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    • Hi Bank Fodder  Thankyou for taking the time to reply in such detail  We always go above and beyond for all our customers and this is the first customer in over 2000 cars  that we have been unfortunately unable to keep happy  If you dont mind i would just like to clarify a few points  1: Section 75 covers you for the entire purchase amount even if you only pay a £10 deposit with the card We actively encourage every customer to use a card for there deposit for just this reason  2: We put a six month fully comprehensive warranty on nearly every car we sell which you can use at any vat registered garage so nobody needs to bring a car back 150 miles  3: The initial £150 was more than fair, we pay £180 inc vat to have a bonnet painted please feel free to contact our bodyshop GT autobody and paint solutions 07792728174 should we be required to go to small claims i can provide bank statements and invoices going back 5 years to collaborate this if necessary  4: If the car did need to come back here for any reason we have a fully insured loan car which is completely free of charge and even comes with fuel 5: When claire sent the photos we counted 14 stone chips in total she has zoomed in so they look huge when in fact they are minor and as she has admitted on here (difficult to spot in sunlight)  6: We are not in fact in breach of consumer law, in fact we are far from it, Consumer law allows for the car to be in a fair condition allowing for wear and tear relating to age and mileage, we didnt hide the stone chips we openly pointed them out so how can we be in breach?  7: Claire asked for £150 i gave her £150 8: Claire asked for a bigger contribution i offered a bigger contribution.  9: Claire changed her mind again and decided she wanted a brand new bonnet payed for exclusively by me at 3 times the price it would normally cost me without making a contribution herself, add to this the fact that her first email was blackmail at best and i kept my kool and replied respectfully as we have throughout  Im sorry but thats were we draw the line  9: I didnt post every email as there are over 30 of them 😳 10: For completeness when we spoke to the AA mediation service and asked them what they would like us to do they informed us we were under no legal obligation to do anything, there opinion was that we had already gone above and beyond what was necessary under consumer rights.  Personally at this stage we just want to refund her in full and have our car back  Sincerely  Mark  Gem Cars Ltd 
    • Hi dx #4 amended I will get this sent tomorrow if it’s ok?   any advice will be welcome 🙏    In The county court AT XXXXX CLAIM NO: BETWEEN: XXXXXXXXXXXXXXXX Claimant - -and- XXXXXXXXXXXXXXXXX Defendant  WITNESS STATEMANT OF XXXXXXXXXX    I.XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-   1.It is admitted the defendant entering into a short term Pay Day Loan agreement for the sum of £400.00 plus 4 months interest totalling £600.48 from Moneyboat.co.uk.   2.It is denied that I defaulted on an “agreement”, as the Defendant has made a first payment of £150.13  towards the amount agreed to be repaid which was not been deducted or taken into consideration and the claimant continued to demand the full total amount from the agreement stated in #1. The claimant rejected email correspondence of a formal request for assistance during the ongoing Covid pandemic pursuant to the UK Government Legislation at which time I was placed on Furlough by my Employer and worried that it would be difficult to make a payment due to my financial situation.The claimant offered a confusing payment alternative that did not reflect the true status of my loan. exhibit 1    3. It is denied I failed to abide by the Terms and Conditions of the agreement as at no point did the claimant contact myself to offer assistance to make alternative payments to which I could repay.   4. It is admitted that the claimant was issued a CCA request asking to supply me with a true copy of the alleged agreement they referred to. This is my right under their obligation to supply a copy of the agreement under the legislation contained within Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) in on the 25/11/2020   Namely to show how I entered into an agreement Show how the claimant quantified the amount claimed   a £1 postal order also attached to the CCA request to which the claimant informed me by email that the £1 postal order was then used as payment towards the loan amount. Exhibit 2   5.The Claimant has not served a Default Notice pursuant to sec87 of the CCA1974.   Need for default notice.   (1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a) to terminate the agreement, or (b) to demand earlier payment of any sum   6. As per Civil Procedure Rule 16.5(4), the Claimant has failed to prove the allegation that the full correct amount of money is owed.   7. My defence stated that the claimant failed to serve notice and it is denied that the Claimant is entitled to the relief claimed or any relief entitled.   I believe that the facts stated in this Witness Statement are true.   Signed ……………….   Dated on the day ……………….     Thanks G
    • Thanks for your explanation. That makes much more sense now.    I've been doing exactly what you were saying since I realised a dispute was likely to occur. I've always been civil and impeccable in my behaviour and approach.   The company has destroyed their reputation and image through their conduct with me which has put me in a good position thus far.   I was just concerned that you didn't understand the full picture and were telling me to keep giving them more attempts because you were trying to help me solve this dispute.   I'll send that email to them tonight and update you with their response.   I've realised a long time back that small claim court is won by not just those who are in the right, but those who are reasonable, fair and calculated in their approach.   Thanks
    • Well if you are still minded to hang onto it then I would put it in for a full proper check and a new MOT. But I would get it done quickly    
    • Bankfodder, I think that there is a typo, you surely mean ' reading' up on etc
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A guide to Charging Orders & Orders for Sale


