wycombe V Restons (MBNA)

[wycombe]

Thanks Paulb1972

 

I have an income expenditure sheet ready to print off in triplicate.

 

Also I will take details of my other creditors in case I am asked with the Community Legal Advice documents where payments to these were set with their help and, if I can find it, the letter when CLA advise me MBNA had turned down the offer of payment they tried to negotiate.

 

The CLA payments were negotiated through a joint income (me and the wife) expenditure sheet though this is not clear in the documentation. Am I correct in assuming the court will only assess my income with the Variation Order as I am only intending to provide my income and expenditure? - After all it is my debt not my wife's.

[wycombe]

I think I have four arguments to use to fight the Charging Order:

 

1) It would prejudice my other creditors who have agreed token payments and frozen interest until I am in a position to afford to pay more.

 

2) I have not been given the opportunity to demonstrate I can make regular payments as ordered by a court (submitted Variation Order).

 

3) The debt is small in comparison with the total value of the property.

 

4) It is unfair to subject my wife and son to penalties as I am solely responsible for this debt and my wife paid the deposit and mortgage since its inception.

 

5) The original debt is made up of a high proportion of higher than average and punitive interest rates. These interest rates reflected the risk the bank took when they granted the credit facility on an unsecured basis. A CO will negate this risk factor as the bank will have a secured debt after having charged an interest rate far higher than that of a secured credit facility - they will have charged for the risk without having taken any.

 

Whatever the outcome I will be asking for an installment order.

 

Comments welcome particularly if the arguments are valid and what would be the correct order of presentation in the Court. Any other arguments I can use would be most welcome.

[rebel11]

hi Wycombe

 

I'm not an expert, but I'm not sure how old your son is, but you could add his age and that he's settled in at his local school and has friends visit.

[wycombe]

Thanks rebel11

 

I do not think my son will actually count for much as he is living at home (he's 21) before going to University next year. The only reason he is here is to save as much as he can before going to University.

[Jeff2000]

Hi Wycombe,

 

A quick question.

 

Was your variation order submitted before they applied for the interim CO...?

 

 

Jeff.

[Jeff2000]

You will probably not get much life out of the argument of "Prejudice to the other Creditors" against CO im afraid.

 

 

 

Why not?

 

The Charging Order Act says otherwise..

 

 

Jeff.

[wycombe]

Jeff2000,

 

My Variation Order was received and acknowledged by my local County Court on 21/10/10.

 

The restriction was placed at the Land Registry on 26/10/10.

[Jeff2000]

Jeff2000,

 

My Variation Order was received and acknowledged by my local County Court on 21/10/10.

 

The restriction was placed at the Land Registry on 26/10/10.

 

 

Yes, but when did they make the application?

 

See if you can find out.

 

If your application for a variation was submitted before their application for an interim CO, then your variation MUST be heard before the final CO hearing.

 

 

Jeff.

[wycombe]

Thanks Jeff2000,

 

I have phoned the court and the Interim order was issued on 14th October so I'm afraid the CO has precedence.

[Jeff2000]

Hi Wycombe,

 

 

Do you have other creditors?

 

Have any of them agreed to reduced re-payment plans?

 

Have any of them agreed to freeze the interest?

 

Do you have enough equity in your property to repay all of your debts? (Yours and your wife's).

 

 

Regards, Jeff.

[wycombe]

Jeff2000

 

Thanks for your interest and assistance.

 

Yes I do have other creditors. These have (except for one and this one is accepting reduced payments) all accepted token payments and frozen interest. This was negotiated through the Community Legal Advice people and all payments have been religiously made as negotiated.

 

There is probably enough equity to repay all debts - the mortgage still has a few years to go and is about a quarter of the property value. Though how much the house would fetch in today's market is anyones guess!

[wycombe]

Removed as it was a double posting.

Edited December 6, 2010 by wycombe
Double posting

[Jeff2000]

Hi,

 

 

Do these other creditors know of the application for a CO?

 

Sometimes the Court may make an order that the other creditors are informed.

 

Your other creditors also have the right to lodge their objections to a CO being granted, as it would "unduly prejudice them".

 

Furthermore, your wife has the right to object as an individual with an interest in the property.

 

Oh, a question I meant to ask before. Are you still paying anything towards this debt?

 

 

Jeff.

[Jeff2000]

Duplicate.

[diddydicky]

the judge will hear both at the same time in order to save court time (IMO)

[wycombe]

Jeff200

 

As far as I know the other creditors have no knowledge of the CO.

 

My wife does not want to appear in the court - far too nervous. She is also working at that time. I could get her to draft a letter with her objection to the CO and take that with me.

 

I have not paid anything towards this debt since the last payment made on the last statement received. There are reasons for this - each time I tried to negotiate payments - myself, CCCS and Communtity Legal Advice MBNA flatly refused stating it was not enough. I have also spent a lot of time in hospital - in total I have had five operations in the last year and a half which was the reason I defaulted. Who did I send payments to - Virgin, MBNA or Reston's? Who was the payment to be made out to? How was the payment to be made? I had/have no bank account so needed BGC details or clear instructions of where payments were to go as these had to be made by others when I was in hospital.

Edited December 6, 2010 by wycombe
typo

[Jeff2000]

Jeff200

 

As far as I know the other creditors have no knowledge of the CO.

 

My wife does not want to appear in the court - far too nervous. She is also working at that time. I could get her to draft a letter with her objection to the CO and take that with me.

