Hi all I think it possible to defend the hearing in order to at least get some time. There are various grounds for the court to not allow the charging order to become final. I would say that an almost certain defence is that all the other creditors of the OP have the right to be notified of the intended charging order so that they can lodge any objections. The OP can ask the court not to grant the Final Charging Order because the creditor has not contacted any of the OP's other creditors to advise them the hearing was taking place. The creditor may argue that they could not do so because they are unaware of who the other creditors are. The OP can say that if the creditor had asked for them the OP would have provided a list and will do so if asked. I did this several years ago (though I did it a week before the hearing and the creditor asked for an adjournment). The court may not be happy about this coming up on the day of the Hearing but i see no reason why this defence should not work. If the Creditor wants to come back to court with it they will have to ask the OP for a list of their other creditors, then write to them, and then allow sufficient time to pass for any objections to surface before asking the court for another date. This may allow time for other defensive action like overturning the CCJ etc. Hope this helps.

Hullo all, I have today received an email from the Ministry of Justice with the title; "Bailiff rules tightened in first step of reform". Here is the wording: Today the Government has published updated National Standards for Enforcement Agents which defines acceptable behaviour for bailiffs. The voluntary code has been tightened so that people are protected from rogue bailiffs who use unsound, unsafe or unfair methods, while at the same time making sure businesses and authorities can still collect debts fairly. Additions to the National Standards tackle intimidating and threatening behaviour, prevent bailiffs from misrepresenting their powers, and reinforce rules about how firms should resolve complaints about rogue agents. Councils and other authorities will adopt the standards which will be used to set rules for any bailiffs working for them. The updated National Standards outline the minimum standards of behaviours expected by bailiffs and bailiff firms, including; Bailiffs must not behave in a threatening manner or use unlawful force to gain access to a home or business; Bailiffs should avoid discussing the debt with anyone except the person owing money, and bailiffs must never behave in a way that would publically embarrass a debtor; Bailiffs must withdraw when only a child is present; and Bailiffs have a duty of care towards vulnerable people, such as the elderly, people with disabilities, single parents and unemployed people and must use discretion when collecting debts from these groups. The announcement today is the first step in Government plans to change the way bailiffs are regulated, to make sure they operate fairly for all concerned. As Justice Minister Jonathan Djanogly announced the standards, he also outlined proposals to create a new legally-binding regulatory regime for bailiffs. They include: New rules around the modes and times of entry to make it clear when and how an enforcement agent may enter a home or a business; Which goods are exempt to make it clear which items an enforcement agent may not take from someone's home or business premises; and What fees bailiffs can charge for the range of debts that they collect for local government, courts and businesses The full proposals will be consulted on in Spring, with a view to the proposals becoming law as soon as possible. Alongside the revised National Standards the information available on DirectGov has been updated to provide guidance on bailiffs for debtors and creditors. This guidance also provides information on where people can go for help if they feel they have been a victim of unacceptable behaviours by bailiff. Please share this information with your members and networks. For further information please email: [email protected] I post it for anybody who is interested.

Thankyou jamberson: The bays are right next to the pavement. Thankyou Surfer01: It is definitely a council parking ticket. Hard to beleive some cretin is walking around at 0600 in the morning. The local rules are cars are only time restricted in the bays between 0900 and 1700. Hard to understand why any council parking warden was around before 0900!!

Hullo all I parked completely on the pavement outside my flat overnight. I know this is potentially an obstruction but the pavement is very wide at that point and allows pedestrians to pass very easily. Anyway, I got a parking ticket the following morning (At 6 o'clock!!) the offence being: 24 Not parked correctly within the markings of the bay or space. Well as I was not parked in a bay at all but on the pavement I was not in any bay at all so is this the right offence? If not have I grounds for a challenge or is the prevailing opinion that I am an inconsiderate naughty boy and should just pay up. Thanks for looking.

