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Lost Cause

Charging Order Applied For by Claimant **WON**

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Need some advice on the following:

 

I was recently taken to court in respect of a personal loan that I defaulted on. I defended the claim but judgment was made in claimant's favour, and was a forthwith judgment.

 

I made an application for a variation of the order and the hearing for this will be at the end of July.

 

Since getting notification of this hearing the claimant have obtained an interim charging order (which I was not surprised about). Hearing for the claimant's application will take place on the same date as hearing for my application for a variation order.

 

I would accept a voluntary charge against my property whilst I pay off the debt. I have little or no chance of fighting this as I am sole owner of property and live alone having no dependants.

 

My concern is that value of my property less the outstanding mortgage more than covers the amount of the debt and having obtained a charge over my property the claimant could then apply for an Order for Sale. Hopefully in accepting a voluntary charge I may be able to prevent this and also prevent any further interest being added.

 

I am not sure of the best way to go about doing this. Do I write to claimant's solicitor indicating I will accept a voluntary charge as long as they indicated they do not intended forcing the sale of property?

 

Any advice would be appreciated. LC.

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I'd suggest that an OfS action would not even be entertained (even if they threaten it, which they might) because of negative equity. If they threaten it, get your property properly valued and send it to them.

As another one: make sure when you go to the redetermination you take as much evidence as possible as to your income & expenditure, Judges tend to be on your side if you're being on the level about what you have coming in and going out. Might help if you could "borrow" some expenses from someone else ;)

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I'd suggest that an OfS action would not even be entertained (even if they threaten it, which they might) because of negative equity. If they threaten it, get your property properly valued and send it to them.

As another one: make sure when you go to the redetermination you take as much evidence as possible as to your income & expenditure, Judges tend to be on your side if you're being on the level about what you have coming in and going out. Might help if you could "borrow" some expenses from someone else ;)

 

Not clear on the negative equity angle as after subtracting the outstanding mortgage from the value of the property more than enough to cover the debt due to claimant.

 

Gave a full breakdown of my income and expenditure when I made my application for a redetermination - got this covered down to the last penny.

 

Should I "borrow" some expenses from my local MP.

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I'll give you a hundred pounds if you go into the Court and say you can't pay much because you have just spend £8,000 on a massage chair and £7,500 on cleaning your moat!!!

 

Seriously, if you've covered your I&E you're fine. If you keep to the amounts set by the Judge (ie. £25 per month) they can't instigate an OfS action.

 

However, a thought has just occurred to me (happens about once a year).

 

I know of a County Court action. A judgment was entered after the Def sent in the acknowledgement of service accepting full responsibility for the whole debt. Then a Charging Order was put onto his house. Then, because he was not paying the amount stipulated in the judgment, a stat demand was served on him. He applied for it to be set-aside. After the CO had been put on the property he THEN started sending a CCA request for an enforceable agerement, which was ignored because judgment had already been served. At the set-aside hearing the judge ordered the Claimant to produce a CCA compliant agreement, which they couldn't, so the stat demand was set aside, as would the judgment if the Def had not entered into an agerement to carry on paying £10 a month.

 

Now, you may have agreed to the CCJ by admitting liability etc, but if you attend the Charging Order application (and asking for the redetermination to be adjourned because of it) and saying you do not believe now, having taken advice, that the Judgment was valid through lack of an enforcemeble agerement, you never know, the judge may (if you ask) demand that they prove the debt before he charges your house. Do the same again at the redetermination hearing, demanding that they prove the debt.

 

It might not work, but it will be worth it to slow things down, and cause them more costs in having to do so.

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BB

 

Thanks, I'll not take the £100 - don't want to upset the District Judge.

 

Your once a year thought does not help me. I defended claim on basis that copy agreement they eventually supplied (12 months after request) was illegible and I could not tell if it contained prescribed terms - they claim this was all they had as original agreement had been scanned and then lost or destroyed also DN supplied did not give require 14 days after service.

 

Then at the hearing they produced the original agreement saying they had only just located it.

 

As this point my case against them was a Lost Cause, as District Judge made quite clear.

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Anyone got any advice on dealing with this, in particular accepting voluntary charge if claimant agree not to apply for Order of Sale and add further interest as long as payments agreed at Redetermination Hearing are kept up.

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Hi

Me again.

How much will the charge be for? I really, really would not agree to interest, especially if the charge is for a large sum (ie. over £10K). Did they claim interest past the default date in the claim? Have they suggested a draft Order yet?

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Personally, I would not offer them anything at the moment.

 

The Judge will make an informed decision on what is presented to them.

