Charging order ADVICE NEEDED?

[kevin glancy]

Hi All, maybe you can help, I had a car on finance, my wife (now ex) had the car in spain, it got compunded and wasnt returned, the finance company, ADVANTAGE FINANCE decided to proceed with a CCJ for £10k, they got it as I admitted it as it was in my name, I was ordered to pay them £20 a month, I have been doing and kept the judgement up to date, they have now requested a charging order on my property, they say the reason is non payments, my bank statements say otherwise, can they do this? I have lodged a defense but they have LIED to the court to get this and im worried of the outcome.

 

Any advise asap would be appreciated.

[hammyhound]

Kevin, have you received anything from the Land Registry to say that a restriction has been placed on your property.

 

This is done in two steps firstly the Claimants will have had to make an application to the court.

 

Secondly I think it is about 6 weeks later a court hearing will take place.

Have you received notification of the hearing from the court. At this point and 7 days before the hearing lodge a witness statement with the court showing all your payments a bank statement will suffice and why a charging order should not take place ie you have children if you have, you are in negative equity etc.

 

I was also in that situation and the solicitors tried to deceive the court saying there was no instalment order in place only a judgment forthwith which clearly was a lie. I was up to date with my payments and turned up at court, the judge read my statement and threw their case out after reading a fax from them the court had received that morning saying they could not attend as they didn't know when the hearing was!

 

Have you received their application yet?

 

Come back with more details so people can help.

 

HH

[kevin glancy]

HI YES, I got the docs from land registry, the full hearing is tommorrow morning, ive put a defence in already but from what I gather as I have maintained the payments on the CCJ and theyre excuse is I have made payments which is a LIE I am wondering if there is any last minute advice before i attend court?

 

 

Kevin, have you received anything from the Land Registry to say that a restriction has been placed on your property.

 

This is done in two steps firstly the Claimants will have had to make an application to the court.

 

Secondly I think it is about 6 weeks later a court hearing will take place.

Have you received notification of the hearing from the court. At this point and 7 days before the hearing lodge a witness statement with the court showing all your payments a bank statement will suffice and why a charging order should not take place ie you have children if you have, you are in negative equity etc.

 

I was also in that situation and the solicitors tried to deceive the court saying there was no instalment order in place only a judgment forthwith which clearly was a lie. I was up to date with my payments and turned up at court, the judge read my statement and threw their case out after reading a fax from them the court had received that morning saying they could not attend as they didn't know when the hearing was!

 

Have you received their application yet?

 

Come back with more details so people can help.

 

HH

[hammyhound]

Kevin have they written to you explaining this. Are you 100% sure that you have not missed any payments? Sorry I am not doubting you but even if you were say a couple of days late these b*****ds will go for the kill.

 

What did they put in their application ie judgment forthwith or that you have missed your installment payments.

 

Is it possible you could post up your defence (without details of course). To see if we can add any further information for you when you attend court tomorrow.

 

This is from Section 86(1) of the County Courts Act 1984 which print and take with you.

' 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.

I researched that case for hours just so I was sure what I was talking about.

Keep posting so that others will see your post.

BTW when you win tomorrow:D ask the Judge for cost from the other side.

I will keep looking in to see if others have posted.

 

HH

[hammyhound]

Kevin,

 

Also had another thought, ask them at the hearing for a full statement. Ask them to show you and the judge where a payment has been missed etc. You can then show your statements showing otherwise.

 

HH

[kevin glancy]

hi there, the judgement was made on March 31st, I made payment on 17th April and may and june and july, the 1st payment was to be made by the END of april, I rang them this morning and they more or less said that the payment had crossed which is a lie because my bank emailed me today and confirmed the other bank received the money I sent them 4 DAYS after 17th april, the action was raised 8th May, they claim I missed two payments, I dont know how this could be as the 2nd payment wasnt due until the end of may 09, there action was started 8th may so the 2nd payment wasnt even due by the time they started this action.

 

Advantage also told me that they want some form of security as paying £20 a month on a £10k judgement will take 38years, the national debt helpline told me that isnt an issue as the CCJ is their security as they dont have the car now, I am also on DLA and paying £20 a month is a lot for me, I think they are going to use tactics im not sure about and dont want them to win at all, but they have also LIED on their "statement of truth", which I think is contempt of court and on top of that they have given me severe grief over this matter.

 

HELP!!

[hammyhound]

Kevin,

 

Have you still got the original judgement and can you post it up, don't want you tripping up tomorrow.

[hammyhound]

Let's just say I am paying less than you (that is what the court and I agreed on) and it will take me 48 years to pay off so don't worry about that. Whose to say that you might come in to some money next week and want to pay the lot off. It is not up to anyone else but the court to decide what you should pay.

[kevin glancy]

sorry no, only the case number and the amount but i rang the court that issued the CCJ and they advised me the 1st payment was due end of april and the judgement was given 31st March 09, i recall it stating to pay £20 a month which advantage finance AGREED to at the time the ccj was issued.

[hammyhound]

What time is your hearing tomorrow. If you can go to the court earlier and get a copy of the judgment just to make sure.

