Urgent help regarding charging order **WON CHARGE REMOVED**

[hammyhound]

Hi VG,

 

no afterwards when they decided they will continue to charge me interest of nearly 32% approximately £4.39 per day after judgment

[Von Greenbach]

OK I suggest you ponit out to the judge that they are in breach by not supplying your CCA which after all is a legal request and without it how can you challenge / defend whether they have a ligitimate case / claim or not.

[hammyhound]

Well Caggers today was my day in court.

 

Just before we were about to go in Claimant's "agent" handed to me a case report detailing that a judgment instalment can go hand in hand with an instalment payment and that "this throws Mercantile out of the window. Did not have time to read it as we were called in. Smarmy army then addresses the judge by saying "have you read the case law regarding this maam" she replies yes I do, he says we are applying for a charging order to secure a debt of over £5000 (most of their bloody costs and interest by the way). It will take me 40 years to pay it by the way and that is their defence.

 

She then asks myself if I had read the case law to which I replied "no I have just been given a copy printed out today" She asks me if I wish to adjourn and possibly get legal representation to which I reply "yes", I think she was on my side as the case has now been adjourned. I have to pay the Claimant's costs of £100 within 14 days. They thought they were going to get £600 ha ha!!!.

 

I have now contacted a solicitor who will take my case on for me. If I can refer to the case law here can someone let me know although it is probably irrelevant.

 

Would you believe it the case law they refer to precedes Mercantile as it is an appeal in 2001. I really suspect that he is handing this case law to everyone who attends just before the hearing so they will back down and agree. Disgraceful behaviour.

 

Anyhow my case is adjourned so I havent lost and I haven't won and I live to fight another day. Something tells me the judge was on my side as why didn't she proceed to the final charging order.

 

To all caggers keep up the pressure on these b........ds

 

HH

[DocH]

Do you have the details of the case law quoted. It could be useful to other CAGgers.

[supasnooper]

Please can you scan the case law document and post it up ?

[42man]

...

[42man]

....

[pt2537]

if you can give me the case name, i will check the extensive legal databases i have here and will find out if there is a later case to this one or if it was appealed to the Lords and overruled

 

I find it intriguing that there has been no reference to any later case law til now so we will have to see

[hammyhound]

I just wanted to make sure with the forum that it was okay to post the case law so here goes. The crux of the matter is that this appeal was heard in 2001 which according to the other side's solicitor throws the Mercantile case out.

 

 

http://i375.photobucket.com/albums/oo198/hammond39/CaseLawRopaigealach-v-AlliedIrishBa.jpg

 

What do other Caggers think?

[hammyhound]

Oops only one page, will try again

[hammyhound]

I am having severe problems with my scanner

 

In the meantime the case law is

 

Seoirse Treabhar Ropaigealach -v- Allied Irish Bank B2/2000/2156

 

 

Will probably have to go and buy a scanner its took a hammering in the last few weeks.

 

HH

[pt2537]

cheers hammy i will now go and do some research;)

[pt2537]

right

 

I cant see where this case over rules Ellis?

 

what was their reasons why this case over rules Ellis? as the case they quote was from 1994 so its been around for a while, surely if it were of relevence then we would have heard of it before now???

[tiokim]

subscribing

[hammyhound]

http://i375.photobucket.com/albums/oo198/hammond39/CaseLawPage1.jpg

http://i375.photobucket.com/albums/oo198/hammond39/CaseLawPage2.jpg

http://i375.photobucket.com/albums/oo198/hammond39/CaseLawPage3.jpg

http://i375.photobucket.com/albums/oo198/hammond39/CaseLawPage4.jpg

http://i375.photobucket.com/albums/oo198/hammond39/CaseLawPage5.jpg

 

sorry folks its like this but here it is the "case law" that "allegedly" throws Mercantile out of the window.

 

What is surprising to me is that no-one has come up with this before, even National Debtline have asked me to send a copy as far as they are concerned Mercantile came after. But this appeal is dated 2001

[supasnooper]

It has been mentioned by sequenci in this thread -

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/166808-interim-charging-order-bankruptcy.html

Edited January 16, 2009 by supasnooper
can't type

[hammyhound]

I suspect because the appeal is dated 2001 but Im no legal eagle. No-one has heard of this before.

