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

[The Mould]

Good evening Mrs SB

 

Obviously, payment of the amount claimed would ensure no charging order, can you please remind me of the sum being claimed.

 

Even if Judgment is awarded against you, you can file your proposal to repay the debt at an amount that is within your means, the court would put your propsal to the claimant, he might reject it, even so, the court still has the power to set the rate of payment, based upon your I & E, if you maintained the payments, then no charge on your property, however, the claimant could apply for redetermination and request payment forthwith, you can resist this action based upon your financial status, what you can afford, however, the claimant could succeed, if he does then he will apply for interim charge on your property, there would then be a final charging order hearing, again you can defend the action and put your grounds forward objecting to his action, if you succeed then the rate of payment will continue until the debt is paid, if the claimant succeeds then he might apply for an Order of Sale, again, you can defend the action, depending upon your circumstances and the size of debt, he might succeed, however, the courts are very reluctant to allow a forced sale of the debtor's home, this is only a last resort and it will depend upon the circumstances of the case.

 

Based upon everything reported by you, posted here, I think you have nothing to worry about as far as forced sale of your home is concerned.

 

I hope that helps you somewhat Mrs SB.

 

Kind regards

 

The Mould

[NewToTheFight]

Sorry SB, I don't have time to read all of the thread, but I did read some of the start.

You stated they were coming after you for an amalgamation of 3 accounts (one with a zero balance)

It is my understanding that prior to enforcement you must be issued with a valid Dn followed by a Tn

If this is indeed an amalgamation of three accounts how can a valid Dn be issued? A Dn , to be valid, must show the amout of the arrears and the breach you have committed in order that you can rectify them by the given date.

Have you received such a Dn??

Logic tells me, I may well be wrong, but if you have continued to make payments then the amount requested on the Dn (if served) will have reduced.

Is there any way of paying the balance requested on the Dn? I believe there is an argument to be made that this would remove their cause of action

 

Just my thoughts SB, as always conduct your own research. Hopefully others will dismiss my points if they are illfounded

[HSBCrusher]

Thank you anyway for your comments........SB.

 

the last comment wasn't directed to you SB.

[IainHL]

It is my assertion that the statutory notice

.

.

.

It is my assertion that the claimant is responsible for his own actions, whether those actions are rightful ones or wrongdoings.

Mr. Mould, for the benefit of Mrs. SB, and others following this thread, the piece you have quoted above looks like it is an extract from someone's defence to a similar case. Is this so (and apologies if it comes from a proposed statement in this case further up the thread, I have read it all, but don't remember this form of words being in here)? If so, is there a thread someone for this other case? And if so, was the argument successful or not?

 

I for one have not lost sight of what you are suggesting in this case, which is that their invalid DN renders their case ineffective, leaving them no option but to discontinue this action, and thus bear their own costs so far, meaning Mrs. SB will not be another >£3,000 out of pocket. (In fact would not Mrs. SB then be able to apply for wasted costs as a LiP?)

[Guest]

Hi

This is one of the areas I have a problem with. I have helped prepare a number of these payment proposals both with the CAB and independently.

Generally these are accepted by the creditors after some initial argument because they know that when they go to court the judge will see that the debtor a has

A tried to address their situation and,

B this is all the money debtor is able to pay.

I have heard however of debtors who have perhaps been economical with the truth in their I and E statements or failed to keep up arrangements made and come unstuck.

I am not implying this is what happened in your case, I do not know.

I still wonder why you do not try for a time order to prevent a possible forthwith judgement.

I would hate others reading this to think that there is no other way out of their situation than to go to court, it is simply not the case.

Regards

Peter

[pt2537]

a very powerful and persuasive document has been released by the OFT recently http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft1107.pdf it is something which i understand has been relied upon by people in litigation to assist in showing an unfair relationship under s140a CCA 1974

 

The part in question is section 7 from page 65 onwards,

[Guest]

a very powerful and persuasive document has been released by the OFT recently http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft1107.pdf it is something which i understand has been relied upon by people in litigation to assist in showing an unfair relationship under s140a CCA 1974

 

The part in question is section 7 from page 65 onwards,

 

Hi

 

Excellent

Had not seen this

Thanks paul

 

Peter

[pt2537]

I find it helpful for people who have been trying to service their debts but the lender has refused all offers to pay.

