Restriction K's

[toymaker1]

The issue of whether an account is "eligible" or not is a matter between the buyer and seller of the debt...... Whether it was "eligible" or not is not the concern of the debtor.

 

I beg to differ. Whether an account is "eligible" or not is very much the concern of the debtor, when that account is the subject of the court case!

The reason that information is redacted (concealed from the defendant) isn't because the Claimant is entitled to redact is, but because he doesn;t want the defendant to know that it might not be an "eligible" account, because if it turns out that the account was bought by the claimant when it was actually ineligble to have been sold to him, that would clearly have a major effect on the trial.

My point was that, regardless of whether or not the account is eligble to be sold

There is no legitimate reason to conceal that information from the Claimant.

It has just become a cosy convention between the judges and the solicitors/barristers that it is generally accepted that is is OK to hide that information.

The only legitimate grounds for concealing information are, documents which have legal professional privilege, documents tending to incriminate the party producing them, and documents affecting national public policy.

The fact that the Claimant does not want the Defendant to know if the account is eligible or is not eligible is not a valid reason to hide that information.

If he is fully entitled to have bought the debt, then let us all know that fact, - redacting it shows that the DCA has something to hide.

[eggboxy1]

A very worthwhile read from a District Judge on the current "feeling" of Courts regarding Charging Orders and why Orders for Sale are so hard to obtain,

 

http://www.lawgazette.co.uk/in-practice/benchmarks/proportionate-orders-sale

 

Especially the end Paragraph regarding how much the creditor is really out of pocket.

[shazzyball]

Hi all,

 

As you know hubby went to court for questioning before a district judge. The DJ was quite irritated by the solicitors agent as she seemed unprepared, anyway at the end we were told to go outside and have the solicitors agent write up an order for more information. We recieved this request yesterday in the post and all they are asking for is a copy of a suspended possession order from 2008, no problem. No order for anything else.

 

This morning we received a letter from the solicitors asking my husband to make regular payments of £100.00 per month direct to the creditor as he previously stated he would be prepared to make an offer of £100 per month at the very first hearing which was refused.

 

As no order has been made by the court regarding this matter i assume that the creditors have realised something is better than nothing so are trying to make him pay up. At the last hearing the solicitors agent asked if this offer was still available and he told them it was until they refused and wished to go for a forced sale.

 

Also they are adding daily interest of 8% is this correct.

 

The letter goes on to say if payments are late then they will go foe a forced sale so we are confused as to what to do next. Obviously we dont want to go back to court again and get charged another £500 pounds or whatever they can get away with.

 

 

 

Obviously they now realise we have no equity left, have a disabled son and are now out of work as the creditors made every effort to stop my husband trading.

 

What should we do now,

[the_shadow]

A very worthwhile read from a District Judge on the current "feeling" of Courts regarding Charging Orders and why Orders for Sale are so hard to obtain,

 

http://www.lawgazette.co.uk/in-practice/benchmarks/proportionate-orders-sale

 

Especially the end Paragraph regarding how much the creditor is really out of pocket.

 

Brilliant find, and good to read something positive for a change

 

S.

[eggboxy1]

Hi all,

 

As you know hubby went to court for questioning before a district judge. The DJ was quite irritated by the solicitors agent as she seemed unprepared, anyway at the end we were told to go outside and have the solicitors agent write up an order for more information. We recieved this request yesterday in the post and all they are asking for is a copy of a suspended possession order from 2008, no problem. No order for anything else.

 

This morning we received a letter from the solicitors asking my husband to make regular payments of £100.00 per month direct to the creditor as he previously stated he would be prepared to make an offer of £100 per month at the very first hearing which was refused.

 

As no order has been made by the court regarding this matter i assume that the creditors have realised something is better than nothing so are trying to make him pay up. At the last hearing the solicitors agent asked if this offer was still available and he told them it was until they refused and wished to go for a forced sale.

 

Also they are adding daily interest of 8% is this correct.

 

The letter goes on to say if payments are late then they will go foe a forced sale so we are confused as to what to do next. Obviously we dont want to go back to court again and get charged another £500 pounds or whatever they can get away with.

