Restriction K's

[eggboxy1]

shazzyball

 

Understand that if you sell up the debt won't disappear but it will become "unsecured" again and makes "enforcement" of the debt very difficult for the creditor.

 

As for Solicitors, I'd start ringing them up now to get the feelers out on who you can use when the time comes.

[eggboxy1]

clynite

 

Have just located your thread but as its 200 posts long can you give a quick explanation how it got from 6k to £25k ???

 

But, yes I wouldn't be concerned given both the debt is only in your name and also you wife's unfortunate circumstances. As posted previously, only 0.3% of CO's ever progress to OFS which, in my opinion, is because creditors know they are so very difficult to obtain (plus, I believe they are expensive to do as well.)

[eggboxy1]

clynite

 

Its fair to say I'm speechless at your experience! But first of all, don't agree to any higher repayments or a CO without going in front of a Judge to put your case across.

 

I know I haven't read your thread through yet but there does seem something very wrong about your Solicitors conduct in all this to let this happen? Hopefully, wiser eyes than mine can find something in their to redress the matter.

 

I can only (at this stage) give you the crumb of comfort in the fact that OFS are rarely ever pursued (as I said above only 0.3% ever are) so I wouldn't be too concerned (I know its difficult at times but take heart from all the examples on CAG of people with CO's still living in their own homes!)

 

The reason for the low rate is simply because the Judge has far more discretion over whether to grant an OFS over a CO where he has very little. So I can't, in a million years, see any Judge granting an OFS on the home of (with respect) a disabled pensioner for who isn't responsible for the debt! (A help on this is if you try Googling for examples where OFS have been applied for (let alone granted!) - let me now if you find any as I can't! Whereas there are hundreds of CO hearing examples)

 

Can I ask where the OFS "advice" has been coming from? You will hear OFS being muted by creditors as a scare tactic as they want you to cough up more repayments and,it's my opinion, Debt Help organisations don't help much either when explaining the fact that creditors can go for an OFS after a CO but not balancing it with the fact of how difficult (and remote) that process is.

[eggboxy1]

clynite

 

I understand ganymede's point about costs, but you must go to court and explain to the Judge your circumstances and what's happened (and I'm of the opinion you may do a better job doing this yourself given your Solicitors track record!)

 

You will most likely still get a CO but you can ask the Judge to attach a no OFS provision in the CO terms given what you have tried to do in repaying the debt and your wife's situation. The extra costs you may incur for this won't really make a difference and it will, at least, give you peace of mind if you succeed. If you don't defend then this definitely won't happen.

 

And remember, the Creditor has to refuse your offer of repayment to obtain his CO. But understand, too, that the overwhelming reason creditors go for the CO is not to get an immediate repayment, it's more to gain priority over other creditors for any money that is up for grabs from you. CO's are excluded from Bankruptcy proceedings, too.

 

But the problem for them after they have gone this far is that there is really nowhere for them go in putting pressure on you to pay as they know they won't get an OFS. That's why they then come back asking for the payments you previously offered and they refused! My OH has a "Restriction" on our house for over 8 months for £13000 and has refused to talk or pay anything to her creditors. What have they done after a few token requests for payment? - Zilch!

 

As for the people you have mentioned telling you about OFS's ignore them they probably haven't looked into the reality of how obscure OFS's are and, as I said earlier, Debt help organisations don't really give a balanced view.

Edited July 4, 2011 by eggboxy1

[eggboxy1]

shazzyball

 

what have you actually explained to the Solicitors (lawyers)

[eggboxy1]

Clynite

 

I'm glad you feel that way as it does seem your Solicitor hasn't done you any favours (and I'd certainly be inclined to have a word with the Law Society about your experience!)

 

But hopefully you are beginning to see a little more light at the end of the tunnel and have started beginning to feel a little more at ease? The experience is not pleasant but you have to learn to, firstly, take the fear and "personal" side of it out of the equation (it's just a job to these people at the end of the day and they will use every tactic available to win) and secondly, you have to heed the pooled advice on these pages to realise it doesn't have to be all one way traffic and there are ways to fight back.

 

When is your final CO hearing, by the way?

