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

[hammyhound]

I have spoken to National Debtline again about my case and they say, they have never heard of a judgment forthwith and then a judgment for instalment hearing being made on the same day and that is unusual. Obviously what I have posted for you all is to see is what has happened. I have been informed it depends on what type of Judge I get and regardless of case law if he/she thinks fit to agree the CO then I have lost. Best news I have had all day:(

 

We may as well not have any case law if this what happens.

 

Better still don't bother with the initial court proceedings the Claimant can just apply for a CO straight away.

 

HH

[underdog13]

It's not over yet, HH. Chin up. Wishing you the very best of luck:)

 

Don't forget, if the judge makes a decision based on an error in law, you can apply for an appeal.

[hammyhound]

Thanks for your support Underdog. I know will feel better tomorrow. National Debtline seem to think that because the debt will take forever and a day to pay off that's probably going to be the Claimant's defence but at the moment I can see the debt coming down as interest was only payable until judgment. Now National Debtline have told me that if they get the CO they can charge 8% pa and because that means my instalments would never pay the debt off the Claimants can then apply to vary the order and make me pay more, it just gets better.

 

HH

[Von Greenbach]

I have spoken to National Debtline again about my case and they say, they have never heard of a judgment forthwith and then a judgment for instalment hearing being made on the same day and that is unusual. Obviously what I have posted for you all is to see is what has happened. I have been informed it depends on what type of Judge I get and regardless of case law if he/she thinks fit to agree the CO then I have lost. Best news I have had all day:(

 

We may as well not have any case law if this what happens.

 

Better still don't bother with the initial court proceedings the Claimant can just apply for a CO straight away.

 

HH

Hi HH

 

I sympathise with you, I really do, as you know, I've been there.

 

As for NDL, they tried telling me that a creditor can issue a new DN even AFTER termination on an agreement

 

ah well, as they say in the camp, hi di hi

 

You'll get there HH, some issues take a little longer than others.

[DocH]

Now National Debtline have told me that if they get the CO they can charge 8% pa and because that means my instalments would never pay the debt off the Claimants can then apply to vary the order and make me pay more, it just gets better.

 

HH

 

Hi HH, don't let the barstewards grind you down!

 

I'm intrigued by their statement that the claimant can apply an 8% pa charge. Did they quote any legislation to support this?

 

Sure the claimants can apply to vary the order, but what would be the point of that if your financial circumstances hadn't changed and the claimant can't make you pay more without the judges agreement. No judge is going to order you to pay more than you can afford.

 

You've probably read the NDL factsheet on Judgement Interest, but if you haven't it's here.

[underdog13]

I'm pretty sure that they can't charge post contractual interest unless it's written into the contract - think it's refered to as s69.

[DocH]

I'm pretty sure that they can't charge post contractual interest unless it's written into the contract - think it's refered to as s69.

 

Hi UD,

 

That's my understanding as well, which is why I'm kind of intrigued by NDL's statement.

[underdog13]

Interesting reading DocH; not only do they have to have the right to charge s69 interest written into the contract, but they also have to state that they will charge interest in the DN - of course half of us never receive a DN and they usually can't produce a copy of it....

[hammyhound]

This is what NDL say on their website.

 

If you have a county court judgment that was made before 1 October 2008 then the rules on how your creditor may add interest to the debt are not very clear. Some credit agreements allow a creditor to add contractual interest on to the county court judgment. There must be a term in your credit agreement that states that the creditor is allowed to add interest after the judgment is made.

 

Now I assume that as my judgment forthwith/judgment for instalment hearing was made on 24th September this applies to me.

 

The judgment does say "interest to judgment" so I can only assume no interest can be applied thereafter although the solicitors disagree and says that interest will accrue at a rate of 34.9% per annum:-x

 

I wish I could get hold of the bloody agreement. I have requested it from the solicitors who say it might take time to retrieve it as it will be located in a third party storage.

 

This was my argument in the first place. The solicitors were charging 34.9%. How did they know to charge this when they haven't even got the agreement in their possession:-x

 

HH

[DocH]

I wish I could get hold of the bloody agreement. I have requested it from the solicitors who say it might take time to retrieve it as it will be located in a third party storage.