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Charging Orders

 

A Charging Order is an order which secures a money judgment against the judgment debtor’s property or interest in a property. Creditors usually apply for Charging Orders as they are a reasonably easy method of ensuring the likelihood of them receiving their money back at some point in the future. Some creditors have a policy of applying for Charging Orders as a matter of course, some will apply as the debtor’s debt is large or their total indebtedness is high. Some will try the Charging Order route if they are offered a nominal instalment amount by the debtor, or that it will take many years to clear the debt.

 

Charging Orders have many advantages for the creditor, for a start they can turn an unsecured debt into a secured one, this could put extra pressure on the debtor to treat the debt with a preference. Statutory interest will run on the order, unless it is below £5,000 or regulated by The Consumer Credit Act. Some creditors may argue that a Charging Order will secure contractual interest. There is no time limit to apply for an order and the process can start in the creditor’s chosen county court. The order would never be included within an Individual Voluntary Agreement, it is a debt which does not prove in a bankruptcy although the creditor could waive the Charging Order and apply to make the debtor bankrupt.

 

I must stress that on some occasions securing a charge against a property isn’t necessarily a bad thing at all, providing conditions are attached to it. If a debtor is unable to make any payments against a debt they may wish to consider offering the creditor a voluntary charge. The same might apply if the debtor is terminally ill or a single house owner with no heirs. The great thing with a voluntary charge is that it might be easy to ensure conditions are attached to the charge, these conditions could be that the creditor is not allowed to request an order for sale and also that all interest is frozen when the charge is applied.

The Charging Order Process

 

The process follows CPR 73.3: Application for a Charging Order.

 

1.The creditor successfully obtains a County Court Judgment (CCJ)

2.There is no instalment order granted / The debtor defaults on the instalment order

3.The creditor applies for the Interim Charging Order (no hearing) [n379]

4.Interim Charging Order made [n86]

5.Hearing for the Final Charging Order (Can be transferred to debtor’s local court)

6.Interim Order discharged or Final Charging Order Granted [n87]

 

The creditor could then start the process for an Order for Sale, this is very rare as usually the creditor is happy to sit on the Charging Order. If the creditor wishes to apply for an Order for Sale, there would be another hearing.

When can a creditor apply for a Charging Order?

 

First and foremost, a creditor would have had to have obtained a money judgment against the debtor. If the judgment is ‘forthwith’, the demand is for immediate payment of the debt. In theory, the debt would become due and payable at once – a creditor could apply for the Charging Order as soon as it was granted.

 

Section 1: The Charging Orders Act 1979:

 

Where, under a judgment or order of the High Court or a county court, a person (the “debtor”) is required to pay a sum of money to another person (the “creditor”) then, for the purpose of enforcing that judgment or order, the appropriate court may make an order in accordance with the provisions of this Act imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order.

 

If there is an instalment order in place, a creditor would not be able to apply for a Charging Order.

 

Section 86(1) The County Courts Act 1984:

 

Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.

 

This was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987. It was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment. It should be noted, however, 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.

 

There are various tactics which a creditor will use to try and obtain the Interim Order, they will try their best not to allow the court grant an instalment order on a CCJ. If a debtor wishes to admit the claim and request instalments, the creditor may argue the instalments are unacceptable and that a Charging Order is more appropriate. A creditor might also seek a re-determination if a court accepts a debtor’s offer of instalments. Some creditors have even been known to ask a district judge to consider a Time Order to change the judgment to forthwith.

How to try and stop the Interim Charging Order being applied for

 

Charging orders are notoriously difficult to stop, District Judges are usually reluctant to turn down the creditor’s application. Creditors do not usually opponse another creditor’s application either. The Charging Order process isn’t automatically transferred to the debtor’s local court, the would have to request this (possibly at a cost).

