Court Hearing Tomorrow Very Frightened

[summerbreeze]

No we have payment plans with them - No other CCJs

I would like to think we could handle it, mind you feel physically sick at the thought of tomorrow at the moment!!

 

I have been where you are now.

 

Remember its just another day for them . You are just one of 1000s of cases they see.

 

Make your case . Say how you feel .Ask their agent why his client is unwilling to accept your best efforts.

Speak calmly . Try not to get emotional.

Definitely take your info about your Budget and your other creditors and tell the Judge that Tesco is the only Creditor to take you to court, get more than your other creditors and still they are pushing you harder.

[summerbreeze]

As i think of anything else I will post on your thread and it will stay current.

Hopefully someone else will see it and advise also.

 

I will see who is around

[bach]

Hi, badger 220987, this is such good advice from Summerbreeze, and others.

 

I urge you to follow his/her advice. Make notes before you go in, to Chambers etc.

 

Before you go in to Judges Chambers, their Solicitor will make themselves known to you. They will be quite freindly, but proffesional, they will try to gleem info from you (as Summerbreeze has sugested), but be polite, you are just as good if not beter than they are. Tell them you are quite prepared to listen to what they have to say, but don,t answer any of their questions. (Make notes) and don,t show them any of you information/ case details. In fact I recommed being just a little aloof.

 

When you go in to Chambers say Good Morning your Honour, and he / she will guide you through the process.

 

Having gone to Court now over 6 times It has certainly has got easier,in fact I quite relish it. We had a Charging order on the house. which with the help from all on this site got thrown out. However, we did decide to sell the house and business and we have never been happier.

 

Do not be afraid just stay calm,positive and confiedent.

 

You will be guided by the Judge as to when you reply/answers, be polite, but assertive, put you case across. From what I have read. you have nothing to fear, you have complied with everything you could have possibly done, and done nothing wrong.

 

Just remember Judges came into the world like you and I, with nothing, and they will go out the same way with out nothing, they are human as you and I are.

 

My thoughts will be with you, good luck, and stay positive.

 

You will be okay, you have the vibes from the C A Group with you, what more can you ask for.

 

Best wishes Lynn

Edited May 10, 2010 by bach

[badger220987]

Thank you both for your reassuring words!! I cannot tell you how good it is to know I can speak to others in the same boat. I can honestly say debt is a very lonely place!

Thank you

 

If there is anyone out there reading this that could tell me to expect the charging order to be brought up tomorrow and what I should say/do please let me know I would like to be prepared.

The debt is in my name and the mortgage in both our names I wondered if this made a difference?

[summerbreeze]

The debt is in my name and the mortgage in both our names I wondered if this made a difference?

 

Yes it does make a difference as the CO can only be attached to your share of the equity in the house and I believe your OH can object to the CO being granted

 

There is a thread on Charging Orders

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/203298-guide-charging-orders-orders.html

 

Possibly a charging order may be mentioned tomorrow but you have complied with the installment order so I am not sure

[summerbreeze]

I have to go make some food but I will be back later

[rhodium78]

Don't worry, tomorrow the Judge will look at your financial circumstances and see whether they can increase the payments (as requested by the creditor) or even decrease the payments (as requested by you) if you can't afford it. It goes both ways.

 

Charging Orders don't even come into this and is dealt with by a different hearing and application (N379).

 

A common tactic is to increase payments that are due so you default on them as you can't afford them and hence they can then pursue a charging order as they can't apply for a charging order without there being any defaults by you but whether all Judges follow that is another story.

 

The representative will try and put pressure on you as regards your I&E, whether you need all those items of clothing or even whether you need to speak a lot on the phone, or whatever you have on there and whether you can cut it out or reduce it. If they ask you if you smoke, say NO and don't get caught smoking outside by the representative if you do smoke, as the solicitor might argue that the figures for sustenance are inflated as you put in tobacco in there. All the above might not necessarily happen but it's better to be prepared.

 

If they even mumble the phrase charging order, just say politely that today is a re-determination hearing and that:

 

1.) This should be dealt with under a separate application; and

2.) Seeing that you have not defaulted on the court mandated instalments, a charging order is a mute point right now.

 

You need to determine from the I&E yourself whether you can afford to pay more to the debtor or if you are already over stretched.

 

In my opinion, a good I&E shows that the court's original decision as to the instalment figures is a good one if you can afford it. Hence, if it was for £100/month, and you have £100 or thereabouts free every month in your I&E, then that is the perfect figure for you. If you genuinely can't afford the repayments, then you need to argue that point tomorrow so the Judge can reduce the figure if needs be.

 

I leave you now in the good company of experienced caggers.

 

Good luck.

