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

[supasnooper]

Hi there,

 

You won't have heard anything about the application for the Interim Charging Order as no notification has to be given, and as you've discovered, it's only when the Interim Charging Order paperwork lands on the doormat are you aware of this.

 

Not very nice for you as I've found out !

 

Have a read of this as it will give you an idea of what you can do at the Charging Order hearing :-

 

National Debtline England & Wales | Debt Advice | Factsheet 15 Charging Orders In The County Court

 

I would imagine that the Mercantile Credit Co Ltd v Ellis 1987 would be of use to you as you have been paying by instalments.

 

Do note that if you wish to oppose the Charging Order you must submit your points to the courts at least 7 days before the hearing. Also you'll need to send a copy to the CL finance solicitors.

 

Hope this helps.

Edited December 13, 2008 by supasnooper
typo

[supasnooper]

I think HAK is referring to Mercantile Credit Co Ltd v Ellis 1987.

 

And as far as I am aware, nothing has changed regarding this.

[supasnooper]

Hi HAK,

 

Not heard of anything of what you've mentioned but off to Google it.

[supasnooper]

Thanks for the link HAK.

 

Some interesting reading there, together with what I found :-

 

 

 

"How does the Tribunals, Courts and Enforcement Act 2007

change the Charging Order regime?

 

The Tribunals, Courts and Enforcement Act 2007 will introduce further reforms to the current Charging Order procedure. This will allow a creditor to apply for a Charging Order where a debtor has not missed instalment payments on their judgment. This change was aimed at dealing with the situation where a debtor with large judgment debts, who is meeting his regular instalments, can benefit from the sale of a property without paying off the debt.

However, the Lord Chancellor is due to set new financial thresholds, beneath which a court cannot make either a Charging Order or an Order for Sale. This will ensure that Charging Orders are not used to secure payment of disproportionately small judgment debts. This aspect of the 2007 Act has yet to be commenced and will be subject to consultation in the near future.

 

 

The Government specifically considered, during its consultation on the changes, whether access to Charging Orders should be restricted. They concluded that there were sound policy and economic reasons for not doing so, including the continued availability of unsecured credit at relatively low interest rates and more flexibility for debtors to arrange repayment proposals."

 

Edited December 13, 2008 by supasnooper
formatting

[supasnooper]

I take it that on the 23rd October was for the CCJ hearing ?

[supasnooper]

You need to send the Final Charging Order objection letter to the Court and to their solicitors.

 

Head the letter with the claim no. and claimant v defendant details and list your points individually.

[supasnooper]

Be sure to note some of the points listed by Von Greenbach in post #16.

 

If you can go through the points listed on the National Debtline link I posted earlier and have a valid point on any of the statements then list them in your letter to the Courts.

 

The salient point of your defence would be the Mercantile Credit Co Ltd v Ellis 1987.

 

I don't wish to pry into your current financial situation but if you have any other debts that you are repaying; or are using a Debt Management Plan then further additions to your appeal come into play.

[supasnooper]

Hi there,

 

Do you have any further credit\loan debts that are being paid or on a Debt management Plan ?

[supasnooper]

Yes I have other judgments which are being paid on a monthly basis.

 

 

Make sure at the hearing that you ask if ALL of your other creditors have been informed of the Charging Order request and hearing.

The reason being is that the creditor who is seeking to gain the Charging Order could seen to be getting preference. Also, if they haven't notified the other creditors, it is good ground for getting the Interim Charging Order dismissed.

 

Also take along proof of your payments to your other creditors.

 

If you get the Interim Charging Order dismissed, please do make sure you ask the court to order the creditor to remove the Interim Charging Order within 14 days as they may try to step out of their obligations to do so.

[supasnooper]

The default notice looks ok to me even though the solicitors letter states the date of it being 15th May.

 

The default notice is of no consequence now as judgement has already been made and you are not looking to set aside the CCJ which is a completely different matter.

[supasnooper]

As VG has pointed out they Default Notice "may" be defective; the issue for you is the setting aside of the Charging Order.

 

Although you may wish to mention the Default Notice at the Charging Order set-aside hearing, you will get short shrift from the judge as he\she will advise that this should be done at a County Court Judgement set-aside.

 

Have a read of this post where x20 explains about post-judgement issues that you wish you'd known about.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1802785.html

[supasnooper]

Is the Interim Charging Order on the property in Joint Names ?

Edited December 28, 2008 by supasnooper
correction

[supasnooper]

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

[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

[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.

[supasnooper]

Looks like you got a decent judge who made the right decision. If they do appeal I'm sure the judge won't take too kindly to that.

 

Congrats and well done.

[supasnooper]

Congratulations and well done.

 

Your persistance and determination paid off.

 

Hope you are having a celebratory tipple.