Charge on my house ***WON***

[polly55]

Charge on my house

I have been in a free debt management plan (with Payplan) for almost two years and have been paying eight creditors regularly through them. One of my creditors (HFC bank) is now only dealing with me through a solicitor. They wrote to me asking me to voluntarily allow them to put a charge on my house. Payplan advised me to let them fight for it. They (HFC bank) have taken me to the county court (I send Payplan all the forms and they deal with it). As a result of that the County Court increased HFC's repayment slightly and all my other creditors had to take a decreased payment as my available income had not changed. Court costs were awarded against me. Now I am informed that there is a hearing coming up in January to apply for a charge on my house. Every one of my creditors has been paid every month for two years through Payplan. Can a court justify allowing a charge against my house? Are Payplan doing their job or should I go to the court myself. Any advice would be very welcome.

[hellhasnofury]

Charge on my house

I have been in a free debt management plan (with Payplan) for almost two years and have been paying eight creditors regularly through them. One of my creditors (HFC bank) is now only dealing with me through a solicitor. They wrote to me asking me to voluntarily allow them to put a charge on my house. Payplan advised me to let them fight for it. They (HFC bank) have taken me to the county court (I send Payplan all the forms and they deal with it). As a result of that the County Court increased HFC's repayment slightly and all my other creditors had to take a decreased payment as my available income had not changed. Court costs were awarded against me. Now I am informed that there is a hearing coming up in January to apply for a charge on my house. Every one of my creditors has been paid every month for two years through Payplan. Can a court justify allowing a charge against my house? Are Payplan doing their job or should I go to the court myself. Any advice would be very welcome.

 

Hello Polly,

 

I am in a similiar position as yourself, but not as far down the road.

 

HFC did the same thing to me. I was on a dmp with Payplan, paid them every month without fail and wham bam,I was hit with a court claim, for the total amount. they decided the wanted more. This appears to be common practice for hfc. I did speak to payplan and they told me to send it all the papers and they would deal with it, but that I would probably end up with a charging order on my house:o

 

I had been a member of this site for a while and had read quite a bit regarding customer rights and legislation. I felt that I had to deal with this scary court claim myself, payplan were a bit non very clued up in these matter to say the least. My house was my house, nothing to do with hfc or payplan. HFC had also put a collection charge of over £1,500 (this is deemed as a penality charge) ontop the amount owing.

 

I sent of a SAR and a request for my credit agreement, got lots of lovely information and a pre-contractual application form for my credit agreement. So I defended the whole claim on the basis that there is no credit agreement. I have also stopped paying hfc, so they actually shot themselves in the foot with that one.

 

There solicitors did write to me asking me to admit liability for the debt and they would drop the collection charge;) eh I don't think so.

 

A court date has now been set for april/may next year, so there is a lot more to come of this.

 

My advise to you, is that all may not be lost with your case, you can possibly prove to the court, with evidence, that the claim is not quite as sound as they think, maybe you can appeal and have the ccj overturned.

 

I would be writing to payplan and asking them what they have actually done, in the way of admitting, part defending your case. I would also, start doing this yourself, and with the help of this site.

 

Have you asked for evidence from HFC, regarding information that they hold on you. Is there penality charges on the account, late payments, etc. Do you have a copy of your credit agreement? Is is Kosher???? Did they send you a default notice, to give you time to address this????? You will be entitled to get this evidence throught the court civil procedures, from hfc and their solicitors.

 

There is a lot of procedures that hfc and their solicitors have to follow and they apparently don't comply with these. Most consumers don't know the law and fall foul of the legal system, because they don't know their legal rights. Like if you had evidence that there is no credit agreement, you may not have been issued with a ccj.

 

I am expressing my opinion on my own dealings with this company. There are others on the site, who are much more learned with consumers rights and legislation. I will direct you to my thread for reference, but I must admit I do not put up everything as to how the case is going, as some things are best kept away from preying eyes.

 

revenge is sweet-v-hfc

 

Read around the threads and if you cannot find information or don't know ask.

[benson05]

Hi Polly,

 

Similar situation-steady DMP with Payplan but Norhern Rock are aking me to court for a final charging order on Tuesday, agree that it is better to fight it yourself , we let Payplan do the initial forms for the CCJ (looking back we should have disputed it ) Northern Rock got the Ccj they ignored Payplans request for payment by installments and bingo we are in court Tuesday. Have you already got the interim charging order already?

 

BENSON05

[polly55]

Hi Benson,

Thanks for your post, I don't have an interim charging order yet, what is that, should I expect one?

[benson05]

Hi Polly,

Now i am not too bright but from reading your first post I assume you hava a ccj for that debt and that you are paying installments as agreed on that debt, therefore as long as you make all installment payments on time they can not apply for a charging order. A charging order normally only applies if at the time of the ccj the order was for forwith payment (ie the whole lot in one go) or if you failed to keep up with installments on the Judgement.