 

Nationwide are one such lender who despite offers of over half the contractual payment when customers are in difficulty and prove their financial circumstances do not allow for the full payments, still choose to litigate without a second thought.

 

It is lenders like that who will get caught in the guidance. I dont expect the courts will ever write off the debt, but the Court does have the power to reset the installments to a manageable level, the Bentley case shows this http://news.bbc.co.uk/1/hi/business/8332124.stm The courts are more willing to give a remedy which is balanced and fair as opposed to writing off in total

[Guest]

I find it helpful for people who have been trying to service their debts but the lender has refused all offers to pay.

 

Nationwide are one such lender who despite offers of over half the contractual payment when customers are in difficulty and prove their financial circumstances do not allow for the full payments, still choose to litigate without a second thought.

 

It is lenders like that who will get caught in the guidance. I dont expect the courts will ever write off the debt, but the Court does have the power to reset the installments to a manageable level, the Bentley case shows this http://news.bbc.co.uk/1/hi/business/8332124.stm The courts are more willing to give a remedy which is balanced and fair as opposed to writing off in total

 

Hi

 

Yes and of course making the creditor aware of these guidlines may just be the added nudge needed that prevents them litigateing at all. Especiallly if they think that there lack of flexibility may be used against them in court.

 

Peter

[pt2537]

We are just about to file a defence which raises these issues, i do honestly expect the opponents will discontinue and come to a payment arrangement which is what they ought to have done, as they are in breach of 78,86a-d and 87 CCA in any event.

 

will let you know what happens

[stone-broke]

Sorry SB, I don't have time to read all of the thread, but I did read some of the start.

You stated they were coming after you for an amalgamation of 3 accounts (one with a zero balance)

It is my understanding that prior to enforcement you must be issued with a valid Dn followed by a Tn

If this is indeed an amalgamation of three accounts how can a valid Dn be issued? A Dn , to be valid, must show the amout of the arrears and the breach you have committed in order that you can rectify them by the given date.

Have you received such a Dn??

 

Logic tells me, I may well be wrong, but if you have continued to make payments then the amount requested on the Dn (if served) will have reduced.

Is there any way of paying the balance requested on the Dn? I believe there is an argument to be made that this would remove their cause of action

 

Just my thoughts SB, as always conduct your own research. Hopefully others will dismiss my points if they are illfounded

 

Thank you N2TF......yes, it is three accounts, although they have mentioned each one on the PoC. One account is at zero!! The other 2 have had DN's issued although they are deemed as 'bad'. The balances would be wrong as I have continued to make reduced payments. However, 'they' have chosen to use this money to reduce the OD and not the loan!

I am not in a position to pay the reduced balances off in full, but will continue to make my reduced payments which is what I can presently afford.

Thanks for your comments :o)

[stone-broke]

Hi

This is one of the areas I have a problem with. I have helped prepare a number of these payment proposals both with the CAB and independently.

Generally these are accepted by the creditors after some initial argument because they know that when they go to court the judge will see that the debtor a has

A tried to address their situation and,

B this is all the money debtor is able to pay.

I have heard however of debtors who have perhaps been economical with the truth in their I and E statements or failed to keep up arrangements made and come unstuck.

I am not implying this is what happened in your case, I do not know.

I still wonder why you do not try for a time order to prevent a possible forthwith judgement.

I would hate others reading this to think that there is no other way out of their situation than to go to court, it is simply not the case.

Regards

Peter

 

Hi Peter,

 

I am unsure what a time order is??? I have not been able to come online for some time and I'm just catching up with recent postings on here.

Thanks

SB

[stone-broke]

a very powerful and persuasive document has been released by the OFT recently http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft1107.pdf it is something which i understand has been relied upon by people in litigation to assist in showing an unfair relationship under s140a CCA 1974

 

The part in question is section 7 from page 65 onwards,

 

Thank you pt2537......I will read as I think this might be of great help.

SB

[stone-broke]

I find it helpful for people who have been trying to service their debts but the lender has refused all offers to pay.

 

Nationwide are one such lender who despite offers of over half the contractual payment when customers are in difficulty and prove their financial circumstances do not allow for the full payments, still choose to litigate without a second thought.