 

When a County Court claim form is received and a debtor wishes to make an admission it is imperitive that a reasonable offer of payment is made. If it is accepted then ensure that the payment is made on time each month. Never offer a nil payment. It is important to ensure that the N9A admission form is sent within time to the correct address on the claim form. It may be worth considering sending the form recorded delivery, send a copy to both the creditor and the court.

What if you have been served with an Interim Charging Order

 

The first thing to do is to check to see whether the correct process has been followed. Always check to ensure that the creditor is actually chasing the right person! At this point we will assume that any potential challenge to the legality of the Judgment has been carried out (CCA request, Challenging default notices etc). It is worth checking to ensure that the judgment has been entered correctly, did the N30 form outline the determination process correctly? If it didn’t you could consider a set aside. It is worth checking the day the Interim order was applied for to see if the CCJ was actually in default on that day. If an application to vary the terms of the CCJ has been sent to the court prior to the Interim Order request ensure that the court considers the variation before considering the Interim Order. The creditor must send a copy of the Interim Charging Order and Affidavit to all those with a legal and/or beneficial interest in the property, for example the mortgage lender. If this doesn’t occur the hearing will be adjourned.

 

Objections to The Final Charging Order

 

It might be worth seeing if any of your other creditors are willing to object to the Charging Order being made final especially if there are any who are owed significantly more than the original creditor. Alternatively you may well find that you have grounds to object to the charging order being made final. Any arguments that you wish to raise need to be filed with the court and the creditor at least 7 days prior to the Final Charging Order Hearing (CPR 73.8).

 

If there are divorce proceedings pending, the Charging Order hearing will be adjourned pending the outcome of the ancillary proceedings. If you would like to enter into an IVA, the Interim Charging Order would be dropped as an IVA Interim Order would be made.

 

Section 1(5) of The Charging Orders Act 1979 reads:

 

In deciding whether to make a charging order the court shall consider all the circumstances of the case and, in particular, any evidence before it as to—

 

(a) the personal circumstances of the debtor, and

(b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order

 

Some possible arguments which could be used to oppose the Final Charging Order are:

 

- Could there be other methods of enforcement which could be used by the court to enforce the debt?

- If the total indebtedness of the judgment debtor is less than £5,000, could they have an administration order instead?

- Could the creditor have offered a secured loan instead of an unsecured one?

- A recent change in circumstances shows that reasonable repayments can now be made (evidence would be needed)

- All the missed payments have now been paid

- There is little or no equity in the property

- The CCJ is very small compared to the amount of equity

- If the CCJ is for a CCA regulated agreement can the court consider a Time Order instead?

- Granting a Charging Order would unfairly prejudice other creditors who have accepted pro-rata payments

- The debtor is about to go bankrupt or enter into an IVA, the creditor would have an unfair advantage if they were to have their debt secured.

 

If only one owner of the property is liable for the debt:

 

Providing there us no pending divorce proceedings, a husband/wife or any other beneficiary of the home is entitled to make representations as to all the circumstances of the case. They could try and minimise the percentage of the equity of the debtor by showing evidence of:

 

- Contributions towards mortgage payments

- Contributions towards the deposit

- A declaration of trust at the time the property was purchased

 

The Final Hearing

 

The court has the following options

 

- Make the Charging Order final

- Discharge the Interim Order and dismiss the application

- Decide any issues in dispute

- Direct a trial of any such issues

 

Prior to the hearing the Judge would have read any objections, each party will also have the chance to make oral representations at the hearing.

 

The vast majority of Charging Order applications result in the Order being made final. One thing to seriously consider is that if the Order is made final then conditions should be attached to it, these conditions would stop any further enforcement. A popular condition is that further action should not be possible providing an instalment is kept up with. Another popular condition is that no enforcement should be possible until all the children have left home. If no conditions were made at the time of the Final Charging Order hearing, it is possible to vary the terms of the Order via an application on the N245 form.

 

Set Asides & Variations

 

These are dealt with under CPR 73.9

 

You would need to apply to the court which made the original order.

 

Setting aside a Charging order is usually called “Discharging”, this is under s3(5) of the Charging Orders Act. The arguments for discharge must not have been made to the court previously. Sometimes a creditor may wish to discharge their own Charging Order, as an example they may wish to make a debtor bankrupt., they could still issue a statutory demand even though they have a charge in place (s269 Insolvency Act 1986). You can vary the terms of a charging order via form N245.