Edited July 5, 2011 by eggboxy1

[eggboxy1]

Gaston

 

You are quite correct that I did originally quote the 0.3% figure wrongly but I did correct it in my last post on a re-read. I think most concerned parties on here, however, will have read the original link that explained this in more detail. (So don't worry yourself too much, ok)

 

But the pick up is a bit rich coming from someone who incorrectly stated;

 

"Unfortunate for those who own property because they have no choice but to pay if they get a charging order"

 

As you are fully aware now, both a Solicitor at the Land Registry and the Inland Revenue have confirmed (which I'm sure you would have to agree are a little more knowledgeable on the matter than yourself), there is no obligation when the CO can only be registered as a "Restriction".

 

I know you wish it was true but, thankfully for an awful lot of people in trouble on here, it is not.

[eggboxy1]

Sequenci wrote;

 

"I don't know what the official stats are but in my day job I help 2/3 people a day with potential CO applications. I might get a handful a year that are facing an OFS - and must of those can be stopped in their tracks."

 

Thank you for highlighting the reality of what actually happens rather than the slanted ramblings by another contributor.

[eggboxy1]

Sequenci

 

The 0.3% figure comes from the Shergroup which is a debt enforcement organisation and is definitely pro creditor (so hardly likely to underestimate the figure).

 

And whilst Gaston is still giving it a good go on here to dampen the spirits of those on here looking for encouragement, his 50% figure of OFS being granted is very reassuring.

 

Reassuring because if only 0.3% of CO's are ever progressed to OFS status then those chosen must be thought of as dead certs by creditors. That HALF of these still fail, too, means an OFS really is almost impossible to obtain.

[eggboxy1]

Gaston

 

Nobody has stumbled on anything "fabulous" and the possibility of resistance from conveyancers has been stated. I'm merely helping spread the word of what the law states and helping support people who want to help themselves using the law (which is not "exploiting" it by the way!)

 

But please don't be coy about your true feelings on debtors using the law to their advantage in this situation as your proclivity towards the negative on this thread shines like a beacon. Your pretence to be not bothered one way or the other is, also, both insulting and fatuous to the many people in a desperate situation who read this thread and are looking for help.

 

And you say you haven't been educated? Then please, educate me, and explain how you can purport to "have no interest whatsoever in the effectiveness or otherwise of protecting charging orders" yet you tell people "it's "unfortunate for those who own property because they have no choice but to pay if they get a charging order" when you, now, say you have known all along about Restrictions?

 

I'll quite happily wait and listen to be educated on that one.

[eggboxy1]

For my part; I'm not prepared to stand by and see another contributor trying to diminish the hope of people genuinely reading this thread (perhaps recently like Clynite) looking for help with their situation when that person is using inaccurate and highly dubious information to support their views.

 

Anyone using statements like; "why bother when you owe the money anyway" (in response to not paying a CO when you sell you house) and

it's "unfortunate for those who own property because they have no choice but to pay if they get a charging order" cannot pretend to be unconcerned either way over CO's. Once people understand that they can then put into context from which side of the fence the information given is coming from.

 

It's also naive for anyone to think the only people reading and using this thread are those trying to help people in debt.

[eggboxy1]

Hi Sparkly!

 

I wish you well too. I've just been notified on another thread to have a look into what was termed the "Northern Rock Fiddle"?

 

Apparently NR aggressively pursued CO's and OFS when it fell into trouble and (so the contributor states) hundreds of people found a way out of their problem?

 

I'm assuming it's what we are talking about on here but anyone else heard of it?

[eggboxy1]

My question seems to have got lost with all the advice here...anyone with any thoughts?

Borrowing sole name..property Joint names.

The Interim Charging Order has resulted in a simple RESTRICTION being placed by the Land Registry, which research says is basically meaningless .

I was going to contest the Final Charging Order with among other things, the fact that Natwest had not listed, let alone contacted other creditors as required under The Charging Orders Act, but I am just wondering if I do this am I opening a can of worms? Should I just enter a basic mitigation and let the Charging Order become final, leaving just the one meaningless RESTRICTION?

thanks

 

Other creditors don't seem to object to another creditor going for a CO and (from my experience) it's not something the Court tends to worry about too much, either, if the other creditors have been notified (so I wouldn't be too concerned about opening a can of worms.)

 

And whilst I would have to concede its an awfully long shot; the Judge may decline Natwest their CO until they have notified other creditors and they may not return to Court? (I wouldn't hold my breath but sometimes delays stop things going ahead completely?)

