A guide to Charging Orders & Orders for Sale

[frettful38]

Thank you so much for your advice Ganymede. My OH has never missed any payments, in fact he set a direct debit up and is paying regular as clock work.

 

I do have very strong grounds to dispute as I am ill and on IS and DLA and as me and OH are separated I am paying for everything in the house from the mortgage to the bills etc etc. I suffered traumatically years ago when my OH went bankrupt and I had to remortgage to pay off the trustee in bankruptcy which left me very very ill.

 

I do not want history to repeat itself. Now that I am a little older and wiser I want to do all I can if HMRC take things that far as there is no way that I want another charging order on my house through no fault or debt of my own. My OH has/is very irresponsible and that is the main reason I am in the mess I am in today.......but slowly and surely I trying to sort things and my life out and I do not need any more walls falling down on me.

 

I know that HMRC have messed my OH's tax debt up severely and he is trying to sort this matter out but HMRC are full of so many blunders that not even this government can sort them out properly let alone the little guy who lives down the bottom of the road.

 

I will wait and see what happens and in the meantime I thank you again for advice.

[regan11]

Thanks for your reply Shadow. They basically just say CPR rules of disclosure. I have my own thread SAR to Solicitors in the legal issues section. If you'd care to hve a look I' d be grateful. Thanks

[Ganymede]

 

I do have very strong grounds to dispute as I am ill and on IS and DLA and as me and OH are separated I am paying for everything in the house from the mortgage to the bills etc etc. I suffered traumatically years ago when my OH went bankrupt and I had to remortgage to pay off the trustee in bankruptcy which left me very very ill.

 

 

They are very emotive reasons for disputing a charging order and I feel sorry for you but they are not strong enough legal arguments to prevent a C/O if the case gets that far...

[frettful38]

They are very emotive reasons for disputing a charging order and I feel sorry for you but they are not strong enough legal arguments to prevent a C/O if the case gets that far...

 

Oh dear, any ideas or advice on what strong points are please Ganymede?

[wish_i_had_a_time_machine]

Hi regarding charging orders. Does a married partner that is not on the mortgage have 50% entitlement to the equity that a DCA is trying to put a charge on if the debt is solely in my name

Thanks

[Ganymede]

Hi regarding charging orders. Does a married partner that is not on the mortgage have 50% entitlement to the equity that a DCA is trying to put a charge on if the debt is solely in my name

Thanks

 

No, only if they are registered on the title as a co-proprietor.

[Mydogsawestie]

Thanks for your reply Shadow. They basically just say CPR rules of disclosure. I have my own thread SAR to Solicitors in the legal issues section. If you'd care to hve a look I' d be grateful. Thanks

 

I'd thought it would have been up to a judge should that info need to be requested - the cheeky blighters!!!

[the_shadow]

I'd thought it would have been up to a judge should that info need to be requested - the cheeky blighters!!!

 

Hmm not just that but if they are going on the pre disclosure route under CPR31.16 then after the recent ruling for Barclaycard they will need to ensure they meet the requirements of pre-disclosure or could suffer a large costs order against them. I'll take a look at the thread this evening Regan.

 

S.

[meursault22]

Agree... possibly a complaint to the parliamentary ombudsman

 

S.

 

Nothing is as easy as it seems.

Just to recap, this is about the charging order being made final at the Land Registry almost a week before the final charging order hearing

 

To complain to the Parliamentary Ombudsman, I need my local MP to get involved and he is refusing, and insisting that what I really need to

do is complain to the Office for Judicial Complaints.

I've stated to my MP that I don't want to complain about the judge's behaviour, but about a miscarriage of justice by the charging order being

made final before the hearing took place, but he won't have it ! Any more suggestions?

[magirose]

Hello, I’m sorry for crashing in here and bringing my post here but I need some help with my CO/CCJ situation and have posted it on the site but not getting any response. I would appreciate if someone can help me here.

I can't actually paste the link to my post as I get an error message saying I need a post count up to 20 to do this. So I have copied and pasted it below. It's in Legal Issues titled MBNA/Opitima Legal - Charging Order - Set Aside CCJ. Thanks.

 

 

Background

I passed my MBNA credit card account to a company called Cartel Client Review in summer 2008 to review and they deemed it unenforceable because of the faulty agreement so they passed it on to CCLS who instigated a dispute on my behalf. As far as I can know, a SAR was done but I now don’t have access to whatever info or docs that was received (or not) from MBNA as CCLS were closed down in March 2010 and Cartel! I have been in contact with Gordon’s Solicitors (who were appointed as administrators for CCLS) and they are unable to find my file.

