Some advice re: an interim charging order pls

[Von Greenbach]

We're also experencing difficulties re a CO.

 

Lisa, our case was issued by Bradford CC, but now being transferred to my local CC, is it Eversheds by any chance?

 

Yes, it's a minefield trying to get my head round it all.

 

Perhaps the 3 of us in this thread can bounce of each other in preparing our defence.

[Von Greenbach]

Also, how do i go about transferring to my nearest court?

Ring the original CC where the papers were issued, ask for the case to be transferred to your local CC.

[Von Greenbach]

Mr42man

 

This is all very confusing for me; I seem to be going round in circles because I do not understand any of it.

 

Firstly, let my say, somewhere along the line my defence seems to have gone tits up, so, I’ll try and explain as best I can.

 

Interim order applied for > offer rejected > CCJ granted > redetermination letter received > applied to have CO set aside, now, somewhere along the line as well as applying to have the CO set aside something else should have also been applied, what I don’t know, but because a defence was submitted within 16 days, no N244 or fee is required.

 

Does that make sense so far?

 

(I'm going to attempt to undertsand this process even if it kills me)

[Von Greenbach]

Right, got notification it's been transferred to my local but it's for the FINAL charging order! How can that be right?

Lisa, I think you'll find the hearing is to decide whether or not the "Interim Charging Order" should be made "Final" or not, I'm in the same position, I have a hearing soon based on whether or not my "Interim Charging Order" should be made final.

[Von Greenbach]

It's for 2nd March so what do i do now? It's only allocated 2 minutes!

Don't worry about the time, that's just done by default.

Do i now go for the set-aside?

You need to file a defence now to have the Interim Charging Order set aside.

[Von Greenbach]

Then I think you should request the CCA and default notice under Disclosure giving the 14 days

You could do that under a CPR18 request, it's free of charge apart from the postage £4.60 via special delivery.

[Von Greenbach]

It would be prudent to know whether they have enforceable CCA and valid default notice prior to application to set aside if possible.

The CCA request & DN notice are included within the CPR18 request, so, if they fail to produce it (as they have with me) you could then inform the court they are preventing you from filing a defence.

[Von Greenbach]

Sorry I thought that the Claimant had already obtained judgment here

The claimant has obtained judgement, but it's judgement by default i,e an Interim Charging Order.

 

I'm still in my puppy stage on this site so my expertise is very very limited, but I think Lisa is in the same position as me.

[Von Greenbach]

Sorry - but is that the one i have already sent as per post 15?

Yes, maybe someone with more expertise could advise you on whether you could send this:

 

For the Attention of the Case Manager

In the matter of

 

Claim Number

 

In My Local CC

 

My Address

 

Dear Sir or Madam,

 

RE: FAILURE BY CLAIMANT TO PROVIDE INFORMATION

 

I would like to inform the court of some difficulties that I am experiencing with the above claim which may prevent me filing a fully particularised defense and counter claim to this action, and may consequently frustrate proceedings.

 

On [XXXXX] I sent the claimant a formal request under the consumer credit agreement, for account. I requested a copy of the credit agreement, a statement of account, and copies of the relevant terms and conditions. I have still not received this information.

 

On [XXXXXX] I also sent a CPR18 request for the claimant to send me information in relation to their claim, that I consider is vital in order to produce a defense and counter claim.

 

I enclose copies of my requests together with proof of postage and proof of delivery to the claimant, and ask that the court consider the matter and take any action it deems appropriate.

 

Enc:-

Letter requesting CCA

Proof of postage

Proof of Delivery

 

Letter requesting disclosure CPR 18

Proof of Postage

Proof of Delivery

[Von Greenbach]

Out of curiosity are you dealing with Eversheds?

[Von Greenbach]

Sorry to be such a pain!

You're not a pain, it's a nightmare for us that don't understand.

 

Did you send that letter of to them in post 15, if so that is the CPR18 letter.

[Von Greenbach]

I've just realised i haven't sent a cca request (duh)! as i didn't read the cpr18 properly and assumed that encompassed the cca.

Part 1 of that letter you sent requests the CCA.

[Von Greenbach]

As they've failed to respond to your CPR request, you could ask one of the mods if it's worth sending that letter in post 49 above.

[Von Greenbach]

Are they obliged to supply it even though it's been judgemented?

Lisa, you need to have a serious think about what grounds you're going to have the interim charging order set a side on.

[Von Greenbach]

Hi lisa

 

Just to update you with my situation. the claimants solicitors never replied to my CCA or CPR18 request which I submitted the same time as you (beginning Dec)

 

I've now submitted an N244 to have the original CCJ set aside, I've also submitted a defence to the forthwith judgment & interim charging order.