Hi all I have had a bailiff visit today and thought I would share the circumstances with you as it raises one or two questions and learning from the circumstances might potentially be useful to to others. The story starts in autumn 2010 when my business defaulted to a creditor who got a CCJ. In December Marstons came on site. The guy concluded there was not enough value in what was on site or it was too bulky for there be any point in removing things. I signed a Walk In possession and subsequently agreed a repayment plan which went well until the middle of this year when I stopped paying the plan. Marstons tried a few psychological tricks by phone and letter but I was not in a position to pay. Eventually the creditor took the debt back and passed it to a Recovery Practitioner who got on the phone to me. I politely explained why they were not getting any money and they seem to have gone away. In August of this year another creditor got a CCJ against us. Marstons got the job once again. Today I have had the same Marstons guy back in. It was about a quarter to five. I explained that the business had stopped trading and other parties were taking it over and there was no money. The guy said he would therefore call the removals team (which apparently he did but who knows who he was really talking to!) and remove the remaining stock. I pointed out to him that there was next to nothing of any value and what he would be able to remove would not cover the costs of removal and he probably should not be removing it for that reason (Q1 Is that in fact right?). As it happens we have a third party selling fireworks from site and the Marstons guy said he would be seizing those goods. I pointed out that the goods were not my property and he could not seize them. He said he could and the owner would have six days to prove they were his (Q2 Can he seize when the owner's staff are there to corroborate the story? If so does the owner only have six days?). (Q2a Can he seize fireworks when they need special storage and a licence to store?). I started to become a bit concerned as I did not want an innocent third party to become embroiled in my issues. I advised the firework guys they should consider removing their stock to prevent it being seized. The guy said they were not allowed to do that and he would prevent it. (Q3 Are they allowed to remove their own property in these circumstances?). (Q4 In fact could I remove my own property in these circumstances prior to the removal team arriving?) The guy then said he was a bit annoyed because he was now having to wait two hours for his removal team to arrive and he had other jobs to go to. (Its hard for some people!). I said there was nothing I could do about that as I had nothing for him. (In fact he would to some degree be doing me a favour by removing the remaining near rubbish and leaving me an empty property for the next guy). He then went around the property photographing stock. After a while he came to the office and said there was less stuff here than when he came at Christmas (Ha Ha). Apparently the removals team are no longer coming which did not entirely surprise me as they would not have been on site until seven o'clock, they would have had to work in the dark as there are no lights in large parts of the property, and unless they brought a functioning fork lift and a guy licensed to drive it there was not much they could do!!). Q5 However, had they arrived what could they take? What I mean by this is that I do have stock on site that is not mine. For example greetings cards in a stand. These belong to the distributor who charges me for the ones sold when he comes to merchandise. Is it sufficient for me to explain who owns a particular thing for the Bailiff then to be unable to take it. Other things include items on a lease where the item belongs to the lease company. Q6 Also, as the stock I had on site was theoretically still the subject of a Walk-in possession for the first CCJ could they in fact take anything at all on a warrant for a second CCJ? If they had done so would the proceeds, if any not have had to go to the first claim? In the end the guy handed me one of Marston's forms which said (in part) "I called here today with removal contractors. I will return shortly .....etc". (Ha Ha). Looking back on the whole thing the Marston guy was I think playing poker and hoping I would try and stop the contractors and come up with something. In the end I don't think the removal contractors were ever going to come and I guess if the guy had stayed a few more minutes I would have arrived at that conclusion (as I did) and told him so. Thanks for reading. Discuss.................

Hi all We have now had our reply back from Acenden regarding our letter to them claiming fees and predictably they have rejected the claim in its entirity. I now need to pursue the County Court claim. I would be very grateful if anybody out there can help draft the claim. Above I have listed all the charges, with the possible exception of the most recent ones if there are any, and I would like some help claiming restitutionary (if that is the correct spelling) damages. Many thanks

Thanks once again. I understood once a suspended repo was in place it lasted the lifetime of the mortgage. Did not know it could be overturned.

Thanks newstarter Your post was very interesting as it seems to clarify the feeling I had that what we did and the outcome was probably more or less the best that could be expected. I do already have a lot of material from them because I had a lot of material as part of their own witness statement. Indeed it was this material I used to calculate the charges. Having said that a SAR is a good move and I thank you for the suggestion. To your knowledge has anyone ever got recordings? I know the Info Commissioner says recordings should be handed out but never heard of it.

