Fighting A Charging Order MBNA/RESTONS after Redetermination

[Northstar68]

Yes they sent me the comms log and it shows there that apparently the DN was sent out in July 2009. We never got it, they havent provided a copy of the letter either, all we got was a letter from Restons in early August telling us to pay up or else......this is how this story began.

 

Anyway, I ma going to the post office shortly, the set aside is all done, god knows what will happen, at least I tried I suppose I suppose the May date will be cancelled and they will set a new court date? (if they approve the set aside?)

[lilly white]

Yes they sent me the comms log and it shows there that apparently the DN was sent out in July 2009. We never got it, they havent provided a copy of the letter either, all we got was a letter from Restons in early August telling us to pay up or else......this is how this story began.

 

Anyway, I ma going to the post office shortly, the set aside is all done, god knows what will happen, at least I tried I suppose I suppose the May date will be cancelled and they will set a new court date? (if they approve the set aside?)

 

Please remember we will fight this with you...............

[Northstar68]

Thank you lilly white;)

Now we wait................

 

anyone know what the timescale is, what happens next?

[lilly white]

yes this is now the hard bit...............

 

Wait and see what comes our way

 

 

lilly

[Northstar68]

Still waiting just so you know.

The court have had the set aside application now for about 2 weeks.

We are in court for the final charging order hearing this month, later this month......I guess I should get my objections ready to take to court for the finall charging order hearing.......just in case we don't hear about the set aside?

[Northstar68]

OMG OMG OMG!!!!!!

Got a letter from court today to say that we have been given a hearing for the judgement to be set aside!!!!!!!!!

It's in 3 months time!!! Apologies my hands are shaking!!!

 

The final charging order hearing is still going ahead though, I phoned the court and they told me that we still need to attend in 2 weeks time but to make the Judge aware that we have the set aside hearing date!!!

 

Is this good news??It's got to be good isn't it!

 

Questions :

 

Do I still write out and send my objections to the court and send it next week........or should I just say that we have a hearing for the judgement to be set aside and leave it at that.....not sure, maybe just sit and write out my objections just in case?

Oh god I am all over the place since I got this letter an hour ago!!

 

Any advice much appreciated........and how to calm down!

[AndyOrch]

Impossable to to make application for a CO on a Judgment that has a Redetermination attached to it, unless you have defaulted on the Redetermination payment!!!!

 

 

Regards

 

Andy

[sequenci]

Impossable to to make application for a CO on a Judgment that has a Redetermination attached to it, unless you have defaulted on the Redetermination payment!!!!

 

 

Regards

 

Andy

 

The defendant would have to raise the fact that they have not breached the instalment order as set by the court. If they don't do so it is very possible for the application to be made final. The onus would be on the defendant.

 

Taken from my guide on charging orders:

 

Section 1: The Charging Orders Act 1979:

 

Where, under a judgment or order of the High Court or a county court, a person (the “debtor”) is required to pay a sum of money to another person (the “creditor”) then, for the purpose of enforcing that judgment or order, the appropriate court may make an order in accordance with the provisions of this Act imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order.

 

If there is an instalment order in place, a creditor would not be able to apply for a Charging Order.

 

Section 86(1) The County Courts Act 1984:

 

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. It should be noted, however, that in the case of Ropaigealach V Allied Irish Bank CA Nov 2001 where an instalment order is made AFTER an interim charging order has been made, a court has the jurisdiction to make a Charging Order final.

[Northstar68]

Mine is a long story Andy......we havent defaulted on anything as such but we had a forthwith judgement and went for a set aside hearing which we now have in August but the final charging order hearing is in 2 weeks.

I just posted to let everyone know the latest and that we have a set aside hearing.

I had thought that the set aside hearing would stop anything further happening but the court told us to still turn up in 2 weeks to the final charging order hearing.

[sequenci]

I had thought that the set aside hearing would stop anything further happening but the court told us to still turn up in 2 weeks to the final charging order hearing.

 

You need to put a request in to the court to put a stay on the charging order hearing on the grounds that there is a pending set aside request.

[Northstar68]

Mine is a long story Andy......we havent defaulted on anything as such but we had a forthwith judgement and went for a set aside hearing which we now have in August but the final charging order hearing is in 2 weeks.

I just posted to let everyone know the latest and that we have a set aside hearing.

I had thought that the set aside hearing would stop anything further happening but the court told us to still turn up in 2 weeks to the final charging order hearing.

 

As explained in previous posts we are way past this stage, we never missed a payment set by the court, at the first hearing, the credit card company went for a redetermination and the judge gave it to them, even though they didnt show up and we never missed a payment! So we reall are way past this stage, thanks for writing though.

I need to focus on what I need to do now please.