 

I'm hoping to have all 3 merged together for one hearing.

 

I've not requested a stay in the proceedings because I'm not sure what the advantages / disadvantages are when the other side fail to reply to a CCA / CPR request, anyway I just want this over and done with asap rather than be dragging on and on.

 

You'll get there lisa it just takes time.

[Von Greenbach]

Sorry Von - what defence did you do for the forthwith and interim CO? Is that to be kept separate from the the n244? Bit confuddled!

Hi lisa

 

The following is what I used as my defence you'll have to amend it to suite your own situation.

 

The N244 needs to be completed why you believe the CCJ should never have been granted, so "I request the CCJ be set aside because had I have been able to defend myself I would have done on the basis of XXXXXXXX" keep it short and sweet if you can produce any legislation that will help your case included it.

 

Then you submit your defence, as Supa has said, if the CCJ is set aside then the judgement forthwith and interim charging order fall down, think of it as ABCD a) they need a CCJ 1st b) once they have a CCJ they get judgement forthwith c) once they have judgement forthwith they apply for interim charging order, but if A is not granted then B C D cannot be granted.

 

In the xxxxxxxx County Court

Claim number

 

Between

 

xxxxxxxxxxx- Claimant

and

VG - Defendant

 

DEFENCE

 

1. I deny all allegations put by the claimant in their particulars of claim, and put them to strict proof on each allegation.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the account number of the agreement, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

BACKGROUND TO CLAIM

 

4 This claim appears to arise from an account I opened on or around xxx

 

5. During the period in which I operated this account, I encountered significant problems in being able to maintain the monthly repayment. I engaged PayPlan, a debt management company, in order to formulate and manage a Debt Management Plan

 

6. A Debt Management Plan is an informal arrangement in which any income after the basic necessities for survival are divided in a pro-rata fashion amongst creditors.

 

7. The claimant is a consumer credit license holder and is required by law to abide by the requirements of the OFT Debt collection guidelines. This guidance is located at http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf , and was updated in 2006.

 

8. I would bring the courts attention to the following sections of guidance:

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

2.6 Examples of unfair practices are as follows:

f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so

 

9.I therefore put the claimant to strict proof that they behaved fairly in demanding full repayment of money when they had a statement of affairs that expressly showed such repayment was not possible.

 

10. Northern rock is a signatory of the Banking Code, and has voluntarily agreed to abide by its requirements. It is my belief that abiding by the banking code is an implied obligation of the contract, or that it is enforceable in equity it. The terms of the banking code are laid out at http://www.bankingcode.org.uk/pdfdoc...ING%20CODE.pdf

 

11. I would like to refer to the section on Financial Difficulties set out in

point 12

 

12.1 We will consider cases of financial difficulty sympathetically

and positively. Our first step will be to try to contact you to discuss the matter.

12.2 If you find yourself in financial difficulties, you should let us know as soon as possible. We will do all we can to help you to overcome your difficulties. With your cooperation, we will develop a plan with you for dealing with your financial difficulties and we will tell you in writing what we have agreed.

12.3 The sooner we discuss your problems, the easier it will be for both of us to find a solution. The more you tell us about your full financial circumstances, the more we may be able to help.

12.4 If you are in difficulties, you can also get help and advice from debt-counselling organisations. We will tell you where you can get free money advice. If you ask us to, we will work with debt-counselling organisations, such as Citizens Advice Bureaux, money advice centres or the Consumer Credit Counselling Service. Their contact details are as follows.

….

You should also be aware that there are other companies that charge a fee for managing your debts. It is your responsibility to check the fees that may be charged before asking these companies to act on your behalf.

12.5 If you have debts with many creditors, a debt-counselling organisation may complete a Common Financial Statement (or equivalent acceptable to us) on your behalf, which we will accept as the basis for negotiations with you in drawing up a debt-management plan.

12.6 In certain circumstances we may pass your debt to another organisation or debt-collection agency. We will always choose reputable firms which also agree to follow the Code when arranging repayment.

12.7 In other circumstances, we may sell your debt. We will always choose reputable firms if we do this.

 

13. I did in fact contact the claimant, and engaged PayPlan (a reputable no fee company suggested by northern rock) in order to negotiate a DMP with the claimant. Payplan and the creditor came to an arrangement on my behalf.

 

14. I made regular payments, via payplan of the agreed amount in relation to the DMP every month.

 

15. Despite this agreement being in place for 6 months, I received a default notice from Northern Rock requesting arrears of £xxxx, it was clear based on my current statement of affairs I was not in a position to clear the arrears, 14 days following the default notice Northern Rock decided to end the DMP, and commenced legal proceddings requesting the full sum of money owing. I again sent a current statement of affairs and increased my payments to the point that it caused substantial hardship to me.

