Summons from Reastons Claim Form Help please

[eatcake]

Thanks supasnooper:)

[RobinWayRobinme]

Hi Eatcake

 

Sorry not been able to get online much as PC playing up (overworked I guess).

 

Think the reason other side are asking for other creditors is that to get a CO they must contact any KNOWN creditors to see if they have any objections to the CO as it will give Claimant priority. You should have a copy of their App for CO when they got Interim CO and it will list all known creditors they have given notice to. Other creditors don't normally object, but they must be given opportunity to if they are known.

 

If you can show that they have been notified of other creditors, you should be able to get an adjournment, but you will need to argue point that they have not brought the CO to the attention of other known creditors to give them an opportunity to object. It will give you more time to strike a deal if thats what you want.

R

[eatcake]

Hello Robin, thanks again for your help, this is what I'm planning to put into court tomorrow regarding hearing next week.it's difficult know how to do this right.if your could give oppion I would be very grateful.

 

Requesting that the court considers the following objections to the application for a charging order made on the xx xxxxxxxxxx 2009.

 

 

1. The property is in joint names and it would be unfair to the Co-owner.

2. It would give HFC an advantage against other creditors.

3. The debt was an unsecured debt for a credit card, the debtor has already benefited by having a higher interest rate on this debt, which wouldn’t have been case if secured against a property

4. I am offering to increase monthly repayment amount to £50.00 a month

Edited May 10, 2010 by eatcake

[BeauBrummie]

Hi eatcake,

 

Just the benefit of my experience regarding CO's.

 

Regarding your point 1.

 

If the debt is in just your name, the co-owner cannot object to the CO. The order would only be against your interest in the property and nothing to do with the co-owner. The interested parties in a property have to be informed of the change of liabilty by law.

 

So should any sale realise a profit of say £10000, split 50/50 between you and the co-owner, then the CO would only be paid from your 5K not the co owner's share.

 

A Charging Order is only a caution note against the title deed, in some cases, if you get the correct legal advice you may be able to port a CO from one property to another.

 

The main reason that DCA's go for CO's is that it almost guarantees their balance sheet as an asset.

 

So your increase in monthly payment offer may well be accepted to include the CO as well - so be sure that is what you can afford to do. The reason I say this is if accepted your offer would become a court order and then if you cannot keep up the payments you will run the risk of an order for sale of the property.

 

Hope this is help

 

Beau

[eatcake]

Thanks for that Beau

[Ganymede]

 

A Charging Order is only a caution note against the title deed, in some cases, if you get the correct legal advice you may be able to port a CO from one property to another.

 

 

That would only work if the buyer was paying cash and was happy to have the restriction remain on the property.

 

If the buyer has a mortgage then the solicitors owe a duty to the lender and will have to undertake to remove all charges upon completion.

 

Be very careful if you are considering this.

[BeauBrummie]

That would only work if the buyer was paying cash and was happy to have the restriction remain on the property.

 

If the buyer has a mortgage then the solicitors owe a duty to the lender and will have to undertake to remove all charges upon completion.

 

Be very careful if you are considering this.

 

Hi Ganymede I have used this as a little known nugget of information :

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/177951-charging-order-forced-sale.html#post1922057

 

Beau

Edited May 10, 2010 by BeauBrummie

[RobinWayRobinme]

Hi Eatcake,

 

I'd agree with comments of BB. However, your partner, who should also have been served with notice of the charging order is entitled to make their own objections, but at end of day court generally doesn't take any notice of them. Do you have any children? If yes, it will not stop the charging order, but you can make a request that should they get charging order there is no order for sale made until children reach age 18 years. As objections to CO, consider the following:

 

1. If equity is low and doen't cover debt, whats the point of it.

 

2. If equity is high in comparison to debt, then its dispraportionate.(think theres case law somewhere on this).

 

3. If they didn't include your other unsecured creditors in the application for Interim CO, Object to CO on basis that they were aware of them and maybe if you can produce the copy letter when you advised them. This may help you to win this but if not, should give you an adjournment so they can ascertain if they have any objections.