Edited May 10, 2010 by rhodium78
Stooopid touch typing! :)

[summerbreeze]

There you go ...

I suspect they are going to try to increase your payments so that you fail to keep up.

Then they can follow on with a CO application.

So get ready to state your position .

Get your notes ready.

They have had a walk over so far and now its your time to make your points clearly to the Judge.

I am pretty sure that following redetermination as long as you keep up the installments they will be unable to go for a Charging Order so you must make sure the payments are set tomorrow at a level you can afford .

 

Get your stuff together . Bullet point your notes and read through a few times

 

Practise a bit on the most important points you want to get across. Say them out loud so you can hear how they sound.

 

Practise this

' With respect Sir I do not agree with what the Claimant says ....My view on this point is ... '

' Sir if I may be allowed to comment on this point ........'

 

Get your message to the Judge and dont let them walk all over you again.

 

Good Luck .... You will be fine ...

[Ganymede]

Yes CCCS said to admit the debt and we did just that, in fact it was Tescos who advised us to speak with the CCCS and ask them to help us put together a budget form .

We have all along tried to do the right and reasonable thing. We are both educated people and have been applying for work to run alongside the business for almost a year and not even a reply from the majority of the applications.

I have a copy of the original agreement which I received when I took out the loan, I don't know about the default notice - we were so bombarded with mail form everyone we didn't know if we were coming or going.

What do you think they will actually be asking the judge to do as it is a redetermination hearing?

 

 

 

They will either ask for a forthwith judgment or a variation to a higher installment rate.

 

It sounds like they'll go for the former and the make a seperate application on another day for a charging order.

 

Don't worry you are a long, long way from repossession.

[Ganymede]

I forgot to add, the Claimant may request that the installments remain at their current rate and they be granted leave to apply for a CO alongside the current installment rate.

 

It is more thatn like the CO will come up at the hearing as the DJ will probably at the Claimant their intentions for after the redetermination.

 

Good luck.

[badger220987]

Thank you summerbreeze You really have made me feel a lot better about the situation! I will let you know how it goes!!

 

Ganymede Please could you tell me

1. What is a forthwith judgment and how do I best respond to this

2. If they ask for the CO to run alongslide, again what do you suggest we say?

Apologies all very new terminology to me!

[rhodium78]

Errrmmm... what the creditors want and what they should get legally are two different things...

 

A forthwith judgement shouldn't be granted by the Judge if argued correctly because the Judge will see whether there is any chance of the whole debt being paid off within that time according to the debtor's circumstances (I&E).

 

They may ask for leave for a Charging Order but it should still be rebutted and not granted as per the precedent set by the Court of Appeal which the Court should follow. People always try and get more than they are entitled to in Court.

 

If the OP holds on to her guns and the Judge has an ounce of nuance, then she should come out of this relatively unscathed except for higher repayments.

 

If the Judge is not sympathetic, then who knows what will happen.

[rhodium78]

Forthwith = payment to be made by a certain date.

Interim Charging Order = a charge put on your property's deeds (if you have any in your name) stating they have an interest in your property and that after your mortgage company and other lenders, etc who have a financial interest in your property, they get money too from a sale of your property before you.

 

Here's a link from Newcastle Council:

 

Charging orders in the County Court

[Ganymede]

Errrmmm... what the creditors want and what they should get legally are two different things...

 

A forthwith judgement shouldn't be granted by the Judge if argued correctly because the Judge will see whether there is any chance of the whole debt being paid off within that time according to the debtor's circumstances (I&E).

 

They may ask for leave for a Charging Order but it should still be rebutted and not granted as per the precedent set by the Court of Appeal which the Court should follow. People always try and get more than they are entitled to in Court.

 

If the OP holds on to her guns and the Judge has an ounce of nuance, then she should come out of this relatively unscathed except for higher repayments.

 

If the Judge is not sympathetic, then who knows what will happen.

 

 

 

 

The Claimant won't be able to get a charging order there and then but they may be granted leave to apply for one.

 

"Forthwith" simply means immediately, ie when a judgment is not granted by installments.

 

A forthwith judgment MAY be granted if the debt would take an unreasonable length of time to repay at the current rate or if the debt won't be satisfied within the debtors lifetime.

[rhodium78]

The problem in your situation is that you are stuck between a rock and a hard place if they do state they want the whole debt to be paid by x/y/x. The Judge will have to look at your I&E, look at the current instalment plan, determine how long it will take you to pay off the debt, and then work out if you can pay it all of by date x/y/z. If he sees you have no chance of paying it all off within a reasonable time frame, he might increase your instalments. If he sees you have a long time yet to pay it all off, he can't legally allow leave for a charging order due to precedent so what can he do. Maybe allow a forthwith order but then again, he is stuck because your I&E will show that you can't make that whole payment by that date anyway. So then the Judge is stuck between a rock and hard place and will have to take a decision which hopefully, if he follows legal precedent, will mean higher instalment plan. That is if they do ask for a forthwith judgement.