 

Can I just go back a few steps. Right you received claim form, you did not defend and it was ordered that you pay £20 per month is that right or did you offer £20.

 

A court order is just that Advantage have no sway in agreeing or disagreeing to what a court orders.

 

Can anyone else help on this.

 

Back in a mo.

 

HH

[hammyhound]

Can I ask are the solicitors a "northern" firm.

 

Something tells me they are the shower that tried to do the same to me.

 

HH

[kevin glancy]

I submitted details of my financial position proving my income and expenditure and proving details of my disability living allowance etc, when the document came through from the court, I completed it and OFFERED £20 a month which is what I offered as I thought anything less wouldnt be acceptable but I couldnt offer any more, I trust the judge read it and accepted my offer based on my financial position?

 

Im now getting worried between the difference of me offering this £20 a month to the court which they accepted and the difference of a court ordering the £20 a month, you are correct, I did NOT defend the claim form I admitted it and offered the £20 a mth?

[kevin glancy]

There was no solicitors, it was Advantage Finance themselves that started the action and them that are appearing tommorrow at court.

[hammyhound]

Yes, Kevin that means that Advantage agreed to the £20. Did you complete the court form showing your income etc. It only goes to the court then for sealing say. Advantage have already accepted your £20 per month.

 

I also did not defend offered £20 they refused, I went to court armed with my I & E and also sent it to the court, in the end they only got £14 per month, they were too greedy in the end.

 

did you know you can apply for a variation of the court order especially if your income or your benefits have decreased but we we can cross that bridge after tomorrow.

 

HH

[kevin glancy]

funny you should mention that, as from 11th of this month I will be getting my payments from the govt as a single person which means my money will be less, more worrying, can THEY apply for a varying order as well to claim the lot and then reapply for a charging order tommorrow?

 

What do you think my chances are of winning this case and also can i get them for CONTEMPT of court as they have given me sleepness nights over this and they are trying to make an example of me, I dont want them to get away with it, even if I win, what right do they have to just take me to court and LIE about it????

[hammyhound]

I wouldn't like to say "oh yes you will win" but all I can say is that as I have said before be polite - don't lose your temper and arm yourself with everything that you could possibly need - don't forget that copy judgment from the court. Get all your bank statements together highlighting the payments showing that you are up to date - make copies, one for the judge and one for the other side and yourself of course. You may find as I did that they will want to speak to you before the hearing just listen and give them a copy of your bank statements and also a copy of the case I have mentioned to you.

 

The other side will probably speak first and then judge will address you to answer what has been said.

 

I know I was petrified but I was lucky the other side did not show up and I just went before the judge, explained I was up to date and hey presto.

 

I can't see what their defence is and I know how annoyed you must feel like I did. You never know they might not turn up - this is their deceitfullness showing through really they hope you don't but you must to give your side of a very clear and winnable argument.

 

BTW have they sent you a statement of their costs yet - they should have done this 7 days ago!

 

If you win, don't forget to ask the judge for your costs, he might just say £50 but take it and run/

 

Others will probably reply to you later.

 

Don't panic it is just a little room you go into.

 

Good luck I will think of you tomorrow - it is just a shame you are not local to me - although I don't know where your court is - as I would have taken a couple of hours off to support you but I know you will be fine. Chin up

 

HH

[kevin glancy]

listen, many thanks for the advice much appreciated, keep posted here tommorrow for the RESULT!

[kevin glancy]

Okay, well well well, I attended court today and I informed the judge that I had made the payments and had shown evidence of this, as such the judge replied that the case be dismissed, HOWEVER, i didnt leave it there, I stated to the judge that as the company ADVANTAGE FINANCE IN GRIMSBY had indeed LIED on the form under the county court act, that when a "statement of truth" is signed, the person signing it believes that everything stated is TRUE, failure to comply is a criminal offence and can lead to "Contempt" of court, the judge AGREED with me that this is indeed true and MADE them APOLOGISE to me there and then otherwise they would allow a "contempt" to go through, they also awarded my ALL my costs and WARNED "ADVANTAGE FINANCE", that if they EVER lie again or dont get their accounts in order, the court will proceed with contempt, the guy from ADVANTAGE FINANCE after he "s**t himself apologiszed, he may have knew he never had a case but he didnt expect to nearly get done for CONTEMPT of court and I said to him outside the court, if they EVER pull a stunt like that again and try and use the courts to get in the back door I WOULD TAKE PRIVATE LEGAL ACTION, they said they will never do it again, No charge on my house and the statement of the Mercantile Credit VS Ellis was a MAJOR factor to the judge!!

 

THANK YOU for the advice!!

[hammyhound]

Kevin,

 

Well done.

 

I am so pleased for you. Doesn't it make you feel great about it, when you walk out of court knowing you have pulled down a big organisation.

 

Just remember, never forget or make a payment late, you now know what these b*****ds are like.

 

Congratulations and now that you have that experience look in on other Caggers who might possibly be going through the same thing.

 

Glad to have helped.

 

HH