VG - Vs Northen Rock - Charging Order

[FunkyFox]

Hi, I just wanted to add my 2p's worth. I hope it helps. I always try to be very realistic with the advice I offer so as not to set unrealistic expectiations. In many many ways my circumstances with my first case with Egg were very similar, right down to the involvement of CCCS and my illness, which is/was similar to yours.

 

To clarify you cannot defend an application for a final Charging Order. The CO is simply a form of enforcement on the CCJ. You can only make a representation to the court asking them not to grant it. You have mentioned some of the reasons earlier in the post. In my experience and from tales on here it is quite unusual for a DJ to not grant a final CO. If they do agree that it may predujice your other creditors then the judge may adjourn to allow the claimant to serve notice on all your other creditors that they are requesting a CO and they will be first in line. When they have done this it will come back to court and the CO made final (assuming no body objects - unlikely IMHO) therefore simply delaying the inevitable granting of the Charging Order.

 

Another consideration is that if you are succesful in getting the application for a final CO discharged there is nothing to stop the claimant then attempting to enforce the CCJ through other means, such as the baliffs or an attachment of earnings. In those circumstances you might consider a Charging Order to be the lesser of those other evils!

 

It is also worth mentioning that i think it is very shabby of NR to do all of this when you are on a DMP for 12+ months and all other creditors are happy. I would consider a complaint to NR and your MP, especially in light of the pressure being put upon other 'nationalised' banks. I am assuming you didn't miss any payments to NR/CCCS whilst on your plan than may have given them reason to do this?

 

Anyway back to the details of your situation. It sounds to me as if the CCCS initially entered an admission on your behalf to pay whatever you were paying on the DMP and the judgment was granted in favour of the claimant for this amount. They then decided this was not acceptable to them and applied for a redetermination hearing, clearly with a charging order in mind. You should have been notified of this and had the opportunity to attend to argue your point. It is worrying that you didn't.

 

Taking the above into consideration your other option is to apply to have judgment set aside and to hear the set aside application and the final CO hearing at the same time. There are a number of things to consider if you do this.

 

Firstly, you must have a defence as after a judgment is set aside you still have to have the case heard again, but this time with you defending yourself. If you don't have a winnable defence to enter then there is little point in making the application as all that will happen is a bucket load of costs (you will end in the Fast Track due to the size of the debt) and ultimately the same outcome. This is exactly what happened to me and I got judgment set aside after CCCS told me to admit the claim and offer £1 per week. They assured me it would be fine. It wasn't, but I was fortunate that their agreement was dodgy. I stated my health problems and the poor advice from CCCS as the reason for my application to set aside. So it is possible even when a claim has previously been admitted, albeit with mitigating circumstances.

 

You have made an application to NR for a copy of your CCA. Your loan is quite recent and there is every chance that they will have a copy of the agreement. Did you receive a default notice before they took action as that may be the basis for a defence?

 

You need to decide what is the best outcome for you and your health in these circumstances. That includes objecting to the Chargin Order in the first place. In the total absence of a defence and with a forthwith judgmeent for £20k against you, you need to be realistic about what is the best scenario in all of this for you. As I said above, even if you persuade the DJ not to grant the final CO then then NR can come after you with any other enforcement action.

 

One last thought, depending on what you decide taking all the advice and help in this thread into consideration, you could try asking the judge to make the charging order final but that no order for sale application or further enforcement action can be made whilst you stick to your DMP, on the grounds that you are vunderable due to your health. That way, unless you move you are no worse off and they are off your back.

 

I hope this helps and has not confused you. Your circumstances are so similar to mine I just had to jump in.

 

If you have any questions, please just ask. I will do all I can to assist.

 

All the best and good luck, FF:-)

[FunkyFox]

In the event of a CO NOT being granted, what are the chances of NR or any creditor going down that road?

 

Look at it this way. Are they just going to walk away and leave the debt uncollected if they have a forthwith order for £20k. Unlikely, although theie options are limited.

 

That's a good idea, would it be best to complain to NR complaints dept or direct to Eversheds, would it be wise for me to mention my medical history, I'm not keen on every Tom Dick and Harry being aware, some details are very personal, but relevant to the action a CO could have on me.

 

I would complain to NR. Eversheds just do what they are told tbh. You don't have to do into detail at all just mention the severity of the illness and the effect this is having on you.