 

 

 

Obviously they now realise we have no equity left, have a disabled son and are now out of work as the creditors made every effort to stop my husband trading.

 

What should we do now,

 

Hi shazzyball

 

Just to clarify your situation; you originally stated your OH had an Interim CO, so was this latest Court Hearing to make the CO Final or relating to another matter regarding the debt.

 

Also is this the same creditor to whom the Suspended Possession Order in 2008 relates to?

[shazzyball]

Hi eggboxy,

 

the last hearing was for questioning was to establish certain matters relating to our assets, valuation (never supplied as he told them to pay for it ), I do not know if the order is final or not but it all relates to the same debt. All we have from the court is a request to supply a copy of the SPO

 

The suspended possession order is not related, they wanted more detail as the lender refused to hand over any information.

[eggboxy1]

Hi eggboxy,

 

the last hearing was for questioning was to establish certain matters relating to our assets, valuation (never supplied as he told them to pay for it ), I do not know if the order is final or not but it all relates to the same debt. All we have from the court is a request to supply a copy of the SPO

 

The suspended possession order is not related, they wanted more detail as the lender refused to hand over any information.

 

Unless there is something I've missed you are saying this is a creditor chasing your husband for a Charging Order on an unsecured loan that was taken out in his name only? It is not a creditor chasing an Order for Sale?

 

I'm asking as the Court does seem to want a lot more info than is usually requested to grant a CO? Also, (if we leave the whether or not the 8% interest should be added or not) they would normally only be adding that if a CO had already been granted? So it's a little confusing what's happening to you?

 

However, it does, to me, look like this creditor has gone to extreme lengths to get a higher repayment than your OH originally offered and has now seen the light that wasn't possible. And if you are in near Neg Equity with your personal circumstances as described, then it knows it will have zero chance of an OFS which is why you need to see their threats of going for one as pure bluff.

 

I presume you are still making payments to the creditor with the SPO and, if you are, I would simply tell them that has to take priority.

 

Hindsight is a wonderful thing, but it would seem that yours is a case where a creditor is allowed to go further with his actions because the debtor tries to do the decent thing and stays in contact with them. The minute this stops they are reduced to making evermore meaningless threats and would be extremely foolish to waste any more money chasing you for repayment.

 

This is simply because no Enforcement method available to them is going to realise the debt they are chasing. Or another example of why, when a creditor goes after a CO they are a busted flush in trying to obtain repayments from people armed with the information of how limited they are when in that position.

[toymaker1]

Hi all,

 

 

they are adding daily interest of 8% is this correct.

 

Post judgement Interest is not payable on consumer credit judgement debts.

[eggboxy1]

Post judgement Interest is not payable on consumer credit judgement debts.

 

This point, unfortunately, seems lost on some DJ's as some creditors apply for and get it as Sparklyfairy will attest!

[AndyOrch]

Interest cant be added full stop if its not stated within the Particulars of Claim, check the original summons Shazzy.

 

Regards

 

Andy

[Gaston Grimsdyke]

I beg to differ. Whether an account is "eligible" or not is very much the concern of the debtor, when that account is the subject of the court case!

The reason that information is redacted (concealed from the defendant) isn't because the Claimant is entitled to redact is, but because he doesn;t want the defendant to know that it might not be an "eligible" account, because if it turns out that the account was bought by the claimant when it was actually ineligble to have been sold to him, that would clearly have a major effect on the trial.

My point was that, regardless of whether or not the account is eligble to be sold

There is no legitimate reason to conceal that information from the Claimant.

It has just become a cosy convention between the judges and the solicitors/barristers that it is generally accepted that is is OK to hide that information.

The only legitimate grounds for concealing information are, documents which have legal professional privilege, documents tending to incriminate the party producing them, and documents affecting national public policy.

The fact that the Claimant does not want the Defendant to know if the account is eligible or is not eligible is not a valid reason to hide that information.

If he is fully entitled to have bought the debt, then let us all know that fact, - redacting it shows that the DCA has something to hide.

