Fighting A Charging Order MBNA/RESTONS after Redetermination

[diddydicky]

i believe that if the debt is for a very substantial amount - and at the rate of payment it may take very many years for the debtor to repay- then the creditor may be entitled to ask for a charging order as security and it is likely to be granted

 

for instance lets say the debt is 10,000 and the payments are 50 per month = 16 years - then the judge IMO is going to agree to the charging order in order to give the creditor some security against the debtor selling the house and doing a bunk without the creditors knowledge

 

the average time a person stays in one house is around 7 years .and this may be taken into account

 

IMO

 

wasnt the mercantile case to do with making a charging order absolute rather than an application for the initial charging order?

 

i stand to be corrected but i am sure i have learned the above somewhere in my research

[Northstar68]

I understand what you are saying but because the monthly instalments had already been set by a judge last year and we havent missed any payments we thought that they couldnt then go for a charging order. Also, our house is in joint names and the debt is in OH's name.

Of course I am not experienced with these issues and have done so much reading it looks like I have misunderstood because the Judge ordered forthwith judgement which wasnt what we were expecting.

ONe thing for sure is that I'm learning a heck of a lot which is a good thing!

[Signaller]

Hi Northstar,

as far as I'm aware, a charging order would only be granted if you did not stick to the agreement of the CCJ.Clearly you have.You will no doubt be asked about your current financial situation.As long as nothing has changed since the CCJ was granted, I cannot see why the same Judge (or another) would rule differently.I'm sure you have nothing to worry over, but keep us posted.

Regards

Signaller

[Northstar68]

Thanks Signaller, this is what I thought. Got to take it one step at a time now. Once we hear officially from the court that it is Judgement Forthwith, presumably we can then go for a redetermination hearing/appeal against that decision?

 

Or would we need to not do anything and wait to hear what MBNA are going to do next?

 

If the option is there I want to go for it because I really feel we have been unfairly treated yesterday. We want to pay our debt back, we have never run away from it but we also want to be treated fairly.

[diddydicky]

yes, as soon as you get the order apply for a time order

 

 

a charging order can still be made of their are joint owners- but applies only to the debtors interest in the property

 

what is the amount of the debt/monthly payments?

[Northstar68]

The debt which now includes all the interest and charges since the card was stopped 18 months ago stands at about £14,300, the original debt 18 months ago was about 9K.

The judge back in August set the monthly instalments at just £3 a month, great for us while we get back back on our feet.

Understandably MBNA werent happy with this so they went for the redetermination.

We went to the hearing yesterday with the idea that we could negotiate a new payment with MBNA which is what we wanted to do all along with them but they refused. They didnt show up and the Judge said because of that he has to make it forthwith, he could not negotiate with MBNA on a new monthly figure as they werent there. He had to look at what was in front of him and make a decision based on that.

 

So it made no difference what we wanted to do to pay the debt off. He looked at all our debts even though this hearing was only for this credit card alone and I believe made this judgement by looking at all of them because he kept harping on about how we have too many creditors and debts.

All we wanted to do is have the ability to increase our monthly payments as our situation improves, pay the thing off and be done with it.

 

We are owed a refund in charges also so that is running alongside although MBNA are taking so long in responding with anything.

[Signaller]

Hi,

found this on www.ezinearticles.com/chargingorders

There are two instances when a creditor can request the court to issue a (CH) One of these is when they already have a county court decision against the you, the debtor, where you are compelled by the court to pay the debt in what is known as a "forthwith" judgment. This means payment of the debt must be made in full straight away, or at a particular date set by the court.

Another case is when there is a previous judgment against you for payment of the debt in installments, and you have defaulted on one or more of them.

However, if you are currently paying your debt in installments as ordered by the court, and you have not missed a single one, the court cannot issue a charging order. This is based on the decision in the 1997 landmark case of Mercantile Credit Co Ltd versus Ellis involving debt payments and charging orders.

I think the last paragraph is appropriate to you.Have a look, and let us know what you think.

Regards

Signaller

[PriorityOne]

Are you still paying the £3 a month then Northstar?

 

If regular payments are being maintained on a CCJ, then the creditor is unlikely to be successful getting a CO. This may not stop them from trying.... but you could fight against it on the basis of your regular payments, which is all a CO aims to underpin anyway.

