HELP! Link Financial charging order - no CCA

[BelstarBomb]

Hi pushbike,

 

This looks to me as though it would stand up in court I'm afraid as it appears to have all the prescribed terms that it should BUT i am fairly new at this and someone else more experienced may see something that I have missed.

 

In your favour is all the current press from our Prime Minister saying that people should not lose their homes because of store card debt so you would hope that the court on Monday will bear this in mind.

 

I am off for the weekend and won't be back until Sunday evening so will not be able to respond until then, but I am keeping just about everything crossed for you!

 

BB

[pushbike]

Hi can anyone else comment on this CCA and whether it is enforceable.

 

Does it affect it if the card no. has been changed. Also if I keep up the monthly payments ordered by the court - surely they cannot take my house. can someone help please this is really worrying me.

 

Thanks

[muscat329]

Hi Pushbike,

This is my first ever post on CAG, so while I am a newbie I am not new to your situation. Unfortunately you do not have much time.

First an application form is not a Credit Agreement, there are lots of threads on this. However the CCJ has already been obtained so you can only go for a Set Aside, based on an argument that the CCJ should not have been agreed to.

Second Joint Tenancy means the benificial interest is split 50%,50% beteen you and your husband. The Charging Order will be against your 50% If you can get a friendly estate agent to give you a written valuation today for a forced sale today. Subtract your mortgage and selling costs and see what your 50% is worth. If it is less than the CCJ take all the paperwork to court and argue that it dosen't cover the CO

For the future, and for anyone else reading this in a similar situation. Go and see a solicitor and change from joint tenancy to tenants in common. Then sell 49% of your 50% to your OH. Keeping 1% means you do not need to remortgage if it is a joint mortgage. If they cant afford to pay you the 49% benificail interest in cash, draw up a loan agreement and accept payments over x years. I did this but my wife got cash from her mother to pay me and I used it to reduce debts. A CO application which I new was coming was rejected by the judge because it was for far more than my 1% value, and more importantly granting it to one creditor would seriously prejudice the interests of my other creditors

Hope this helps

regards

Muscat

[muscat329]

To answer your question. You will never be forced to sell the house!!

 

The Court Order states that they need court permission. If you keep up the payments that would never be granted. All the CO means is that when you sell the house the CO must be paid off from your 50% beneficial interest. If due to market conditions there isn't enough cash they may get stroppy about allowing the sale to proceed, but hopefully you will have reduced the debt anyway.

Hope this helps

regards,

Muscat

[muscat329]

Sorry meant to say something else. After a CCJ that allows for monthly repayments, A CO should not be granted if the debtor has not defaulted on the repayment plan. This is established as a law precedent. Do a search, I think it was a case involving Mercantile Credit. I quoted this in Court and the judge agreed with me when he rejected the Interim CO.

regards,

Muscat

[pushbike]

Thank you for your replies Muscat .

I was reading the UK Insolvency helpline page and it seems to imply that if claimant went for "forwith" judgement - which I dont understand what that is - only that after the initial judgement they did apply for a redetermination which I attended and a new monthly payt was agreed - then I do not even have to be in arrears with payments for them to get a charging order .

The redetermination order states that the original judgement is varied and the debt br paid by instalments of xxx per month. Is this a forthwith judgement or is it still an instalment and as long as I do not fall into arrears with the instalments the charging order cannot be granted .

can anyone clarify this for me please and whether the case Mercantile Credit Co Ltd v Ellis in 1987. will apply or not.

I am just not clear whether I have a forthwith judgement.

 

I am grateful for anyones advise as I am at court tomorrow and dont want to keep quoting that case if it is not relevant.

 

I am waiting for valuation letter from estate agent - after deducting mortgage and selling fees my share will not cover amount owed. I have details on net house prices.com showing recent house sales in my street that would back up valuation - shall I take this into court if I do not get valuation letter in time.

 

Thanks again

[easymeat]

Thank you for your replies Muscat .

I was reading the UK Insolvency helpline page and it seems to imply that if claimant went for "forwith" judgement - which I dont understand what that is - only that after the initial judgement they did apply for a redetermination which I attended and a new monthly payt was agreed - then I do not even have to be in arrears with payments for them to get a charging order .

The redetermination order states that the original judgement is varied and the debt br paid by instalments of xxx per month. Is this a forthwith judgement or is it still an instalment and as long as I do not fall into arrears with the instalments the charging order cannot be granted .

can anyone clarify this for me please and whether the case Mercantile Credit Co Ltd v Ellis in 1987. will apply or not.

I am just not clear whether I have a forthwith judgement.

 

I am grateful for anyones advise as I am at court tomorrow and dont want to keep quoting that case if it is not relevant.

