Urgently need to know the difference between a CPR18, CPR 31.14 and CPR31.16

[pt2537]

yes, but the view also proffered by District Judge Sparrow for example is that the Creditor is also entitled to a judgment which he can then enforce through attachment of earnings or charging order

 

Todate we have not managed to get a time order due to the fact that most of our customers cannot afford to pay enough to achieve a time order

[steven4064]

So how does attachment of earnings help? What if the debtor is on benefits?

[pt2537]

oh no i agree with you, but the view we have seen has been if there is a debt, which there most-likely will be, and the debtor has not been paying it which is the norm otherwise why would you get a default notice, then the Courts seem to , unless the debtor can give a time for remedying the breach which is inside the agreement repayment period, take a hard line and allow judgments instead

 

It seems very difficult to get a time order for someone who cannot afford to pay is all im saying.

[caro]

oh no i agree with you, but the view we have seen has been if there is a debt, which there most-likely will be, and the debtor has not been paying it which is the norm otherwise why would you get a default notice, then the Courts seem to , unless the debtor can give a time for remedying the breach which is inside the agreement repayment period, take a hard line and allow judgments instead

 

It seems very difficult to get a time order for someone who cannot afford to pay is all im saying.

 

One of the points of a time order is that it can extend the period to repay. Surely that has to be better for the creditor than not to get paid at all, and gives the debtor a realistic prospect of paying back what they've borrowed and agreed to. As we know, most people are willing to honour their obligations if they can.

[Guest]

Actually, in my experience, time orders are quite easy to obtain. The courts realise that the debtor wouldn't be in debt of they could afford to pay in one go and a time order means that at least the debt gets paid off eventually.

 

The secret is to be entirely honest with the court about what you can afford and what you can't. In other words, provide a completely honest statement of income and expenditure. In one case I helped with the court instructed the debtor to agree a monthly payment with the bank and 'not to let them presurise you into paying what you can't afford'. The resultant agreement was then made into a time order. In a second case, we got a time order after the debtor had defaulted on a CCJ!

 

In both cases, the debtor was a litigant in person. So, don't give up and don't be disuaded from applying for a time order. As I said, in my experience, the courts are quite ameanable if you are honest with them.

Hi

 

Must agree here, i have been invoilved in the re scheduling of a couple of welcome loans using section 129, the interest on both loans was modified as well as the term. But i do agree that it much to do in large amount with the transparency of the lenders application.

 

Peter

[pt2537]

In the "Barnes" case the court said that

 

If,despite the giving of time, the debtor is unlikely to be able to resume payment of the total

indebtedness by at least the amount of the contractual instalments, no time order should be

made. In such circumstances it would be more equitable to allow the regulated agreement to

be enforced.

 

This is the difficulty i have faced. It has been the Creditors objections to the granting of the time order that have caused the problems due ot the case authorities i refer to

[caro]

Interesting the different experiences. Perhaps this a case of the litigant in person having greater success in pleading their own case, explaining their own circumstances openly and getting a better hearing from judges. I think they respond well to this kind of approach.

 

After all the law is the same regardless .....

[pt2537]

maybe the opponents in the other cases didnt rely on the Barnes case either. Certainly in every case where the Court has been referred to this case in my experience the Court has refused a time order if the repayments would exceed the time frame of the agreement, for example if the agreement was 48 months and the Debtors proposal would make it become 60 months the Court has refused such an order

[nicklea]

I don't know how beneficial this is, but the Barnes case was refered to in the First National Bank case in the House of Lords.

 

As I understand it, in the Barnes case, which involved three different appeals I think, the Court dimissed an appeal in one of the cases where the county court judge had given a new payment timescale of 15 years under a time order and Leggatt LJ said at p71:-

 

"When the Judge re-scheduled the instalments under the agreement he did so over a fresh period of fifteen years. Since nearly three had passed since the agreement was made, this had the effect of extending the total of the agreement to nearly eighteen years. The Judge reduced the rate of interest to nil, since otherwise throughout the extended period of the loan interest would have been payable on the arrears at the exorbitant rate prescribed, and that would have defeated the purpose of giving time. In effect as a sanction for non payment of instalments a suspended possession order was substituted for a penal rate of interest. The Court gave the plaintiff leave to appeal against his order, though the Judge's methods were robust and his reasoning economical, his instincts were sound and his order just. I would dismiss the appeal."

