Fighting A Charging Order MBNA/RESTONS after Redetermination

[lilly white]

OK Patrick, thank you, will do but....just wondering........

 

I spent today looking at the papers MBNA sent, my SAR request specifically asked for many things, well everything going back to the time the account was first opened which was 1995.

Just want to vent some frustration now........

as well as no agreement......

the only things they sent me are

1. the COMMS LOG going back to 2003

2. the statements going back to 2003.

3. a few letters telling him how they understand he is having difficulties etc dated May 2009

 

THAT IS IT!!!! They didnt send anything else :

NO DEFAULT NOTICE

NO TERMINATION NOTICE

NOTHING!!!!

I was expecting it to go back to 1995........

 

Is it worth me writing back to them asking them to comply with my request and send me everything within say 7 days? Then go for the set aside?

Should I at least give them a chance to respond back otherwise they can turn around and say I didnt give them time.

The SAR stuff came 3 days before the 40 day deadline.

I am so annoyed now, so much missing it's unbelievable. How could we ever be expected to audit the account if this is what they do. Also dont forget I did ask them for the charges info before and they faffed about with that back in October and didnt send me anything until January and even that only went back to 2006!!! :x

 

This will all stand me in good stead if and when they start the same ball rolling with my credit card debt!

 

Cheers

 

This is why you need to go for the ,set a side, let me be clear without the docs they would not have got very far if you had defened.

[lilly white]

do we have the orginal claim what did it say

[lilly white]

ok a little note.

 

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

[Northstar68]

ok a little note.

 

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

 

So sorry Lilly, please can you explain this, I have read it 3 times but just dont get it, I think I need a break away for a bit, been reading and making notes all day!

[hatesdebt]

I think simplistically it means........

 

If you decide to sell, your solicitor is only obliged to inform the land registry / creditor of the sale 14 days before completion. This does not give the creditor time to apply for his chunk. House is sold, CO automatically drops off at the point of sale. You've got all the proceeds, claimant gets nothing - it's too late.

 

This only applies if the house is joint, but the debt is in one name.

 

Even though it may be a final CO, it only carries the "weight" of a restriction

[Northstar68]

I think simplistically it means........

 

If you decide to sell, your solicitor is only obliged to inform the land registry / creditor of the sale 14 days before completion. This does not give the creditor time to apply for his chunk. House is sold, CO automatically drops off at the point of sale. You've got all the proceeds, claimant gets nothing - it's too late.

 

This only applies if the house is joint, but the debt is in one name.

 

Even though it may be a final CO, it only carries the "weight" of a restriction

 

Oh I see! Many thanks hatesdebt!

We still havent heard of a court date yet for the final CO hearing..........the interim order was awarded on the 4th March.......anyone know how soon we will hear of a new date for the hearing.....or does it depend on how busy they are?

 

Also, going back to my letter to the Land Registry above, should I add about the missing documents etc or leave that out?

 

Many thanks

[humbleman]

I think simplistically it means........

 

If you decide to sell, your solicitor is only obliged to inform the land registry / creditor of the sale 14 days before completion. This does not give the creditor time to apply for his chunk. House is sold, CO automatically drops off at the point of sale. You've got all the proceeds, claimant gets nothing - it's too late.

 

This only applies if the house is joint, but the debt is in one name.

 

Even though it may be a final CO, it only carries the "weight" of a restriction

 

Would you part with your money if there was a caution placed on a property your were buying

[diddydicky]

you wouldn't need to- at the point of completion the charge would have dissapeared

[Northstar68]

LOL

 

Right, first thing's first, I need to get this letter off to the Land Registry tomorrow, this is what I have written, havent gone into more details because they just wanted to know if I object and the grounds I have :

does this sound ok, is there anything that I shouldnt put or anything I should add (like the missing agreement and lots of other stuff missing that has prevented us from auditing the account?)

 

Many thanks,

 

Dear Land Registry,

 

Title Number : xxxxxxx

Property Affected : xxxxxx

 

I am writing to confirm that I object to the application to register a restriction against the above property.

 

My reasons are as follows:

 

1. I object to a CO being placed in that I have a beneficial interest in that I jointly own this property.

 

2. When this house was purchased I paid the deposit and have been maintaining the mortgage payments.

 

3. We have a payment arrangement in place with our other creditors, which MBNA refused to be part of and this would be upset by an order being made.

