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

[Josie8]

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

 

 

Thats right but you need to have made the application for redetermination before the Claimant has made the application for the interim charging order..............thats why its important to be quick off the mark & not let them obtain judgment by default in the full amount.

[blueboy987]

Thats right but you need to have made the application for redetermination before the Claimant has made the application for the interim charging order..............thats why its important to be quick off the mark & not let them obtain judgment by default in the full amount.

 

If you read the case they are referring to, it specifically addresses whether the court can issue an interim charging order - so the application date isn't relevant, its all about when the court considers the request for the order.

 

I'm guessing they've either got their dates mixed up or more likely, they're trying it on in the hope all the legal talk will confuse you and that you drop it.

[hammyhound]

If my memory serves me correct Judgment forthwith 25th September, Judgment (by its own motion) for the court to consider instalments dated 25th September listed for 10th October, their application made/typed 2nd October hearing 15th November.

 

I have had a telephone call from National Debtline who want to know my next move as they are very interested in the case given that they are telling people they will be okay in court.

 

HH

[hammyhound]

that in the case of Ropaigealach V Allied Irish Bank CA Nov 2001 where an instalment order is made AFTER an interim charging order has been made, a court has the jurisdiction to make a Charging Order final.

 

This is where I am getting totally confused.

 

My instalment order was made on 10th October.

 

Their application although dated 2nd October was not heard until 15th November.

 

Is this good for me.

[hammyhound]

Josie's post mentions this:-

 

Thats right but you need to have made the application for redetermination before the Claimant has made the application for the interim charging order..............thats why its important to be quick off the mark & not let them obtain judgment by default in the full amount.

 

What is redetermination, is that the judgment I have listing the hearing for 10th October for instalment payments. In that case it was the same day as the judgment forthwith.

 

I am really getting confused now.

 

Can someone help and clarify.

[Von Greenbach]

I have my redertermination & final charging order hearing this week

"have you read the case law regarding this maam"

Could that damage my case, if so does anyone have a suggestion to counteract their argument?

[Von Greenbach]

Can someone help and clarify.

I'll have a go HH, but I'm not 100% certain.

 

The claimants puts in a claim for the whole amount.

 

You submit your defence including any offer of payment.

 

The claimant refuses your offer and is therefore granted "Judgment Forthwith" by default.

 

You appeal against the "Judgement Forthwith" and that goes to a "Redertimination" hearing.

 

I think I'm correct but hopefully other Cagers will confirm.

[blueboy987]

I think you've got them beaten on both angles;

 

- the application for the instalment order was made (albeit by the court) before the application for the interim charging order.

- the court order for the instalment order was made before the interim charging order.

 

If it was me, I'd ask for the charging order to be dismissed based on the court order dates (with the application dates as a fall back, if they bring it up) and ask for costs (along with a refund of what you've had to pay them already).

[hammyhound]

Obviously I haven't received the hearing date yet but want to make absolutely certain they don't throw anything else at me. After the last hearing I want to be much stronger in my defence and not the gibbering wreck I was.

 

If what Blueboy is saying and I am not doubting him this hearing could really go in my favour I just want somebody to say yes that is correct what Blueboy is saying, they can't go for a charging order due to the dates and that I can claim costs together with the £100 Im about to pay them

[hammyhound]

Thanks VG,

 

I did not apply for the redetermination hearing, the court did it of its own motion. The claimants also seem to think I requested it as well, they should read the judgment properly.

 

By the way good luck VG, I am glad I brought this up which may be of help to you. I wouldnt mention the case unless it is brought up by the other side and possibly use the same argument that blueboy has mentioned, but does that apply to you, sorry I havent read all of your recent thread been totally focused on trying to work this one out.

 

Good luck and report back.

 

HH

Edited January 18, 2009 by hammyhound
added text

[blueboy987]

I'm not a legal expert and my posts are based solely on reading the judgement that they referred to.

 

I just read the previous letter from their solicitors which referred to this and they specifically state their case is based on the fact that their application was made before the instalment order was issued.

