Repossession Hearing for an America Express Card debt

[AKEEM0709]

I need you help once again.

 

The court case for the 14th October 2008 was again postponed until 3th November 2008. I submitted further evidence to both the Solicitors and the court - This included further prove from both the my mortgage provider and the Housing association that I own only 50% of the property. I also as instructed by the judge provided a SOA - showing after all expenses we only had £103 left each month.

 

I sent this statement to the Court and their solicitors on 29/09/08 and today I received a letter from their solicitor wanting to settle (agree my offer of £50 p/m) before our next court date;

 

 

I am the defendant in this case and respectfully request the court not to rule in favour of the claimant for an Order of Sale on my residence. I wish the court to consider the following when hearing the above numbered claim:

• An order of sale is made by the claimant without the full knowledge of the co-owner of the property. 50% of the property is owned by Waterloo Housing Association whilst the remaining 50% is mortgaged. There is possible a £14,000 equity of which £7,791 is an outstanding balance of an existing secured loan on the property.
  
• 50% of the equity less the outstanding secured loan balance is owned by me. There is therefore no remaining equity once all the other charges are taken into account. An early settlement the secured loan (approximately £600), Early Repayment charge on the outstanding mortgage of £3,056.65 and other smaller charges will be imposed by the mortgage company (Halifax Bank).
  
• I have enclosed evidence from Waterloo Housing Association showing that I own only 50% of the property
  
• I have also requested further evidence from my mortgage provider that on 11/03/2003 I took out a mortgage of £63050 with a 3% deposit (£1950) to purchase a 50% of the property with Waterloo Housing owning the other 50%. This evidence is still forthcoming which I will be able to present to the court at the next case hearing
  
• The property was valued in 2007 for £145,000-£150,000 by the claimant. In today’s current housing marketing, this valuation is no longer valid. It is evident that House prices are continuing to fall by an average of 10-15% per year. The overall housing market has slowed down and should the court grant an order of sale, it is likely top take a very long time to sell this share ownership property.
  
• Legally as I own only 50% of the property of which there is no equity should an order of sale be granted by the court. The enclosed statement of affair shows that I potentially have a total net asset of £7,601. This is based on an estimated value of £70,000 (50% property share) and a car worth £1,000.
  
• The enclosed Statement of Affair shows that there is only a surplus of £106.37 each month for my family and myself to live on each month.
  
• Also enclosed is evidence of my rent/service charge statement from Waterloo Housing association showing the amount I pay each month for the 50% share. This shows from when we entered the share-ownership scheme.
  
• There is also evidence of the outstanding secure loan balance of £7,791 which has a further 5 years remaining.
  
• The previous offer of £50 per month which was refused by the claimant is still offered. I ask the court to accept my offer of £50 per month from the £106.37 surplus my family and my self are left with each month
  

• The claimant has added a number of charges/fines/interest to an initial debt of £3,000 resulting to me now owing over £5,000. This I deem wrong and very unjust. I respectfully request that the court take into account the excess amount of interest and charges added on the debt.
  
• I also want the court to take into account my desire to resolve the debt owed without the need to grant an Order of Sale. I tried to explain to the claimant that the property is share ownership property, that there was no equity on the property and my offer of £50 per month. This was met by the claimant threat of pursuing the case through the courts and making sure that my residence was sold to settle the debt.
  

• I respectfully ask the court to take into account The Trusts of Land and Appointment of Trustees Act 1996 S.15 and consider “The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his/her home”.
  

There are two children aged one and twelve years and we are expecting a third child in February 2009.

I therefore respectfully ask the court to dismiss possession in order for me to provide a stable home for my children aged one and twelve. The claimant provides all information relating to debt before an agreement is made on how I should repay the original debt without any added charges or interest.

[AKEEM0709]

They have again added more cost for the cost of court hearing. I really don't want to pay these extra cost as the court pointed out last time that the court cost will be paid by the losing part and I feel that I should not lose this case

 

I am off out now for the nest hour but will post when I return.

 

Thanks

[surfaceagentx20]

Creditors under consumer creditor agreements are prohibited from charging interest post judgment unless they have included a claim for post-judgment contractual interest in their Particulars of Claim. Did they?