 

I have not paid anything towards this debt since the last payment made on the last statement received. There are reasons for this - each time I tried to negotiate payments - myself, CCCS and Communtity Legal Advice MBNA flatly refused stating it was not enough. I have also spent a lot of time in hospital - in total I have had five operations in the last year and a half which was the reason I defaulted. Who did I send payments to - Virgin, MBNA or Reston's? Who was the payment to be made out to? How was the payment to be made? I had/have no bank account so needed BGC details or clear instructions of where payments were to go as these had to be made by others when I was in hospital.

 

 

Yes, I see your point.

 

It's a pity really, as they cannot refuse any offer, no matter how small. They may not like it. They may even return your payments.

 

It's just that a record of attempted payments shown to the judge could help a bit.

 

By all means get your wife to draw up a letter of objection, it can't do any harm IMO.

 

 

Jeff.

[wycombe]

Hearing time today!

 

Thanks to all who have given help and opinions - all greatly appreciated.

 

I'm just wondering what I am going to get in the judge lottery today! If I get someone like the last one I may as well roll over and die!

 

My main hope is that the judge will look at my Variation Order and set payments to start paying off these horrendous people so I can at last start getting all my finances in order. Knowing MBNA as soon as they are able they will go for the jugular with a Sale Order and I want to give them no ammunition whatsoever. If there is anything I can do to pre-empt such an action I look forward to further contributions!

 

Anyway I will post up the result of my hearing later today.

[citizenB]

Hi Wycombe, I wish you the very best for today.

 

I would certainly be emphasing that other creditors via a recognised third party, had accepted reduced payments and frozen interest, and that MBNA had actually refused to accept payments from you. MBNA are much more aggressive with property owners.

[wycombe]

Thanks CB

 

Well Reston's got their Charging Order but I did manage to win some breathing space. The judge ordered that MBNA could take no further enforcement as long as I maintain a payment of £10 per month. This has been fixed for one year. So hopefully I can start getting my finances back on an even keel again.

 

So one very quick question - at the end of the year do I need to go for another Variation Order so as to fix payments again when this period expires?

 

Again thanks to all who sent PM's of support and those who have helped on this thread to date.

[Fluffystuff]

Well done you, now go and enjoy Christmas. Very best wishes to you and your family. xx

[foolishgirl]

Well done Wycombe, a reasonable payment term although IMO I don't think the DJ should have ordered the CO when he has no proof that your other creditors have been informed of the app.

 

At the end of 12 months Restons may apply to increase the payments in which case you would have to go back to court with further argument.

 

Alternatively you could apply to have the CO lifted on the basis that you have paid regularly for the last 12 months & your other creditors are still in the dark re. the CO. The latter could be a risky strategy as you may find the DJ orders a monthly increase (unless your circumstances worsen) & doing nothing may mean that Restons will 'forget' the exact terms of the order for as long as you go on paying the £10.

[diddydicky]

Thanks CB

 

Well Reston's got their Charging Order but I did manage to win some breathing space. The judge ordered that MBNA could take no further enforcement as long as I maintain a payment of £10 per month. This has been fixed for one year. So hopefully I can start getting my finances back on an even keel again.

 

So one very quick question - at the end of the year do I need to go for another Variation Order so as to fix payments again when this period expires?

 

Again thanks to all who sent PM's of support and those who have helped on this thread to date.

 

i would forget all about the "other creditors" arguments- they are a red herring and the majority of other creditors are totally unconcerned.

 

you carry on paying the £10 ad infinitum

 

i urge you to set up a STANDING ORDER (NOT a direct debit)- and date it about 10 days BEFORE the actual due date as you dont want any banking system cock ups making your payments a day or two late.

 

it is up to MBNA in 12 months to ask for a review of your financial situation

 

likewise it is ALWAYS up to you to also make a fresh application to the court to reduce the payments if your finances have diminished at any time

 

the only way that mbna could get a forced sale is if they could "catch you out" misrepresenting your financial situation at any future review- so make sure you are honest (or very clever at hiding your assets).

 

i cant remember what is owed but often- after paying a small amount for a few years- it is often possible to make a F & F on the CCJ- especially with payments of £10 per month as most of that will be swallowed up in admin fees.

 

i have managed in the past to settle CCJ's for 10% without too much difficulty

 

Assuming £5 of your £10 is taken up in admin fees- work out how many years you would be paying the ccj

 

then work out a figure in your head (say 10%) and use a calculator to work out how much interest the creditor would earn over those number of years based on investing the amount you are proposing to pay them

 

if they are similar or close- why would the creditor not want to get you "off their back"

 

good result

[foolishgirl]

i cant remember what is owed but often- after paying a small amount for a few years- it is often possible to make a F & F on the CCJ- especially with payments of £10 per month as most of that will be swallowed up in admin fees.

 

i have managed in the past to settle CCJ's for 10% without too much difficulty

 

Assuming £5 of your £10 is taken up in admin fees- work out how many years you would be paying the ccj

 

then work out a figure in your head (say 10%) and use a calculator to work out how much interest the creditor would earn over those number of years based on investing the amount you are proposing to pay them

 

I would suggest if you go down this route & agree a settlement figure with the Claimant, you take it back to court for approval as, technically, you cannot agree a F&F without the consent of the court. If you don't apply for that consent, the Claimant could come calling for the full sum ordered by the court in the original judgment.

[diddydicky]

sorry to disagree but it is no concern or business of the court.

 

all that is needed is written confirmation from the creditor that they have accepted an amount in F & F of the CCJ to obtain a cert of satisfaction for the ccj and written confirmation from the creditor to the land registry that the charge be removed

 

 

 

 

l