 

I still can't see how the application date is relevant, as the issue is whether the court can issue an interim charging order or not - this is what the judgement they refer to states. The court couldn't / shouldn't have issued an interim charging order as at that point in time the instalment order was in place.

 

Do you have any way of checking this point with a solicitor, ie what date is relevant with the interim charging order (the application date, or the date the court considers / issues it)? Maybe the Citizens Advice Bureau, or do you qualify for free legal assistance? You could also make sure you turn up early to discuss this point with the duty solicitor, or whoever it is that is there for people without representation.

[Josie8]

I'm not a legal expert and my posts are based solely on reading the judgement that they referred to.

 

I just read the previous letter from their solicitors which referred to this and they specifically state their case is based on the fact that their application was made before the instalment order was issued.

 

I still can't see how the application date is relevant, as the issue is whether the court can issue an interim charging order or not - this is what the judgement they refer to states. The court couldn't / shouldn't have issued an interim charging order as at that point in time the instalment order was in place.

 

Do you have any way of checking this point with a solicitor, ie what date is relevant with the interim charging order (the application date, or the date the court considers / issues it)? Maybe the Citizens Advice Bureau, or do you qualify for free legal assistance? You could also make sure you turn up early to discuss this point with the duty solicitor, or whoever it is that is there for people without representation.

 

 

If your application for redetermination is made before they make an application for a charging order then as long as you keep to your monthly payments they will not be able to get an interim and final charging order.

 

If however they get their application in first then even though you are allowed to pay by instalments they will be able to have the interim charging order made final.

 

This is why it is important not to let a creditor get a judgment for the full amount payable immediately.

 

Sorry if its not what you wanted to hear

[blueboy987]

If your application for redetermination is made before they make an application for a charging order then as long as you keep to your monthly payments they will not be able to get an interim and final charging order.

 

If however they get their application in first then even though you are allowed to pay by instalments they will be able to have the interim charging order made final.

 

This is why it is important not to let a creditor get a judgment for the full amount payable immediately.

 

Sorry if its not what you wanted to hear

 

What happens if the court itself (of "its own initiative") orders a hearing to consider payments by instalment? Is the date of the order (for the hearing) taken as the application date for payments by instalment?

[Josie8]

What happens if the court itself (of "its own initiative") orders a hearing to consider payments by instalment? Is the date of the order (for the hearing) taken as the application date for payments by instalment?

 

Yes

[hammyhound]

Thanks for all your continued support.

 

I checked with the court today and their application was received by the court on 16th October although I dont know of its relevance but the solicitors seem to think that their application dated 2nd October should have been listed with my hearing for instalments. How the hell could it have done when the court did not receive it until 16th October. 6 days after my instalment hearing.

 

I looked at their application again and it is crossed against "judgment was payable forthwith". This again is incorrect as on the same day as that judgment the court listed the instalment hearing for 10th October. It both came in the same envelope. Sorry if I am repeating myself again. Any judge who got that application would see fit to issue an application for a charging order based on a judgment forthwith.

 

HH

[hammyhound]

 

I just read the previous letter from their solicitors which referred to this and they specifically state their case is based on the fact that their application was made before the instalment order was issued..

 

Well we now that is a lie the court did not receive it until 16th October. If and it is a big if, the court goes by the application date, then why did they not put 25th September the date of the judgment forthwith instead of 2nd October. My instalment order was already in place before their application got to court end of as far as I can see.

[hammyhound]

Just a quick update folks, sorry to go on.

 

My hearing has been listed for March so I can breath for a few weeks.

 

Their application was definitely received by the court on 16th October. I now have a copy of their letter showing the court's date stamp.

 

I have also found out by the very helpful court staff that the application the Judge listed for the charging order was done so without the court file and this is in my court file so he listed the application on what was put before him ie the application, he did not know there was a judgment in place for the instalment order.

 

This is now the path I am going to take, I suspect they will still rely on the AIB case but after their little speech I will address the judge about the facts I now know and that the Claimant's solicitors have deceived myself and due to the court's fault the application was listed in error. I will show the judge their letter to me stating that the application was made before my redetermination hearing/instalment order hearing and I will also show their letter dated 2nd October enclosing the application showing the date stamp.

