HFC/Weightmans Advice

[mazel01]

Hi saintly1, I have listed below what it said.

 

 

Before Judge xxxx sitting at xxxx court.

Upon the courts own motion. The court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days.

 

It is Ordered That

1) The action is stayed until Wednesday 10th September 2008, during which period the parties shall try to settle the matter or narrow the issues.

2) By 4pm on Wednesday 10th September 2008 the claimant shall notify the court in writing of the outcome of negotiations ( without disclosing any matters which remain subject to 'without prejudice' terms) and what, if any, further directions are sought. Failure to comply with this direction or to engage properly in negotiations may result in the application of sanctions. If settlement has been reached, the parties shall lodge a consent order signed by all of them.

3) Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court.

[saintly_1]

Reading the order and the latter part of your thread I think that because you had managed to reach a settlement on part of the debt that they want to give you and HFC time to see if you can come to any further settlement ...

[pt2537]

i agree Saintly;)

[mazel01]

So if we can't reach agreement by that date, do I automatically receive a ccj?....

[Goldlady]

If you are prepared to make payments - have they agreed to freeze all future interest and charges ? - then I can't see a court allowing a charging order, voluntary or otherwise. It is turning an unsecured debt into a secured one.

 

I suspect HFC know this and might be a bit more open to negotiation.... Worth a try

[mazel01]

I made HFC a very reasonable offer (monthly) which they said they would probably accept but I had to complete a financial statement....

[mazel01]

UPDATE

Hi everyone, I haven't updated the thread until now as nothing really happened until yesterday.

 

We agreed a settlement figure and I then made them a monthly offer to repay this amount. (I offered approx 70% of the original monthly instalment)....

 

They asked for an I&E to be completed, which I did. Then they came back & said that they will not accept my monthly offer.

 

Eventually they have come back & said that they will only accept my offer if I accept the VOLUNTARY CHARGE on my property!!!....or for them to drop the voluntary charge they require me to pay nearly double the amount of my original instalment....

 

The stay is due to expire shortly & they have said that if I don't agree to either offer then they will inform the court that they wish to go to trial!!!!

 

WHAT CAN I DO????.....PLEASE HELP!!

[rory32]

You should never agree to a voluntary charge (although a charging order isn't always a bad thing). A judge will only order payments based on your I&E form and this will be a far more realistic figure than Weightmans have come up with. Remember if they do get a CCJ you can apply for a time to pay order which won't result in the charge on your property.

[mazel01]

You should never agree to a voluntary charge (although a charging order isn't always a bad thing). A judge will only order payments based on your I&E form and this will be a far more realistic figure than Weightmans have come up with. Remember if they do get a CCJ you can apply for a time to pay order which won't result in the charge on your property.

 

Hi Rory, great to hear from you:)....the figure that I have offered them is from a very close family member, my I&E shows that I couldn't afford to pay a 1p, so they have offered to help me out!

 

What is the time to pay order?

[rory32]

A time order is exactly what it says on the tin. Looking at your I&E the judge orders what you can afford to pay over time e.g. each month. So if you could afford to pay 1p that's all the judge would award - it's just tough on the creditor if the debt will never be paid off.

 

They can go for a charge on your property but nearly all the time this is something you shouldn't worry about. Do you have a lot of equity in your property mazel?

[mazel01]

Yes I have got approx 25% equity on the property.....

 

I think that they are being extremely unreasonable with the offer that I have made....but they are also aware of the amount of equity!

[rory32]

Is your home a long term family home (or even just a long term home for you)?

[mazel01]

Just myself & the wife(kids stay at the weekend).....we are looking at moving within the next 12 months

[rory32]

Okay. A charge would mean a higher mortgage rate which is why you don't want a voluntary one.

[mazel01]

So what do you think I should do next?

[mazel01]

So what do you think I should do next?

 

Will they automatically be able to get a charging order over my property now?

[mazel01]

Any help please...

[mazel01]

So what do you think I should do next?

 

 

Any more help please....

[Goldlady]

I think they are hoping you will agree to the charging order as they think you are scared of going to court. Don't do it!