 

The debtor is entitled to know whether the account was an eligible account and therefore included in the sale, for sure. This is usually proved by disclosing an extract from the schedule of the eligible accounts which identifies the account in question by number. Therefore, as a matter of fact, the account has been sold. Whether it should have been sold as meeting the grounds of eligibility or not is irrelevant. The buyer has bought the account whether it should have or not, and that is a matter between buyer and seller and of no interest to the debtor. It is entirely legitimate to redact sensitive commercial information which has no relevance to the matter in question.

[shazzyball]

Hi eggboxy,

 

This CO relates to a business debt that was not paid. They have a CO but it is restricted, The solicitors were not impressed with my husbands replies when he was questioned previously so they insisted he returned to court and sit before a DJ to answer more questions. All they have ask for is a copy of a SPO granted in 2008.see above to get the story.

 

No order for installments from the court or anything else. Now he has a request from the solicitors asking him for £100 per month despite rejecting it at the begining. He was trying to buy some time to trade out of it but the creditor went out of their way to stop him trading and as a result put him out of work so when asked if this offer was still available he said it was until the creditor rejected it.

 

My question is.. as no order has been made by the courts can they ask for payments as we want to let them spin for it now, well try and sell up if we can and find a solicitors to handle the restrictions problems.

 

The SPO is being paid.

[mcarlisle]

Hi there folks,

 

Here is my situation, I have 3 interim charging orders on my Land Registry title, the three CCJ's I have are being paid monthly the agreed amount, but they all applied for charging orders to secure the debt.

 

But I've had no notification that any have been made final or of when the hearings will be to do so.

 

The first one was in 2008 Black Horse, then 2010 Arrow Global and now Cabot Financial 2011 despite having agreed monthly payments with all.

 

LR title still states - "Equitable charge created by an interim charging order" for all three

 

The issue is I now need to sell my house, but there will only be a small amount of equity available, that wouldn't even pay off one of the CCJ's never mind all three!

 

Can I go forward and sell my house and would the conveyancing solicitor be able to sort it out for me or would the land registry stop the sale? Also if the charging orders are finalised, what happens if I have negative equity?

 

any responses will be most appreciated

 

Thanks

[eggboxy1]

Hi eggboxy,

 

This CO relates to a business debt that was not paid. They have a CO but it is restricted, The solicitors were not impressed with my husbands replies when he was questioned previously so they insisted he returned to court and sit before a DJ to answer more questions. All they have ask for is a copy of a SPO granted in 2008.see above to get the story.

 

No order for installments from the court or anything else. Now he has a request from the solicitors asking him for £100 per month despite rejecting it at the begining. He was trying to buy some time to trade out of it but the creditor went out of their way to stop him trading and as a result put him out of work so when asked if this offer was still available he said it was until the creditor rejected it.

 

My question is.. as no order has been made by the courts can they ask for payments as we want to let them spin for it now, well try and sell up if we can and find a solicitors to handle the restrictions problems.

 

The SPO is being paid.

 

They can ask for whatever they like but the reality (for them) is that there is nowhere for them to go now if you don't pay.

 

I'm a little curious, though, why (and how) they prevented your OH from continuing trading? How did they manage this and why was it in their interests to do so? Sounds a really strange one as your OH earning money would enable him to better repay them?

 

Common sense would also see a Court, providing you can provide definite proof of obstruction, is going to give short shrift to a creditor seeking any further enforcement on it's debt if they have prevented the debtor earning money to allow repayment to be made?

 

And it's in your interests to provide a copy of your SPO (if you haven't already) that the Court has requested as, I would suggest, it will provide evidence that that lender has priority over this bunch (given it was for a secured loan).

 

From what you have said I can't see this creditor going back to Court as it has the best it can get now in the CO. An OFS is a non starter (and is pointless anyway due to your Neg Equity) so I would just ignore them from now on and put it behind you.

[eggboxy1]

Hi there folks,

 

Here is my situation, I have 3 interim charging orders on my Land Registry title, the three CCJ's I have are being paid monthly the agreed amount, but they all applied for charging orders to secure the debt.