 

Satisfying the Charging Order

 

If the debt has been paid off, along with all costs, an application can be made to the court for a certificate of satisfaction, this can then be sent to the Land Registry.

 

Interest on Charging Orders

 

Statutory Interest

 

Statutory interest would continue to run whether or not the order specifies it. The N86/87 forms allow ‘any interest’ to be included, this means statutory interest.

 

This doesn’t apply to Consumer Credit Act regulated debts or Charging Orders of debts below £5,000 unless they have been transferred to the High Court for a High Court Charging Order. (The County Court (Interest on Judgment Debts) Order 1991)

 

The judgment would carry statutory interest if it was made on or after July 1st 1991 and the judgment is for at least £5,000.

 

If a judgment has a payment ordered to be made on a specified date or by instalments, no interest will be payable either until that date or, on the amount of any instalment until it falls due.

 

If a judgement carries statutory interest, so will the Charging Order, even if not mentioned within the order itself. [Ezekiel v Orakpo]. S3(4) COA 1979 states that “A Charging Order shall have the like effect and be enforceable in the same courts and in the same manner as an equitable charge”

 

Contractual Interest

 

Many creditors are trying to argue that Charging Orders carry contractual interest after judgment even if the judgment itself doesn’t. There are plenty of arguments against this.

 

** New info for judgments obtained after 1st October 2008 **

 

I've written a blog on the subject here: http://www.consumeractiongroup.co.uk/forum/entry.php?191-Post-judgment-interest-on-CCA-regulated-debts

 

In a nut-shell post judgment interest can no longer be applied to CCA regulated charging orders at all.

- Charging orders and their effect are determined by the Charging Order Act 1979

Section 1 COA says that a Charging Order is made ‘for the purposes of enforcing that judgment or order’ and that the charge is for ‘securing the payment of any money due or to become due under a judgment or order’. Although enforcement of a Charging Order is not execution of a judgment, s1 means that the order and the judgment must be coextensive. Therefore no money can be recovered in excess of what is due or to become due under the judgment.

- Section 3(4) opens with the words ‘Subject to the provisions of this ACT…’ and so unless the interest is due under the judgment or order under the Interest on County Court Judgements Order, it cannot be included in the Charging Order

- The amount of interest depends on the amount of interest due on the judgment.

- Some CCA regulated agreement judgements do not have an interest post-judgment clause.

- Even if there is an interest post-judgement clause on a CCA regulated agreement the lender still cannot enforce these rights by levying contractual interest – unless that rate forms part of the judgment, the lender would have to bring seperated action for the interest. (Supreme Court Practice 1999 Ed. Para 42/1/24 and Re European Central Railway 1877 4 Ch.D.33

- The claimant may try to use s3(4) COA to claim that an equitable charge attracts interest on the principle sum. However, the rate of interest payable under an equitable charge depends on its terms. In the case of a CO, the judgment debt would be in essence the princinple sum. The rate payable on this sum is prescribed by statute or set out in the judgment. S3(4) wouldn’t justify applying a different rate.

 

Orders for sale

 

An Order for sale is the way to enforce a Charging Order, it would allows the claimant the right to take possession of the property and to sell it so that they can recover the monies within their charge. The process is applied via Part 73.10 CPR. For jointly owned property the court would also have to consider the Trust of Land and Appointment if Trustees Act 1996 (TLATA). S15 of TLATA outlines criteria which may give some protection against an Order for Sale. At the end of this piece I’ve outlined the relevant sections of law with additional relevant notes.

Defending an Order for Sale

 

Responding to a claim

 

Under CPR 8.30

 

The defendant must

(a) file an acknowledgment of service in the relevant practice form not more than 14 days after service of the claim form; and

(b) serve the acknowledgment of service on the claimant and any other party.

 

(2) The acknowledgment of service must state –

(a) whether the defendant contests the claim; and

(b) if the defendant seeks a different remedy from that set out in the claim form, what that remedy is.

 

Transferring to the debtor’s local court

 

There is not provision for a transfer. An application court be made under CPR Part 30 Rule 30.3(2)(b), which would give the District Judge discretion to agree to transfer the case on the grounds of fairness or convenience to the debtor.

 

It is vital that all preparation for the hearing has been carried out, check the Affidavit to ensure that the correct details of the Charging Order have been recorded together with outstanding balances, the value of the property and all the information required under PD73.4.3 has been provided. Anyone with a legal or equitable interest in the property has a right to be present, to be represented and to be heard. If there are divorce proceedings then ensure that the solicitor involved in the divorce has been referred to interventionist action can be taken.