 

Frankly, I suspect they didn't and the interest they are charging is at the rate of 8% and represents statutory interest, in which event not only is the recovery of statutory interest prohibited for a judgment creditor under the CCA '74 but likewise any creditor with a judgment for less than £5,000.00.

 

See: The County Courts (Interest on Judgment Debts) Order 1991

 

As for costs, the other side have yet to be awarded any for this application of theirs. It seems to me there are reasonable prospects for supposing the court will refuse an order for sale (and they seem to think so too, hence their offer to accept £50.00 pcm) in which event rather than awarding the opponent costs, the court may fairly award costs to you.

 

£50.00 pcm if affordable seems a reasonable compromise but before agreeing, I suggest you whittle the total balance down by removing claims for statutory interest and claims for costs associated with AMEX's latest application.

 

x20

[AKEEM0709]

Thanks for your reply X20

 

The letter I received form the solicitors this morning contained the following points

1. The card was cancelled on 14/10/2008 and they were instructed by Amex on 02/02/2007 and that I have returned there mails as Addresses unknown' when infact I was know to be still at this address.
   
2. That I eventually contacted them on 14/02/08 wishing to pay £50 p/m and that my attitude to them was 'see you in court'
   
3. That no interest had been appied to the debt since judgement on 28/10/2006 was made. Should I felt that the amount claimed was unjust then I should have objected back then and entered a defence. They are not prepared to allow any attempt to look back behind that judgement
   
4. That my offer of £50 p/m was never made to them.
   
5. However they are prepared to accept my proposed payment subjected to a review every six months if payment cannot be made in full.
   
6. They will now seek a suspended order of sale at the next hearing.
   
7. They want me to send confirmation within 7 days and they will contact the contact indicating that an agreement has been reached.
   

Most of the points above are bunch of rubbish - I tried the £50 offer prior to the first judgement - which was when they applied for an interim charge. As far as I can tell they have not applied for a final charge.

 

It's true that I did return some mail back to them after I was harrassed and threatened from pole to pole.

 

I still have no idea and have not seen any breakdown of how the debt went from £3,300 (the amount it was when they were instructed to collect) to £4,900 (potentially another £900 of court cost to be added).

 

This is what their latest cost of hearing for the 3th of November 2008 is

 

Solicitor 1 = £190

Solicitor 2 = £120

 

Attendance on Court = £120

 

Routine letters Out;

To defendant 4 letters = £48

To Court 4 letters = £48

To Spouce 4 letters = £48

To Estate Agent 1 letters = £12

To defendant 4 letters = £48

To other Occupiers 3 letters = £36 --- what other occupiers

 

Attendances on documents £190 for 1.5hrs

 

Other Expenses

 

Court Fee to Issue £159

office copies of register £6

OS3 search x3 £12

Solicitors agent's fee to 08/09/08 £105

Solicitors agent's fee to 03/11/08 £105

 

All the above amounts to £904.50

[AKEEM0709]

Can you please honestly tell me what to do - if it was you would you settle this rather than attending the final hearing on the 3rd?

 

Also the judge already told me in my previous hearing that his hands are tight as far as the previous judgement is concern.

 

So looks like the judment on 28/10/2006 will stand - They put in a claim of £4,327 and a £266 court cost was added making it £4,539 owing plus potentially another £904 to be added.

 

Should I lose on 03/10/08 then I will owe 5,443 and at £50 p/m starting this month then it will take me over 9 years to repay the whole debt.

 

I am not really afraid of taking them on all the way to the last round and the idea of them waiting for 9years to get all their money appeals to me. I know this will continue affecting my credit history - which I am not bothered about because I have no intention of ever getting any thing on credit ever

 

 

What do you guys think?

[surfaceagentx20]

As I read your latest (er latest but one) statement I wonder to myself how the Claimant imagines they will obtain an order for sale. We already know the Claimant has not joined the co-owners in the proceedings as to which see my post no58. That is one earth-shatteringly fatal flaw in their claim.

 

CPR PD 73 para 4.3 requires an applicant for an order for sale to file written evidence as follows:

 

4.3 The written evidence in support of a claim under rule 73.10 must -

(1) identify the charging order and the property sought to be sold;

 

(2) state the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim;

 

(3) verify, so far as known, the debtor’s title to the property charged;

 

(4) state, so far as the claimant is able to identify -

(a) the names and addressed of any other creditors who have a prior charge or other security over the property; and

(b) the amount owed to each such creditor; and

 

(5) give an estimate of the price which would be obtained on sale of the property;.