 

4. Have a search of the OFT website as I remember reading a publication from the OFT that they were looking at the high number of charging orders being obtained on unsecured debts and that it may be considered as an unfair business practice.

 

5. If you have a mortgage, who pays the mortgage and upkeep of property. If your co owner, it could be argued that it is unfair to that person, particularly if equity is small.

 

5. Your point 3 is fine.

 

Have you been making payments, If yes, object strongly as they cannot get CO whilst you have maintained you payments, whether they were agreed between yourselves or determined by the court.

 

Quite honestly I wouldn't mention an increased offer of payment as that will not stop them getting a CO (you can apply for payments to be determined by the court that are affordable). Also, I would send objections to other side so they are not able to say they were not aware of them. Also, get your objections in a witness statement, then you can exhibit anything to support your objections. e.g. copy letter advising them of other unsecured creditors and OFT publication on charging orders.

 

Best of luck for the hearing. Let me know how you get on.

R

 

Hello Robin, thanks again for your help, this is what I'm planning to put into court tomorrow regarding hearing next week.it's difficult know how to do this right.if your could give oppion I would be very grateful.

 

Requesting that the court considers the following objections to the application for a charging order made on the xx xxxxxxxxxx 2009.

 

 

1. The property is in joint names and it would be unfair to the Co-owner.

2. It would give HFC an advantage against other debtors.

3. The debt was an unsecured debt for a credit card, the debtor has already benifited by having a higher interest rate on this debt, which wouldn’t have been case if secured against a property

4. I am offering to increase monthly repayment amount to £50.00 a month

[BeauBrummie]

Hi Robin,

 

I bow to your superior description of the above with more detail:)

 

Beau

[eatcake]

Thanks Robin:)

[RobinWayRobinme]

A Charging Order is only a caution note against the title deed, in some cases, if you get the correct legal advice you may be able to port a CO from one property to another.

 

Why would you want to even attempt to get a CO transfered to another property. Claiomant would be happy to allow this if a voluntary charge was given over another property that has greater equity in consideration of removing the caution. Can't see how anyone could benefiot from this

[eatcake]

Hello Andy,

 

I hope u can help me on this,when I filled in N245 and submitted to court it was for a redeturmination of the forthwith judgement,then restons applied for interim co, do I state on my objection that they applied for co after I submitted the N245.or does it not make any difference.

 

Thanks for any help

[AndyOrch]

Hi Eatcake

 

Yes they are trying to short cut the process any redetermination application negates any possibility of a CO application.

 

Hope that helps

 

 

Andy

[eatcake]

Thank-you Andy, so much for getting back to me so quickly,

[eatcake]

Have heard back from Restons re my objections,they have stated the case of Banque Financiere de la Cite v Parc saying that having other unsecured creditors is not grounds to refuse a C.O.

I have other objections but don't know what my reply to this one is.

Thanks for any help:)

[RobinWayRobinme]

I don't know the case law (do you have a copy?). However, it is a matter of procedure that when a claimant applies for a charging order (N379) they must list at q.5 all known creditors. At q.6 they must list those creditors as having to be served (this allows them the right to object) and finally they sign a statement of truth. If you can prove (as I think you may have done in your ws objecting to the CO) then they should not have the CO made final at the hearing. At best, taking account other valid objections, it could be thrown out, at worst IMO you will get an adjournment. Also, as you have brought this to their atention before the hearing, be prepared for getting your costs of the hearing if adjourned, and of course if you win.

R

 

Have heard back from Restons re my objections,they have stated the case of Banque Financiere de la Cite v Parc saying that having other unsecured creditors is not grounds to refuse a C.O.

I have other objections but don't know what my reply to this one is.