 

It is lenders like that who will get caught in the guidance. I dont expect the courts will ever write off the debt, but the Court does have the power to reset the installments to a manageable level, the Bentley case shows this http://news.bbc.co.uk/1/hi/business/8332124.stm The courts are more willing to give a remedy which is balanced and fair as opposed to writing off in total

 

Another big thank you pt2537...........SB

[stone-broke]

We are just about to file a defence which raises these issues, i do honestly expect the opponents will discontinue and come to a payment arrangement which is what they ought to have done, as they are in breach of 78,86a-d and 87 CCA in any event.

 

will let you know what happens

 

Good luck pt........will be interesting to know the outcome. SB

[caro]

Hi Peter,

 

I am unsure what a time order is??? I have not been able to come online for some time and I'm just catching up with recent postings on here.

Thanks

SB

 

Info on time orders here. http://www.consumeractiongroup.co.uk/forum/entry.php?184-Looking-for-a-Debt-Management-Plan-Please-ensure-that-you-don-t-end-up-paying-for-it.&goto=next

[stone-broke]

Thank you for the link caro......interesting read! SB

[pt2537]

the application for the Time order is here

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n440_0499.pdf

 

It is notoriously hard to obtain as the courts appear to construe the provisions of 129 CCA as very narrow.

 

Blackstones Civil Practice sets out the routes to obtaining a time order and the case law etc

 

I will post up what they say later

[stone-broke]

the application for the Time order is here

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n440_0499.pdf

 

It is notoriously hard to obtain as the courts appear to construe the provisions of 129 CCA as very narrow.

 

Blackstones Civil Practice sets out the routes to obtaining a time order and the case law etc

 

I will post up what they say later

 

I guess it is worth looking at pt; as it is always another possible route. I am longing to put all this to bed as it has been going on for so long. I have been reading the OFT guidance and there seems to be a lot there I could use at court as the relationship has been so unfair- regardless of them being so very aware of the financial hardship I have encountered. However, I am unsure if the court would even consider the OFT guidance as they are only concerned with CPR's.

I have to start looking at all this in depth soon and start to get information together in preparation for court............daunting but a task that needs to be done!

Thank you,

SB

[pt2537]

no the OFT guidance is something the Court can consider

 

The Court has very wide powers under the Consumer Credit Act 1974, s140a give the court the power to consider "Anything" done by the creditor or its agents

[stone-broke]

Will take a look pt.....thanks again :o)

SB

[tedney]

subbing thanks - note - unable to use "thread tools" to subscribe, as not visible on my screen!

[steven4064]

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.

[pt2537]

In Southern and District Finance plc v Barnes (1995) 27 HLR 691 the following principles were laid

down: (1) When a time order is applied for, or a possession order is sought in respect of

land to which a regulated agreement applies, the court must first consider whether it is just to

make a time order. That will involve consideration of all the circumstances of the case and of

the position of the creditor as well as of the debtor. (2) 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 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. (3) When a time order is made relating to non-payment of money: (a) the ‘sum

owed’ means every sum which is due and owing under the agreement, but where possession

proceedings have been brought by the creditor that will normally comprise the total

indebtedness; and (b) the court must consider what instalments would be reasonable both as

to amount and timing, having regard to the debtor’s means. (4) 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 the order. If the rate of interest is amended, it is relevant that

smaller instalments will result both in a liability to pay interest on accumulated arrears and,

on the other hand, in an extended period of repayment. But to some extent the high rate of

interest usually payable under regulated agreements already takes account of the risk that

difficulties in repayment may occur. The practice of amending agreements (including

amendment so that no further interest is payable) was approved by the House of Lords in

Director General of Fair Trading v First National Bank plc [2001] UKHL 52, [2002] 1 AC 481. (5) If a

time order is made when the sum owed is the whole outstanding balance due under the loan,

there will inevitably be consequences for the term of the loan or for the rate of interest or

both. (6) If justice requires the making of a time order, the court may suspend any possession

order that it also makes, so long as the terms of the time order are complied with.

 

 

 

 

That has always been the problem we face when applying for a time order, and that exceprt is from blackstones, and refers to the cases we have been referred to when the opponents have opposed a time order

[steven4064]

I understand the principles but the courts are also pragmatic. If a debtor has no assets then enforcing the regulated agreement is pointless and the courts know it (as do sensible creditors). In those cases, a time order is the just solution - the creditor gets something rather than nothing.