 

(6) if the claim relates to land, give details of every person who to the best of the claimant’s knowledge is in possession of the property; and

 

(7) if the claim relates to residential property -

(a) state whether -

(i) a land charge of Class F; or

(ii) a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section,

has been registered; and

(b) if so, state -

(i) on whose behalf the land charge or notice has been registered; and

(ii) that the claimant will serve notice of the claim on that person.

 

4.4 The claimant must take all reasonable steps to obtain the information required by paragraph 4.3(4) before issuing the claim.

 

There is no evidence of service of the poorly drawn applicaion on any co-owners. There is no evidence in the statement of costs that there ha been communication with your mortgagees about what sum may be outstanding in orer to comply with 4.3(4)(b), and whilst there is reference to a letter to an Estate Agent, there is no reference to a fee charged by an Estate Agent for producing a drive-by type valuaion report (they normally charge). Was any of this included with the papers delivered to you?

 

On that basis I take the view the claim will fail on technical grounds.

 

Besides this the court has a discretion whether to make an order for sale as expained in my post no49 and there are good grounds to suppose the court will exercise discretion in your favour assuming the other side overcome the huge gaping hole created by their not having brought proceedings against all owners.

 

On the costs front, the charges would appear to be more than reasonably to ridiculously low had they done everything properly, but plainly they haven't, have cut corners and that's why they're in a mess and their costs so low.

 

The court fee is £150.00 not £159.00.

 

As for the agency fees for the previous hearing as I understand things the hearing was adjourned because the agent was poorly briefed and there was incurable problems about the co-owners not being added to the case.

 

As for interest, I understood from information posted earlier by you by way of a MS Word attachment, that interest was indeed benig added. Whether it is being added is a question of fact. Check.

 

In short, I am not persuaded the other side will reach the finishing tape on this one. The technical obstacles are huge. You just can not expect a court to make an order for the compulsory sale of property if not all the owners of that property are made parties to the proceedings!!

 

x20

[nevos]

Had a quick look through your thread: I noticed 42man asked about the CCA, did you ever get a copy of the CCA?

[AKEEM0709]

I have not received any CCA from them - but I am denying that the debt is mine.

Although I am clueless about legal matters, I am a very logical guy and I always knew there was something smelly about this whole matter.

I intend writing back to the solicitors and letting them know I want the judge to rule on the day. With all the help I am getting from your guys and work I have already carried out, I intend to put forward a strong defense on the day. I went to see our local CAB but had to walk out as they weren’t interested on helping me or even trying to first understand the case before giving any advice. I spoke to one of the solicitors they recommended and he was quoting about £1K to take on the case.

Can I appeal/challenge the previous judgment made on Oct 2006?

[AKEEM0709]

just bumping this.

 

What should I do?

[42man]

No Agreement from them ?

 

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

[AKEEM0709]

Good News - I won

 

Before I go into detail I want to say a big big big thanks you to

 

• surfaceagentx20
  
• Ell-enn
  

X20 - you gave me all the defence I needed to contested this case - without your help I would have definitely not be able to take this to the last round and won by KO - You my friend gave me ample confidence.

 

Ell-enn - thanks for helping me prepare my case - getting me to move the case to my local court, preparing all the necessary statements.

 

This is how it turn out today;

 

Got there 15 minutes before and the solicitor's agent decided to have a friendly chat with me which turns out to be a briefing on her behalf as again she wasn't fully briefed properly by Amex's solicitor. The friendly chat turned out to be a case building for her. She was instructed to accept my £50 p/m payment plan her client. Thanks to X20 I declined and basically told her flat out that the judge was going to rule in my favour and that I intend on winning today and then appeal against the previous judgement (final Charge). I made it known to her that this case and the previous judgement are flawed. The co-owner (HA) was never informed and even after the last adjourned case couple of months ago, they still failed to get the HA involved. I pointed out that I have a tenancy agreement with HA and payment for their 50% share so therefore the judgement cannot grant a sale when infact the main co-owner is not aware of the situation. So we left it at that!