Thanks for any help:)

[RobinWayRobinme]

OK, found the case cited Banque Financiere De La Cite v. Parc (Battersea) Ltd and Others [1998] UKHL 7; [1999] AC 221; [1998] 1 All ER 737; [1998] 2 WLR 475 (26th February, 1998)

 

Other opinions on this would be welcome but, IMO, this case does not apply. It appears to relate to 2 issues (1) subrogation, which I believe in the context of the case was a charge being created that by subrogation takes priority of an existing charge and that this can only apply when the existing charge that has priority before subrogation receives (2)unjust enrichment. In the case cited it was the charge that had priority before subrogation that due to the circumstances of the case was unjustlt enriched.

 

Your case re the CO is totally different and IMO the opposite of the case they cite. In fact, you could yourself cite this case as the reason the CO should be thrown out or at the least adjourned until existing creditor were served with the CO notice as it is your Claimant that will be unjustly enriched with the charging order.

 

Maybe a letter to other side stating the case they rely upon has no bearing on your case and that it is them that are being unjustly enriched should the interim CO be made final.

R

[eatcake]

Robin, thank you so much for that you have been such a great help to me all through this and I really appreciate your help.

 

I have read though so many threads this past few weeks,this is all very confusing but even though my appeal was refused would I still be able to get the SJ set aside as the amount the judgment is for includes unlawful charges, if not would I be able to claim back from HFC the unlawful charges or is it all too late now. I think I can apply to HFC for the charges back, or have I misunderstood this. I think its too late for the set aside, is that right?

Edited May 16, 2010 by eatcake

[eatcake]

Hello Everyone.

Well today was court day,and I never want to see inside another court room again ever ,twice in the past 6 months has been enough for me,the judge today was extremely pleasant so maybe it is just the system that's wrong.After my last experience, If I'd liked to bet then I would have put money on that HFC would get what they wanted. but then I thought surely I had a chance, especially with my objections, but NO I didn't have any chance,everything was against me,Basically I owed a bank money,doesn't matter that they didn't have an enforceable contract,the judge that day said that was enough for him.today it didn't matter whatever I said I was going to get a CO.and made to feel they where doing me a favour by giving it.So basically if I ever get another summons which I'm sure I will as I have at least another 10 creditors waiting in the wings,I will be passing it straight over to a solicitor even if its not on a no win no fee deal.

If I could go back a year I would have engaged a solicitor,not tried to defend it myself, but I had an unenforceable contract, it was an application form,how hard would it be surely I had the winning hand.!!!

A big thank you to everone that has helped me over the past months. I really have appreciated your help, especially Robin & Andy.

[AndyOrch]

Hello Eatcake

 

Im sorry to read the above and that it didnt go your way.I know i have stated this many times before but just in reference to your day in court

Whilst Litigants in Person are supposed to have equal access to justice, regardless of whether they are the Claimant or Defendant in a case-that's the ideal, however in reality......!Unless a person can and does argue vehemently about the validity of an agreement and/or Default Notice, as far as the Judge is concerned, the debt is owed and he wants you out of his Court asap, because he is pressed for time! Not right, not fair, but that's how the system regrettably operates!

 

The fundamental arguments to raise in Court, both to get the Judge's attention and to make 100% sure the case goes your way, is to argue that the credit agreement is invalid,executed correctly or whatever and of course the invalidity of any DN which gives them no legal right to collect the debt.

 

You did your best Eatcake and thats all that you can do.You challenged you argued and made them work for it.

 

 

Regards

 

Andy

[stressedkitty]

Hi eatcake,

Been subbing to your thread (have my own case going here) and just wanted to say that I'm very sorry it didn't work out for you yesterday. Sending best wishes

kitty x

[RobinWayRobinme]

Hi Eatcake

So sorry it went against you. Problem is CO's are so difficult to defend against and the courts just seem to dish them out on demand and there seems little case law to help.

 

Fully understand the way you feel at moment. Did you get anything noted about non enforcement of CO? One way to stop it being enforced is to make an application to have affordable payments determined by the court and whilst they are being made they cannot enforce CO. Just a suggestion to keep your home safe.

