Re: A guide to Charging Orders & Orders for Sale

[gforce2k]

Hi

My wife has a final CO hearing on Monday and i didn't realise I had to send letters of argument beforehand! Help!

There was NO mention in the letter from the creditors solicitor that we had to send a letter at least 7 days before the hearing and absolutely nothing from the court to do with the hearing at all!

 

I thought we just had to make our arguments at the hearing so now I've read this thread I'm really worried I've screwed up. My wife is the one that's going to be in there and she's really upset about the whole thing.

 

I was hoping we could put a good argument especially as we've just had the variation order agreed but reading this thread the crux seems to be that the variation was filed after the application for an interim order.

 

I'm incensed because I faxed in an N245 EX160 4 days before the solicitor even applied, it was confirmed received at the time but then a month later (before we heard about the charging order hearing) I found out that it wasn't filed!

 

Is it too late to take in a letter prior to the hearing?

 

Background:

28/04/09 forthwith CCJ against my wife

 

21/05/09 Transferred to local court for enforcement

 

26/05/09 faxed N245 and EX160 confirmed received

 

heard nothing and in meantime:

(29/05/09 Application for charging order sent to court)

(02/06/09 application considered and Interim CO awarded)

 

chased up the court told them had faxed N245 and confirmed receipt with Mrs XXX but they had nothing on system, said maybe she was holding it for me whilst waiting for fee? I sent a cheque to speed up process.

 

24/06/09 cheque received back for N245? called and told no N245, made complaint that had filed everything why not done?

 

29/06/09 received 2 letters from solicitors saying interim charging order granted, one for me, one for my wife. They included a copy of the Interim Charging Order which the solicitors received 26/06/09 (we did not get any such order ourselves - normal?) with final CO hearing set for this Monday 10/08/09 in the morning.

 

02/07/09 received letter from Land Registry - B136 Notice of Application to register a restriction against the land

 

02/07/06 immediately went to local court with a copy of the original N245 and another cheque, filed and paid for it and paid £20 as first instalment. have receipts.

 

03/08/09 received complaints leaflet from the court (probably to do with complaint re N245)

 

04/08/09 received Variation Order for Instalments £20 (approved in default as no response from creditor)

 

Is it too late to file a letter? *hearing 10/08/09*

I though we had to make our arguments at the hearing until I saw this thread. I can take a letter in tomorrow and maybe fax to the solicitors? still worth sending? I've just reread the solicitors letter and there is no advice leaflet and no mention of filing arguments 7 days before the hearing - surely this isn't correct process?

 

What to put in a Letter?

Should I mention:

-The CO is against my wife, not me

- we have 3 young children

- no equity, we're behind with both our main mortgage and second loan and arrangements with credit card co.s etc.

- the debt is for £1200 (+costs for the hearing)

- We now have the varied order for instalments of £20, 1 payment made on filing & aniother will be paid before the hearing.

- should I also ask for variation on any CO such as no further enforcement action i.e. selling the house? anything else?

- Also grounds to complain that the N245 was filed by fax on 26/05/09? they had verbal complaint 02/07/09 when I was at the court.

 

If a letter is too late will I get a chance to argue there?

 

If not is it likely the CO will be awarded as letter within 7 days of hearing?

 

PLEASE HELP!! I've been trying to put my wife's mind at rest but now I'm really worried about what she's walking into.

 

gf2k

[saintly_1]

Post moved to its own thread .....

[the_shadow]

Hi

My wife has a final CO hearing on Monday and i didn't realise I had to send letters of argument beforehand! Help!

There was NO mention in the letter from the creditors solicitor that we had to send a letter at least 7 days before the hearing and absolutely nothing from the court to do with the hearing at all!

 

I thought we just had to make our arguments at the hearing so now I've read this thread I'm really worried I've screwed up. My wife is the one that's going to be in there and she's really upset about the whole thing.

 

I was hoping we could put a good argument especially as we've just had the variation order agreed but reading this thread the crux seems to be that the variation was filed after the application for an interim order.

 

I'm incensed because I faxed in an N245 EX160 4 days before the solicitor even applied, it was confirmed received at the time but then a month later (before we heard about the charging order hearing) I found out that it wasn't filed!

 

Is it too late to take in a letter prior to the hearing?