[rhodium78]

A forthwith judgment MAY be granted if the debt would take an unreasonable length of time to repay at the current rate or if the debt won't be satisfied within the debtors lifetime.

 

Not that simple, read my earlier post before this.

[badger220987]

The debt is £4,900 and we are currently paying £21 a month ?

[Ganymede]

vv

Not that simple, read my earlier post before this.

 

 

From my experience it really is that simple.

 

The Court of Appeal gave useful guidance on the exercise of judicial discretion and the power to order judgment by instalments as contained in section 71 of the County Courts Act 1984 at paragraph 17 of its decision in Alliance and Leicester v Slayford Times, December 19, 2000:

“[N]o Judge could properly exercise the power conferred by section 71 of the County Courts Act 1984 to make an order for payment of a money judgment by instalments which it was known would not satisfy the judgment within the lifetime of the debtor or indeed within a reasonable time.”

[rhodium78]

From my experience, it isn't s 71 (2) of the same act:

 

"If at any time it appears to the satisfaction of the court that any party to any proceedings is unable from any cause to pay any sum recovered against him (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise) or any instalment of such a sum, the court may, in its discretion, suspend or stay any judgment or order given or made in the proceedings for such time and on such terms as the court thinks fit, and so from time to time until it appears that the cause of inability has ceased."

 

Also, a time order may be applied for.

 

From what I know, there are different angles to exploit.

[Ganymede]

From my experience, it isn't s 71 (2) of the same act:

 

"If at any time it appears to the satisfaction of the court that any party to any proceedings is unable from any cause to pay any sum recovered against him (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise) or any instalment of such a sum, the court may, in its discretion, suspend or stay any judgment or order given or made in the proceedings for such time and on such terms as the court thinks fit, and so from time to time until it appears that the cause of inability has ceased."

 

Also, a time order may be applied for.

 

From what I know, there are different angles to exploit.

 

 

All that says is that the DJ has discretion to make whatever order they see fit, but then Slayford is meant to guide the DJ on how to interpret the act and how to apply their discretion.

 

Also, a Time Order doesn't apply here as the debtor is no longer paying a CCA agreement but a CCJ instead.

[rhodium78]

Ganymede, a time order is relevant under s 129(1)a of the CCA 1974. It applies to any enforcement order. CO is enforcement, attachment of earnings is also enforcement. All these happen AFTER the CCJ...

 

Also, despite the fact that the court has discretion, the case you mention was developed from Cheltenham & Gloucester Building Society v Grattidge and Grattidge (1993): "there was no reason why the judge could not have made a suspended order for the payment of that sum under the powers contained in s 71(2) of the County Court Act 1984."

 

I guess we will have to agree to disagree so we stop confusing the OP .

 

Hey badger220987, apologies for the digression with Ganymede. It is very informative in my experience to have these small discussions.

 

Your defence would be your I&E. If you can afford more, then state so, so the Court sees you as willing to clear this debt.

 

If they mention a charging order, mention that it should be a separate application as mentioned previously and that the Court of Appeal has set a precedent in Mercantile Credit Co Ltd v Ellis; Same v James and Another; Same v Carrington and Another; Same v Huxtable; Same v Stanger and Another [1987] that a charging order cannot be made if the debtor has adhered to instalments.

 

If they even think of a forthwith order, section 71(2) of the County Courts Act 1984 states that if you cannot pay any sum, the Court may suspend or stay the order for as long as this impediment to payment exists. You don't have to mention it is at the court's discretion, just state that you are asking the Court to do that as there is no way you can afford a forthwith order as per Cheltenham & Gloucester Building Society v Grattidge and Grattidge [1993].

 

Did I miss anything Ganymede?

[Ganymede]

Ganymede, a time order is relevant under s 129(1)a of the CCA 1974. It applies to any enforcement order. CO is enforcement, attachment of earnings is also enforcement. All these happen AFTER the CCJ...

 

Also, despite the fact that the court has discretion, the case you mention was developed from Cheltenham & Gloucester Building Society v Grattidge and Grattidge (1993): "there was no reason why the judge could not have made a suspended order for the payment of that sum under the powers contained in s 71(2) of the County Court Act 1984."

 

I guess we will have to agree to disagree so we stop confusing the OP .

 

Hey badger220987, apologies for the digression with Ganymede. It is very informative in my experience to have these small discussions.