 

Got called into the judges chambers. The solicitor put her case forward and how they are prepared to accept £50 p/m to be reviewed every six months should I still fail to pay the full amount. Now up to when the final charging order was made, the £3K debt now stood at £4.5K. Today's judgement would have added another £994.

 

The judge then asked me if the offer of £50p/m was still acceptable to me as per the statement & SOA I sent to the courts after the last case was adjourned. I did not answer to this but pointed out to the judge that how unprepared and the flawed the case was. Appealed to him to deny the order of sale on that basis. Pointed out that all I got from the Amex's solicitor from day one was of threats and harassment. That it was me who suggested the £50p/m even before they seeked the charging order judemnet. Their attitude and interest was always to sell my house and not resolve the debt. I pointed out that whilst I defaulted on an agreement, I tried to put it right and had that been accepted then the amount owing would not have escalated to from £3 to £5.5K.

 

The judge at this point wasn't happy and told me off for interrupting him and the legal agent to which I apologised. As the hearing went on, I grew in confidence and angry at the same time. Basically pointing out how the agent was not fully briefed about the case and that all the defence she was making was as a result of the 15mins chat I had with her. Also that in a nice and direct way that sale cannot be granted without the HA - That in today's housing market (down at least 15%) since the last external valuation in 2007 is out of date.

 

Anyway - both of us got kicked out of the chambers as the judge was going to have a private conference call. Before doing so he instructed me that when he calls us back he only wanted to hear one answer from me - if I was willing to pay the £50 p/m or wish to withdraw my offer.

 

Sat outside for 10 minutes - at this point I was fuming but composed

 

Got back in he asked me and I just came out with it - that I wanted to withdraw my offer of £50 due to he fact that this case along with past judgement was flawed. That I wanted him to make the right decision and deny the order of sale - after which I intend to apply against the first judgement.

 

He was bemused - He then said that he heard enough and was going to make a ruling. Picked up the green law bible and started reciting CPR section 10. Waited for him to finish and I said I seek permission to appeal and quoting SPR section 4 (once again thanks to X20)- he rejected this and as he felt he ruled in my favour - this is when the pin dropped HAHA.

 

I enquired about the court cost of £994 - he said he hadn't come to that part yet. Asked when I can make the 1st payment - I mumbled end of December - he said no - then I said end of this month and he accepted.

 

Now regarding the court cost he asked what the solicitor proposed and she waffled about how I never made any payment towards the debt - how all the charges were just etc - I interrupted for the final time and was again told off. The solicitor requested the I pay the cost - this was denied and the judge pointed out that their case was flawed. She again asked that the £50 payment plan be reviewed every six months - again was rejected on the same basis - YUpee

 

When we were dismissed - thanked judge, apologised for my disruptive behaviour and left feeling like the king of the world!

 

What a feeling - the feeling of Victory is so sweet. I know I still have to pay more than the initial £3k debt (now at £4.5K) but;

 

a) they will have to wait for a whole nine years to get all their monies

b) How I felt is worth every single penny.

 

I can now if I want go back to the previous judgement and appeal against it - Well I wish - I think???????

 

I can see AMEX now or at some point in the next 9 years accepting a final settlement figure. I am comfortable with the £50 payment plan

 

What is the best way to make this payment - by cheque or DD?

 

Sorry for the long post - but I just felt that I didn't want to miss any detail out.

 

Once again THANK YOU X20 - couldn't have done it without you. THANKS THANKS THANKS

 

Also Thanks to Ell-enn

Edited November 3, 2008 by AKEEM0709

[Ell-enn]

Great News - Congratulations! well done for being so brave and standing up for yourself.

 

Wishing you luck for the future.

 

Kind Regards

 

Ell-enn

[babybear39]

Congratulations

 

Make the payment via standing order as this gives you complete control over it.

[surfaceagentx20]

Congrats on your achivement. Wel done.

 

As I understand the result, AMEX's application for an order for the compulsory sale of your home was refused as was their claim for costs. What remains is [1] a judgment for a sum of money which does not attract interest owing to the provisions of The County Courts (Interest on Judgment Debts) Order 1991 and [2] a charging order on your beneficial interest in your home to secure that judgment.