 

Background:

28/04/09 forthwith CCJ against my wife

 

21/05/09 Transferred to local court for enforcement

 

26/05/09 faxed N245 and EX160 confirmed received

 

heard nothing and in meantime:

(29/05/09 Application for charging order sent to court)

(02/06/09 application considered and Interim CO awarded)

 

chased up the court told them had faxed N245 and confirmed receipt with Mrs XXX but they had nothing on system, said maybe she was holding it for me whilst waiting for fee? I sent a cheque to speed up process.

 

24/06/09 cheque received back for N245? called and told no N245, made complaint that had filed everything why not done?

 

29/06/09 received 2 letters from solicitors saying interim charging order granted, one for me, one for my wife. They included a copy of the Interim Charging Order which the solicitors received 26/06/09 (we did not get any such order ourselves - normal?) with final CO hearing set for this Monday 10/08/09 in the morning.

 

02/07/09 received letter from Land Registry - B136 Notice of Application to register a restriction against the land

 

02/07/06 immediately went to local court with a copy of the original N245 and another cheque, filed and paid for it and paid £20 as first instalment. have receipts.

 

03/08/09 received complaints leaflet from the court (probably to do with complaint re N245)

 

04/08/09 received Variation Order for Instalments £20 (approved in default as no response from creditor)

 

Is it too late to file a letter? *hearing 10/08/09*

I though we had to make our arguments at the hearing until I saw this thread. I can take a letter in tomorrow and maybe fax to the solicitors? still worth sending? I've just reread the solicitors letter and there is no advice leaflet and no mention of filing arguments 7 days before the hearing - surely this isn't correct process?

 

What to put in a Letter?

Should I mention:

-The CO is against my wife, not me

- we have 3 young children

- no equity, we're behind with both our main mortgage and second loan and arrangements with credit card co.s etc.

- the debt is for £1200 (+costs for the hearing)

- We now have the varied order for instalments of £20, 1 payment made on filing & aniother will be paid before the hearing.

- should I also ask for variation on any CO such as no further enforcement action i.e. selling the house? anything else?

- Also grounds to complain that the N245 was filed by fax on 26/05/09? they had verbal complaint 02/07/09 when I was at the court.

 

If a letter is too late will I get a chance to argue there?

 

If not is it likely the CO will be awarded as letter within 7 days of hearing?

 

PLEASE HELP!! I've been trying to put my wife's mind at rest but now I'm really worried about what she's walking into.

 

gf2k

 

Hi gforce2k,

 

did you send evidence with the EX160, as I've seen cases on here of people having delayed responses from court when claiming exceptions to pay due to this.

 

If you have the new variation order from court then I would have thought that should overrule the charging order application, if you send evidence into court of that new order and show to the judge that you attempted to get this sorted prior to the application from the creditor.

 

They obviously can still apply for a redetermination hearing on that variation order at a later date tho.

 

Hopefully more experienced opinion will be along shortly

 

S.

[the_shadow]

Thinking through this logically it must be the case that the CO request will be dismissed surely as:-

 

The CO application is based on the original forthwith order, that has now been superceded by the variation order by the judge hence there is no basis of a charging order as you are paying the new amount as agreed by a judge, if they disputed they should have attended or responded to the hearing.

 

They could say that you only applied after getting the charging order hearing but if you can show the fax report to show the application was sent to court on xx/xx/xxxx and is now the subject of a complaint with the court for mis/not filing.

 

Need someone knowledgeable in CO's to comment.

 

S.

[the_shadow]

bump

[surfaceagentx20]

The interim charging order was granted on 2 June. The variation order was made on 4 August 2009. The variation provided for the judgment debt to be paid at the rate of £20.00 pcm.

 

The court has jurisdiction to make a final charging order despite the making of an instalment order in the period between the making of the interim order and the hearing at which consideration is given to the making of a final order: Ropaigealach v Allied Irish Bank plc [2001] EWCA Civ 1790.

 

In my view the most important aspect to bear in mind is that the conversion of an interim order into a final one is in the discretion of the court. In exercising discretion the court is bound to pay regard to section 1(5) of the Charging Orders Act 1979, which provides:

 

"In deciding whether to make a charging order the court shall consider all the circumstances of the case and, in particular, any evidence before it as to

(a) the personal circumstances of the debtor, and

(b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order."

 

If you were able to show for example, that one or more other creditors would be prejudiced that would be something the court ought to weigh in the balance. If the equity in the house is say £30,000.00, and you have debts greater than this sum, then the creditor seeking the charge would be placed in a superior position by reason of his achiving security for the judgment to the disadvantage of one or more of the other creditors. That is real prejujdice to those other creditors, though I have to say that if an other creditor is concerned about being prejudiced that other creditor ought to voice his own objections.