This judgment was then referred to in the First National Bank case [2001] UKHL 52 :-

 

27. In conclusion, I would add a footnote on sections 129 and 136 of the 1974 Act. In the course of argument the House was referred to the decision of the Court of Appeal in Southern and District Finance plc v Barnes and Barnes and two related appeals reported at [1995] CCLR 62. The effect and interaction of sections 129 and 136 were there considered.

 

28. Of section 129 the court said (at p 68):

 

• "When a time order is made, it should normally be made for a stipulated period on account of temporary financial difficulty. If, despite the giving of time, the debtor is unlikely to be able to resume repayment of the total indebtedness by at least the amount of the contractual instalments, no time order should be made. In such circumstances it will be more equitable to allow the regulated agreement to be enforced."
  

I would in general agree that time orders extending over very long periods of time are usually better avoided. But I note that the court dismissed an appeal against a judge who had rescheduled payments over a period of 15 years ("Though the judge's methods were robust and his reasoning economical, his instincts were sound and his order just": p 71), and the broad language of section 129 should be so construed as to permit the county court to make such order as seems to it just in all the circumstances.

 

29. Of section 136 the court said (at p 68):

 

• "The court may include in a time order any amendment of the agreement, which it considers just to both parties, and which is a consequence of a term of the order . . ."
  

In the case already referred to the judge had ordered that no additional interest should be payable beyond that which had already accrued, and the Court of Appeal upheld his decision. It was right to do so: provided the amendment is a consequence of a term of the time order, the court should be ready to include in a time order any provision amending the agreement which it considers just to both parties.

[Guest]

HI

Yes and this from debt advice line

It should be easier to ask the court to make a time order following a decision in the Court of Appeal in March 1995. The case is called Southern & District Finance plc v Barnes. This is very important as the court agreed that the whole amount of money owing on the agreement can be included in a time order. Also the monthly instalments and the interest rate on the loan agreement can be reduced if the court thinks it is just to do so, and it is needed to make the time order work.

 

■As part of the case of Southern & District Finance v Barnes, the Court of Appeal also said that time orders should only "normally" be made if someone is in temporary financial difficulty. You may have to show that your case is not a normal one or there is a good chance of your circumstances improving. The court may well give a time order only for a limited period. You may have to ask for any exceptional circumstances to be taken into account to allow you to have a time order over a longer period. Argue that under Director General of Fair Trading v First National Bank (2001), making a time order over a longer period is possible if it "seems just in all the circumstances".

■Anything you can say to show your situation is through no fault of your own will help when applying for a time order as the court will look at your payment record, how you got into debt and why you took the loan out.

From here

http://www.google.co.uk/url?sa=t&source=web&cd=1&ved=0CBgQFjAA&url=http%3A%2F%2Fwww.bdl.org.uk%2Fimages%2F13_time_orders_scot.pdf&ei=P8W6TdXaNcnB8QPR0LzACw&usg=AFQjCNH2AUxtYglp_Ud3v2MA3GrDB9wL2w

As Stehen says it is a lot down to the presentation of the cases. Perhaps a LIP has the advantage here for once?

 

Peter

Edited April 29, 2011 by peterbard

[the_shadow]

AS Stephen says it is a lot down to the presentation of the cases. Perhaps a LIP has the advantage here for once?

 

Peter

 

I think you've hit the nail on the head there Peter.

 

S.

[stone-broke]

Hi all........lots of added reading for me to do here I see! I have had a quick read just now and from what I can gather the payments re a Time Order would need to be what they should originally have been?? Is that right?

SB

[nicklea]

No - they can be set at whatever level the court deems is just in all the circumstances

[steven4064]

And the court will take into account current income and other debts

[pt2537]

I think that like in anything legal, its a mixed bag of results.

 

for example, we lost slater, we won Harrison, we won a PPI case recently having the agreement declared unenforceable and lost our first case this year on the same facts so i think it depends on the variables, such as court, judge, whether the judge is pro bank or anti bank etc

 

these are things that cannot be foreseen sadly.

[caro]

I think that like in anything legal, its a mixed bag of results.

 

for example, we lost slater, we won Harrison, we won a PPI case recently having the agreement declared unenforceable and lost our first case this year on the same facts so i think it depends on the variables, such as court, judge, whether the judge is pro bank or anti bank etc

 

these are things that cannot be foreseen sadly.

