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Charging Order


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Hi, I would like some advice, and for once it's not for me, well not yet anyway

 

A couple of friends of mine, due to lack of work, have managed to end up in a bit of a financial mess. This was being dealt with by the CAB, with pro rata payments being offered.

 

This was ok for a while, and then one of the CC companies got a bit bolshy, and took her to court and got a CCJ for approx £2500 in July

 

Was originally paying £1 per month, then when she was pressured upped the offer to £4 per month. They couldn't really afford this, but didn't feel like they had a choice.

 

CAB dealt with all paperwork for the CCJ. The next thing they heard from the court is that they have to pay £250 PER MONTH!!!! :-x

 

They don't have it, went back to CAB, CAB apparantly wrote to the court? and they assumed it was being dealt with. Obviously, as they haven't got that kind of money, and as CAB were 'dealing' with it, they made no payments.

 

Two weeks ago, they've had an interim charging order against their house, with the court hearing in October to make it final.

 

What is the best plan of action? Is it to apply to the court to vary the CCJ, or to just concentrate on the charging order.

 

Any and all offers of help greatly appreciated, this is a bit out of my league so need all the advice you can offer, but I really want to try and help them. They are so scared they are going to lose their house, and I know I can't promise them they won't, but I want to do my best for them

 

Thanks for reading :)

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Hello there,

 

When the original CCJ was entered by the court - what was the instalment rate that was ordered?

 

This is quite important. If that order was breached a variation application at this stage is unlikely to prevent a charging order from being made final against the property.

 

Best wishes,

 

Seq.

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Hi Seq,

 

Installment rate was £249 per month. They couldn't afford it, so went to the CAB thinking they would deal with it, which they obviously haven't. This is the only reason they didn't pay. Is there nothing they can do? They are understandably stressed at the thought of a charging order against them.

 

What's the best way to deal with the charging order, is it going to get made final, no matter what happens now?

Edited by Confused_Uk
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i again,

 

Just so you know. The reason why a variation at this stage may not prevent a charging order is due to a decision in a case called Ropaigealach v Allied Irish Bank, in the Court of Appeal 2001. It was decided that varying the terms of a judgment once the interim has been served isn't a defence to a Charging Order being made.

 

So, at this stage your friends can do two things (or both!)

 

A) They can try to object the Charging Order being made. This is quite difficult to pull off unless the other party has made a procedual error or that there is a point of law that they can succeed on.

 

B) Allow the charging order to be made final but ask at the hearing for conditions to be attached. The main one being that no order for sale can be applied for whilst they keep up with a monthly instalment against the charging order. If the house is jointly owned with children living there an order for sale is nigh on impossible anyway.

 

The National Debtline website has a good no-nonsense fact-sheet on Charging Orders:

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=15_charging_orders_in_the_county_court

 

PS: Sorry to hear about the CAB's actions.

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Hi,

 

Thanks for the info :)

 

Ok, plan of attack is as follows, Lol

 

Going to find out if they are exempt from fees. If they are, submit a N245 anyway and ask for it to be heard at the same time. Re-do their budget sheet, and try and get any and all info off of the CAB to try and find out what went wrong, and use this as part of the argument against why the charging order shouldn't be made final. Also, debt in sole name, house in joint, monthly repayment disproportinate (sic) to debt (£250 = £2500). Foster children living in house, aged under 10. I know that there is a still a good chance that the order will be made final, but, Hey, if you don't try, you'll never know.

 

Finally, one more big ask, any good letter writers out that, that could lend a helping hand, before I attempt it myself :)

 

And all this has got to be in the courts by next Tuesday, Phew. Pleeeeeeeeeeease help :)

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I really really wish I could help, but unfortunately here is yet another case where the CAB have actually done more harm then good. Where they have told someone that they will resolve the situation, only to sit back and let the claimant take control and get a judgment undefended.

I know this organisation does a lot of good, and the people who work there mean well. But if they do not understand consumer law & court procedures, they should have the honesty to say this, instead of promising help, & then doing absolutely nothing & making things worse.

Perhaps a very heated face to face confrontation with CAB may release the anger, but whether it will actually help to resolve the mess they have caused....unlikely :evil:

 

debs

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Hi,

 

Thanks for the info :)

 

Ok, plan of attack is as follows, Lol

 

Going to find out if they are exempt from fees. If they are, submit a N245 anyway and ask for it to be heard at the same time. Re-do their budget sheet, and try and get any and all info off of the CAB to try and find out what went wrong, and use this as part of the argument against why the charging order shouldn't be made final. Also, debt in sole name, house in joint, monthly repayment disproportinate (sic) to debt (£250 = £2500). Foster children living in house, aged under 10. I know that there is a still a good chance that the order will be made final, but, Hey, if you don't try, you'll never know.

 

Finally, one more big ask, any good letter writers out that, that could lend a helping hand, before I attempt it myself :)

 

And all this has got to be in the courts by next Tuesday, Phew. Pleeeeeeeeeeease help :)

 

This all sounds ideal!

 

Give it a go and we will help amend anything on here for you :)

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Hi,

 

Thanks for the info :)

 

Ok, plan of attack is as follows, Lol

 

Going to find out if they are exempt from fees. If they are, submit a N245 anyway and ask for it to be heard at the same time. Re-do their budget sheet, and try and get any and all info off of the CAB to try and find out what went wrong, and use this as part of the argument against why the charging order shouldn't be made final. Also, debt in sole name, house in joint, monthly repayment disproportinate (sic) to debt (£250 = £2500). Foster children living in house, aged under 10. I know that there is a still a good chance that the order will be made final, but, Hey, if you don't try, you'll never know.