 

I am not clear whether the Judge ordered you to make instalment payments in reduction of the judgment debt and if so at what rate and frequency. In my view he did not have the capacity to impose an instalment order because you did not consent to pay by instalments and neither party sought one in the application. Perhaps you would clarify.

 

What next?

I would ask the court to provide you with a copy of the judgment. That will record what sum is payable before the addition of any interest AMEX may have sought to add illegally. I would also ask for a copy of the application for and the final charging order because that will record what additional costs were added to the judgment. The additional costs plus the judgment will represent the amount you have to pay.

 

I would not apply to set aside the charging order. It was obtained because of the unsatisfied judgment. I accept the likelihood is the charging order was obtained irregularly owing to a failure to give notice to all co-owners of an intention to apply, but if anyone has a right to intervene it will be a right belonging to those co-owners who were not served and wish to object to the charging order, not you.

 

Having established the correct sum payable under the judgent I would write to the other side recording the correct amount payable and inviting them to supply to you the details of an account into which you can pay instalments by standing order at whatever rate you can afford. Once you have those details set up the standard order and let the payments go out automatically.

 

I would not expect AMEX to make a second application to compel sale for so long as you are making prompt payments by instalments.

 

Any queries, just yell.

 

x20

[AKEEM0709]

Thanks Ell-enn - Thanks X20

 

The amount owing including court cost after the final charging order was granted by the judge at Brighton County court was approx £4,600 .

 

They were yesterday seeking to add an extra £994 to this amount - this included the court cost, fees charged by their local legal agent, cost of letters sent to me etc. Now this would have result in the final amount owing after yesterday's judgement stand at approx £5,600 to which I have to pay £50 p/m for the next nine years.

 

I initially suggested the £50 p/m payment plan to both the AMEX and the court. This was accepted in writing by AMEX on condition that I pay the full owing amount of approx £5,600 at £50 p/m to be reviewed every six months.

 

I later withdrew my £50 p/m offer in the judge's chambers he then ruled that I pay £50 p/m on just the £4,600 but went on to deny the Amex request for order of sale, a six monthly review request and the £994 amount they were seeking to add on

 

Hope this makes sense.

 

I am going to either phone or write to AMEX's solicitors for their bank details and set up a standing order.

 

I take your point on not contesting the charging order and will go ahead and request a breakdown of cost from Brighton county court

 

One more point to highlight, The judge insisted that he had the power to order me to make payment of £50 p/m until all the debt is paid He recited CPR section 10. To be honest I was not listening at this point as I was fuming. I just kept repeating CPR section 4 on how the order of sale request was flawed.

 

As mentioned earlier, AMEX wrote to me last week insisting that no interest were added to the initial debt.

Edited November 4, 2008 by AKEEM0709

[cashins]

Congratulations -well done in keeping your nerve.

 

Amex were being plain greedy by not accepting you offer originally - whoever sactioned this fiasco will get a well deserved kick up the backside.

 

David

 

PS That is of course, if he still has a job in a few months time.:grin::grin:

[bobneedhelp]

Akeem0709

read this thread through and I congratulate you for a job well done.

bob

[DCA-KING]

I would pay it for a couple of months the write to them with this due to todays credit crunch my job is no secure i notice there is a balance outstanding of 4000 i am now prepared to make you a one off payment of 1200 to clear this outstanding amount i make this offer that if i lose my job and become unemployed i will then apply to the courts to change the order to what i can afford being unemployed

please not this is a one time offer

See what they say if they think you going to lose you job they may jump at the chance bearing in mind most of the charges they put on there anyway

i didnt it with mastercard who keept threating to take me to court over 2400 told them my jobs coming to a end and i will only be able to pay 4 quid a month and i will get the courts to set payment

offered 300 turned down 28 days later get a letter we would be prepared to except 1000 no cant afford it i only have 3 weeks left in work 500

2 weeks time reply 650 OK OK

Ok can you put it in writing that you will except a one time offer of 650 to wipe out my outstanding amount

still have the letter filed in the attic

shame i didnt lose my job

took me 2 months to pay them as i told them the letter was at my solicitors for him to check over(give me time to get 650 together and off went a chq

Happy days

Regards DK

[AKEEM0709]

DK

 

that's a really good idea will try that and if they accept then I should be able to pay them when I get my bonus in May