 

If you go to court and tell the court that you had reached agreement on the various matters and that now they have gone back on the deal I think you will find the court very sympathetic. OK you will get a judgement but you will only have to pay what you can afford.

 

I suspect if you go back to them and refuse to accept the charging order they might negotiate further. There is no way that a court will allow a charge on your property if you have the means to make partial payments. I think they are just trying to bully you.

 

Also, you can reveal the details of your negotiations to the court as litigants in person are not subject to the rules where 'without prejudice' letters are concerned. So you can show the court that you have been extremely reasonable and that should get you some more brownie points.

[mazel01]

I agree, I think they are trying to bully me into agreeing to the charging order.....

 

I cannot believe that they want me to now pay virtually double my original monthly payment....are they mad!!....

 

Obviously I was having problems making the original payment......but they have asked for double.........

 

How should I handle it now then....just ignore there last letter & wait for the stay to expire or contact them???

[wellmeantadvice]

Hi mazel,

 

1) a voluntary charge does not significantly differ from a court imposed charging order, apart from the fact that no court hearing is necessary, and thus the associated fixed costs (between £208 & £216) are not incurred.

 

2) If there is no dispute as to the amount you owe, then the court will enter judgment against you; if there is a dispute as to part of the amount claimed, then the court will in any event enter judgment for the undisputed sum, and then consider the remainder.

 

3) If your income and expenditure shows that you are not in a position to make payments, then the court is extremely unlikely to order anything along the lines of 1p per month, without also granting the Claimant some form of security (i.e. a charging order).

 

4) Once a charge has been registered (either by way of a voluntary charge or by way of a charging order), the Claimant is more likely to agree to lower repayments, as they know that their money is secured.

 

5) If they wanted to apply for an order for possession and sale under that charge, they would need to make a separate application to the court. In such an event, the court would look at whether it is reasonable to make such an order. If you had an agreement with the Claimant for some repayments to be made, and you have maintained that agreement, the court would dismiss any such application. If no agreement is in place, but you have made efforts and have made regular payments that will actually clear the debt in a reasonable period of time (and not just token payments that would take 100s of years to clear the debt), then the court would again be very unlikely to make an order for possession and sale. However, if you don't do anything, then the court might well consider making such an order.

 

6) When the court gives judgment for the Claimant in whatever sum the court finds to be due, then the court can order payments by instalments. That may not, however, be in your best interest. A judgment is not actually registered, unless enforcement action is taken. That means, if there is a judgment which is silent as to terms of repayment, it is theoretically payable within 14 days. If it is paid within 14 days, it does not get registered as a CCJ. However, the court does not know whether the money has been paid or not, unless one of the parties applies for enforcement (i.e. if they apply for an order for attachment of earnings, an order for payments by instalments, etc.). This means that you may be able to avoid having a CCJ registered against you, if you can come to an agreement with the Claimant. I'm not sure, but I suspect that an application for a charging order would also count as an enforcement action, and therefore lead to a CCJ being registered.

 

7) You write that you have reached an agreement in respect of the amount owed. If this is the amount you agree you owe, and they agree to limit their claim to that amount, then you won't have a defence to their claim. Defending the whole amount was never going to work, since you agree that you do owe some of the money. That leaves the amount you dispute. If you still dispute a part of their claim, then you can file a part-admission, and explain why you are defending the remainder. If you have agreed on a sum, then there is no point in defending it- you would admit the amount claimed and request more time to pay.

 

8) PPI- You say you never wanted PPI insurance. The crucial question here is whether you signed a contract which included PPI insurance, since the general rule is that you are bound by the contract you signed.

 

9) It has been suggested by rory that a charge would mean a higher mortgage rate. Quite frankly, that assertion baffles me- I agree, that if you tried to get another mortgage on your property, then any lender would look at the charges already on there, and would presumably charge a higher rate than if they were able to secure their loan by way of a first (or even second) charge. However, it should not affect your current mortgage in any way whatsoever.