 

Finally, one more big ask, any good letter writers out that, that could lend a helping hand, before I attempt it myself :)

 

And all this has got to be in the courts by next Tuesday, Phew. Pleeeeeeeeeeease help :)

 

 

 

Worth a try.

 

Even if the CO is made final it is very, very unlikely an OFS will be allowed. The two main reasons are the fact children live at the house and the debt is only £2500.00.

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Ok, here's a rough draft of the letter. All criticism (constructive) would be appreciated. Let me know what you think :)

 

Dear Sir/Madam,

 

Re: MBNA

Defendant:

Court:

Date:

Claim No:

REF:

 

I am giving notice that I object to the Charging order being made final and I intend to attend the hearing at the above date and court.

 

My objections are;

 

1,

 

When I ran into severe financial difficulties I sought help from the Citizens Advice Bureau. A Debt Management Plan (DMP) was set up with all my creditors. I have kept up all payments to date. Within the DMP I was paying MBNA £? per month.

 

After MBNA obtained a county court Judgement regarding my debt I was ordered to pay instalments of £249.00 per month which I have been unable to afford. I returned to the Citizens Advice Bureau, and they wrote to the court on my behalf requesting a redetermination. I was advised by the Citizens Advice Bureau to continue paying my agreed payment of £? Per month, until I heard from themselves and/or the court. At no point did I wilfully not pay, there has been a regrettable breakdown in communication.

 

MBNA are also aware that my debt management Plan has a number of Creditors;

Creditor Outstanding Balance Payment

 

 

 

3. A charging order in favour of MBNA, would give them an unfair priority over my other unsecured creditors.

As you can see I already have a payment arrangement in place with all my other creditors via the Debt Management Plan. This would be upset by an order being made.

Furthermore I would like to draw your attention to the fact that all of the debts are larger than MBNA debt and all other creditors have frozen the interest amounts.

 

 

4. We have two young foster children, one aged ? and a second who is ? years old. My family would suffer severe hardship if a charging order was to lead to the sale of our home.

 

5. The debt that MBNA are requesting a Charging Order for is in my name, but our home is owned jointly so it is not even my partner's debt.

 

Yours Faithfully,

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Ok, here's a rough draft of the letter. All criticism (constructive) would be appreciated. Let me know what you think :)

 

Dear Sir/Madam,

 

Re: MBNA

Defendant:

Court:

Date:

Claim No:

REF:

 

I am giving notice that I object to the Charging order being made final and I intend to attend the hearing at the above date and court.

 

My objections are;

 

1,

 

When I ran into severe financial difficulties I sought help from the Citizens Advice Bureau. A Debt Management Plan (DMP) was set up with all my creditors. I have kept up all payments to date. Within the DMP I was paying MBNA £? per month.

 

After MBNA obtained a county court Judgement regarding my debt I was ordered to pay instalments of £249.00 per month which I have been unable to afford. I returned to the Citizens Advice Bureau, and they wrote to the court on my behalf requesting a redetermination. I was advised by the Citizens Advice Bureau to continue paying my agreed payment of £? Per month, until I heard from themselves and/or the court. At no point did I wilfully not pay, there has been a regrettable breakdown in communication.

 

MBNA are also aware that my debt management Plan has a number of Creditors;

Creditor Outstanding Balance Payment

 

 

 

3. A charging order in favour of MBNA, would give them an unfair priority over my other unsecured creditors.

As you can see I already have a payment arrangement in place with all my other creditors via the Debt Management Plan. This would be upset by an order being made.

Furthermore I would like to draw your attention to the fact that all of the debts are larger than MBNA debt and all other creditors have frozen the interest amounts.

 

 

4. We have two young foster children, one aged ? and a second who is ? years old. My family would suffer severe hardship if a charging order was to lead to the sale of our home.

 

5. The debt that MBNA are requesting a Charging Order for is in my name, but our home is owned jointly so it is not even my partner's debt.

 

Yours Faithfully,

 

 

 

Not sure about point 5 but may as well keep it in.

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Further update, bit unsure as how to proceed, so yet more advice needed, although if really lucky won't need it :)

 

Spoke to Northampton court today, they received letter for re-determination on the 2nd, forwarded it to the local court. Spoke to the local court who received it on the 6th, then, as Northampton hadn't sent the file over, they did nothing with it. Court have admitted that the request for re-determination was in on time. And the lady's comment was 'Oh, I see you now have an interim charging order' :-x So in a nutshell, the courts have messed up. Waiting for the court to call back.

 

What I was planning on doing, was still submitting the defence to the final charging order, but, this time politely pointing out the courts mistake and saying that this was valid grounds for the charge not to be made final. Is this all I need to do, or is there anything else? Kinda hoping that the court calls back, admits it's their mistake, and then says there are no grounds for a charging order. See, just can't give up on the wishful thinking, Lol

 

Idea's anyone?

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Ok, urgently need some advice now.

 

Courts have phoned back, and re-determination is to be held on the same day before the final order hearing.

 

If re-determination is unsuccessful, and the Charging Order is made final, what happens regards payments. Do payments cease? ie just let CO sit against house, or will they still expect their £250pm from the CCJ? Asking for re-determination to be £9, know this is a low amount, but it is all they can afford. Would Judge be happy for CO to be made final, and then accept payments of £9. Please help :)

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Ok, urgently need some advice now.

 

Courts have phoned back, and re-determination is to be held on the same day before the final order hearing.

 

If re-determination is unsuccessful, and the Charging Order is made final, what happens regards payments. Do payments cease? ie just let CO sit against house, or will they still expect their £250pm from the CCJ? Asking for re-determination to be £9, know this is a low amount, but it is all they can afford. Would Judge be happy for CO to be made final, and then accept payments of £9. Please help :)

 

 

 

The DJ can set an instalment rate for the charging order not tibe enforced whilst they are maintained, it's at the DJ's discretion.

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