 

This is what's concerning me, the poor advice from CCCS.

 

In their defence they are inundated and when it comes to legal action can only really give out generic advice. They are certainly not geared up to defending claims etc. I believe that deperate people do tend to believe whatever the CCCS tell them and then find themselves in all sorts of trouble when it doesn't work out as anticipated.

That terrifies me.

 

Didn't mean to do that, you just need to be realistic about what might happen if the CO is not granted.

That's a good idea, would I ask that on the day, or within my defense?

 

I would prepare a document as you are stating the reasons that you don't believe that the granting of a final CO is correct and stating that if the court does not agree that they make an order preventing an order for sale or further enforcement action whilst you stick to the DMP that NR had been accepting (along with all your other creditors) for 12 months.

 

Any more questions just shout! FF

[FunkyFox]

Morning VG,

 

Mercantile v Ellis applies where you are subject to a Court Order to pay by installments and you have not defaulted on the order. In such a case the court cannot/should not make an order for enforcement by way of a charging order final. In your situation they applied to have the judgment redetermined to payment forthwith. As you (obvioulsy) have been unable to pay the forthwith amount they have been able to apply for in enforcement.

 

Whilst Mercantile v Elllis does not directly apply in your case it would be worth adding to your arguements above to perhaps make them more persuasive that whilst it does not apply in your case, you were on a DMP and as such NR should not have applied to have the claim redetermined to allow for an interim CO in the first place and that the whole thing is very shabby.

 

You should also mention that you were not notified of the redetermination hearing and as such did not get an opportunity to put forward your arguements as to why you should be allowed to continue on the DMP.

 

You should also mention you health and why that makes you vunerable, any GP or other letter to support this would be useful too. It does not need to go into excessive personal detail, just enough to demonstrate that you are vunerable and although you do not have children that the Local Authority would have responsibilty to rehouse you if you were forced from you home due to your illness.

 

In the abscence of a defence to the claim to appply for judgment to be set aside and considering the above your argument would be about as persuasive is it gets for the DJ to make the order NOT to grant the final CO. Please just be aware of implications of doing this (be careful what you wish for in other words) as I posted earlier and remember to include a part asking the judge if he must make the order final, that he does so with the conditions on no order for sale or further enforcement whislt you stick to the DMP. If the claimant is clearly only interested in securing some future security for their debt this should not bother them at all.

 

Finally, this may sound odd coming from the person who set up the petition against the use of Charging Orders BUT there are circumstances where, as long as the risk of an application for an order for sale is minimised (not that it would be succesful anyway) or removed entirely, a Charging Order can be the best solution for both a creditor and a debtor as a form of enforcement. Please do keep that in mind.

 

Good luck and just yell if needs be.

 

FF

[FunkyFox]

Just one other thought. Is the loan just in your name? If it is and the house is in joint names the other parties can also object, stating why they would be predujiced by any charging order or order for sale. Argumemens such as they put all of the deposit down, you are seperating, they pay all of the mortgage may all help.

 

It is also worth noting that if it is a sole debt on a joint mortgage they can only enter a restriction, not a charge. You would see this on the detail from Land Registry where it says something like 'notice of intiention to enter a restriction'. This makes the possibilty of an Order for Sale VERY unlikely and means that (and not a lot of people know this!!) that you do not even have to pay them from the proceeds of the sale of you home, only notify them that the sale has taken place. Ulitmately this is to protect those in situations where the other people on the deeds may be other friends,family or companies such as a Housing Association. In these cases your debt has nothing to do with them and they should not be caused detriment as a result of action taken against you. The paragraph below is from a senior Land Registry official.

 

Restriction

The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-

No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to

[name of person with the benefit of the charging order]

at

[address for service]

, being the person with the benefit of

[

an interim

] [

a final

]

charging order on the beneficial interest of

(name of judgment debtor)

made by the

(name of court)

on

(date)

(

Court reference.

…).

You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.

Orders for sale of the property

The case of Midland Bank plc v Pike and another [1988] 2 All ER 434 is authority for the proposition that a person entitled to a charging order on the share of a co-owner was entitled to apply for an order for the sale of the land pursuant to section 30 of the Law of Property Act 1925.