 

10) Goldlady's assertion that the 'without prejudice' rule does not apply to litigants in person is quite simply wrong. Unless you have actually REACHED an agreement, the negotiations attempting to reach an agreement cannot be put before the court. That does not stop you from telling the court that you put forward proposals which were rejected, but you can't, for example, present a letter from the Claimant saying that they might accept X amount.

 

11) If I understood what you say correctly, it sounds as though they would agree to one of two scenarios: Either double the repayments you offered, without a charge, or the repayments you offered in addition to a charge. Scenario one seems to be out of the question, as it is not affordable. That leaves scenario 2- even if you could present the negotiation letters to the court, that would not prevent the court from allowing the Claimant to apply for a charging order. Although theoretically an instalment order prevents the Claimant from applying for a charging order, in practice the courts will frequently allow the Claimant to make an application for a charging order to secure the debt.

 

12) In respect of your question "Will they automatically be able to get a charging order over my property now?", the answer is "No". The procedure is that they need to get a judgment first, thereafter they will apply for an interim charging order (which is made without a hearing), following which a date will be set for a hearing for a final charging order. At this point you will be notified and can make representations to the court as to why a charging order should not be made. However, from what you have written so far, I can see no reason why the court would not award judgment to the Claimant in the initial hearing, nor why a final charging order would not be granted following the CCJ.

 

 

 

Bearing the above in mind, I would not be so opposed to a voluntary charge; particularly if you can reach an agreement on the sum owing and repayments, as this could avoid having to go to court at all. However, if you do disagree with part of the sum claimed, and thus dispute part of the claim, then by all means defend that part of the claim.

 

 

 

Good luck

[mazel01]

There is absolutely no way that I am prepared to agree to a voluntary charge.....as far as I am concerned I have made a very good offer to them which they should of accepted.

 

Of to court we go!!!!!!!!

 

I can guarantee you that they won't end up getting a monthly instalment anywhere near what I offered them recently......and as for getting a charging order.....NO WAY!!!

[mazel01]

What should I do next?....

[wellmeantadvice]

There is absolutely no way that I am prepared to agree to a voluntary charge.....as far as I am concerned I have made a very good offer to them which they should of accepted.

 

Well, if you have a look at the Charging Orders Act 1979 (Charging Orders Act 1979 (c. 53) - Statute Law Database) you will see that at section 3 (4) it sets out that: "Subject to the provisions of this Act, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand." i.e. there is no practical difference between a voluntary charge and a court imposed one.

 

Of to court we go!!!!!!!!

 

I can guarantee you that they won't end up getting a monthly instalment anywhere near what I offered them recently......and as for getting a charging order.....NO WAY!!!

 

You may be absolutely right about them not getting a monthly instalment as high as the one you offered. However, that does not negate the fact that the sums will have to be paid eventually.

 

As far as a Charging Order is concerned, I'm afraid I don't share your optimism. Although Section 2 (5) states that the court will need to take into consideration (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, in practice a court is only likely to refuse a charging order where the Defendant is bankrupt, does not owe the money, or does not own the property. In respect of point (b), the Claimant will in all likelihood have been ordered to serve all known Creditors, and if they have not objected to the making of a final charging order, that is generally deemed to be their problem.

 

As I said before, in theory an instalment order prevents the Claimant from obtaining a charging order. However, if I understood you correctly, no instalment order is currently in place (and even if it was, the likelihood would be that the judge would either allow a charging order, or alternatively vary the judgment to be payable forthwith, then grant a charging order, and then consider making an order for payment by instalments).

 

One thing you should bear in mind, though, is that the judgment should not carry any interest (although normally judgments for sums of more than £5,000 are subject to statutory interest of 8%, the County Courts (Interest on Judgment Debts) Order 1991 sets out in section 2 (3) (a), that this does not apply where a judgment is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974, and moreover, if you do obtain an instalment order, section 3 (b) makes it clear that interest in the case of instalment orders will only accrue after a given instalment has fallen due (see here:

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database ).

[mazel01]

I would just like to add the following:

This thread = positive advice from friendly users

I would just like to say a big thank you to all those users past/present that have left positive advice for me on this thread & long may it continue.

 

Negative advice = Being added to my ignore list

Edited October 14, 2008 by mazel01
added something