A guide to Charging Orders & Orders for Sale

[sequenci]

How can the DCA apply for a charging order if an installments plan has been reached? I would have thought the only way they could do this is if you defaulted on the payments?

 

They can make the application, it'll be down to the debtor to argue that the charge should not be made final.

[sequenci]

As Shadow mentioned we need to know what order the judge made. If it is forthwith then we need to get a redetermination applied for pronto.

 

Do let us know ASAP as we will then be able to take the next step!

[sequenci]

Hi I've heard from the court, the world debt was due to be paid by 4pm on xx December. I have sent acopy of the letter from solicitors to the DJ to show that I have come to an arrangement plus sent a copy of all letters to the court manager. Any further suggestions gratefully accepted.

 

If the entrie debt is due as a lump-sum you need to get a variation application in pronto to get instalments put in place.

[sequenci]

I have received a letter of confirmation of payment plan for a CCJ that states:

'in order to secure their position with regard to your outstanding balance, we intend to proceed with an Application for a CO. However once we have obtained this no further enforcement action will be taken against you, as long as you pay on time'

they also state that they will review the account regularly including interst rates and monthly payments.

Any comments gratefully received!

 

Was it the court that has set the instalment arrangement?

[sequenci]

Sorry, I don't follow. Can you clarify if the court have set the instalment rate on the CCJ?

[sequenci]

If the instalments have been made as part of the court order you will be able to challenge their ability to secure a charging order against your property. They should only be able to do this if you have defaulted on the instalment order, my guide in the very first post of this long thread explains a bit more. You should always challenge any potential applications.

[sequenci]

you should see my new thread

 

Charging orders- a salutory lesson

 

- posted today

 

I can't find it. Can you post a link?

 

Edit, just found it.

 

I'm sorry to learn your news, that's awful! I hope you can get recourse.

[sequenci]

They can make an application for an Order to sell the property.

 

Is it jointly owned?

Do you have children living there?

Did you attend the CO hearing?

[sequenci]

Yes its jointly owned

My son who is 28

I did attend the hearing

 

Thanks for the reply

OldGezzer

 

You should make an application to vary the terms of the charging order to request that no further action can be brought in relation it providing you pay a small instalment to the creditor each month.

 

The form you need to complete is n245, the fee for the application is £35.

 

This would prevent the other party being able to successfully obtain an order for sale unless you default on the instalments.

 

Is there equity in the property?

[sequenci]

DD is totally correct here. If the debt is a few thousand pounds an order for sale is likely to be rejected by the courts.

[sequenci]

Are new rules coming into affect regarding charging orders must be over 25k on the 1st Feb 2011?

 

No, not that I'm aware. I know there was lobbying but I don't think the idea got off the ground. I'm VERY glad that that rule won't be brought in, such a rule may cause the creditors to change track and bankrupt people instead.

[sequenci]

There have been petitions in the past, I'm not sure that a petition would ever change the current rules.

[sequenci]

Hi there.

 

It's true that a creditor could make an application to vary the judgment but the court should consider allowing you to pay an amount that is affordable, if you're not working this would be a token amount. Is the property owned in joint names, do you have children living within it?

[sequenci]

Thanks for the info. Yes, the house is jointly owned & we have 2 small children which our creditor knows about. I'm not worried in that I've ever lied to to the court & we have no savings to speak of. I would be happy to alter my payments to a reasonable amount when I find work - BUT I thought the fact they had a co granted would appease them. We'll see what will happen with them. I just haven't read of any similar situations of a redet after a co, so it's better to be aware imho & I appreciate the feedback.

 

As the property is jointly owned, with two young children there is little chance that the creditor could force the sale. There are special provisions to ensure that the family home is kept that way

[sequenci]

Don't think it would stop mbna from trying, absolute pigs they are! And the sneaky way they've got my original installments overturned and now an interim i wouldn't put anything past the &%#$@...

 

If they *do* try, there's an awful lot than can be done to stop 'em.

[sequenci]

Keep us updated. I'm pretty certain that any reasonable judge will acknowledge the limited income and will refuse the variation.

Edited February 12, 2011 by ukaviator

[sequenci]

well the normal assumption is that ALL ccj's are "forthwith" orders

 

Surely there can be a judgment granted on determination rather than 'forthwith' using the determination of means guidelines?

[sequenci]

the judge has no way of knowing pre judgement- whether the defendant defended on principle and has the money- or if the defendant is skint!

 

I think this might be where I'm getting my wires crossed. Some folks will file an admission via the n9a form - which requires a statment of the 'defendants' means, rather than trying to defend their claim.

 

I'm guessing that you're talking more about cases where a defence has been raised, and so if they lose then it would be a 'forthwith' unless the defendant can request an instalment order to be granted?

[sequenci]

If you were paying the creditor a small amount every month, and they still took you to court, would the n9a form be the one to fill in to show how much you can afford, and would this stop the court hearing going ahead?

 

BF

 

If you were paying a small amount and then the creditor took you to court, it would be the n9a form you would complete if you wanted to admit the debt and make an offer to pay in instalments.

[sequenci]

Was the instalment arrangement agreed prior to their application for the interim charge?

[sequenci]

The application for the interim charge was made the day after the variation order was made.

 

Then the Mercantile Credit case affirms the fact that the final CO should not be made.

 

Edit: Just seen your other post! Yup, that's your argument.

[sequenci]

I thought that a CO cant be given unless the debtor had failed to make a payment? Is this right?

 

BF

 

The application can be made by the creditor, it would be down to the judgment debtor to raise the arguments ass to why it shouldn't be made.

[sequenci]

Yup. If someone has been paying instalments and an application is made by the creditor which is uncontested then the court can grant the charge. This happens a fair amount as some people are frightened / bury their heads in the sand.

[sequenci]

Ok thanks for clearing that up sequenci, but if it is contested and the only argument is that the installments are paid and up to date, would this be strong enough on its own to stop the CO, and is anything sent out to state that a CO is being applied before the application is made?

 

The interim charge itself can be applied for with no info being sent to the judgment debtor. They will then get sent two notifications; one from the Land Registry alerting them to the restriction and also one from the court with the final charge hearing date.

 

The Mercantile argument is certainly strong enough as it reinforces s86(1) of the County Courts Act 1984 which states that this type of action shouldn't be allowed by a court if the instalments on the judgment are up-to-date. It will, however, ONLY work if the instalments are in place BEFORE the CO application is made.

[sequenci]

No worries