So on Friday 14th October we went to court and got there early with a view to seeing Acenden's solicitor which we did. In the meeting he reviewed the paperwork and was not very happy. He said the following: 1. We had signed a contract so the charges were lawful to which I replied that my advice (all from here!) was that they were not and I was content to let the judge decide. 2. In my document pack there was a copy of the CCJ claim I have started. He said what appeared to me to be an astounding thing. He said "I dont know how they can let you issue such a claim" !?! (As far as I am aware I am at liberty to issue CCJ claims as much as I like as long as I accept the costs and the consequences of losing). What can he have meant? 3. He said there had been a judgement in the case of Acenden and the charges were found legal. I repeated that it was my advice they were not and would be content for the judge to determine. The general feel I got was that he was trying to intimidate me and was possibly flailing around a bit having just been handed everything. I just sat politely and quietly and stuck to my position, as I felt confident of the advice I have read on here. However, I was not that sure of my case that I would gamble all these facts on a possession hearing and I said to him that in my view neither party ought to be keen to go before the judge and it would be better if there was a deal to be done. He said he could not agree to the claim in the CCJ and as I was not prepared to put that aside he was not sure what could be agreed. I said we accepted that there was now, due to the passage of time, some arrears and I suggested we could agree to an overpayment over a period of time based on the arrears calculated by Acenden and we could let the CCJ play out. To cut a long story short he went out of the room to phone the firm and came back. We came to a deal to overpay at about £100 on £4000 arrears (their figures) over about 3 years. We then went into the court and a suspended possession order was issued based on that repayment. In terms of my case: 1. I did not ask the court for repayment over the lifetime of the loan 2. I did not ask for the court to review the terms for fairness 3. I did not ask the judge to review the case based on unfair charges. As things now stand, we are overpaying for the next 3 years, pursuing the charges in the county court, and items 1 and 2 above I guess can be pursued at any time if I want to and win or lose, without the threat of possession. At the time I felt it was safer to stay away from the judge as whilst I had prepared my case I felt it was stupid to gamble the home when these guys do a dozen cases a day and this is my first. I don't know if I have won, drawn or lost. I might have done better or presided over a disaster. I think the battles I was going to have to fight are better fought without the risk of losing the house and the situation we find ourselves in now is a safer one. So that is this thread up to date. I would be very interested in the thoughts of others as to what the other parties solicitor said, and the way I have conducted this case. Should I have taken it before the judge etc, could I have done better, what are the lessons for me and others reading this thread and what are the next steps.

We subsequently got a reply from them about 14 days later saying they needed more time to review our claim and a further letter saying they needed more time but would be able to respond by about 25th October some 9 days after the date of the hearing. Rather foolishly we left it very late to put together our defence but we are under a lot of business pressure right now as we dispose of our business and try and keep everything together, and start new work etc. Anyway I produced a witness statement as follows which is largely self explanatory: I, Comebackjimmy say as follows:- Unlawful Charges On 26th August 2011 I wrote to the claimant asking for the return of unlawful charges and interest amounting to £3422.94. (Exhibit 1) The loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) The Claimant is statutorily bound by Financial Services Authority regulations – Mortgage: Conduct of Business rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000 The mortgage fell into arrears after my business fell into difficulty. However, at various times during the course of the agreement I have over paid in order to catch up with arrears and according to my own calculations based on the claimant's figures excluding charges there have been times when I have been in positive balance. The claimant levied mortgage arrears charges against me. The claimant also levied further interest upon the said unlawful charges The mortgage arrears charges were levied at a rate which exceeded their administrative costs. The level of the charges were unfair because they breach the requirement of fairness contained in UTCCR. The level of the charges is also unfair because they are the result of unfair treatment by the claimant and therefore levied in breach of the claimant's statutory duty to treat their customers fairly contained in MCOB For these reasons the interest charged on the unlawful charges is also unlawful. Exhibits 2 and 3 are letters received from the claimant asking for more time to review my claim. I take the view that if my claim was entirely without merit it would not take anything like the amount of time it has done so far for the claimant to refute and otherwise explain why the charges are lawful and the arrears in place. I have launched a separate County Court Claim asking for the charges to be returned as I do not have faith in the claimant's ability or willingness to address my request for their return. I ask the court to consider the lawfulness of the charges and to note that, if as I assert, those charges are unlawful then no significant arrears currently exists. Ability to Pay The reason for obtaining the loan in the first place was in order to fund my business. Due to various trading circumstances I am unable to make it pay and am now selling the business. It is closed and no longer absorbing any of my income. I have operated another business since February 2010 which now has two outlets. It is thriving. The proceeds of these businesses have largely been used to keep the first business going and are now free for me to deal with my own immediate household debts and to expand the businesses. Should the court determine that there is arrears to pay I ask the court to accept I have the ability to pay both the mortgage and the arrears. I refer the court to my attached income and earnings statement. I have been baffled by the claimants evidence with regard to repayments and the balance owed. It appears that even though I have over-paid the minimum amount the outstanding balance owed continues to increase. I ask the court to re-assess the Terms of the mortgage for fairness. I ask the court to consider the account up to date pending the resolution of the disputed charges. I would point out that it was frequently the case that, if the charges are excluded, since July 2009 I have often overpaid and the balance has at times been more than £500 in favour of the claimant. By the time we came to court as we had not paid any instalments since June there was arrears. Acenden were calculating it at around £4K