Section 30 of the Law of Property Act 1925 was repealed by the Trusts of Land and Appointment of Trustees Act 1996. Sections 14 and 15 of that Act now cover the situation where an order for sale is applied for. The case of Mortgage Corporation v Shaire and others 2001 4 All ER 364 discusses the factors to be considered by the court in deciding whether to grant such an order when application is made by a person who has a charge against the interest of one of joint owners.

 

SO I hope this gives you some comfort especially if the debt is in sole names, with a joint mortgage.

 

As always any queries just ask. FF:)

[FunkyFox]

I think in any event NR should be made to explain if at all possible why they failed to accept your DMP when all you other creditors did and they did for your other half. I would however, whenever possible, stay clear of emotional, unsubstatiated comments. Judges don't tend to like them. If you stick to the facts and ask direct questions and make concise points it makes it far far easier for the judge to make a fair and correct determination of what is presented. Easier said than done but good if you can pull it off all the same.

 

So taking into consideration everything in the thread is it still your intention to try and contest the final CO, even considering what I have said previously about possible other enforcement action? Do you mind if I ask again, is it the fear of an order for sale rather than the charging order itself that is motivating your actions in this matter.

 

Glad I was able to be of some assistance.

 

FF

[FunkyFox]

Hi VG, looking good I will think it over. Do you mind me asking what equity there is in your property?

 

You should also get your partner to write to the court objecting against it as it would unfairly predujice them should they want to sell the house for example and all other creditors had accepted the joint DMP.

 

I will post back later.

 

FF

[FunkyFox]

Hi 42Man, I agree, it is most unsavoury.VG has kept to his payment as per the DMP BUT NR got the CCJ redetermined to payment forthwith so the order would need to be changed back to installments. As it stands they are legally entirely correct in applying to enforcement. Moraly it sucks!

 

It will almost certainly depend on the Judge on the day and their view as to NR actions. It also raises the question (and sorry to keep harping on about this) of what happens if the charging order is NOT allowed. How will the claimant then decide to enforce the judgment?

 

FF

[FunkyFox]

Hi VG, important question.

 

Have you or CCCS notified NR at any time of your other creditors? If so does the application for the Interim Order they made on form N379 mention your other creditors. If not their application may be incomplete. CPR Practice Direction pt 73 states;

 

Application notice – rule 73.3

 

1.1

 

An application for a charging order must be made by filing an application notice in Practice Form N379 if the application relates to land, or N380 if the application relates to securities.

 

1.2

 

The application notice must contain the following information –

(1) the name and address of the judgment debtor;

 

(2) details of the judgment or order sought to be enforced;

 

(3) the amount of money remaining due under the judgment or order;

 

(4) if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid;

 

(5) if the judgment creditor knows of the existence of any other creditors of the judgment debtor, their names and (if known) their addresses;

 

(6) identification of the asset or assets which it is intended to charge;

 

(7) details of the judgment debtor's interest in the asset; and

 

(8) the names and addresses of the persons on whom an interim charging order must be served under rule 73.5(1).

 

**If when the interim order was granted the court ordered service on all other creditors make sure you ask to see certificate of service for each creditor. It may also be worth checking to see that they have actually served them. When I checked with mine they had not served them at all**

 

This is backed up by the Practice Direction pt.73 which states

 

73.3

(4) The application notice must –

(a)

(i) be in the form; and

 

(ii) contain the information,

 

required by the relevant practice direction; and

 

Therefore if the application for the interim order is missing any of the above items it may be a point to challenge them on.

 

Furthermore did they serve notice of the interim order on your partner? This is covered in CPT regarding service of the interim order.

 

Service of interim order

 

73.5

 

(1) Copies of the interim charging order, the application notice and any documents filed in support of it must, not less than 21 days before the hearing, be served on the following persons –

(a) the judgment debtor;

 

(b) such other creditors as the court directs;

 

© if the order relates to an interest under a trust, on such of the trustees as the court directs;

 

(d) if the interest charged is in securities other than securities held in court, then –

 

(i) in the case of stock for which the Bank of England keeps the register, the Bank of England;

 

(ii) in the case of government stock to which (i) does not apply, the keeper of the register;

 

(iii) in the case of stock of any body incorporated within England and Wales, that body;

 

(iv) in the case of stock of any body incorporated outside England and Wales or of any state or territory outside the United Kingdom, which is registered in a register kept in England and Wales, the keeper of that register;

 

(v) in the case of units of any unit trust in respect of which a register of the unit holders is kept in England and Wales, the keeper of that register; and

 

 

(e) if the interest charged is in funds in court, the Accountant General at the Court Funds Office.