 

4. Our other creditors who have accepted pro-rata payments and have reduced or frozen the interest would be unduly prejudiced.

 

5.Our mortgage is a joint mortgage but this debt is only in one name and I do not wish to be penalised for X's debt.

 

6.Do I say here about not being able to audit the account as MBNA have failed twice now to send me the info I require? (missing agreement, list of unfair charges going back to the time the account was opened) ?

 

anything else I need to add? This is going to the Land Registry only I think, I have emotional reasons too but does the Land Registry need to hear that or is something I save for later?

 

Many thanks again for your time

 

Me again,

Morning all ,

Iwould like to get the above letter off to the Land Registry today if poss,

pls can anyone advise me if I can add number 6 above or leave it out? (seeing as this is my objection about the CO and the SAR was his request for his account.....even though I did all the work LOL)

Many thanks!

[Northstar68]

Also, a question about the SAR......

what does 'manual intervention' mean? I asked for it but to be honest I dont really understand what it is.

Many thanks,

 

(both letters, Land Registry and MBNA/Restons will now go out on Monday, dont want to rush them and make a mistake)

[Northstar68]

bump

[patrickq1]

where documents have been moved to another dept,where documents have been altered with written content ,where documents have been scanned and added to microfiche etc etc ...

[Northstar68]

Lovely Patrick, thank you.

[Northstar68]

OK guys and girls,

 

I'm writing the response letter to my incomplete SAR, it's all done but I have a question....

you now they said that they can't provide a copy of the original signed agreement.......do I need to make a reference to that at all in this letter?

And if so, what do I say exactly? I'm asking because I am highlighting all the missing info and the agreement is missing but they have said they cant provide it so do I need to make a reference to it in this letter at all?

 

Many thanks!

[stardeed]

Hi Northstar,

 

I read this entire thread last night as I'm in a similar situation to you [OH is sole debtor - house is jointly owned] but we've already got to the final CO stage - it's a major worry so I really sympathise with you going through it yourself. I wanted to let you know that I understand what you're going through/been through I wanted to bump this thread as things seem to have gone a little quite.

 

I would say that I'd be inclined to say nothing about the missing CCA - as from what I've read on various threads on this forum, it seems failure to provide it means you have a better case, although I think that applies moreso at a much earlier stage of proceedings that where you [and me] are currently at. The lack of a CCA would have had some clout if you'd had it right at the start, as a means of defence. That's my understanding anyway, someone can correct me if I'm wrong.

 

Looking forward to your update on all of this and seriously hoping that you get a better result than we did

 

OK guys and girls,

 

I'm writing the response letter to my incomplete SAR, it's all done but I have a question....

you now they said that they can't provide a copy of the original signed agreement.......do I need to make a reference to that at all in this letter?

And if so, what do I say exactly? I'm asking because I am highlighting all the missing info and the agreement is missing but they have said they cant provide it so do I need to make a reference to it in this letter at all?

 

Many thanks!

[Northstar68]

HI Stardeed,

 

Many thanks for writing and your support. Yep, all gone a bit quiet now as I sent MBNA/Restons the letter back telling them what was missing (didnt mention the CCA as they admitted already they didnt have it LOL)

so I focussed on the missing default, missing termination, missing all sorts of other stuff.

Their deadline is in a few days so I will post back here when they respond as I will need some advice on what to do next. In the meantime the Land Registry have received my objections to the CO and they said they have passed it onto Restons.....so it's a waiting game now!

 

So sorry to hear you had to go through the same. It makes this all the more harder when you get into this problem through no fault of your own, which has happened to us. But, I am a fighter so will keep going until someone actually restrains me and says ENOUGH, YOU CANT DO ANYMORE!

MBNA and Restons thought they could bully my old man.....but they didnt know he had a wife with a big mouth and one who will fight to defend her rights!

Have a lovely weekend. Many thanks again

 

I will be back everyone.....just waiting to see what comes in the post now. The ball is in their court.

[Northstar68]

Hi Everyone!

 

Hope you all had a good Easter.