110826 Capstone Claim Calculation.pdf OK Here is the calculation as an attachment.

Whoops sorry. That did not format. I'll try again

Hullo All First of all thanks for your contributions. I thought I would take the time to update this thread as the story may be of use to others and, as it is still ongoing I would like to call for further comments and advice as I move forward. First of all the ending, so to speak; We went to court yesterday and the result was a suspended possession order subject to overpayments being made on the account, so the pressure is off for the moment. I think this was not a bad outcome but as I complete the story I would be interested to know if I should have handled things differently. Here is what happened: At the end of August 2011 we sent the following CAG template letter: REF: Mortgage Account Number 000000000 – Request for repayment of charges I am writing to you to request the refund of £3422.94 arrears charges which you have levied against me in respect of my account. These charges had been levied against me unlawfully because they are excessive and therefore unfair. I am sure that you are aware of the recent decisions by the Financial Services Authority in Deutschebank and also in Redstone. The Financial Services Authority made it very clear that mortgage arrears charges should reflect the actual cost of dealing with the arrears. It is very clear that your charges are calculated to produce a high margin of profit for you. Furthermore your charges are unfair and therefore unlawful under the Unfair Terms in Consumer Contracts Regulations. Although a test case in 2009 decided that overdraft charges for personal bank accounts could not be assessed for fairness, this decision from the Supreme Court was limited to charges which form part of the court revenue of the banks. Your charges are not part of your core revenue. They are incidental to your main business and therefore they fall to be assessed for fairness. This means that they must be proportionate and that they must truly reflect your administrative costs. I am prepared to sue you in the County Court if you will not repay me. If I do sue you in the County Court I shall be seeking an order for restitutionary damages and this means that you will be obliged to hand over to me all the benefit that you have had from the money that you have taken from me unlawfully. If you are prepared to act quickly and to refund me my money without any trouble, then I will be prepared to accept the return of my money +8% interest which is the amount which would be awarded in normal circumstances by County Court or by the Financial Ombudsman. Please note that I am not prepared to wait for your normal eight week delay, particualry in the light of your current repossession proceedings which is entirely predicated on unlawful charges. This is an industry time period which has been agreed with the FSA. I don't think that I would be prepared to accept your violations of FSA rules on one hand while you then attempt to rely on some FSA guideline on the other. If I do not hear from you within 14 days of this letter then I will begin proceedings in the County Court and without any further notice. This is the standard template with the exception of the bold part highlighting the impending case. Story continues in following posts to keep the size under control.