 

Kind regards Benson05

[rory32]

I don't have an interim charging order yet, what is that

An interim charging order is otherwise known as a charging order nisi (nisi means unless). This basically means that a charging order will be granted unless you can provide a sufficiently good reason for it not to be granted. If you can't a charging order absolute will be granted which secures the account on your property as a second charge after your mortgage.

 

Can a court justify allowing a charge against my house?

It would be difficult for a creditor to get a charge if you are adhering to the payments that the court laid down for your CCJ unless the payments are so low that you are never going to pay the debt off or you don't defend the charging order.

 

You really need to answer some of the questions hellhasnofury has asked.

 

Are there any penalty charges e.g. late payment, etc on the HFC account that were in the CCJ? You can reclaim these back to reduce the amount owing on the CCJ.

 

Do they have a copy of your credit agreement?

 

And you really need to get that info from Payplan regarding how they have conducted the account, defended any action and any correspondence they have had with HFC or the court.

[polly55]

Thanks everyone for your interest. I'm getting all the info I need from Payplan tomorrow, I hope. They went through a phase of being very difficult to get hold of, although generally experience with them very good. I think I've let go of the reins though and let them get on with it. I will keep you posted.

Thanks again.

[feistee]

If you have an order to pay a debt in installments and are not behind in the payments the court should not make a charging order. The relevant case law is Mercantile credit Co Ltd vs ellis in 1987. I think the library has a link to the actual judgement.

[womble72]

Hi Polly,

 

I am the same situation as Benson05 with Nr.

 

They want to go down the path of trying to do a charging order against my property.

 

I have the same dmp with Payplan but i have not gone to them.

 

I have kept with the advice of people from this site rather Payplan and the Cab.

 

I will fight the claim against Nr and hopefully Benson05 will win there arguement on Tuesday.

 

Polly i'm new to this as well with court orders and ccj but stick with the people on this site and take as much advice as possible.

 

If i had listened to the Cab or Payplan i would be handing over my home to Nr in the new year because a lot of people like me do not know the law regarding loans.

 

So good luck with your fight with Hsbc.

 

Kind Regards

 

Womble72

[sequenci]

Hello there,

 

providing you are not behind with your instalment order on the ccj the creditor will not be able to secure a final charging order against your property. It is imperative you quote the case of Mercantile Credit V Ellis (1987) which confirmed (and set a precedent) that no further action can be taken so long as you've not missed your instalments.

 

you should take evidance showing that you have not missed payments on the instalment order to the hearing.

[polly55]

What would happen if I transferred the property to my partner who has no debt? Is that legal? There is no interim charging order.

[sequenci]

are you up to date with the instalment order on the CCJ? if you are then there really is nothing to be overly concerned about.

[polly55]

I am up to date with my instalments through Payplan, I've never missed. However, reading through the thread revenge is sweet posted by hell has no fury, someone called Karne seemed to be in the same position and had a charge placed on his house. Also, I got whacked with another £400 court fees after the last ccj. If I got to court again am I going to have to pay more charges. This debt which was originally with HSBC incurred a 'handing over' fee of 800 plus the 400 court costs so its now 1200 more than it was originally. This is daylight robbery!

[sequenci]

A Charging order should only be made final if there is a default on an instalment order on a CCJ. If you are up to date with the CCJ instalment order a charging order should not be made final

 

[ Mercantile credit V Ellis 1987 ]

[polly55]

Thanks everyone. One of the reasons HFC give for the charging order is that it will take 15 years to pay off debt. By gaining the CCJ against me, which I really wish I'd challenged and not just let Payplan deal with by the way, they have restricted the amount I can pay them. In a recent review all my other creditors have received an increase, reducing the amount of time it will take to pay them back, now calculated as just under 9 years. So by freezing my repayments to them HFC create the situation which they are objecting to. I plan to put my own objections into court before the hearing. I've asked for my credit agreement. Should I put in a CPR request. what else can I do to strengthen my case? I'd really like the case chucked out before it gets to hearing so I won't get more costs, I think the County Court action was unreasonable as I'd always kept up instalments and they were only awarded 50p more anyway. Any ideas?

[hellhasnofury]

Thanks everyone. One of the reasons HFC give for the charging order is that it will take 15 years to pay off debt. By gaining the CCJ against me, which I really wish I'd challenged and not just let Payplan deal with by the way, they have restricted the amount I can pay them. In a recent review all my other creditors have received an increase, reducing the amount of time it will take to pay them back, now calculated as just under 9 years. So by freezing my repayments to them HFC create the situation which they are objecting to. I plan to put my own objections into court before the hearing. I've asked for my credit agreement. Should I put in a CPR request. what else can I do to strengthen my case? I'd really like the case chucked out before it gets to hearing so I won't get more costs, I think the County Court action was unreasonable as I'd always kept up instalments and they were only awarded 50p more anyway. Any ideas?