 

Whilst offering a voluntary charge appears to be seen as polite and generous, creditors are vicious animals who will take a penny and try to steal a pound.

 

You have applied for a variation of the forthwith order, so wait and see what a Judge says first.

 

Have a look at the links below on Charging Orders and what grounds you may oppose them -

 

Insolvency Helpline

 

National Debtline


 

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Barclaysbunny

 

Charge will be 12K.

 

Want to avoid interest if at all possible.

 

On claim form claimed interest pursuant to County Courts Act 1984 (S69) at rate of 8% pa from 02/XX/08 to 14/XX/08 and thereafter at daily rate of £x.xx to date of judgment or sooner payment.

 

However in their witness statement "The claimant confirms that it does not seek statutory interest in accordance with S69 of County Courts Act 1984".

 

I've checked T&C's of loan agreement and can find nothing regarding interest charged after judgment.

 

On copy of Application for charging order on land or property says:

"The [claimant] ('the judgment creditor') applies for an order imposing a charge on the interest of the [defendant] ('the judgment debtor') in the land or property mentioned below to secure payment of the amount owing under the judgment or order given on XX XX XXXX [by the XXXXXXXXXXXXX County Court in claim no. XXXXXXXX]."

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Supasnooper

 

Thanks for links, I've already taken a look at these sites - don't think I have any grounds for opposing - sole owner of property, no dependants, two other creditors - one will be paid off at end of this year, other in about 15 months.

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I'd ask for the CO hearing to be adjourned, use the fact that the redetermination is happening same day. See what the Judge says in the redetermination hearing. If you do agree to the Charge, certainly do not agree to interest. The County Court Act does provide for continued interest (at 8%) after Judgment on JUdgments over £5K, but "and continued interest at a daily rate" has to be in the Judgment, which it's not in this case. I know people on here probably won't agree with me, but my opinion is that the charge will be made no matter what, so save the costs/fees and agree to it, but only after the redetermination hearing.

What I would be doing though is getting people to look at the terms & conditions of the agreement. It was produced when you were actually in the Court, so had no opportunity to seek advice as to its enforceability. I suspect that is because they knew that they would lose. Get people on here to see if it is enforceable, if not, bring it up with the Judge, say you think, on reflection that they would not have been granted the judgment had you had the opportunity to seek advice. Say, as this is the case, you should pay 1p a month until an appeal could be done. Bet the Judge agrees - but this does depend on the agreement being unenforeable.

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Barclaysbunny

 

Thanks for advice, when claimant produce original agreement at hearing I requested an adjournment to allow me to seek advice, Judge was very dismissive of my request and was given 20 minutes "so you can have a good look at the agreement".

 

Have since hearing sort advice on agreement and it is enforceable.

 

I did think about appealing and solicitor I spoke to, whilst agreeing that given claimant only produce the original agreement at the hearing Judge should have allowed an adjournment and given parties opportunity to settle, felt it would make little difference to the outcome and would only result in more costs which I would be liable for.

 

 

If I was to ask for CO hearing to be adjourned would a letter to that effect be sufficient or would I have to make an N244 Application Notice and pay £75.

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No, call the sols and explain that you want the adjournment because of the redetermination and explain that after that you'll be agreeing a voluntary charge, then write a letter to the Court, and they'll send one agreeing to it (if they agree). Give me a shout if they don't. Who are the solicitors?

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Things can only get worse. (I'm living upto my user name)

 

Got into work yesterday and attached to everyones payslip was a letter informing us of redundancies throughout the company. Looking for Volunteers first, but if they don't get the numbers compulsory will follow and they want it sorted by 31 July.

 

Only 5 staff in department I work in. They want two positions to go:eek:

 

So IF made redundant (I'm not volunteering) and have been there a number of years will get a reasonable amount. If unemployed this will affect my application for redetermination.

 

Would court view redundancy pay as funds to pay off debt?

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I know you can't believe a word MPs say but if this refers to the reforms to charging orders contained in the Tribunals, Courts and

Enforcement Act 2007 (TCE Act) I was sent a letter when I questioned my MP stating that "on 17 March 2009 there was a Written Ministerial Statement setting out that we will NOT implement the provisions contained in Part 4 of the Act. These would have affected the charging order process. We have made this decision in order to ensure a degree of certainty for debtors." I know they talk a lot of poop but it might help anyone who goes before a judge who isn't sure as mine was last year and asked me if they were implementing this act yet???? Of course I said Nooooo not yet!!!! I don't know if this helps.

  • Haha 1

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Hi

 

Can you explain the below a bit more please, I've read it, and read it but it's not sinking in.