 

And it's always worth attending Court to put in an objection to try and limit what the creditor gets away with (eg: not getting done like Sparklyfairly did who had interest incorrectly added to her debt!)

[eggboxy1]

sequenci,

 

We are based in birmingham but we will use any lawyer in any part of the country

 

Let me know if they turn out to be any good shazzy as I'm only up the road in Wolves

[eggboxy1]

eggboxy1

 

http://forums.moneysavingexpert.com/showthread.php?t=1839539&highlight=charging+orders+the+myth

 

I think this is the link you are looking for.

 

Thanks Clynite!

 

As you will see I contributed to that thread towards the end but I missed bluback's reference to NR at the beginning.

[eggboxy1]

As a result of the case 'Mercantile Credit Co Ltd v Ellis in 1987', a CO application will not be allowed if instalments have been paid, post judgement. This is as long as the instalments are a formal arrangent via court order. At least thats my understanding.

 

What if, instalments have been paid in this fashion without the formality of a court order? Can the above argument be used in principle?

Any views appreciated.

 

You have to do what feels best for you on this one, Clynite, but if the fact you having been voluntarily making repayments hasn't dissuaded the creditor from pursuing a CO and, as is most likely, a Court also granting the CO then (certainly as far as I would be concerned) I'd be extremely reluctant to continue paying anything above a token repayment afterwards.

 

You can, though, realistically forget an OFS ever proceeding as in your position it just isn't going to happen.

[eggboxy1]

There has been more of a propensity for courts to do this in recent years, no doubt linked to the proposal to change the law to allow charging order applications to issue whether there is an instalment order or not.

 

I actually agree with you on this but I still think the main goal for the creditor in pursuing CO's is priority over other creditors for the debts owed. Given the stats Sequenci posted on creditors pursuing OFS it cannot be to pursue debtors to the bone in getting repayment quickly.

 

I have no insight into Clynite's current personal current finances, however, what concerns me is suggesting an instalment arrangement on the basis of no OFS being pursued. If he defaults on that then a creditor, possibly, could smell blood and may well see a much easier time pursuing the OFS in those circumstances.

 

My feeling is if offering the instalments doesn't prevent the CO then he should forget about offering them one to prevent an OFS. This is for three reasons

 

1. He can ask the Judge for a no OFS, due to his circumstances, without

offering any instalment plan to be linked.

 

2. Given his circumstances he is stratospherically unlikely to be in the 0.3%

range who are pursued for an OFS, anyway. (Especially if we take your

second point on "reputation issues" when you explained why creditors

infinitesimally pursue OFS's ).

 

3. If Hell does happen to get chilly and he is pursued for an OFS; then

an instalment offer can be made then to ward off the OFS (in the event

the creditor loses his mind and forgets the retired and disabled element)

 

As I've stated before; pursuing a CO, in my opinion, weakens the creditors ability to demand or collect payments so don't offer what you don't have to.

[eggboxy1]

A judge won't order an absolute bar on an OFS being issued - people's circumstances change.

 

A further reason, then, not to offer an instalment plan.

 

 

Most creditors get COs not to force a sale of the property, but to turn their debt into a secured one as a long term goal and, of course, to hike the price on any debt sale.

 

I take your point on this; but isn't this where we have to remind ourselves it is only the Judgement that is secured not the actual debt itself? A CO confers no guarantee of repayment and a Restriction no guarantee or priority either. So, in my opinion and bearing in mind how a lot of these debts are made up of obscenely high and compounded interest rates and massively absurd legal fees, I think we need to do a bit of fighting back to redress the very wrong that is going on here.

 

For those creditors who don't sell their debt however, many still then crack on and enforce by other means and don't see a CO as an alternative to instalment payments. The only remedy not available to them once they have got a CO is bankruptcy.

 

I think its fair to say other Enforcement methods are seen as useless by the creditor who goes after a CO. Therefore, they put themselves in weaker position to reclaim repayments. But it's only weaker if people understand that fact and don't feel pressured by the situation.

[eggboxy1]

I don't think so. You said it yourself, a cogent reason for getting a CO is to steal a march on the other unsecured creditors

 

That is correct, but I'm trying to press home the reality that the creditor really has no where to go (certainly for consumer credit debt) after stealing this march over other creditors. Therefore, people who have had a CO placed against them shouldn't fall into the trap of thinking that an OFS will automatically follow if they don't play ball and offer a repayment. As the stats confirm, its virtually zero any are pursued which is not a coincidence. It's because the creditor knows he has so little chance of getting one.