 

In other words, there'd be no point in them going for one.

[lilly white]

The court has jurisdiction to make a final charging order despite the making of an instalment order in the period between the making of the interim order and the hearing at which consideration is given to the making of a final order: Ropaigealach v Allied Irish Bank plc [2001] EWCA Civ 1790.

 

In my view the most important aspect to bear in mind is that the conversion of an interim order into a final one is in the discretion of the court. In exercising discretion the court is bound to pay regard to section 1(5) of the Charging Orders Act 1979, which provides:

 

"In deciding whether to make a charging order the court shall consider all the circumstances of the case and, in particular, any evidence before it as to

(a) the personal circumstances of the debtor, and

(b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order."

 

If you were able to show for example, that one or more other creditors would be prejudiced that would be something the court ought to weigh in the balance. If the equity in the house is say £30,000.00, and you have debts greater than this sum, then the creditor seeking the charge would be placed in a superior position by reason of his achiving security for the judgment to the disadvantage of one or more of the other creditors. That is real prejujdice to those other creditors, though I have to say that if an other creditor is concerned about being prejudiced that other creditor ought to voice his own objections.

 

In an application for a charging order the creditor is bound to list all other creditors of the debtor which are known to him. If you know of others besides you ought to take a list of those other creditors along to court. The court may then adjourn the hearing to enable those other creditors to be informed of their right to raise objections at the next hearing.

 

If this argument is unavailable I'd still argue the variation is nonetheless something which the court may pay regard to in exercising its discretion. The court may for example adjourn the final hearing fo so long as the instalments due under the variation order are met. Or direct that the creditor be prohibited from further proceedings to enforce the charge for so long as the instalments are met.

 

ok have a read however i will post again when i post next please read r

[lilly white]

Restriction

 

 

The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :

-

No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).

 

 

 

 

 

You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer

, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

 

If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.

 

 

Ss please look at this what it means is this as it is a single debt the creditor can do very little and they know this

Edited February 6, 2010 by lilly white

[PriorityOne]

I must be missing something (late night last night ).... but where did Northstar say that Restons were intending to go for a CO?....

 

[lilly white]

What to do?

If there's a defence to the claim, the thing to do is to apply to the court to set aside the judgment. That is achieved by completing an application notice in which you explain the legal nauture of the defence and the reason why the claim was not answered in the first place.

 

 

If you believe you have a defence, explain what that defence is and we can look at it in more detail and give you further guidance.

 

[lilly white]

I must be missing something (late night last night ).... but where did Northstar say that Restons were intending to go for a CO?....

 

 

 

P1 yes you are correct they have not as far as i can see however they may

 

and we need to give the op the details so they are aware

[PriorityOne]

Northstar mentioned unlawful charges and that he/she was waiting for a refund on these. If these are part of the same account, then it may be worth looking at getting the CCJ set aside on this basis, since the balance upon Judgement would have been incorrect.

 

I've never had to do this personally, but have read of others who've been successful...

[Signaller]

Hi PriorityOne,

I picked up on the charging order from supasnoopers post (3). Northstar seemed to confirm this though in post (5).Sorry if I have caused any confusion.I'm relatively new to the site, and still learning.

Regards

Signaller

[PriorityOne]

Hi PriorityOne,

I picked up on the charging order from supasnoopers post (3). Northstar seemed to confirm this though in post (5).Sorry if I have caused any confusion.I'm relatively new to the site, and still learning.

Regards

Signaller

 

 

No worries...

[Northstar68]

Thank you for your input, I am learning lots.

 

Just to clarify. We don't know what MBNA want to do now but the Judge says that they may well go for an interim order then CO. We have to wait and see for that. Knowing MBNA they will try to get all their money....now.

 

My gripe with the redetermination hearing yesterday (which MBNA asked for and didnt show up) is that the Judge saw that we have not missed any payments which were set by the other Judge in August 2009, he saw that MBNA didnt show up, we were not told at any time why MBNA wanted to go for a redetermination, we were just told to turn up on the 5th.

Then the Judge looks at the paperwork, and says that he has no choice but to rule for forthwith judgement. ???????

I think this is too harsh as we have been paying monthly and on time.