 

Issues

In April 2010, I received a claims form from MBNA, at that time, I didn’t understand what all this was but I filed an AOS and didn’t do anything else i.e file a defence as I thought that MBNA or indeed the courts would need to send me more stuff before I take the next step! Naïve!! Apparently, a CCJ was awarded against me for the account by default in May 2010 but I never received any notification of this! Nothing from MBNA/Optima or the courts informing me that this had happened.

 

The first I knew of this was in July when I received a letter from Optima informing me that they had applied for an interim charging order and that there was going to be a hearing on the 8th of Sept! I then received a B132 notice from the Land Registry informing me of an application to enter into an agreed notice. This obviously got my attention and I knew there and then this was not going to go away unless I tackle it.

 

I went to for the hearing on 8th Sept thinking I was prepared to defend the claim and the CO application. I had written out a well prepared defence bundle labelling all the evidence and so on but the Judge was not prepared to listen to me at all, he wasn’t interested in my statement or the evidence bundle I had given him. He kept on repeating that we weren’t here to discuss the claim (CCJ), just the CO and I kept on saying I didn’t understand!

 

The Judge wasn’t interested in the fact that I had not received any notification from Northampton regarding the default judgement in May. So he granted the final Charge Order and awarded £266.00 cost to MBNA. He did advise me though to apply for the previous judgement (CCJ) to be set aside as I hadn’t previously defended it and my case (which he had before him but cannot look at) had not been presented before a judge to assess.

 

After the hearing, the MBNA Sol approached me and said he wasn’t able to advise me as he was representing the other side but that I should read between the lines of what he was saying. Basically, he applied that I should appeal the original CCJ and ask for it to be set aside explaining the reason for the late application. He said if it was set aside then of course the CO would become irrelevant. He said it was worth a try since I had already done the groundwork with the evidence pack I had produced for the CO hearing.

 

From the little I’ve read on this, I’m supposed to use the N244 form with a £75 fee to apply for judgement to be set aside. But what reasons do I give?

[aluta_continua]

Hi, we share so much in common, I was with Cartel too and got a judgement through the post while preparing a defence for the claim. And a charging order later.

 

What ai did as soon as I received the judgement was to file 'a set aside' application while awaiting hearing, I got a charging order through the post.

 

It will interest you to note that the default judgement was set aside and the charging order vacated.But substantive hearing is still pending

 

You need to file for set aside judgement immediately (you should have done that next day after receiving the notice of judgement) you need to be very careful and read the applicable CPD properly as if you give a reason not covered, it may not be granted. Once you get a date. Write the land registry to advise them that the charging order is being disputed and send them the details. They will not stop, but will ask the creditor for advise.

 

The judge was right not to entertain your defence. During the set aside hearing, you will be directed to file a credible defence by a given.

[magirose]

Hello Aluta, it's good to finally get a response to this and from someone in a similar situation!

 

The thing is, I didn't actually get any notice of the default judgement from the court! I wasn't aware of it until I received the CO application in the post from Optima! At that time, I thought it will all just be sorted out at the CO hearing and the Judgement can be appealed and maybe set aside but like I stated above the DJ said it couldn’t be done at that hearing.

I’m basically looking for advise on how to put the set aside application in place minding my wordings for the set aside especially considering the lapse in time. But I guess I'll just have to get a move on this now.

Am I able to just state that I hadn’t received any notice of the default notice from the court so was not given the opportunity state my defence. With regards to the lapse in time, could I state that, although I found out about the default judgement with the CO application I received, I didn't apply for it to be set aside immediately as I believed this could be done at the CO hearing?

Thanks

[Undercover-Elsa]

Hi Magirose,

If you haven't already, take a look here at valid reasons to set aside:

 

http://www.insolvencyhelpline.co.uk/ccj-removal/valid-reasons.php

 

Keep it simple and use whatever applies in your case

 

Elsa x

[sparklyfairy]

Hi - really hope someone can help! I just got a CCJ from surprise, surprise - Restons (MBNA debt - 10K). NHCC agreed my £1/month installment last month, I paid it. No surprise they went for a redetermination at my local court. Local court now agreed payment to be made by me "forthwith." No other info was included as to how I challenge this or what time limits are involved - not even a website to expain how to go about this. I can gather they are after a CO - but my husband is also on the mortgage & we have 2 small children, so it would only be a restriction which I'm really not worried about...I am concerned that the N35 states "If you do not pay in accordance with this order your goods may be removed & sold or other enforcement preceedings may be taken against you." Any advice as to how I challenge this? THANK YOU!

[Ganymede]

Hi - really hope someone can help! I just got a CCJ from surprise, surprise - Restons (MBNA debt - 10K). NHCC agreed my £1/month installment last month, I paid it. No surprise they went for a redetermination at my local court. Local court now agreed payment to be made by me "forthwith." No other info was included as to how I challenge this or what time limits are involved - not even a website to expain how to go about this. I can gather they are after a CO - but my husband is also on the mortgage & we have 2 small children, so it would only be a restriction which I'm really not worried about...I am concerned that the N35 states "If you do not pay in accordance with this order your goods may be removed & sold or other enforcement preceedings may be taken against you." Any advice as to how I challenge this? THANK YOU!