 

Hello Polly,

 

Do you have copies of Payplans defence that they did for you.

 

Did they send you a notice of default to warn you prior to the issue of court proceedings????

 

Are there any penalty charges on this account??????

[polly55]

I think there might be penalties, I shall have to go back through

my HSBC statements. There was definitely over 800 in admin and solicitors fees on handing over to HFC.

No I don't have a copy of Payplan's defence, should I request this, do you think I should request a CPR?

I'm not sure if I got a notice of default. I did get a letter from Weightmans, the solicitors acting for HFC, saying that they wanted me to voluntarily put a charge on the property, and if I didn't they would take court proceedings.

Thanks for your interest.

[cashin]

cc

[Edz11]

Polly - I'll explain the above post in simple terms (although it's a very sharp legal explanation - one of the best I've seen on here - about assignment).

 

The Consumer Credit Act recognises two bodies/people. They are the creditor and the debtor. The Act doesn't give status to debt collectors or anyone else - only a creditor or a debtor exists as far as the CCA is concerned - there is no one else!

 

The debtor is a fixed person. The debtor does not change. The Creditor can change. BUT, to become the new creditor (like when a Debt collector buys a debt) they have to have the "rights and duties" under the original agreement. Normally debts are transferred by "assignment" - a sort of legal transfer. But, as Cashin has explained, there are two types of assignent; one being equitable the other being absolute. What's the difference? With an equitable assignment they will not meet the CCA definition of "creditor" - it has to be absolute.

 

If they don't meet the definition of creditor in the Act (towards the back of it) then they can't meet the criteria that enables them to launch court proceedings. You have to be the "creditor" for that. Cashin is saying that for debts that seem to have been transferred from the original creditor then you should start finding out if they had the right to take you to court. A Part 18 request under the Civil Procedure Rules will get that info. (Why they call it "Civil Procedure Rules" I don't know. It should be called "Law of Civil Court Procedures").

[Hopeful1]

Cashin / Edz, i am probably missing the point here, or maybe it is just too early , but why is this relevant to Polly? HFC are the original creditors and Weightman's are HFC's solicitors?

 

I am lucky enough to be dealing with the same companies (please hear the sarcasm ).

 

P.S. Just noticed Polly has referred to HSBC handing over, but HFC are part of HSBC group aren't they? Does the DOA still count?

[Hopeful1]

I think there might be penalties, I shall have to go back through

my HSBC statements. There was definitely over 800 in admin and solicitors fees on handing over to HFC.

No I don't have a copy of Payplan's defence, should I request this, do you think I should request a CPR?

I'm not sure if I got a notice of default. I did get a letter from Weightmans, the solicitors acting for HFC, saying that they wanted me to voluntarily put a charge on the property, and if I didn't they would take court proceedings.

Thanks for your interest.

 

It is worth sending a Subject Access Request as this should give you all the info HFC hold on you, including statements.

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/516-1-data-protection-act.html

[polly55]

Good point, can you answer that Edz11? Does the DOA still count, my credit agreement is withHSBC rather than HFC, even though they are part of the same group (I have a feeling HSBC didn't own HFC when I signed the agreement). If the DOA does count, pardon my ignorance, but how do I effect a Part 18 request. Very grateful for you input.

[Edz11]

It is a transfer from one legal entity to another legal entity so should be suject to a proper transfer. Debts get passed round from one body to another like a bottle of port. It isn't that simple!

[Edz11]

Polly. A CPR 18 request is to enable the claimant in your case to provide you with the information necessary to prepare your case. It doesn't say what you can ask for - it just means it is an official request.

 

I'd ask for a copy of the executed CCA that they are claiming under.

I'd ask for them to provide proof that they are the "creditor" as defined by S189 (1) of the CCA 1974.

 

You have to mark your letter

"Request for infomation under Part 18 of the Civil Procedure Rules" so they know why you are asking.

 

In fact if you haven't already done so send off the CCA rqeuest recorded delvery (with your £1) as well.

 

I know they will deny the request and say why they shouldn't have to provide it. But the answers in reply are ready and waiting.

[polly55]

I'm sending the following to the solicitors tomorrow. Is it sufficient? Personal details are marked BLANK. Thanks.

 

REQUEST FOR INFORMATION UNDER PART 18 OF THE CIVIL PROCEDURE RULES

Dear Sirs

Account No: BLANK

County Court Claim No: BLANK

Regarding the above, please be so kind as to send me a copy of the executed CCA under which you are claiming.

Would you also provide proof that you are the ‘creditor’ as defined by S189 (1) of the CCA 1974.

I look forward to your response.

Yours faithfully