I know you can't believe a word MPs say but if this refers to the reforms to charging orders contained in the Tribunals, Courts and Enforcement Act 2007 (TCE Act) I was sent a letter when I questioned my MP stating that "on 17 March 2009 there was a Written Ministerial Statement setting out that we will NOT implement the provisions contained in Part 4 of the Act. These would have affected the charging order process. We have made this decision in order to ensure a degree of certainty for debtors." I know they talk a lot of poop but it might help anyone who goes before a judge who isn't sure as mine was last year and asked me if they were implementing this act yet???? Of course I said Nooooo not yet!!!! I don't know if this helps.

In our situation, they have a forthwith judgement, I’ve appealed against the original DJ ruling and lost that appeal, so, it’s all down to them being awarded the CO next month, if I can prevent them I will.

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Things can only get worse. (I'm living upto my user name)

 

Got into work yesterday and attached to everyones payslip was a letter informing us of redundancies throughout the company. Looking for Volunteers first, but if they don't get the numbers compulsory will follow and they want it sorted by 31 July.

 

Only 5 staff in department I work in. They want two positions to go:eek:

 

So IF made redundant (I'm not volunteering) and have been there a number of years will get a reasonable amount. If unemployed this will affect my application for redetermination.

 

Would court view redundancy pay as funds to pay off debt?

 

NO ONE VOLUNTEERED so it's compulsory now, using a points system, interviews taking place next week when we each get told how many points we have got, staff with lowest number of points are the ones to go.:eek:

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Hi Lost cause

I'm sorry to hear of your situation, thats one of the reasons I have set up the below petition, please sign and get your friends to do so, we have got to put a stop to people loosing their home over unsecured debt.

 

Regarding redundancy money, your no one priority is you, that means you, you have got to survive, you and your family come first. if you get redundancy money, its not a lump sum to be thrown away to some greedy people who don't really give a dame about you or your family. i personally would be using my money to protect and defend your current situation and would not put it were someone one can seize it with out your permission if you get my drift.

 

Go to the CAB first thing Monday or as soon as possible and get some legal advice but remember, if the money lies in a bank account, it can be seized.

Good luck.

 

Please go to and sign - every little helps

 

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

 

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Hi Murphy69

 

Thanks for your post, I have already spoken to CAB and have a further appointment in three weeks with an advisor who has more experience of dealing with these matters.

 

Since first speaking to CAB the matter of possible redundancy has come up, so will raise this with them at my appointment.

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Just a quick update:

 

Managed to escape the redundancy axe - phew!!

 

My application for variation of order was accepted by the court - no objection from claimant.

 

Claimant's application for Charging order DISMISSED!!!!!!!!

 

THEY DID NOT SHOW UP.

 

 

My hearing was first one listed (along with 9 others all 15 mins apart) of the 10 listed 7 where all from same Creditor.

 

As no one had arrived to represent Claimant by time of hearing Usher moved my hearing to third place.

 

First one out in 10 mins.

 

Second one out in 15 mins

 

That was longest 25 mins in my life, every time door opened I held my breath thinking this would be someone for the Claimant.

 

Eventually taken in by Usher, DJ thank me for waiting, looked at Usher and asked. No one for Claimant. Usher just said "No Sir".

 

DJ was not very happy.

 

Not sure what will happened next, can they object to their application being dismissed. Have to admit as soon as hearing finished I got out fast, did not want to hang around in case they turned up.

 

I think this one was just LUCK…

 

…and the ironic thing about all this.

 

The amount I said I could pay per month is exactly the same amount I offered to creditor when I first got into financial difficulties and which they refused "as not an acceptable level of payment".

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Hi LC,

 

Firstly congratulations and well done on seeing through the opposition to the Charging Order. :D

 

I don't think they can come back for a second go as this would be deemed an "abuse of process", as they should have got it right first time.

 

If they do, you know where to come.

 

Also glad to see the job is safe as well.

 

Hope you are enjoying the weekend.


 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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Supasnooper

 

Many thanks, especially for the **WON** (but think it's only be default).

 

I have to say I'm pleased with the outcome so far, but expect this to come up again.

 

DJ did say ensure every single payment is made on time, as the claimant will be waiting for the first opportunity to get me back in front of him.

 

DJ very helpful, asked me what date of month I was paid and suggested payments made 4 days after this so I can ensure funds would be in my account to cover payment.

 

Weekend has been very good, apart from the weather!!!

 

Thanks once again.

 

LC

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And by the same argument, many creditors are quite happy to take a victory by default as well....;)


 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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And by the same argument, many creditors are quite happy to take a victory by default as well....;)

 

Didn't think of it from that point. Your quite right.

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