 

The Hearing

 

At the hearing the court may do one of four things:

 

- Grant the order for sale

- Adjourn the case on terms

- Make a suspended order on terms

- Dismiss the application

 

If the house is jointly owned the court has the duty and the power to declare what the extent of the debtor(s) beneficial interest is under s14 of The Trusts of Land and Appointment of Trustees Act 1996 (TLATA). Under s15 TLATA the court should pay attention to:

 

- Whether there is sufficient debtor equity in the property for the Charge holder to justify the sale

- The intentions of the persons(s) who created the trust. The property is held in trust for all the beneficiaries by the named legal owner(s); and

The purposes for which the property is held. As an example this could be to provide a home for children as long as they chose to live there or for an elderly relative etc.

- The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his/her home

- The interests of any secured creditor of any beneficiary

 

CPR 73.10 is outlined here:

 

73.10

 

(1) Subject to the provisions of any enactment, the court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order.

(2) A claim for an order for sale under this rule should be made to the court which made the charging order, unless that court does not have jurisdiction to make an order for sale. (A claim under this rule is a proceeding for the enforcement of a charge, and section 23© of the County Courts Act 1984 provides the extent of the county court's jurisdiction to hear and determine such proceedings.)

(3) The claimant must use the Part 8 procedure.

(4) A copy of the charging order must be filed with the claim form.

(5) The claimant's written evidence must include the information required by the relevant practice direction.

 

Practice Direction 73 4.3

 

4.3 The written evidence in support of a claim under rule 73.10 must –

(1) identify the charging order and the property sought to be sold;

(2) state the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim;

(3) verify, so far as known, the debtor's title to the property charged;

(4) state, so far as the claimant is able to identify–

(a) the names and addresses of any other creditors who have a prior charge or other security over the property; and

(b) the amount owed to each such creditor; and

 

(5) give an estimate of the price which would be obtained on sale of the property.

(6) if the claim relates to land, give details of every person who to the best of the claimant's knowledge is in possession of the property; and

(7) if the claim relates to residential property –

(a) state whether –

(i) a land charge of Class F; or

(ii) a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section,

 

has been registered; and

 

(b) if so, state –

(i) on whose behalf the land charge or notice has been registered; and

(ii) that the claimant will serve notice of the claim on that person.

 

Practice Direction 73 4.4

 

4.4 The claimant must take all reasonable steps to obtain the information required by paragraph 4.3(4) before issuing the claim.

 

The Trusts of Land and Appointment of Trustees Act 1996 (TLATA)

 

TLATA only applies to jointly owned property (Wells v Pickering HC, 17th May 2002). It was determined that the considerations of s14 & s15 TLATA to protect the welfare of children do not apply to solely owned property.

 

14. Applications for order.

(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.

(2) On an application for an order under this section the court may make any such order:

(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b) declaring the nature or extent of a person’s interest in property subject to the trust, as the court thinks fit.

 

15. Matters relevant in determining applications.

(1) The matters to which the court is to have regard in determining an application for an order under section 14 include:

(a) the intentions of the person or persons (if any) who created the trust,

(b) the purposes for which the property subject to the trust is held,

© the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and

(d) the interests of any secured creditor of any beneficiary.

(2) In the case of an application relating to the exercise in relation to any land of the powers conferred on the trustees by section 13, the matters to which the court is to have regard also include the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.

(3) In the case of any other application, other than one relating to the exercise of the power mentioned in section 6(2), the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests).

 

County Courts have jurisdiction to determine an application under CPR 73.10 only if the amount owing under the charge does not exceed the County Court Limit, currently £30,000. If the amount is higher the application must be made to the Chancery Division of the High Court.

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A useful step-by-step guide to CCJ removal - Removal of CCJ's - Step by step guide to the process

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Fantastic work... one query..

 

Objections to The Final Charging Order

 

It might be worth seeing if any of your other creditors are willing to object to the Charging Order being made final especially if there are any who are owed significantly more than the original creditor. Alternatively you may well find that you have grounds to object to the charging order being made final. Any arguments that you wish to raise need to be filed with the court and the creditor at least 7 days prior to the Final Charging Order Hearing (CPR 73.:cool:.