 

 

(2) If the judgment creditor serves the order, he must either –

(a) file a certificate of service not less than 2 days before the hearing; or

 

(b) produce a certificate of service at the hearing.

 

Failure to do any of the above could render their application incomplete and inadequate and be a reason for it to be refused. Be aware it does not guarantee anything. In one of my cases it was adjourned 3 times, each time the court ordered the claimants solicitor to serve notice on all my other creditors and each time they failed. By the 3rd time I nearly got held up in contempt!

 

Finally CPR is very specific about how you must object to the application for the final charging order it is covered here...

 

Further consideration of the application

 

73.8

 

(1) If any person objects to the court making a final charging order, he must –

(a) file; and

 

(b) serve on the applicant;

 

written evidence stating the grounds of his objections, not less than 7 days before the hearing.

 

(2) At the hearing the court may –

(a) make a final charging order confirming that the charge imposed by the interim charging order shall continue, with or without modification;

 

(b) discharge the interim charging order and dismiss the application;

 

© decide any issues in dispute between the parties, or between any of the parties and any other person who objects to the court making a final charging order; or

 

(d) direct a trial of any such issues, and if necessary give directions.

 

 

(3) If the court makes a final charging order which charges securities other than securities held in court, the order will include a stop notice unless the court otherwise orders.

(Section III of this Part contains provisions about stop notices.)

 

(4) Any order made at the hearing must be served on all the persons on whom the interim charging order was required to be served.

 

This means that you and your partner must send your documents objecting to the application for final CO 7 days min prior to the hearing and be sent to the claimant (served) and the court (filed) in both cases.

 

If you do everything correctly in the first place it will help things to go in your favour, rather than looking like a deperate amateur. Generally Judges like to see someone who has made an effort to do things right.

 

I appreciate there is a lot of information here but it all relevant to your situation and may help you (I hope).

 

BTW when is the hearing scheduled for?

[FunkyFox]

On this question alone, no, I haven’t informed NR of my other creditors, at this stage I cannot confirm if CCCS have, I would take it that they HAVE, when this first kicked off, CCCS submitted a defence confirming my monthly payments to NR, CCCS informed me they had sent NR an up to date I&E, this would have shown my other creditors, I will ring CCCS tomorrow for confirmation if you wish.

 

 

 

Thats up to you really. I was just trying to give you anything that could enahnce your chances of achieving the outcome your want. If the claimant has not submitted a complete application (i.e. mentioned you other creditors if they knew about them) as required by Civil Procedure Rules then that could help you.

[FunkyFox]

I'm having difficulty understanding these 2 posts (Sorry if I sound stupid) could someone please explain them in a little more detail?

 

I was trying to point out to 42man that whilst you have stuck to the DMP as NR got the judgment redeterminned to payment forthwith they are legally entilled to apply for the charging order, although morally it sucks.

 

I do agree however that in the current climate you have a far greater chance of succeeding than you would have done 12 months ago.

 

Also worth noting, OFT guildlines are just that, guidelines and not law. They may help you to demonstrate a claimants behaviour has been aggresive but this alone is not a reason for a judge to order in your favour.

[FunkyFox]

No I would keep it in. It all helps to demonstrate NR's sloppy behaviour in all of this. It does no harm to include, just don't rely on it.

[FunkyFox]

Hi VG, Civil Procedure Rules are very specific about what is required. You will need to file and serve 7 days before the hearing. That does mean anyone objecting has to send their objections to the court and the claimant within the 7 days. It stops any suprises on the day and the outcome being delayed or worse still your objections not being taken into account.

 

Its good to see you have plenty of time. It will help you get things together and straight in your own mind as to the basis for your case. Much better that way.

 

I am tied up for a while but I will pop back soon to try and offer some further advice. Your document is looking good. If you add anything else to it post it up and others can offer advice too.

 

FF

[FunkyFox]

Hi VG, I've not been around for a while. Hope all is well.

 

What you have posted is the copies of the interim charging order which informs you of the date for the hearing for it to be made final (or not). The interim order is made without a hearing and will be removed if your representation for it not to made final are succesful.

 

MOst important is that you serve and file your objections at least 7 days before the hearing.