If you have not actually paid the arrears charges then your claim should be for them to be removed from your account.- I presume you mean the county court claim? If they are taking you to court for an amount entirely - or almost entirely - made up of charges, then that is what you should use in your defence statment. We can help you with the statement for court.- and here I presume you mean defending the posession. Do you have account statements showing these charges ? if so you will need to affix a copy to the defence form.- I have got plenty from Capstone. In fact a full statement from incept to the time of the possesion claim forms part of their evidence to court. My CCJ claim is based on this but I have punched in interest claims at 8% as well. I am struggling to understand the Capstone stuff as the balance seems to be increasing despite overpayments to decrease it!! Are there any "true" arrears on the account i.e. missed monthly payments?- There are missed payments. If I understand the statement correctly the bulk if not all of the arrears are made up of charges and if they did not exist our overpayments would more than cover the monthly payments due. I guess I need to provide some more clarity. Let me know if I am on the right lines in my reply and ask detailed questions and I will pull out the data. I guess I could post the statements up hear as well if that would be helpful.

hi The charges have not been paid as such. So far as I can understand Capstone's paperwork the entire re-possession claim is based on a sum which is made up entirely of charges applied to the account over the last three years. We have not so far replied to the repossession hearing. Have I addressed your questions correctly? BTW thanks for piling in. It is very much appreciated.

Hullo All Our family are joining the club of all those that have suffered under the grimy hands of Capstone/Acenden by fighting a possession claim. Here are the details: 1. approximate loan value £85K 2. Monthly Repayments £500 3. Claimed arrears £2500 We in turn have a claim against them for arrears charges. On 26th August 2011 we sent the claim letter following the template published on this site giving them 14 days to respond and asking for £3422.95 in arrears charges. Almost 14 days to the day later we got the standard letter from them that they would be looking at it, so now, following the advice of this site, our next step is to issue a county court claim. I have set up the on-line service and intend to fill it out tomorrow night but I thought I would start this thread so that if any one wants to follow and or contribute then they can do so prior to my putting in the claim and I would be very grateful for all the input I can get. The situation is complicated by the fact that they have started a possession claim and the hearing is set for 14th October 2011. I would be grateful for any opinions anybody might have as to the likely outcome of a possession hearing where we have started a claim for more than the arrears. I think the legal situation at the time will be one of the following: a. They have not defended and we will be in possesion of a CCJ against them b. They have defended and a hearing will be pending. c. They have asked for more time and they will have a few more days to defend at the time of the hearing. d. they negotiate. All contributions welome.

Sole trader

Hi All I help run my brother's business which has been in trouble for some time. We owe money to a supplier which we cannot pay and have met with them and agreed to pay them monthly interest payments for a period of time so that we can regather our finances and eventually pay them. We have now just received a Statutory Demand from their solicitors accompanied by letter saying they will not look to pursue a bankruptcy providing the monthly interest payment is made. I would like to try and overturn the SD. I wonder if any CAGers can assist. Please note the following: 1. Both me and my brother have been issued with identical SD's naming us both. However, it is not my business and I am not responsible so on that ground alone I should be able to have the SD set aside. Assuming I follow that course what is likely to happen? Would the SD be set aside or simply amended to exclude me? What might the process be? 2. Having looked at the invoice history I believe the amount claimed is higher than what is owed. The amount we would acknowledge is still above the £750 threshold so an amended SD would still be valid. I have not yet challenged the amount but intend to do so. Is that grounds for having it set aside? 3. The solicitor has sent a letter saying they will not look to pursue bankruptcy provided the interest payment is maintained. Does this fact in any way demonstrate that the SD is being used for debt collection purposes contrary to any current debt collection guidelines? If so are there grounds for a challenge? 4. I understand that if you are unable to contact the person named on the SD this is grounds for a set aside. As this is now the holiday season it is not impossible that the individual in the solicitors firm whose name is on the SD may be on holiday. If I call and am unable to get through is this grounds for a set aside? If not how many calls are required to establish absence and what sort of evidence should I gather to prove this? Would an alternative person in the firm be able to take the call and subsequently be accepted by the court? I look forward to any comments and thank everybody in advance for considering my post.

Good luck and fingers crossed.

Hi Has anything else happened? Been following with interest.