 

Would it be advisable to suggest to the other creditors that this now being a possibly secured debt means you would have to review the position on pro-rata payments to ensure this debt gets paid off quicker unless it was objected to?

 

S.

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Certainly, although it's a bit of a double edged sword. For sure it's now a priority debt and needs to be treated as such. However, if you let the other creditors know they could think about trying to go down the CCJ+Charging Order route themselves. Tread carefully I guess.

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if an Interim charging order is registered at LR but this was never made final by the court, can this be removed in any way? The Interim order was done in 2003 but nothing after that.

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if an Interim charging order is registered at LR but this was never made final by the court, can this be removed in any way? The Interim order was done in 2003 but nothing after that.

 

This is a great question. I'm just off home so may need to research tomorrow. Are there instalments granted by the court on the judgment?

If the creditor has forgotten about the order I wonder if doing anything with the interim would 'remind' them of the judgment and get them to 'awaken' the process.

 

I'm going to reseach this first thing for you. Have you checked with the court to ensure that no further action was taken?

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no action since the judgment and no installment plan.

 

the bank did not accept an offer of 50% in full and final and nothing more was done.

 

it would be statute barred if it wasn't for the CCJ, which is due to come off next month (6 years).

 

Sit back until the six years period is over. Although there is no Limitation argument the rules of the court are VERY clear that enforcement action should be brought within six years and that only exceptional circumstances would allow a creditor to enforce after that time. There is plenty of case law that goes in favour of within six years.

 

I'm back in the office today, will try and research today although we are MAD busy at the mo!

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no action since the judgment and no installment plan.

 

the bank did not accept an offer of 50% in full and final and nothing more was done.

 

it would be statute barred if it wasn't for the CCJ, which is due to come off next month (6 years).

 

I was under the impression (from what I've read I hasten to say...) that once an interim charging order has been placed the court after agreeing to the placement will issue a hearing date for the full and finalised order... I didnt think it was up to the claimant to push this through unlike other enforcements.

 

It might be worth you searching on t'internet for any info regarding interim charges.

 

S.

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I was under the impression (from what I've read I hasten to say...) that once an interim charging order has been placed the court after agreeing to the placement will issue a hearing date for the full and finalised order... I didnt think it was up to the claimant to push this through unlike other enforcements.

 

This is my understanding too. It may be worth contacting the court to find out if this ever happened.

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Here is the CPR section:

 

Interim charging order73.4(1) An application for a charging order will initially be dealt with by a judge without a hearing.

(2) The judge may make an order (an ‘interim charging order’) –

(a) imposing a charge over the judgment debtor's interest in the asset to which the application relates; and

(b) fixing a hearing to consider whether to make a final charging order as provided by rule 73.8(2)(a).

 

 

There really should have been a hearing.... Strange!!!

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Sit back until the six years period is over. Although there is no Limitation argument the rules of the court are VERY clear that enforcement action should be brought within six years and that only exceptional circumstances would allow a creditor to enforce after that time. There is plenty of case law that goes in favour of within six years.

 

So the CCJ comes off next month (it was issued in July 2003), but the Interim charge will still be registered at the Land Registry.

 

The LR say it will only be removed if the debt has been paid and to provide proof of this and that it can stay on indefinately, i.e. there is no need to make it final. The court also say to pay the debt and have it removed.

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enforcement action should be brought within six years and that only exceptional circumstances would allow a creditor to enforce after that time. There is plenty of case law that goes in favour of within six years.

 

So if a debt is not paid but the CCJ comes off after 6 years, the creditor is not entitled to any money? I thought the debt never disappears (or becomes statute barred) because it has already been enforced with the judgment.

 

Do you have any links to the relevant case law?

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So the CCJ comes off next month (it was issued in July 2003), but the Interim charge will still be registered at the Land Registry.

 

The LR say it will only be removed if the debt has been paid and to provide proof of this and that it can stay on indefinately, i.e. there is no need to make it final. The court also say to pay the debt and have it removed.

 

Check with the court to see what happened to the application, if it was dismissed I think you would have grounds to get the caution removed at the LR.

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So if a debt is not paid but the CCJ comes off after 6 years, the creditor is not entitled to any money? I thought the debt never disappears (or becomes statute barred) because it has already been enforced with the judgment.

 

Do you have any links to the relevant case law?

 

The CCJ will fall off your credit file after six years, but the judgment remains and it would do until it is paid. It cannot become statute barred as (legal) action has already been brought.

