Charge on my house ***WON***

[polly55]

[polly55]

[polly55]

[polly55]

[polly55]

[polly55]

[womble72]

Hi Polly,

 

I cant give you advice but morale support.

 

I have Nr taking me to court for a loan and will try a co on my property.

 

Did you admit the claim with the hsc to start with.

 

I will speak later.

 

Take Care

 

Womble

[polly55]

Hi Womble, thanks for that. Yes, I admitted the claim with HFC at County Court stage, I just let Payplan do everything for me. big mistake. Good luck with your thing;)

[rory32]

Polly have you got evidence that you have kept up to date with the payments on the instalment order?

[sequenci]

Hello there, Rory's question really is the absolute crux of the whole argument to move forward.

 

Section 1: The Charging Orders Act 1979:

Where, under a judgment or order of the High Court or a county court, a person (the “debtor”) is required to pay a sum of money to another person (the “creditor”) then, for the purpose of enforcing that judgment or order, the appropriate court may make an order in accordance with the provisions of this Act imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order.

If there is an instalment order in place, a creditor would not be able to apply for a Charging Order.

Section 86(1) The County Courts Act 1984:

Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.

This was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987. It was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment.

I hope this makes sense. If you have defaulted on the CCJ there are other arguments but this is something which would be BINDING on the judge.

[polly55]

Thanks so much for your responses. No I haven't defaulted. I make a regular monthly payment to Payplan, out of which they pay all my creditors, Weightmans being one. I have requested from Payplan that they send me evidence of the actual monthly payments to Weightmans and am waiting on that. However, they are supposed to be putting all their evidence into the court as well, which presumably will include the record of these payments. They know they're getting the money, why do they think they can get a charging order, do you think?

 

Thanks again

 

PS I am drafting a letter to send to the court manager, would you look at it and see if there is anything I should add or take out. Still waiting for information about the assignment of the debt, by the way. Requested it on 30th November recorded and still havent received anything.

[polly55]

letter for court blanked.doc

[Edz11]

The letter is fine. But I'd still persue the question of setting aside the orginal Judgment.

 

Cases where the court may set aside or vary judgment entered under Part 12 13.3 (1)In any other case, the court may set aside (GL) or vary a judgment entered under Part 12 if –

(a)the defendant has a real prospect of successfully defending the claim; or

(b)it appears to the court that there is some other good reason why –

(i)the judgment should be set aside or varied; or

(ii)the defendant should be allowed to defend the claim.

(2)In considering whether to set aside (GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

 

(Article 19(4) of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters applies to applications to appeal a judgment in default when the time limit for appealing has expired)

 

 

I think that failure to provide a copy of the CCA is a good ground for defence. As to failure to get it set aside earlier - you've been told now that it may be possible. There is no harm in trying and you have plenty to gain.

[sequenci]

Polly, the payment that is being made to the claimant - was this figure ordered by the court as per the CCJ?

[polly55]

I have emailed my case officer at Payplan to confirm that the amount that they've been paying is as per the CCJ. I believe it is because just after the Judgement other creditors were being paid less and when I asked Payplan why, they said it was to take into account the increase to

Weightmans. In addition, in part A of Weightmans Application for Variation of Order (see previous post) they refer to the reason for the Application as being 'because at the current rate of payment of 35.78 a month' (the Judgement amount)it will take in excess of 15 years to discharge the Judgment debt'. I will post when I find out for certain.

[polly55]

yes, the amount is as ordered by the CCJ

[polly55]

I have also updated my letter as attached. If anyone can okay this I'm going to send it into court on Monday. Should I send a copy to Weightmans? I intend to SAR HSBC on Monday.

Thanks for your help.

[polly55]

I have also updated my letter as attached. If anyone can okay this I'm going to send it into court on Monday. Should I send a copy to Weightmans? I intend to S.A.R - (Subject Access Request) HSBC on Monday.

Thanks for your help.

letter for court blanked.doc

[benson05]

Hi Polly,

 

Noticed you are beginning your defence against the charging order , so assume the interim order is in place and the final charging order is in January, to avoid the placing if the final charging order on our home we threw everything at our claimant including the following if applicable:Predujice to other creditors who are happy with Payplans current arrangement, equity within the property-ie. if not much then the placing ofa charging order could technically cause you to be insolvent again predjucing the other creditors, if the house is in joint names and the debt in one name this would mean that it is not fair for the other person to suffer for the actions of the debtor, if you have dependants then the interrests of the child outweigh those of the creditors. Also state that if they were successful in the placing of a charging order and then tried for an order of sale you would be unable to afford to private rent as that is really the only option as local authority housing is in very short supply. I started with the technical areas of the claim that I thought were slighly wrong ie inflalted costs, figures, our re-determination of the Judgement being ignored and than went for the moral arguments as listed above. Like you we understand we have to pay the debt back through Payplan and do not shirk from this, however the making final of the charging order could have made ir difficult to service all our creditors without predujice. It is also vital that you attend the hearing and put across your argument.

 

Hope some of this helps Polly,

Benson05

[polly55]

Thanks for all that Benson. Actually the hearing in January is to give HFC permission to apply for a charging order, which is what I'm defending. so no interim order is in place. But I'm bearing all your arguments in mind. Again, congratulations on your result.

[sequenci]

Thanks for all that Benson. Actually the hearing in January is to give HFC permission to apply for a charging order, which is what I'm defending. so no interim order is in place. But I'm bearing all your arguments in mind. Again, congratulations on your result.

 

Polly, I'm slightly confused by this as a creditor's application for an Interim Charge is a process that doesn't need a hearing.

 

If you have not defaulted on the CCJ then ALL YOU NEED TO DO is to raise the Mercantile credit case.

[polly55]

Hello Sequenci

It's probably me that's confused but in the court papers (which I posted on this thread 12th December) the Application Notice says at Part A, no.2 'the claiminat be allowed to apply for a Charging Order over the Defendants property'. Does that mean the interim charging order already in place?

Also, I have sent my defence letter off to court Special Delivery today (see link in post dated 14th Dec.). Do you think I should send a copy to Weightmans. Still have not received a reply to my CPR request of 30th Nov.

[sequenci]

You must send a copy to the solicitor.

 

I'm sure it is the final charging order hearing that is pending, the interim charging order is a mere formality which is simply a paper exercise.

 

Have you anything from the Land registry?

[polly55]

no, nothing from the Land Registry

[sequenci]

no, nothing from the Land Registry

 

that is peculiar, usually if they have applied for the interim charge then everyone who has an interest in the property would receive info from them. have you the paperwork for the court hearing? does it say it is a hearing for the final charge?