Charging Order help please

[mac2lrk]

My husband has recently received a CCJ for a 13K loan with Tesco Personal Finance. We have been paying into a DMP with payplan and have with 5 other creditors for 10 months.

 

Incasso who are acting on behalf of Tesco have advised they are applying for a charging order even though it hasn't been 30 days since the judgement and we haven't missed a payment. It even states on the courts website that a CCJ won't be considered unless we have missed a payment.

 

We have received a letter stating that the case has been referred to a local court for 're-determination'

 

My husband works abroad as a merchant seaman. Does anyone know if I need to arrange legal representation for him if he is unable to attend?

 

Any advice would be much appreciated

[foolishgirl]

Hi mac - Welcome to CAG

 

1. Has your husband been paying the amount stipulated on the CCJ each month? This is the payment sum that is mandatory, not whatever arrangement you have with the DMP. Or was a lump sum payment ordered?

 

2. Did OH offer a defence when he received notification of the claim that resulted in the CCJ? How recent is the CCJ?

 

3. Is the debt a loan or credit card & if so, has he ever applied for a credit agreement from Tesco?

 

4. Has he ever had any charges applied to this account by Tesco eg. late payment, over limit charges. If so, they are unlawful & can be reclaimed.

 

5. If your husband is unable to attend court on a particular date you should advise the court & ask them to rearrange for a date that he is available. Give them a list of dates he will be in the UK.

 

I suggest your first step is to go back over events & see if this CCJ has been obtained fairly & correctly. eg. was a default notice issued by Tesco prior to teminating the account? Were you notified of an assignment of debt to Incasso? Was the summons issued in the name of Tesco or Incasso? And so it goes on... If you can prove fault with the procedures etc. you may be able to get the CCJ overturned & that would then be your starting point for addressing the CO issue.

 

Do plenty of reading around the forum & you will get the general idea.

[mac2lrk]

Hi

thanks for your advice

 

The CCJ was awarded on 6th July 2009, which allows us 30 days to make the first payment of £68.00, which we have not contested even though it is in increase from our DMP amount of £39.00. We haven't missed a payment and it has actually been paid for this month.

 

It is my understanding that a court wouldn't consider a charging order unless we have missed a payment.

 

On the CCJ, it shows Tesco as the claimant and then has Incasso's details below.

 

Incasso sent my husband a letter advising they we handling the account.

[foolishgirl]

OK, so looks as though Incasso have not been assigned the debt, they are merely acting as collection agents.

 

If you are paying in accordance with the CCJ, they don't stand a chance on getting a CO. However it will need your husband to attend court to state his case, if he doesn't attend, they are likely to get the CO unopposed.

 

Did Incasso write & tell you that this is what they intend to do or did they threaten it on the phone?

[mac2lrk]

My husband has been sent a date for redetermination so i have called the court, they say because he is a merchant seaman he can submit an explanation why he is unable to attend, and this will be taken into consideration. They also said that a CO would not be given unless we failed to comply with the instruction of the judgement.

Incasso wrote to him saying they were applying for a charging order 7 days after the CCJ was given.

Also, he never received anything from Tesco Personal Finance advising that Incasso were assigned the debt, should I have received notification from them?

[foolishgirl]

My husband has been sent a date for redetermination so i have called the court, they say because he is a merchant seaman he can submit an explanation why he is unable to attend, and this will be taken into consideration.

 

If they are still going to go ahead with this hearing without him, I think you may be allowed to attend in his place although you probably wouldn't be able to answer any questions on his behalf if only he would know the answer. Ask the court. If they won't permit it , get your husband to send a statement of facts to be put before the DJ - see below

They also said that a CO would not be given unless we failed to comply with the instruction of the judgement.

 

Absolutely! This is what your husband has to make very clear in his statement. Give the dates, proof of payment sums etc. If you have to use seperate sheets, paginate (number) everything with the reference in the statement.

Incasso wrote to him saying they were applying for a charging order 7 days after the CCJ was given.

 

Make great play of this fact - unreasonable, vexatious action etc. causing you undue stress & amounting to harassment.

Also, he never received anything from Tesco Personal Finance advising that Incasso were assigned the debt, should I have received notification from them?

 

Common coutesy & good business practice would dictate so but as they appear only to be acting as collection agents, the debt will not actually have been assigned to them. In fact if you wished, you can opt to cut them out of the picture completely & deal just with Tesco direct. Indeed your payments under the CCJ should be made to Tesco & not Incasso unless the judgment states otherwise.

 

 

I suggest you also seriously consider the actions I mentioned at the top of this thread with a view to getting the CCJ set aside if possible, & just as importantly, reclaiming all your charges. Don't let them get away with it - it's your money!!

[mac2lrk]

That's really helpful, thank you!

 

The court gave me 2 options, either request an adjournment, but I don't have a fixed date when my husband is back in the UK , the other option given was for him to send in a statement.

 

I need to know how to prepare the statement to send to court and what information he will need to present. I just don't want to miss anything or have it misinterpreted because I am not following a set criteria.

 

I will have to compile it all, then email it to my husband, then he will have to sign it and email it back to me as he is working onboard a yacht.

[foolishgirl]

You should set it out as you would a Witness Statement in a County Court claim. Have a look at pt's post here (#250) for ideas on format & content:

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/159341-court-papers-received-what-13.html

 

Post up a draft (minus personal details) & you will get advice from CAGers.