 

Still go with my objections to court? Or just with the new hearing details as the court told me I must make the judge aware we have been granted a set aside hearing.

[AndyOrch]

Your thread title implies " after Redetermination" therefore negates the Forthwith Judgment. therefore as i have said and concurred by Sequenci tis not possible any DJ allowing a CO would be breaking the law.

 

 

Andy

[Northstar68]

My 2 threads were merged hence the change in title which one of the members here did for me to help others when searching.

[sillygirl1]

Get the court to have the Charging Order hearing moved because of the Set Aside, let them know in no uncertain terms that the court processes are being soundly abused by MBNA.

[Northstar68]

Morning, jyst bumping myself up a bit here.

 

Time sensitive now as the final charging order hearing is in 2 weeks.

We have a date for the set aside hearing in August.....

is it better to get a letter in the post now informing the court of the final CO hearing date and ask if it can be stopped or moved or whatever the correct words are (pls help!)

or should we turn up and show the judge the set asdie confirmation and see what he or she says?

 

Should I also be getting my objections to the final charging order hearing ready (as co owner....remember it's hubby's debt).........or does the set aside hearing automatically cancel out the final CO hearing date in 2 weeks.

 

Bit confused now, many thanks for any advice

[miss muppet]

You need to put a request in to the court to put a stay on the charging order hearing on the grounds that there is a pending set aside request.

 

This is really important, make sure you send your request in to the court by recorded delivery first available post, MBNA are banking (sorry about the pun) on your ignorance of court matters! This is not a matter on which you can relax.

[lilly white]

As you have been advice please inform the court that you will going for a set aside and have a date................

 

The war will start,,,,,,,,,,,,,,,, please remember they, not us wanted this...so war it is...............

 

 

lilly............

[Northstar68]

Morning all, just bumping myself up a bit again,

this is very time sensitive now, the final charging order hearing is in 2 weeks, I always send papers like this by Special Delivery not recorded so thats not a problem. However what worries me is the time......would my letter make it through the system in time to halt the final charging order hearing? I doubt it, I will send it anyway but be prepared to go on the day too.

 

Is that all that is needed, a few lines explaining that we have a date for the set aside hearing and please can they halt the proceedings? Is that the correct words to use? NOt sure.....

Many thanks

[miss muppet]

If you are worried about the time ring and speak to the Court Manager on Monday morning as well.

[Mydogsawestie]

Hi Northstar 68 well done for the set aside application.....could you not write to the other side asking for a response with a consent order in the form of a stay that the hearing does not go ahead at this time (adjournment) pending the outcome of the set aside hearing in August.

 

Should they not consent to this by (and put a date/time in it 4pm Fri) it will show the court that you have tried to deal with it in a sensible way & could put them on indemnity as acting unreasonable & they could then have an adverse cost order made against them as the CO can only be resolved pending the outcome of the set aside hearing after all? Looking from a practical point of view it would also save court time & costs.

 

Just a thought...MDAW

 

 

[Northstar68]

Thank you for your comments.......I'm really not sure, someone else advised me NOT to contact Restons about the set aside date and to still go to the final charging order hearing in 2 weeks.........now I dont know what to do........is there any harm in going on the 24th and telling the Judge then about the set aside? Or do I really need to send them a letter now asking them to halt the proceedings because we have a set aside hearing date.........I dont want to mess up now! Really dont know what to do for the best, ESPECIALLY because I agree with all comments!!

[Mydogsawestie]

Just bumping for you for others to comment on suggestions for you too.

 

Restons might huff and puff about it & may even leave it till 2 days before the CO hearing on the 24th to agree to it???....but if not & you still have to go to the CO Hearing hopefully the judge will see the merits of your argument and discharge the charging order for the time being anyway. You just need to demonstrate you have a good case and that other side have acted unreasonably in still wanting to go ahead with this when they knew you had a set aside hearing granted.

 

Also point out to Restons should they not agree to an adjournment & you are forced to attend you WILL BE seeking an adjournment at the hearing and will ask for costs.I'd also send a copy of the letter to the court (& make reference to this in your request )

[supasnooper]

Why have you not contacted the Court to make them aware of the Set Aside hearing and request the CO hearing should be stayed.

 

You really must get moving on this......the Courts make the decisions.........not Restons !!

[Northstar68]

Thanks supasnooper, the reason being that I have had conflicting advice on this, one said dont write to the court, just turn up on the day and show them the letter about the set aside then, the other says write to them to let them know.

Possibly a no brainer......I just want to be sure I am doing the right thing seeing as we have got this far!

Huge thanks,

I am having a confused day

[Northstar68]

Now we wait.................all done, doubt it will get through the system in time to stop the CO hearing but let's see eh!