 

16. Contacting debtors directly and bypassing their appointed representatives. [This relates to OFT above] Although I informed NR about my health issues, they have continued to by pass my appointed representative CCCS and contact me directly. I have suffered with a psychotic / psychiatric condition for over 30 years, I'm on daily medication for this condition, I informed Northern Rock in the early part of 2008 about my medical condition and that harassment by their agents was playing havoc with my condition, it's clear my health issues have no concern to Northern Rock due to the action they are taking. Please see attached doctor's letter.

 

17. On xx the Claimant sent me a Default Notice. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended by the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

These state that a clear period of 14 days must be allowed from the date of service to allow the debtor to rectify the default.

 

18. Notwithstanding the above paragraph, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

 

19. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

20. On xx/xx/xxxx I made a request for information pursuant to the Civil Prodedure Rules Part 18. This included, but was not limited to: A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened, details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers, specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied, and copies of statements for the entire duration of the credit agreement.

 

21. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

22. I therefore believe that the claimant has not abided by the overriding objective in this matter, or in accord with implied terms of the contract.

 

Default Notice

 

23. I will refer in this section to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 1983 No 1561 as amended (“Default Regulations”)

 

24. g (2) of the Default Regulations states the requirement of a default notice

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

 

25. Reg (5) and (6) of the Default Regulations lay out presentation requirements for a default notice.

 

26. With regard to the default notice, I would quote paragraph 3 of schedule 2:

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

27. The consequence of a incorrect default notice are laid out in s87(1) of the Consumer Credit Act 1974:

87.

Need for default notice.

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum

 

28. Consequently, in the absence of a valid default notice, I deny the claimant has any right to demand earlier payment of any sum, or terminate the agreement.

 

29. I am aware this may seem very technical law – indeed it is very dry – and may seem almost trivial. My understanding is that that parliament and the courts implemented such strict requirements as to the contents and form of a default notice and the requirement of such a notice to be exactly adhered to is that it must be crystal clear to the debtor what the nature of the default is, how much is outstanding, what the nature of the breach is, and how & when to rectify it.

 

Objection To Charging Order

30. The granting of a charging order on the property at xxxxx, xxxxxx, xxxxxxx, Land Registry xxxxxxxx would cause unnecessary and unjustified hardship to my partner, xxxxx xxxxxx of the above address. xxxxx xxxxxx has solely paid the deposit on this property, and is maintaining the mortgage payments.

 

31. I attach a letter from my partner for the court's perusal. I would be grateful if this letter could be placed before the Judge at the hearing on xx/xx/2009. (Attach your partner's letter to this one)

 

32. The granting of a charging order will seriously prejudice the interests of my other creditors. I am currently on a Debt Management Plan, making regular payments to all of my creditors. Every one of these creditors has accepted the terms of this Debt Management Plan, except Northern Rock. This includes xxxxx and xxxxx, to whom I owe £xxxxxx and £xxxxxx respectively. (Delete this last sentence if you have no other creditors to whom you have greater amounts owing)

 

 

Set Aside

33. Notwithstanding the above considerations, it is my contention that the original judgment against me is unsound, and I have applied for this judgment to be set aside. My debt management company, PayPlan, submitted an admission instead of a defence, without my knowledge or consent. I was therefore unable to submit a valid defence, and firmly believe that such a defence would have had every chance of success. The claimant has yet to provide a credit agreement in response to my request pursuant to the Civil Procedure Rules, and has also yet to demonstrate that any default notice was in the prescribed form, and allowed the necessary 14 days for remedy of any breach.

 

SUMMARY

34. Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

 

35. I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If the claimant sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

 

36. Further, in the claimants particular of claim, the claimant states I failed to make any payment under the agreement after the default notice and demand letter. For the record, I made regular monthly repayments via Pay Plan, and increased the payment to the claimant in the month prior to legal action. I have at no point refused to pay the claimant what money I could. I think, given my personal situation and my willingness to pay what money I could under the agreement despite the advice of several debt charities to file a bankruptcy petition should show that I intended before action to repay as much of this loan as possible.

Statement of Truth

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

Signed …………………

Date

[Von Greenbach]

You submit the N244 asap.

 

Then submit your defence 7 days before the hearing.

[Von Greenbach]

Hi,

Eversheds never produced their CCA either and the judge said they dont have to its not important and the charge was granted,its a load of rubbish this CCA request as it does not stand up in court. sorry to burst your bubble

Sorry to burst your bubble, but there are very experienced members on here who work within the legal profession, who would disgree with your statement.

[Von Greenbach]

Well done lisa, the advantage of today you should now be prepared for any other court vists.

 

Congratulations to you and your OH.