Phew, what a nail biting tale. Was very worried when you did not come onto the site by 5 o'clock yesterday. Can see why now and I would not mind betting a stiff drink was taken somewhere along the line on the way home! However, it seems to me you did quite well. First of all you had "the experience" and it will equip you for any future encounters. Second you appear to have the outcome you needed. (though see what the judge's order says). Will continue to watch the thread and offer moral support.

MONX you are totally right. Not only are the DCA's using templates, the courts use templates, and if we were being represented by solicitors they would use templates as well! As long as you understand the points of law you are putting forward a template is the obvious, and most sensible thing to use.

hi I am by no means an expert so wait for others to post but a couple of quick thoughts if I may: 1. If you have asked them for a copy of the agreement under which you took out credit and they don't provide it within 12 days then the account is in dispute and you can tell them as much and withhold any payment to them until such time as they produce it. If they try bankruptcy proceedings they ought to fail on that point alone. 2. Firms often threaten bankruptcy but it is, in general, a stupid threat because a). it costs them quite a lot of money to take it through to an actual bankruptcy and b). if it succeeds then your assets are shared amongst all your creditors and they only get pennies in the £ and you quite quickly walk away from the whole mess. In this case it looks like they have done their sums and realized you have no equity. They cannot have what you have not got so the sensible course of action for them would be to take your offer and eventually get all of their money back. The reason they have not adopted this approach thus far is either because a). they are stupid, b). they have a corporate policy that the desk monkeys carry out and it has not yet got to someone sensible to make a decision, or c). they know full well their position and are trying to put pressure upon you to get more, which sometimes works but at the cost of damaging your other creditors, which you should not let happen. In my view you have done the correct thing by determining what your income is, what your responsibilities are and what you can offer. Only you can determine what you can offer and that in light of your other commitments. My next acts would be: 1. Wait a while to see what else gets posted here. 2. In the absence of any other advice start making your payments when they produce a valid copy of the agreement, making sure there is an audit trail (E.G. recorded delivery for cheques, or a bank statement for transactions from your bank. Don't offer a direct debit as they can help themselves to as much as they want. Instead do it by manual transfer or standing order). Good luck

Hi One minor query; what was the date of the last payment? If it was over six years ago in England/Wales or five years ago in Scotland then the debt is statute barred and they cannot take any legal action to recover the debt. I will now put forward an alternative course of action to consider and for other CAGers to comment on. DCA's have frequently issued an SD in the hope of provoking a reaction from you. I am myself in possession of a number of SD's, all from one DCA. I had no recoverable assets and chose to ignore the SD. Nothing happened. In each case I got a follow up letter saying they were in a position to start bankruptcy proceedings, but nothing further happened other than I was back in the cycle of DCA beg/threat letters, all of which continue to be filed. It is one thing to threaten bankruptcy as the SD is easy to download, fill in and serve (by the way did arrive by any sort of special delivery or a real person, or was it second class post? If they were serious they would get it properly served so they could prove you had received it). It is another to pay out the fees that are subsequently required to make someone bankrupt. Far better from the creditor's point of view to go for a county court judgment because it is ultimately cheaper to do and if successful does not involve any other creditors. If you have little or no assets they would be foolish in the extreme to make you bankrupt, as they would not get back what they have put in to get you there and any assets that get put on the table by the bankruptcy must be shared out amongst all your other creditors, of whom they likely do not know much about. From my own experience I feel they are unlikely to follow through the threat and you should therefore consider ignoring it. Having said that if you have good grounds for getting the SD set aside you can make some money out of the costs of carrying out the set aside which would be fun. Interested to see what other CAGers say.

I have no expert knowledge on statutory demands. Thinking about it it occurs to me there is no logical reason why a demand that has been set aside could not be issued again at a later date. Perhaps the circumstances that allowed a set- aside have changed and a subsequent SD might, in the new circumstances, be allowed. For example an SD might be set aside because the amount of the debt is below £750 (the current level below which you cannot make someone bankrupt), so an SD would fail. If the debt subsequently went up beyond the £750 in theory another SD could be issued thqat would not fail on this point. It is certainly worth knowing for sure and I would be very interested and pleased to see the legal eagles on here explaining why an SD once set aside, stays that way.