 

Indeed they can't which is why I fervently believe that people should be proactive and do all they can to avoid going to court and the risks associated with it, including costs and problems obtaining credit, including mortgages, for years to come.

 

Don't get me wrong, I don't condone creditors flouting the law and abusing debtors either, but I do think it's often possible to find a middle ground that's is acceptable to both parties. The sooner this can be achieved the sooner people can get on with their lives without the worry of trying to satisfy debts that they can't possibly afford, or fighting court actions with all the associated stress and worry.

 

I understand that if they win in court costs will very often be covered one way or another, but if they lose people are just a lot worse off.

 

Obviously it is up to every individual to do what is right for them and take responsibliity for their own actions, but I feel a responsibility to ensure that people can make those decisions based on the full facts.

 

In the interests of completeness PT, could you provide more info on the case that was lost. Is there a transcript that might help? If we can see where the judge was coming from in the decision it may be possible to find a way of addressing the issues that didn't work, or making sure that others don't inadvertently use them in the future.

 

I know the banks lost the PPI judicial review, but I suspect that will not be an end to the matter and they're likely to appeal.

 

Apologies to the OP for hijacking the thread. If you would prefer to have these posts removed, I'd be happy to move them to a new thread.

[Guest]

Hi

Maybe not relevant to this thread, but this can be useful in all sorts of circumstances.

For instance if it was a secured loan and you missed a couple of payments it could present a sum beyond the debtors ability to remedy within the period prescribed by the DN. Due to the amendments under the CCA 2006 the debtor can apply for Time Order even before the DN is issued(after notice of arrears).

So if the creditor is pushing to get a judgment, perhaps in order to eventually repossess. You can use the 129 to get an extended repayment schedule on the arrears only, at a token amount and have the interest frozen on it.( this is what happened one of the cases I was involved in).This way you avoid a judgment.

In most cases I suspect the offer would not even go as far as the court (if reasonable) as the creditor has to be pre warned of your offer first and he will know that if he refuses it he had better have good reason.

Peter

Edited April 30, 2011 by peterbard
attempt to translate to english

[Muffintop]

I apologise for posting here, I am trying to contact PT and cannot pm .. I have thread. Re: Imminent Charge on property Lloyds bank Business Loan pse help someone...

re imminent charging order and looking for PT to perhaps take a look. Again I really apologise for posting on someone elses thread

[the_shadow]

Hi MuffinTop, I'm afraid PT2537 is no longer on this site.

 

S.

[stone-broke]

Can anyone put some light on the WoodChester Lease v Swain case with respect to it being 'outdated'? The last ws I received from the other side has stated it is outdated! (A link to the case would be appreciated if possible too!

Thanks

SB

Edited June 2, 2011 by stone-broke
Additional info

[steven4064]

Here's a link to a summary http://www.shweb.pwp.blueyonder.co.uk/woodchester%20v%20swain.pdf

[caro]

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1998/1209.html&query=woodchester&method=boolean

[The Mould]

Can anyone put some light on the WoodChester Lease v Swain case with respect to it being 'outdated'? The last ws I received from the other side has stated it is outdated! (A link to the case would be appreciated if possible too!

Thanks

SB

 

Good evening Mrs SB

 

Type this in:

 

http://www.bailii.org/ew/cases/EWCA/Civ/1998/1209.html

 

Kind regards

 

The Mould

[The Mould]

I meant to say, click on this link, this is the transcript of the Woodchester case.

 

Kind regards

 

The Mould

 

PS. On another note, can you post up the WS from the claimant and bring us up to date with your case please

[stone-broke]

Thank you Steven, Caro and The Mould.

 

Nothing new since last posting. I am just getting all my papers together and printed off to post to court and the cobblers tomorrow. I have gone through their WS and made a list of things I need to get. I cannot type in the WS as it is too long and as mentioned previously I do not have a scanner to scan it in on here either!

I have used the WoodChester V Swain re bad default notices on a previous WS of mine. They have come backsaying I am relying on it and it is outdated. They say it held that a defaul;t notice must stipulate the nature and breach of the action required to remedy it and as the one in that case quoted incorrect figures, the DN was rendered invalid. They say that this is not the case here as the DN in my case is correct although they do admit that the DN is 'BAD'.

I used that case as it states somewhere in it that a DN should be in the prescribed form. This should also include the dates of service one would think?!!

SB