 

So no agreement was produced in court for your hearing?

 

This was my argument in the first place. The solicitors were charging 34.9%. How did they know to charge this when they haven't even got the agreement in their possession:-x

 

HH

 

A case of pick a figure, any figure will do!

 

UD/HH You also need to add this into the mix as well:

 

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

[hammyhound]

Thanks for your reply Doc.

 

No agreement or default notice was attached to the POC so I dont really know what interest should be charged.

 

Will have a read at posted you posted thanks.

 

I must admit I am going off topic from my thread, I should get back on it the urgency is to get the charging order dismissed and when I have done that possibly make an application to the court for the Claimant to produce the documents if I can.

 

HH

[hammyhound]

Thanks Doc

 

Just had a read

 

This is the bit that intrigued me and is also on the NDL website.

 

(3) Interest shall not be payable under this Order where the relevant judgment

 

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

 

So they cant charge post judgment then.

 

Only interest up to judgment I would say.

 

Thanks

 

HH

[hitchy1]

Hello,

 

I have a judgment order which I am paying in instalments and have prove of these payments.

 

I together with OH receive an application for charging order together with interim charging order.

 

On looking at the paperwork CL Finance Solicitors made an application on 10th November which was heard at court (I did not receive a copy of this application) which was heard before a Judge.

 

The paperwork is headed Interim Charging Order

 

It was ordered that the interest of the judgment debtor (me) in the asset described in the schedule stand charged with payment of £.... together with any further interest becoming due and the costs of the application.

 

The application will be heard at .............

 

The other paperwork is Application for charging Order on property.

 

The judgment or order required the judgment debtor to pay ....... (including any costs and interest)

 

The judgment or order did not provide for payment by instalments.

 

The rest just mentions our home details and a copy of the land registry entries.

 

Can anybody help, is it worth taking it to a solicitor.

 

We did not receive a copy of the application the Claimants made which was heard on 10th November and why are they doing this when the judgment stated paying by instalments which I have done and which I have receipts.

 

Thanks

 

On the second page

 

I went through a similar process i was paying by instalments but the Interim charging order is granted prior to the second hearing which you should get notice of.

At that hearing you can make an application to the court to pay by instalments and it is likely to be accepted, but unless you have some very good legal evidence the judge will also grant the charging order. This is to ensure that one day they get their money back.

It was only recently that i realised i did not see any documentation relating to the debt, and i am now considering asking to see the original signed agreement in the hope that they dont have it.

[hammyhound]

I went through a similar process i was paying by instalments but the Interim charging order is granted prior to the second hearing which you should get notice of.

At that hearing you can make an application to the court to pay by instalments and it is likely to be accepted, but unless you have some very good legal evidence the judge will also grant the charging order. This is to ensure that one day they get their money back.

It was only recently that i realised i did not see any documentation relating to the debt, and i am now considering asking to see the original signed agreement in the hope that they dont have it.

 

Now I am really confused.

 

The Claimant's application was made after my instalment order not before.

 

What was the reason the Judge allowed the Charging Order to take place in your case.

 

HH

[DocH]

Thanks Doc

 

Just had a read

 

This is the bit that intrigued me and is also on the NDL website.

 

(3) Interest shall not be payable under this Order where the relevant judgment

 

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

 

So they cant charge post judgment then.

 

Only interest up to judgment I would say.

 

Thanks

 

HH

 

Hi HH,

 

Exactly! Except where an agreement has within the terms a clause that allows them to apply post contractual interest, and it can only be the interest rate that was applied pre-judgement, not some figure they pluck from thin air. As I understand it, very few agreements have this clause written into the terms. So you really do need to see a copy of that agreement.

[hammyhound]

So you really do need to see a copy of that agreement.

 

and that's when they get around to finding it!!

 

HH

[hitchy1]

Now I am really confused.

 

The Claimant's application was made after my instalment order not before.