 

In an application for a charging order the creditor is bound to list all other creditors of the debtor which are known to him. If you know of others besides you ought to take a list of those other creditors along to court. The court may then adjourn the hearing to enable those other creditors to be informed of their right to raise objections at the next hearing.

 

If this argument is unavailable I'd still argue the variation is nonetheless something which the court may pay regard to in exercising its discretion. The court may for example adjourn the final hearing fo so long as the instalments due under the variation order are met. Or direct that the creditor be prohibited from further proceedings to enforce the charge for so long as the instalments are met.

 

x20

[gforce2k]

thanks everyone,

 

Variation order in place

the solicitors have accepted the £20 per month by letter but insist on going ahead with the charging order hearing on monday.

 

Letter requesting that judge deny CO

i'm taking a letter and evidence of arrangements etc. to the court first thing tomorrow so that the judge can review it and the file before the hearing.

I've been told by the court that as litigant in person the judge should hopefully be sympathetic to my wife sending a letter in at the last minute but i'm not taking anything for granted.

 

Letter to Solicitors not necessary?

when the sols served the interim order there was never any mention of sending letters/info to them/the court 7 days before the hearing.

I could fax them the stuff tomorrow morning just to show to the judge they had it the same length of time as him before the hearing but if i can avoid forewarning them i would rather just take the stuff to the hearing.

could i legitimately argue at the hearing as litigant in person i wasn;t aware of this reqt as neither the court or sols made me aware of it?.

 

Conditions

on the off chance its granted i want to ask for certain conditions but i'm not sure if i should put this in a letter focused on denying the CO.

if i do how should i fit that into the letter?

e.g. "in any case if the charging order is granted or not I would ask that no further enforcement action be taken including any application for the sale of the house"

Any suggestions would be great.

 

Fax report

i'm going to try printing off the fax log as well but the fax/printer can fax but not print so may be an issue unless i can somehow use the xerox software to print it through my other printer. i'll try everything i can to do this tonight as clearly it will go a long way to proving it happened.

 

Complaint Letter

I'm also taking a complaints letter tomorrow detailing the events surrounding them losing my original N245 etc. and I'll include a copy of this complaint with the evidence so hopefully that will show i'm serious and did fax the stuff earlier.

 

Attending court with my wife

i'd like to go in with my wife so I'm also going to use the letter to ask if i can go in as well. can i ask to speak or is this not allowed? she's quite frightened by the whole going to court thing.

She's been taking anti-depressants for some time so this is the last thing she needs.

She's been taking anti-depressants for some time so this is the last thing she needs.

 

cheers,

 

gf2k

[DT&FE]

Folks

 

I am desperate for some of your informed wisdom with regard to charging orders. On 10/02/2003 a CCJ was granted against me on behalf of Clydesdales Bank, I cannot remember whether or not it was 'forthwith' (trying to get a copy of the original CCJ), we duly started paying £25 every month to Jeremy Sutcliffe & Co. following periodic reviews this was eventually increased to £50 per month as our circumstances changed, we never missed a payment. We moved house in October 2003 and made sure JS & Co. had our new contact details and we continued paying. In July 2008 we received a letter from JS & Co. saying the debt had been passed on to Phoenix Recoveries and that they would duly be in contact. We then received a letter in Aug 2009 (!) from a company called MARLIN FINANCIAL SERVICES stating that they had been instructed to administer the outstanding amount of £7145.05 on behalf of Pheonix and could we contact them. Upon contacting them I stated the amounts that we had been paying to JS & Co. and asked if this was still acceptable, they stated that they would speak to their client and get back to us, we have heard nothing since. Until yesterday when we received letter from our local court that an Interim Charging Order had been granted and a hearing set for 18th September with an outstanding amount of £13,989.58 (yes they appear to have used an interest rate of 195.79% since Aug 2008. I had never missed payments with JS & Co., we informed them when we moved I have a letter confirming a previous CCJ was 'satisfied, and letters to prove that other debts have been satisfied. They had indicated on the CO that there is a second charge against the house and they are right, the land registery documents also highlight that there is a tird charge against the house but that has not been included in the CO. In all we are in negative equity to the tune of around 50k, so a CO would only ensure that we kept paying as we did before, religiously. Now we never defended the original CCJ as it was 2003 before the public realised they could fight back, but this is 2009 and i intend to at least let this new bunch of solicitors - Mortimer Clarke no they've been in a scrap with me.

 

Any advice guidance etc is gratefully accepted for Caggers old and new.