 

Your defence would be your I&E. If you can afford more, then state so, so the Court sees you as willing to clear this debt.

 

If they mention a charging order, mention that it should be a separate application as mentioned previously and that the Court of Appeal has set a precedent in Mercantile Credit Co Ltd v Ellis; Same v James and Another; Same v Carrington and Another; Same v Huxtable; Same v Stanger and Another [1987] that a charging order cannot be made if the debtor has adhered to instalments.

 

If they even think of a forthwith order, section 71(2) of the County Courts Act 1984 states that if you cannot pay any sum, the Court may suspend or stay the order for as long as this impediment to payment exists. You don't have to mention it is at the court's discretion, just state that you are asking the Court to do that as there is no way you can afford a forthwith order as per Cheltenham & Gloucester Building Society v Grattidge and Grattidge [1993].

 

Did I miss anything Ganymede?

 

 

 

What happened to the OP?

 

I must admit I didn't spot that the OP's debt was regulated by the CCA so I'll give you that one!

 

If you had quoted the whole of your case you would have seen this...

 

"Held– Although an immediately enforceable money judgment for the full amount due would have been inconsistent with a suspended order for possession on payment of the arrears where there was identity between the mortgagor and borrower, there was no reason why the judge could not have made a suspended order for the payment of that sum under the powers contained in s 71(2) of the County Court Act 1984. Exercise of the discretion in s 71(2) would, however, have to be consistent with the exercise of discretion under s 36 of the 1970 Act and s 8 of the 1973 Act, such that the money judgment should be suspended for so long as the possession order was suspended. It followed that concurrent remedies were available on the above terms, and, accordingly, the appeal would be allowed."

 

This case applies to mortgage arrears in a possession claim, not the same thing.

 

 

The Mercentile case relates to an instalment order which is fine, BUT if the order is varied to forthwith then there is no longer an installment order in existance so Mercentile does not apply and a CO application CAN be made.

 

Under Slayford, the judgment could be vaired to forthwith regardless of whether the debtor is paying if the debt would not be satisfied within the debtors lifetime or a reasonable time.

[rhodium78]

But Slaydon is also a loan secured by a charge, so by your logic, if Grattidge is not allowed as that is a mortgage case, then by its very essence, Slaydon would also not be permitted as the Judge in Slaydon considered and took into account Grattidge. If Grattidge was irrelevant, why did the Judge in Slaydon consider it? Because it was relevant as it covered the points of law within the County Courts Act s 71. Also, in a mortgage case, the other acts are considered but it doesn't mean that the Courts are limited to only applying s 71(2) to mortgage cases. Not at all, the Court is stating in a mortgage case, it also has to take into account the other acts as well. There are no caveats or restrictions associated with s 71(2) which state it MUST be taken only in mortgage cases. It can in fact be applied to a lot of normal cases, not only CCA, but also contractual debts, etc.

 

I agree with you that if there is a forthwith order then Mercantile does not apply but in this case, Mercantile does apply as there is an instalment order. Unfortunately, giving short shrift to the Mercantile case can't happen here if they want a CO as there is an instalment plan. Under the Slaydon judgement, the defendant was 65 years old if I recall correctly and the OP is in her 50s from my impression, so no chance of that. Also, look at the circumstances of Slaydon as compared to the OP. The OP has her own business which is going through a rough time AND she has been keeping up the repayments of the instalments whilst in Slaydon, he was basically living rent/mortgage free for about 10 years and has no external income apart from his state pension and tax allowances. Also, the amount of debt is about £4K in the OPs case whilst for Slaydon, you are talking in the region of £60K and a monthly payment of over £1.5K. Hence, if argued correctly, and that is the crux of the matter, a Judge would not in those circumstances order forthwith.

 

So taking into account the above points, there is a good chance that the debt would be satisfied in the debtor's lifetime and there is no definition of a reasonable time, that is open to the Court to decide as it is not stated in statute or case law what a reasonable time is so it is a judgement decision. It is interesting that the previous Judge who ordered the instalment plan has ordered the amount quoted by the OP as that then would take years to satisfy the debt. A reasonable time may be 10 years, 5 years, 25 years, it is a personal decision of the Judge depending on the amounts due and the financial circumstances of the defendant. In the above circumstances, if I was the Judge, taking into account the later posts of the OP about the amount of debt and how much the instalments are, I would order an increase in the instalments to double what it is taking into account all the above points.

 

In my experience, it is not straightforward as the Slayford case makes it to be and I have argued the above successfully and yes, have not been as successful on other occasions but the appeals normally iron that out.

 

Now what happened to the OP?

Edited May 12, 2010 by rhodium78
typos