Charging order unusual legal question (a different spin)

[Pilot7]

First hello all - and a big thank you to this site:

 

Okay, I am not going to reproduce the whole of my case here (it will get lengthy...), but focus on the relevant features with respect to a sketch of an argument I am thinking about. I probably won't use this argument in my N244 application to set aside a judgment, mostly because I think I have other tried and true options available, but then if a good response comes, maybe...

 

Case history (super short version)

*MBNA credit card... health problems... late payment... negotiation... CCJ... Charging order

(note they were ******s, and after they sent the account to Reston's I found out what '******' really means...)

 

Okay, some more relevant background to the issue and argument:

*House has NEGATIVE equity and unlikely to improve for a long time

*claimaint not seeking to force sale

*in fact, claimant refusing to let me IVA or bankrupt

*I am making small payments to which they have agreed

*they are not charging interest at this point

*CCA request produced a statement of account without any mention of default

*But account was registered as in default way back when with a CFA

 

Okay, yes, I am aware that the default thing is where I can probably get a set aside on the CCJ and is my best bet, but my argument and question and issue here is a little different:

 

First, why would they take the time and cost etc to pursue this charging order? There is absolutely no hope of recouping losses whatsoever, and may well never be.

Answer I think is that it allows them to treat the debt as a secured debt now on paper and, especially by not recognizing this debt as in default anymore, and receiving regular agreed payments, it might almost actually look like a good debt on paper....

This is my guess.

 

Now, if this is what it is about, then this is what they tried to get out of the charging order, right? And in my case, it is conceivable that this can be demonstrated rather well. I think.

 

However, what I am wondering is whether they can seek a charging order NOT to enforce payment of debt (remember, it seems they do NOT want me actually to pay off the debt or negotiate, etc.) but rather to set up a secured debt.

 

The distinction is subtle and it turns on the meaning of 'debt' and other issues, but for example, they could not enforse the debt by lots of means, including sending me to Australia. What I have been looking for here are the precise acts and rules upone which the charging order directions are based - and, importantly, an overview of the principle Stare Decisis over no doubt a long history, and a sense of the basic legal philosophy that has informed the way these charging laws have evolved.

 

So, consider: Suppose the claimant has a judgment and they are now seeking enforcement. Now suppose that I have a goose, and my good just so happens to lay golden eggs from time to time. However, because the goose is rather fussy, it will only do this while in my possession, and for some reason it will only lay eggs for me. And so it is IMPOSSIBLE for me to sell. Now because this goose is so odd it is widely known to perform in this curious way and there are a lot of creditors out there, for example, who would be very happy to trust that I would pay them back if they lent me money. Afterall, I have these golden eggs from time to time...

 

Now, could the claimant seek enforcement NOT by taking the goose from me, nor even the eggs, but rather by having an (IMPOSSIBLE to realize) right to the goose should I ever sell it? Could they then sell this right to another party for the silver they want?

 

Suppose they could, and moreover, they can sell that impossible right for more silver than the ccj they have attached to my a*s. What significance would that introduce? Suppose it was a LOT more...

 

Hopefully my sketch is bringing out the sallient points.

 

Would really love to hear / read some legal thinking on this issue...

 

Cheers!

Pilot

[OnMyWayOut]

It is not unknown for the OC to get a charging order and then sell the debt on, even refusing a settlement offer that was many times higher than the amount the debt would have been sold for. As the Yanks would say, 'Go figure'. It does make me wonder if they have commercial interest in the companies that they sell the debts on to.

[patrickq1]

the civil court association more or less consists of debt collectors and the like they have a beef about the OFT telling them not to go for charging orders it is not to be used if it goes against proportionality

 

 

The Civil Court Users Association response to the Office of Fair Trading over charging orders Nov 29 2010

The Civil Court Users Association wishes to respond to the recent Office of Fair Trading Press Release relating to action taken against four creditors about charging orders.

 

The Association is concerned that the Office of Fair Trading is now involving itself in what are judicial decisions following their imposition of restrictions on the use of charging orders.

 

The Association believes it is the right of a creditor with a legitimate judgment to be able to enforce or secure it with the appropriate option and to restrict this is denying access to justice.

 

The question of proportionality should not apply where a judgment is due and owing and to limit the options available to a creditor is unacceptable. It is the judiciary who ratify the decision not the creditor as to whether a charging order is granted or not.

 

 

The Civil Court Users Association wishes to respond to the recent Office of Fair Trading Press Release relating to action taken against four creditors about charging orders.

 

The Association is concerned that the Office of Fair Trading is now involving itself in what are judicial decisions following their imposition of restrictions on the use of charging orders.

 

The Association believes it is the right of a creditor with a legitimate judgment to be able to enforce or secure it with the appropriate option and to restrict this is denying access to justice.

 

The question of proportionality should not apply where a judgment is due and owing and to limit the options available to a creditor is unacceptable. It is the judiciary who ratify the decision not the creditor as to whether a charging order is granted or not.

[sequenci]

A creditor knows that a charging order causes all sorts of difficulties for you with your property. It makes it more difficult to sell - and if the property *does* go up in value they might be able to go for an order for sale at a later stage.

[Belaflat]

*House has NEGATIVE equity and unlikely to improve for a long time
*claimaint not seeking to force sale
*in fact, claimant refusing to let me IVA or bankrupt

 

Claimant can object to IVA legally and object to bankruptcy on a personal level to stop them losing out but they cannot legally stop you going bankrupt.

 

They really cannot do a thing to stop it although the down side is , they already have the charging order in place so could just sit and wait it out until the market upturns.

If you were to offload house now, they have lost out but you would struggle to get another mortgage for a good few years.

Tough call.

[sequenci]

Their debt wouldn't get extinguished within an IVA or a Bankruptcy now it is secured (unless you give up the house as part of the proceedings).