 

And there is definitely merit from the debtor's perspective in making an offer to the creditor with the CO because ignorance is rife and a large number of debtors confuse CO proceedings with possession proceedings

 

Where is the "merit" if, as you previously stated, a Judge won't totally bar an OFS? But you are right that about the confusion on what a CO actually is. Once that confusion is dispelled, however, then the debtor can have a better perspective on what is best for them and not what is best for the creditor.

 

So formalising an offer to a creditor with a CO puts the debtor in control of their property from their point of view, even if it is in fact artificial

 

Or more evidence why it is not in the interests of a debtor to be duped into making payments

 

given the stress that debt problems create just the notion of being in control is priceless.

 

I totally agree, that's why debtors need to understand their options better and do what is best for them to relieve stress. That being coerced into making repayments to creditors, on the false premise they will lose their home if they don't, is probably the first thing they should read up on and understand the facts about. Now that really is priceless.

[eggboxy1]

"A further reason, then, not to offer an instalment plan. "

 

This is all very interesting.

Can you elaborate on the above please?

 

I'm just pointing out the reality that if you don't play ball with a creditor after receiving a CO then there is very little a creditor can do. This is given the debt is for consumer credit and not, say, because you haven't paid your Council Tax as that would be a very different matter.

 

My objection is based on the unfairness of creditors being allowed to have charged high "unsecured" rates of interest and then, when problems occur, they have recourse to any form of "security" on a person's property.

 

It's both immoral and unfair, in my opinion, as the creditor has already been provided for on the "risk" element of non repayment in those high rates interest rates it charges ALL people who they provide credit for.

 

The creditor is wanting it's cake and to eat it and the Government is weak to allow it to persist.

[eggboxy1]

shazzyball

 

Was anything uncovered about the Equitable Charge that shouldn't have been on your LR details?

 

(and let me know about the Law Centre ok as only up the road)

[eggboxy1]

What annoys me is that the creditor is granted the CO on unsecured debt to make it 'equitable' and then sells the debt on. By selling the debt for less than the CCJ amount it should lose that equitable status as they are no longer securing the debt against default, having sold it. The buyer hasn't paid the creditor the full amount and so the situation is inequitable now, i.e. it is secured to allow the buyer to make a profit, not to cover their losses.

 

Thankfully they cannot now do that on jointly owned property where the debt is only in one name

[eggboxy1]

Are you now stuck with the original Creditor for the duration of the debt -ie they can't sell it with a CO as described above.

 

Is this an advantage as DCA'S often offer a far lower settlement figure than the original creditor.

 

Sequenci will probably know the answer to this (sorry I don't)

 

However, I can't see why you would be as DCA's only offer lower settlements because they have bought the debt at a fraction of it's value for the risk they take in getting anything back.

 

Logically, given the reduced certainty Restrictions give creditors, I would have thought the OC would have wanted to have got shot of these even faster (and therefore sold off cheaper to a DCA)

 

Only my opinion though!

[eggboxy1]

When did this change? I've got a CO debt that has now changed hands twice since the CO was granted about three years ago.

 

Robbie2009 has given the correct reply but, just to clarify, I am not saying the debt can't be sold over to a DCA as I don't know that info?

 

Hopefully someone like Sequenci will clarify the facts.

[eggboxy1]

I note you say "as far as you are aware" That is my point - as far as 99.9 % of the population are aware, that situation is as you describe, but in reality, it is normal in county court credit card debt proceedings for the DCA Claimant to black out any reference in their witness statements or particulars of claim etc, as to whether the account in question is an "eligble account" that is tos say, an account which is eligble to be sold on by the original creditor. The definition of an eliguble account is one which has no legal claim or other lien upon it, and is not tbe subject of a current dispute, or being collected by a DCA. - If you check out those sale agreements between the original creditor and the DCA buyer, you will find that is the case.

Naturaly they dont want you to know, so they black it out. It has become a convention that the courts just seem to accept, and no one challenges it.

 

Very interesting information!

 

Have you any examples where this had been challenged and what happens when it is?