[hammyhound]

Thanks for that SS

 

Well bless my cotton socks they did make an application before I got my instalment order. They knew it was coming up and threw in an application, so basically I am stuffed. Should really have just admitted defeat yesterday. So not only am I paying £100 costs to be paid within 14 days (where I get that from I don't know) I will also have their further costs to pay for the next hearing.

 

Oh well should have researched a little bit more.

[supasnooper]

I've got to say it's the first I'd heard of this and I spent hours researching appeals against Charging Orders a few months ago.

 

 

I've found this comment on the web -

 

"In Ropaigealach v Allied Irish Bank Plc, the Court of Appeal (CA) gave guidance upon the relationship between a charging order and an order allowing a debtor to pay by instalments.

 

In the County Court, a charging order cannot be obtained once the Court has ordered that the debtor may pay by specific instalments. This does not apply in the High Court.

 

However, enforcement by charging order comes in 2 parts - order nisi and order absolute, with a gap of 4-6 weeks between each stage. The question for the CA was whether a charging order could be made absolute if it had been ordered that the debtor be allowed to pay by instalments in the period since the order nisi had been awarded.

 

In a decision favouring the judgment creditor, the CA held that payment by instalments and a charging order could coexist. Once a charging order nisi had been made, an intervening order allowing instalment payments does not prevent the order being made absolute.

 

The granting of a charging order - nisi or absolute - is always within the Court's discretion. The CA did indicate that the existence of an instalment order may have a bearing upon how the Court would exercise its discretion. However, it was stated that where the instalment order meant that payment of the debt would take a substantial period then "there is all the more reason to secure its eventual payment in this way".

 

 

I'm appalled by the fact that the Court of Appeal didn't look at Mercantile v Ellis 1987 when making their decision on this.

[supasnooper]

In the County Court, a charging order cannot be obtained once the Court has ordered that the debtor may pay by specific instalments.

 

 

This comment may be of use to you though - Hopefully pt will confirm this.

[MARTIN3030]

Yes hang fire with positive thoughts -I will alert PT of these additional posts.

[blueboy987]

Thanks for that SS

 

Well bless my cotton socks they did make an application before I got my instalment order. They knew it was coming up and threw in an application, so basically I am stuffed. Should really have just admitted defeat yesterday. So not only am I paying £100 costs to be paid within 14 days (where I get that from I don't know) I will also have their further costs to pay for the next hearing.

 

Oh well should have researched a little bit more.

 

Can you double check and confirm the dates involved? Specifically, the date on which the payment by instalment order was made and the date on which the interim charging order was made?

 

From the scans you posted it looks like the payment by instalment order was issued on the 10th October and the interim charging order on the 10th November. If this is the case, ie the instalment preceded the charging, then I think that case they are referring to is not relevant.

 

I'm guessing that "order nisi" refers to the interim charging order and "order absolute" when it is finalised by the court. Provided this is the correct, the case they refer to only applies if they have "order nisi" before the payment by instalment order is made. If the payment by instalment order was made first then that case is not relevant. End of.

 

Provided all of this is correct, I'd say its time to take them to the cleaners.

[hammyhound]

Hi Caggers so I am not dead in the water yet!

 

I have left the documents in work but their application was dated 2nd October. I am checking with the court on Monday to see when the application was received by the court. I think this is a crucial point and thought of this last night going to bed. If their application was received after 10th October then it is game over for them. There is something else. I received a letter from them dated 8th October received on 12th October (if my mind is right) saying they would agree to monthly proposals providing I consent to a charging order on the house. Surely they would not have bothered with this letter if the application was already with the court before the 10th.

 

I got very upset after the hearing as I thought I was in the clear to be landed with this case law has nearly knocked me for six.

 

HH

[hammyhound]

Sorry something else sprung to mind, their application also requests that their application could be heard at the same time as my instalment hearing. It wasnt which leads me to believe they got their application in too late for it to be heard at the same time.

 

Roll on Monday

[blueboy987]

I have left the documents in work but their application was dated 2nd October. I am checking with the court on Monday to see when the application was received by the court. I think this is a crucial point and thought of this last night going to bed. If their application was received after 10th October then it is game over for them.

 

I'm pretty certain the only relevant dates are when the court orders were issued, so the dates when they applied or their applications were received are irrelevant. From the scans you posted previously it looks very much like the instalment order was issued before the interim charge order in which case the latter shouldn't have been issued.