Well, Im back and here is the update:

 

MBNA/Restons have ignored my reply to their incomplete SAR so I am now looking into making a complaint with the ICO......anything else I should be doing?

 

We still havent heard of the final court hearing court date. I know they go the interim CO on the 4th March.

 

The Land Registry received my objections to the CO 2 weeks ago now and said that they have passed it onto Restons so I need to wait to hear from them.

 

Feel a bit in limbo now, I will work on the complaint to the ICO this week....then I guess it's a waiting game?

 

Cheers!

 

Also forgot to say : when do I actually go for the set aside as discussed in my earlier posts, should I wait to see what the ICO do?

Edited April 7, 2010 by Northstar68

[diddydicky]

Hi Everyone!

 

Hope you all had a good Easter.

Well, Im back and here is the update:

 

MBNA/Restons have ignored my reply to their incomplete SAR so I am now looking into making a complaint with the ICO......anything else I should be doing?

 

We still havent heard of the final court hearing court date. I know they go the interim CO on the 4th March.

 

The Land Registry received my objections to the CO 2 weeks ago now and said that they have passed it onto Restons so I need to wait to hear from them.

 

Feel a bit in limbo now, I will work on the complaint to the ICO this week....then I guess it's a waiting game?

 

Cheers!

 

Also forgot to say : when do I actually go for the set aside as discussed in my earlier posts, should I wait to see what the ICO do?

 

yes write to them that unless they produce what you want within 7 days you will make an application to the court (but don't make the threat unless you intend to carry it out)

[Northstar68]

Thx diddidikcy,

 

I have been through all this though, 3 times they have ignored my requests for all the info so now the letter to the ICO is going tomorrow detailing all the missing info.

Should I wait to hear back from them or start the ball rolling for the set aside?

 

I will fight on and am prepared to take the next step necessary to get MBNA/RESTONS off our backs legally.

Just want to be sure I am doing things in the right order.

 

Many thanks

[diddydicky]

If they have refused to comply with the SAR and you have the proof of delivery of the request then i would make an application to the court to order them to produce the information. and that no further proceedings take place until you have been provided with the information

 

this would have the effect (IMO) of giving grounds to delay any hearings until that information is provided

[Northstar68]

Well here we go! We have a final charging order hearing date!

 

Now it's here I feel sick,.......but from what everyone has said here we have a good chance to get them legally off our backs.......

The hearing will be in about 6 weeks........

 

The letter of complaint to the ICO will go special delivery Monday.

 

Now, with this timescale, I know I need to get my objections written down to send to the court the week before.........

 

This set aside thing......do I start the ball rolling now? How? (I will read through my thread again of course!)

 

I'm all over the place now, not sure what I should be doing first, slight panic mode as the letter just arrived today.....so I need to calm down and fast, I know I can do this, with your help of course, please can you just tell me the order of events now, what I should do first and by when.......

 

I have about 5 weeks to prepare, 6 weeks to the hearing.

Huge thanks as always.

[Northstar68]

OK me again,

I have read through loads of things here, got lost on the way.

 

Thinking aloud :

 

1. letter to the ICO going Monday special Delivery

2. in the next week or so I will sort out my objections.

3. go for the set aside.......wahaaaaay

 

so for number 3, how do I go about that please? I have opened up so many links and boxes here that I'm lost now and suffering info overload, if anyone could advise me on how I begin the set aside process I would be so grateful.

Thanks so much as always.

Drinks on me

[lilly white]

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

[lilly white]

Northstar.

 

if it was me i would fight back not easy i know.............. however you are a member of this forum.

 

To you of course

 

Kind regards

 

lilly white

[Northstar68]

Thank you for writing lilly white.

 

I am DEFINATELY continuing the fight and won't stop until one of you good people here says to me 'enough, you have done all you can' or the Judge rules in our favour (big chance we may have the same judge), not sure if that's good or not seeing as he ruled forthwith last time!

 

All I need is the push behind me that I have enough to have this business set aside then I will go for it. MBNA AND RESTONS have been downright, nasty, bullying, used delaying tactics to stop me auditing my husband's account and much much more, plus the rubbish advice the CCCS gave us.....I've got so much I'm unhappy about as you have all read above.

 

So bring it on I say!

 

I will be studying the link later tonight and start again with it tomorrow.

Thank you so much.