is made to the appropriate court normally without notice and considered by a judge without a hearing who will normally make an interim charging order [formerly a charging order nisi) and after a subsequent hearing on notice a final charging order (formerly a charging order absolute)can be made.
In deciding whether to make a charging order the court shall consider all the circumstances and in particular any evidence as to the personal circumstances of the debtor and whether any other creditor would be likely to be unduly prejudiced.



So confirm-is your CAB going to do something for you to take to Court?
When they say that you acknowledged and failed to challenge the CCJ what are they basing this on-did you put anything in writing ?

[Shrimpette]

hi Martin

Thanks for the explanation - I guess I will get a date through for the final charging order hearing? Am SSOOOOOO going to attend!!

CAB - they have produced a statement for me but cannot help with any legal stuff (I went to see them when we got the first notification of the court case and, altho very helpful, couldnt really help with the court documents). Am going to drop this at court today with a note.

Eversheds - when we received the N9 form (think it was an N9 - the 1st form notifying you of a court claim), we phoned CAB and they said that if we were not contesting it, we had 3 options - (1) admit the claim and pay it in full (2) ask for time to pay or (3) contest the claim. As we didnt know that we could contest (BOY, do I wish I had been on here first!) we sent a letter to NR and Eversheds asking for time to pay (at £100 per month, our original agreement). Bummer Then we got a letter from the court saying that the judge had ordered payment in full as NR had rejected our offer.

I take it this means we are buggered....

Just in case, I am able to post attachments now (woohoo!) so am attaching copies of letters (with personal stuff removed):

1. Original letter sent on receipt of claim form
2. let to court when we got the judgment
3. let to local court
4. defence submitted on friday 25/7
5. let to sols req docs on 17/7

[Shrimpette]

quick update:

We have returned from holiday to find a letter from Northern Rock in response to our email (decided to try the method of another poster and email NR Chief exec direct) but basically a 'get lost' reply. It says that we are not paying contractual amount therefore they are entitled to take court action (doesnt matter that we are paying reduced amount - they wanted charging order regardless). They also said that the court has now made the charging order final (which is odd, since we understood that last week's hearing was a redetermination, not a charging order - will phone the court tomorrow to find out).

Also had a letter from Eversheds with a printout of notes made on our account and a photocopy of a standard default (no names or account numbers) saying this is all they have to supply. NB - (1) the credit agreement is under the 1974 Act (2) The 'Statement of Account' has lots of 'miscellaneous debits' of £30 that dont seem to correspond to anything. Eversheds also said that under Civil Procedure Rules, they dont have to attach anything to the claim form and dont have to supply any supporting information to the court? Is this right?!?

NR want us to sign a form saying that we accept their explanation in settlement of our complaint. I DONT WANT TO!!

Is there anything we can do? HELP

[FunkyFox]

Hi Shrimpette

From my experience, entering a defence after judgement has been entered in an effort to stop a final charging order is a fruitless exercise. As you seem to be aware, as far as I can see, the best bet is to get the order varied via a redetermination on the basis that you had an arrangement with NR that they had agreed to. Assuming that based upon your in and outgoings and your arrangements with your other creditors this offer of £100 is fair and reasonable it would be suprising if they refused it again.

It seems to me that the court process has gone a bit wrong if they are making charging orders final while awaiting a redetermination hearning. As you have said, get onto the court this morning and find out exactly whats what. If they don't help you there and then you can then plan your next move.

IMHO you will have great difficulty getting judgement set aside at this stage especially as you have entered an admission in the first instant so the varying route may be the only option. At least then if you can get this and stick to the agreement then you will avoid the charging order.

Good luck and let us know how you get on today.

PS - I know you didn't really have any choice but your last post shows the absolute importance of attending ANY hearing that you're named in. Assume nothing and always make sure you are there to have your say. It makes a world of difference.

[Shrimpette]

Thanks FF, you are right, I wish I had attended!!

Have just phoned the court. The young lady was having probs reading the judge's writing but basically he has said 'the application for adjournment has been denied on the grounds it was misconceived' and has made the charging order final . I understand that he wouldnt adjourn (fair enough) but he has made the charging order final, even though we have submitted evidence of incomings/outgoings, other creditors (we have £382 a month to pay 8 creditors with) and evidence of payments made. He hasnt written anything about the application for redetermination - I guess he thought it wasnt worth it?

The young lady at court said that although she is not legally trained, she presumes there must be a precedent or he wouldnt have made the charging order final at a redetermination hearing. Eversheds sent a representative - I guess they asked for the order to be made final and he allowed it because we weren't there?

So what does this mean? I guess they will add interest to the amount now? Is there anything else we can do.....

[FunkyFox]

?? Was it a redetermination hearing or a charging order final hearing ??

If I was you I would get to the court and ask to see the file and correspondence to see what was actually heard and when. I don't mind betting however that the judge was of the opinion that if you didn't think it was worth attending then he was going to make the order anyway, regardless of the reasons you gave why. Also having a rep. there from Eversheds meant you had a very bad day overall!

Can you do anything else? Not sure really to be honest. I think you options are limited. Check to make sure that the courst process has been correctly adhered to, i.e. the correct hearings at the right time, and was your redetermination actually considered? Ask to speak to the court manager if your not happy.

The only other thing to bear in mind is that as the debt was a sole debt in your OH's name and the house is joint they can only register a restriction, not a charge. What this means (as I understand it) is that when you come to sell your house your only requirement is to notify them that you have done so, not to pay them out of the sale proceeds. Now finding a conveyancing solicitor who understands this may be a different matter. Everyone I spoke to insists that the debt must be settleed even when a restriction is entered instead of a charge. If it helps below is a quote from Land Registry correspondence on the matter...

Restriction

The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-

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 [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).

You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.

I hope this is of some comfort. Anything else do just ask. Hope I've been of some help.