 

And then when I win (here's hoping) I will ask the court for my costs and make a formal complaint about the solicitors involved. It is an obvious attempt at deception.

 

HH

[bazaar]

Why wait for the formal complaint?

It may well put them on the back foot, if you mention it before court

[hammyhound]

I know but the Solicitors Regulation Authority have told me that I have to put in everything in detail to the solicitors and I really dont want the solicitors knowing that I am on to them regarding the deception until I reach court as I am sure they will have something else up their sleeve. The complaints officer at the solicitors is the same solicitor dealing with my case so dont know what happens there. I imagine he will tell another load of lies and say my complaint is not justifiable.

[hammyhound]

Well even though I can't afford legal representation a kind and caring lawyer has helped me with this.

 

He says for me to file a witness statement setting out the details I know about their application not being received by the original court until 13th October and then sent to my local court on 16th October. Why they sent it to the original court god only knows.

 

I really don't know whether to file this with the court and the other side before the hearing or just turn up on the day and shove it in the agent's face just before we go into court and pass it to the judge.

 

I would like the judge to be able to read it before the hearing but don't really want the other side seeing it as I am sure they will come up with some other excuse of case law to knock me off my senses.

 

What do people think, any help before I prepare the witness statement would be greatly appreciated. I cannot believe this has turned out to be such a long thread.

 

HH

[Von Greenbach]

Hi HH

 

I'd be tempted to hold onto it until the hearing, why give them time to counter act you?

[blueboy987]

He says for me to file a witness statement setting out the details I know about their application not being received by the original court until 13th October and then sent to my local court on 16th October. Why they sent it to the original court god only knows.

 

I really don't know whether to file this with the court and the other side before the hearing or just turn up on the day and shove it in the agent's face just before we go into court and pass it to the judge.

 

I would like the judge to be able to read it before the hearing but don't really want the other side seeing it as I am sure they will come up with some other excuse of case law to knock me off my senses.

 

One of your complaints against them was that they brought in new evidence on the day of the hearing and didn't give you any chance to prepare for it, which resulted in the case being adjourned. If you hold on to your defence until the hearing you're doing exactly the same as they did and I'd have thought there is a good chance the judge will adjourn the hearing again for them to prepare a response.

 

You seem to have a very strong defence, both to the evidence they introduced at the last hearing and against their case in general. I'd have thought that if you get your defence in now there is a good chance they won't bother defending it.

[hammyhound]

Just typing up my statement and thought of this again.

 

What happens if the court itself (of "its own initiative") orders a hearing to consider payments by instalment? Is the date of the order (for the hearing) taken as the application date for payments by instalment?

 

Josie replied yes

 

So my redetermination date for instalments was 24th September and my hearing for the instalment payments was 10th October. Why has the judge seen fit allow the "charging order nisi" when:-

 

my instalment order was already in place before the application was even received by the court. Do you think the judge can say I am still allowing the charging order absolute as due to the size of repayments (it would take forever in my case 40 years) to pay off and this way the creditor will obtain the debt quicker when you come to sell your house.

 

HH

[DocH]

Hi HH,

 

Why has the judge seen fit allow the "charging order nisi"

Because when the claimant's solicitors made the application, the judge will not have been aware of any of the circumstances. You could make the comparison with the initial court claim, the judge won't know what the arguements are from either side are until the trial.

 

Do you think the judge can say I am still allowing the charging order absolute as due to the size of repayments (it would take forever in my case 40 years) to pay off and this way the creditor will obtain the debt quicker when you come to sell your house

 

It's always a possibility. But if the judge agrees that your redetermination hearing preceded their CO application, and you haven't missed any of the payments, then he shouldn't. Whose to say it will take 40 years to pay off. In your present circumstances that might be the case, but nothing stays the same and in a few years you may be in a much better position and able to pay the debt off far quicker.

Edited February 6, 2009 by DocH

[hammyhound]

Thanks Doc,

 

My redetermination was definitely made before their application so my statement will be based on that and will also mention AIB which the Claimants threw at me before the last hearing and say that it is irrelevant as in that case the application was made before the redetermination hearing.

 

Thanks again.