 

 

I also wouldn't worry about the restriction. Yes it can be used to force the sale of your house but with 2 young children living there I doubt very much that it would be allowed.

 

The reason the judgment states that is that the Claimant can now instruct Bailiffs or Hight Court Enfircement Officers that have the power to take your car, tv etc etc and sell them to help repay the loan.

[sparklyfairy]

Ok, but how do I challenge this?

[paul1967]

please help. my ex and i still live in the same property that has been on the market unsuccessfully for 6 months. she has now decided to force an order of sale on me. what does this mean and how will it affect me

[sequenci]

bump

[sequenci]

I've written a new article:

 

http://www.consumeractiongroup.co.uk/forum/content.php?620-Charging-Orders-A-Very-necessary-evil

[Basil Fawlty]

I've written a new article:

 

http://www.consumeractiongroup.co.uk/forum/content.php?620-Charging-Orders-A-Very-necessary-evil

 

Many thanks for that information sequenci, very informative.

 

Maybe you can clarify something for me please. If the judgement goes against you in court, does the judge automatically give an order for payment forthwith (and if you cant pay all of it straight away, a charging order is placed)? Or can you ask the judge if you can pay in installments, before he decides on a forthwith order (thereby stopping a charging order in its tracks by paying the installments on time)?

 

BF

[meursault22]

I've written a new article:

 

http://www.consumeractiongroup.co.uk/forum/content.php?620-Charging-Orders-A-Very-necessary-evil

 

 

Very informative, and if everyone stuck to the rules, you'd probably be quite right, but the problem is that the privatized utilites are very greedy and use undue influence to bend the rules way past breaking.

In my position, they have used charging orders and orders of sale simply as a means of increasing the court costs they have been granted to a point where they are many many times the original alleged debt, which was never actually owing. My assking for re-determination to a payment plan that is affordable to me has only resulted in them being granted even more court costs and re-determination being refused. These companies are using charging orders and orders of sale not as a method of securing debt, but as a way of putting people into huge debt, then seeking possesion of their homes. This is nothing to do with securing unpaid bills, but just a way of increasing profits to an extent that would not be possible by simply charging for a supplied service, and it's big business for the water companies.

[sequenci]

Many thanks for that information sequenci, very informative.

 

Maybe you can clarify something for me please. If the judgement goes against you in court, does the judge automatically give an order for payment forthwith (and if you cant pay all of it straight away, a charging order is placed)? Or can you ask the judge if you can pay in installments, before he decides on a forthwith order (thereby stopping a charging order in its tracks by paying the installments on time)?

 

BF

 

Hello there,

 

The judge can either grant instalments, or a forthwith. If they DO grant a forthwith you *must* apply for a redetermination ASAP.

 

The charging order application is a secondary process.

 

So you're absolutely right, you can try and get instalments prior to the creditor taking it further. Some judges are reluctant to grant instalments unless they are quite high, I see more and more forthwiths which is terrible really

[frettful38]

Hi sequenci, when you say high how high do you mean, On a debt of about £3k ish would the court grant an installment order especially if they are on IS?

[Basil Fawlty]

Hello there,

 

The judge can either grant instalments, or a forthwith. If they DO grant a forthwith you *must* apply for a redetermination ASAP.

 

The charging order application is a secondary process.

 

So you're absolutely right, you can try and get instalments prior to the creditor taking it further. Some judges are reluctant to grant instalments unless they are quite high, I see more and more forthwiths which is terrible really

 

Thanks sequenci, that explains it nicely. So its pretty much a matter of speed, and applying for installments before the CO application is put forward.

I'd be interested in your answer to fretfull's post too, about what sort of installment per £1000 of debt a judge may be interested in? (I realise an exact

answer isnt possible, but any kind of ballpark figure that you've seen in your experience?)

 

cheers for your help

 

BF

[sequenci]

Hi sequenci, when you say high how high do you mean, On a debt of about £3k ish would the court grant an installment order especially if they are on IS?

 

Well, the courts *should* use their 'determination of means' guidelines when considering the instalment. We all know that for those on IS there is likely to be little or no money left for creditors - which should indivate to the court that they should allow the judgment to be set at a small token amount, e.g. £1 or £5 per month. Of course a court may feel that this low instalment is punitive to the creditor - hence the forthwith order. I would *love* there to be a change in the law where a court *has* to agree an instalment where an offer is made + proof of income. It would certainly give a lot of piece of mind.