 

What was the reason the Judge allowed the Charging Order to take place in your case.

 

HH

 

I went through the whole process of explaining the situation and showing that i had been making regular agreed payments which had not defaulted. Also explained that he was favouring one creditor over another and that i would also be in a negative equity situation. The creditor explained that they were happy for me to continue making monthly payments and that the charging order was merely as security for them. The judge agreed the order and the payments, and i mentioned the issue of annual interest. He said there was no mention of that by the solicitor and ordered no additional interest to be added although i had to pay their costs which were a few hundred quid. Not sure if any of this helps you, just stating what happened in my case. I did mention to the judge that if they enforced the order i would have to sell my property and that i had children. He responded to me that he would not allow this to happen.

[hammyhound]

Hitchy

 

Are you saying that despite having an instalment order in place before the application for the charging order the Judge still allowed the charging order to go ahead.

 

HH

[hitchy1]

Hitchy

 

Are you saying that despite having an instalment order in place before the application for the charging order the Judge still allowed the charging order to go ahead.

 

HH

 

 

Yes , thats exactly what happened. I had never missed an agreed payment and have not done so since. The judge pointed out that the law entitled them to claim a charging order and they specifically put in writing that it was as security and that as long as i maintain payment they would not enforce it.

To be honest i am now in negative equity and if i failed to pay they would have little chance of getting any money back as the mortgage company would get theirs first.

I think there is an awful lot of advice on these forums but i wish in hindsight i could have taken some legal advice it may have helped. I did compose what i thought was a good defence based on advice found on the internet,after i had finished reading it to the judge and explaining my situation he said 'thankyou for being so eloquent i wish everyone who came through these doors behaved in such a way' and then propmptly granted the charging order............. Great:rolleyes:

[hammyhound]

Hitchy sorry to hear what happened but I according to legal advice I have received a claimant cannot apply for a charging order when an instalment order is already in place. The solicitors have attempted to deceive me by saying their application was made before my instalment hearing but that has turned out to be incorrect. This is why I wish to defend and not only that I feel their costs of the application of £700 are totally unreasonable.

 

HH

[hitchy1]

Hi, i really wish you luck and if you are successful let me know as i may try and get the matter back in court. I can provide evidence that i have never missed a payment.

[hammyhound]

Update Caggers.

 

Today was my day in court, very nervous.

 

Would like to just make a point before I start, after the adjourned hearing in January I did not receive any paperwork from the court for the date of the next hearing so I rang the court in February to be told it was listed for today - this is important to note as my post goes on.

 

On arrival in court checked whether other side have turned up - no.

 

Goes in to see the judge and explains that I had sent my statement by recorded delivery to both the court and to the solicitors last week. He had received it and was looking through it. Had to explain the whole situation again.

 

He then tells me that this morning the court had received a fax from the solicitors saying that could they adjourn the hearing as they have not had sufficient time to notify all interested parties!!!!

 

I told him that I had not received any correspondence from the solicitors or the court about the hearing but I had telephoned early February to be told of the hearing date.

 

He said he was really confused as if the solicitors did not know about the hearing why had they sent a fax this morning.

 

I told the judge that so far as I was away I had received all the documentation that was required for a charging order and so had OH.

 

 

The reason he says he asked me this was because if he dismisses it is likely that the other side would appeal.

 

He then said he would dismiss their application with an order for costs £50.

 

Anyway as far as I can see I have won - no doubt the other side will appeal - but apparently they only have 5 days in which to do it.

 

Would love to be working in their offices over the next few days trying to explain to their client that they ballsed up.

 

I will certainly come back to update if I hear anything but thanks to everyone for their support and assistance.

[underdog13]

Congratulations, HH. Really pleased for you. Fingers crossed they fail to appeal, as well:)

Edited March 20, 2009 by underdog13
typo

[hammyhound]

Thanks Underdog, it really hasnt hit me yet.

 

I know you were one of the Caggers that helped me originally so thanks again.

 

HH

[Von Greenbach]

Well done HH, lets hope they don't appeal, but tbh, nothing surprises me with these vultures.