 

The court system seems to feel that 6 years is long enough for a creditor to try for enforcement and it would be only due to exceptional circumstances that they would allow leave for enforcement after this time. Most forms of enforcement would require an additional hearing where the time delay could be raised. The only exception to this is the use of bailiffs but CPR Schedule 2 CCR Order 26, Rule 5 states that a creditor would need the court's permission to go down this route.

 

In the cases of Duer V Frazer [2001] 1 All ER 249 and Patel V Singh [2002] EWCA Civ 1938 both requests to enforcment after 6 years were refused.

 

If a creditor has previously attempted enforcement and then tries again after the six years it may get allowed - this was confirmed in the case of The Society of Lloyd's v Longtin [2005] EWHC 2492 (Comm)

 

Hope this clarifies that point :)

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Hope this clarifies that point :)

 

Nope, not yet.

 

It is still not clear what can be done if a creditor hasn't chased a debt since judgment and it then falls off after 6 years :confused:

 

Since it never seems to become statute barred, they could potentially chase it after this time, maybe after 10 years or 20 years (the debtor is much older and won't fight back)? Where is the limit?

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Nope, not yet.

 

It is still not clear what can be done if a creditor hasn't chased a debt since judgment and it then falls off after 6 years :confused:

 

Since it never seems to become statute barred, they could potentially chase it after this time, maybe after 10 years or 20 years (the debtor is much older and won't fight back)? Where is the limit?

 

Well anyone can chase any debt forever. Just because a debt is statute barred it doesn't stop it being able to be chased. Of course it would be an unfair practice for a creditor to do this but it's not illegal.

 

If a creditor wishes to try and enforce a judgment after six years they will need to have a damn good reason why!

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The Final Hearing

The court has the following options

 

- Make the Charging Order final

- Discharge the Interim Order and dismiss the application

- Decide any issues in dispute

- Direct a trial of any such issues

I've not been around for a while due to my mental health issues, however, we now have a hearing date of next month for our Interim Charging Order to be made final, I’m facing a DJ who sees debtor written across their head, I doubt there’s anything further I can do to prevent the Interim Charging Order being made final.

 

Couple of points:

 

It was an initial forthwith judgement.

 

Pro rota payments via PP have been made for 18 months

 

Debt is in individual name

 

Joint mortgage

 

Mortgage has always been paid from OH bank a/c.

 

OH submitted objection to CO at my set aside appeal but DJ being biased ignored it.

 

Were on a DMP, I’m wondering whether to contact PP and re arrange lower pro rota payments to my other creditors in order to allow more money to this creditor so the CO to be cleared sooner.

 

tbh, I’m drained with it all, but will continue to fight if there are any worthwhile pointers.

Edited by Von Greenbach
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Got some more info ...

 

A hearing for the Final charging order was in Oct 2003, a few months after the Interim order, but i wasn't aware of this and neither has the Interim order been made final at the LR.

 

The court will send a copy of the judgment but say they cannot send anything for the Interim and Final charging order because the file has been destroyed. Doesn't the '6 year' rule apply to courts and what about Data Protection etc?

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> hi,

> my daughter is challenging an existing charging order at present, she has

> CCA'd RBS together with a S.A.R. both of which has been ignored: as they

> presumably don't have one. she has the forms from the court: she was never given the opportunity to make payments through a CCJ it looks like RBS skated round this procedure.but what and or where should she go from here??? any advice would be grateful cheers.

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Did you know that you can actually loose your home as a result of getting a charging order taken out against you over unsecured debt for as little as £1000. That would be an extreme case but once a charging order is in place, the creditor has the legal power to commence proceeding against you which could result in you loosing your home.

Charging Orders

 

A Charging Order is a way of enforcing a previously unsecured debt by securing it against a debtor’s property. The charge will be the amount that is owed by the debtor.

Since 2000 there has been a colossal 722% rise in the number of Charging Order applications by unsecured creditors (CAB 25/6/2009).

 

Stop this – This is grossly unfair and creditors are now running to the courts to seek charging orders to protect themselves. You need to protect you -

 

 

Please sign this petition - time is running out -

 

http://petitions.number10.gov.uk/Charging-Orders/

 

The law need to be changed to stop this practice. Unsecured Debt when taken out is exactly that and the risk is reflected in the interest rate charged. Creditors cannot be allowed to have it both ways –

Protect your home Stop this unfair practice and sign this petition today - we can do this together.

Edited by Murphy69
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