We were not told of the reasons why MBNA wanted the redetermination (although we suspect they wanted more money of course)

It was as if nothing was in our favour yesterday and now with forthwith judgement which we have no hope of paying the full amount in 14 days........where does that leave us now? Can we appeal against the forthwith judgement? This is what I want to know in the first instance because this is what we will need to deal with first.....I think......do we get a chance to appeal the judge's decision yesterday?

 

My apologies if I'm confusing anyone with the issues, usually I can explain things quite clearly but even Im beginning to see double now! (at least Im using a smiling face now instead of a miserable one!) lol

Edited February 6, 2010 by Northstar68

[PriorityOne]

Oh I see.... sorry.

 

Very harsh... I agree .... and I would definitely look into appealing this on the grounds that you kept up your side of the bargain.

 

I cannot advise on this as I've never done it.... but you have 2 issues here.

 

1. To get the CCJ set aside on the basis of unlawful charges, and/or

2. Appeal the Forthwith Judgement.

 

I would think that the 2nd option has the greatest urgency right now, but someone else would have to advise on the procedure from here. Both of them would stuff any idea of them going for a CO though...

 

[supasnooper]

Just to advise that the OP has another thread about this subject here -

http://www.consumeractiongroup.co.uk/forum/legal-issues/241308-redetermination-hearing-advice-pls-3.html

 

I'll be merging them when I can so that all the advice is in one place and makes it far easier to see.

[Northstar68]

Thank you PriorityOne, this is what I need to focus on now, appealing the forthwith judgement and I will really fight tooth and nail for it and Im not giving up.

 

lillywhite, thank you for helping, I read your posts with interest and made some notes.

 

Yes we have 11 other creditors (one of them another MBNA credit card which is mine and who are being very quiet at the moment) These 11 creditors are on our Debt Management Plan.

 

The MBNA credit card in question was never part of the DM plan because

 

a) MBNA refused to be a part of DMP for this account

and

b)the CCJ came into force at the end of August and we started paying the monthly payments. Our DMP started 1st Jan 2010.

 

MBNA know all about our DMP, who is on it and how much we owe so that part in your post about them having an unfair advantage over the other creditors is interesting.

 

The confusing thing for me is that there are so many avenues and things to thrash out and as a relative newbie to this it is hard to decide what to do for best and what is important to do as a matter of urgency.

 

So the hearing was yesterday, presumably the court will put it in writing to us that they have ruled for 'forthwith judgement' and tell us what to do if we want to appeal? I think I need to focus on this first then worry about an interim CO later because surely we will be back in court for our appeal?

I need to make sure our defence then is ready (which is where I will need some advice/support.

Thank you so much for your time reading all of this and helping.

[Northstar68]

Just to advise that the OP has another thread about this subject here -

http://www.consumeractiongroup.co.uk/forum/legal-issues/241308-redetermination-hearing-advice-pls-3.html

 

I'll be merging them when I can so that all the advice is in one place and makes it far easier to see.

 

Thanks for that supasnooper....I wasnt sure where to post about yesterday's result so thank you for doing that.

[supasnooper]

I would like to backtrack here for the point of clarity and correctness for those who may read the thread in future.

 

ROPAIGEALACH v -ALLIED IRISH BANK PLC has been cited on the thread for giving the court jurisdiction to make a final charging order despite the making of an instalment order in the period between the making of the interim order and the hearing at which consideration is given to the making of a final order.

This Judgment can be cited when no payment or a monthly payment amount set by the Court has not been made then the court has the right to finalise the Charging Order application.

 

However, if a monthly payment has been agreed, payments have been maintained as to the time and amount, then an Interim Charging Order cannot be finalised as per the case of Mercantile Credit Co Ltd v Ellis 1997

[Northstar68]

PLease supasnooper, clarify anytime, Im sinking with all the legal jargon now

I have read and reread your last post but I think I have reached saturation point and dont understand what it means for me so will take a break away from the screen for a bit.

[PriorityOne]

PLease supasnooper, clarify anytime, Im sinking with all the legal jargon now

I have read and reread your last post but I think I have reached saturation point and dont understand what it means for me so will take a break away from the screen for a bit.

 

It basically means... if you've kept up with monthly payments, then they can't go for a CO.

 

[Northstar68]

they cant go for a CO even though the Judge has ruled forthwith?

 

(just put another pot of coffee on fancy one?)