 

I am waiting for valuation letter from estate agent - after deducting mortgage and selling fees my share will not cover amount owed. I have details on net house prices.com showing recent house sales in my street that would back up valuation - shall I take this into court if I do not get valuation letter in time.

 

Thanks again

 

As far as I have read so far a "forthwith" jugement implies that the crediter has demanded you pay in a certain way ie in full and you have been unable to honour this. They can then ask for a forthwith jugement. Which is why most of the DCA initial letters always demand you to pay the full ammount.

[ScabHunter]

No it was not a forthwith judgment as you have been paying monthly payments.

 

This charging order should not be granted as you have not missed any payments. Do qoute Mercantile Credit Co Ltd v Ellis in 1987, as it is entirely relevant to this case.

 

SH

[muscat329]

I agree with Scabhunter. The redetermination has changed your judgement from a forthwith to a monthly payment plan. The creditor assumed that you wouldl default on the forthwith judgement, so applied for a Charging Order at the same time. Now that you have a monthly payment plan, as long as you have not defaulted on that, the Mercantile Credit case states that a CO should not be granted. So you must push this in court. Take all the paperwork you have to court and even if you don't get the valuation, make that part of your argument. If you have other creditors argue that they will be disadvantaged by the CO. Get emotional and fight! Also, you may find that the other side do not turn up but rely on paperwork. If so, you should be able to win. Let us know how you get on. Remember that the arguments I have put forward helped me get a CO application dismissed, so you can win. Good Luck

regards,

 

Muscat

[muscat329]

Last thought, if you win don't forget to ask for your costs to be paid. Research at £9.25 per hour, phone calls, travel, lost wages etc.

I asked for £250. The judge thought I was being cheeky but awarded me £100. I enjoyed receiving the cheque from the "dark side"

regards,

Muscat

[pushbike]

Thanks Muscat for your help - I was sat here at my computer 8 hours ago crying and feeling sorry for myself and feeling I had lost already but I am now in a fighting mood thanks to you and will give the judge every possible reason for not agreeing the order! Bring it on!!

 

will let you know how it goes this evening

[huggy41]

subcribing good luck pushbike

[pushbike]

Hi - solicitor for other side showed up - we spent 40 minutes in Judges chamber - but I hung in there and stayed calm and gave every argument possible- Judge seemed to go one way then another until he finally agreed in the end to adjourn case for 4 weeks to let me get further info from Link to set judgement aside - I argued that the original judgement may include either an unforceable agreement and/or includes unlawful penalty charges- Link have still not supplied all info and I need this to submit form N244. so I have been given a chance to have this set aside-need to start acting fast so any other advise would be appreciated.

For anyone else in this charging order position - I argued that unfair to other creditors, that regular payments had been made AND MAINTAINED, it would affect younger and ill members of my family and I demonstrated no equity in property - none of these would have been enough to prevent the final charging order. Judge said he would have to grant it but that claimant could not force me to sell the property without the permission of the court and that it would have to be in extreme cases when they would give permission.

Apparently Link sent fax to court saying in response to my SAR they could not send me statements from Debenhams as these would be with original creditor and I would have received these each month - Can anyone advise if this is correct - do they have to send me previous statements under SAR in respect of debt they purchased?

[BelstarBomb]

Hi Pushbike,

 

I'm sorry that as I too am a newbie I don't know enough to advise you....

 

however.... I wanted to give you a huge pat on the back and say well done to you for what you have achieved today.

 

well done and good for you!

 

BB

[cartoonheros]

Hi, i have a charging order on my house regaring a bank loan that i took out back in 2002 from RBS for originally £12k, i owed maybe £11 from memory but co is for £16k.

 

Long story short, they finally wrote back to me after about a year of letters and stated that they do not have the credit agreement but i should have it and refer to that, and if need be they can provide me with copies of statements for the loan as it was paid into my bank account with the RBS.

 

Where do i go next regard the charging order on the house. Can anyone help me out, as i only know about credit card legal stuff and not really loan stuff.

Cheers guys.

Angelique

[Pinky69]

Cartoon - start a new thread of your own so the threads don't get mixed up and you both get advice that is appropriate to you. The New Thread button is on the forum front page at the top of the threads on the left hand side.

[flaminscoty]

Hi all on this thread,

I am Flaminscoty the forum team set up my own thread for me regarding Link see flaminscoty and link,

I am in the same position tried twice to get interim charging order set aside and failed!

Link are adding 20% interest. I got letter from Land registry too but it says nothing about stopping claim

My final chance to beat thees anchors is in June for charging order enforcement and I am finding that the courts are not helping please can any one help my e-mail is [email protected]

A very worried flaminscoty..

Has any one thought about using human rights law i.e the right to a peaceful home life..i don't think LF would be expecting that one!!

Flaminscoty