 

Take your point on solicitors and agree that the courts seem to listen more to them, however they are few and far between that have sufficient knowledge of CCA to stand a chance against good CCA barrister.

 

As andy has said, you did your best. You fought your corner and didn't let these parasites just walk all over you and with that you have my respect and I'm sure that of many others here.

R

Hello Everyone.

Well today was court day,and I never want to see inside another court room again ever ,twice in the past 6 months has been enough for me,the judge today was extremely pleasant so maybe it is just the system that's wrong.After my last experience, If I'd liked to bet then I would have put money on that HFC would get what they wanted. but then I thought surely I had a chance, especially with my objections, but NO I didn't have any chance,everything was against me,Basically I owed a bank money,doesn't matter that they didn't have an enforceable contract,the judge that day said that was enough for him.today it didn't matter whatever I said I was going to get a CO.and made to feel they where doing me a favour by giving it.So basically if I ever get another summons which I'm sure I will as I have at least another 10 creditors waiting in the wings,I will be passing it straight over to a solicitor even if its not on a no win no fee deal.

If I could go back a year I would have engaged a solicitor,not tried to defend it myself, but I had an unenforceable contract, it was an application form,how hard would it be surely I had the winning hand.!!!

A big thank you to everone that has helped me over the past months. I really have appreciated your help, especially Robin & Andy.

[eatcake]

Hello Andy & Robin think I need some help with this;

 

Just as I thought this was finished with, got letter from Restons, stating that they can apply for an order for possession and sale of my property, even though at the hearing their solicitor stated that they wouldn't apply for an order of sale. The Judge refussed the redetermination and said that I could pay off what ever I was comfortable with,if and when, didn't make a payment order. So now they are giving me till end of May to make a full payment, to discharge this liabilty in order to avoid the enforced sale of my property, or to make them reasonable & proper instalments to clear the debt.

What sort of establishment are Restons, I thought they where solicitors, surely they cant lie to a judge by saying they wouln't go for an order of sale,that they only want the assurance of a CO so that they will eventually get their money.then 2 days latter send me a letter threating an order of sale,these people are unbelievable.

 

Thanks for your help:)

[RobinWayRobinme]

IMO they are just making threats they cannot carry out. I would send them a letter in reply, reminding them the basis that they got the CO (i.e. in court they stated that they just wanted CO to secure the debt and that it wasn't their intention to seek possession order and that judge said you should pay them what you could comfortably afford).

 

Also, work out what you can comfortably afford(don't go over the top, make sure you can afford them) to pay them, offer it with a commencement date to start the payments and request a payment book for making payments (I wouldn't do it as direct debit). If you don't hear anything just start making payments as you have offerred.

 

Whatever you offer to pay, they will come back and ask for more. If so, remind them again the basis that they got their CO and that judge said you should pay what you can afford. Stick to your guns and you should be ok. Don't forget, what ever you pay them, however small, it still reduces the judgment debt as being CCA debt they are not entitled to interest being included in the judgment.

 

Hope this is helpful eatcake.

R

 

Hello Andy & Robin think I need some help with this;

 

Just as I thought this was finished with, got letter from Restons, stating that they can apply for an order for possession and sale of my property, even though at the hearing their solicitor stated that they wouldn't apply for an order of sale. The Judge refussed the redetermination and said that I could pay off what ever I was comfortable with,if and when, didn't make a payment order. So now they are giving me till end of May to make a full payment, to discharge this liabilty in order to avoid the enforced sale of my property, or to make them reasonable & proper instalments to clear the debt.

What sort of establishment are Restons, I thought they where solicitors, surely they cant lie to a judge by saying they wouln't go for an order of sale,that they only want the assurance of a CO so that they will eventually get their money.then 2 days latter send me a letter threating an order of sale,these people are unbelievable.

 

Thanks for your help:)