 

But I've had no notification that any have been made final or of when the hearings will be to do so.

 

The first one was in 2008 Black Horse, then 2010 Arrow Global and now Cabot Financial 2011 despite having agreed monthly payments with all.

 

LR title still states - "Equitable charge created by an interim charging order" for all three

 

The issue is I now need to sell my house, but there will only be a small amount of equity available, that wouldn't even pay off one of the CCJ's never mind all three!

 

Can I go forward and sell my house and would the conveyancing solicitor be able to sort it out for me or would the land registry stop the sale? Also if the charging orders are finalised, what happens if I have negative equity?

 

any responses will be most appreciated

 

Thanks

 

Is the house registered in your sole name and, if not, is the debt solely in your name? The answer to that will determine what you can do when you sell up.

 

If you sell up and there isn't enough money to pay off the CO (providing they are not registered as Restrictions as you aren't obliged to pay those) then the debts just revert back to being unsecured again.

[toymaker1]

Whether it should have been sold as meeting the grounds of eligibility or not is irrelevant. The buyer has bought the account whether it should have or not, and that is a matter between buyer and seller and of no interest to the debtor. It is entirely legitimate to redact sensitive commercial information which has no relevance to the matter in question.

 

If the the debtor's case is that the creditor should not have sold the account because it was the subject of an actively ongoing still unresolved dispute, and the buyer should not have bought the debt for the same reason, then it would be very relevant to know if the account is an eligible account, as defined in the contract between the original creditor and the new buyer. That is not information which should be concealed from the debtor.

As Lord Browne-Wilkinson said in the House of Lords in July 1993 (Linden Gardens Trust) "The burden of a contract can never be assigned without the consent of the other party".

The other party (the debtor) cannot give his consent if he does not even know if the account is eligible to be sold or is not eligible to be sold.

The only reason for redacting that information is so that the Debtor will not get to find out if it is an ilegible contract. - the creditor keeps up the pretence that it is commercially sensitive information.

[Basil Fawlty]

If a company admits to you that the agreement they have is unenforceable, then sell the account, would this be an uneligible account?

 

BF

[shazzyball]

eggboxy,

 

I could not go into details on this site but be assured it happened, they contacted our suppliers and contacts and caused a lot of trouble, as they had more clout my OH paid the price.

 

I dont see we can do anything about it now. I dont want to pay these parasites anymore or the solicitors fees of some £3,000 + B*****ds

[the_shadow]

If the the debtor's case is that the creditor should not have sold the account because it was the subject of an actively ongoing still unresolved dispute, and the buyer should not have bought the debt for the same reason, then it would be very relevant to know if the account is an eligible account, as defined in the contract between the original creditor and the new buyer. That is not information which should be concealed from the debtor.

 

It makes no difference to the matter in front of the judge, the only two entities that can complain about it are a) the seller and b) the buyer.. a debt is a comodity that can be sold under the LoP act. The ONLY restriction is that the debtor MUST be advised that the debt is being sold and who to make payments to, NOTHING ELSE.

 

As Lord Browne-Wilkinson said in the House of Lords in July 1993 (Linden Gardens Trust) "The burden of a contract can never be assigned without the consent of the other party".

The other party (the debtor) cannot give his consent if he does not even know if the account is eligible to be sold or is not eligible to be sold.

 

The Debor is not a party to the selling contract, only the assignor and the assignee are! Its a business contract between two businesses.

 

S.

[eggboxy1]

eggboxy,

 

I could not go into details on this site but be assured it happened, they contacted our suppliers and contacts and caused a lot of trouble, as they had more clout my OH paid the price.

 

I dont see we can do anything about it now. I dont want to pay these parasites anymore or the solicitors fees of some £3,000 + B*****ds

 

Fair enough on the details , shazzy, but can you give any insight as to why they would do this given their only concern should be repayment but which, by their actions, they then limit your OH's ability to do that?

 

I'm not trying to read anything sinister into your experience more understand why the creditor, apparently, has acted so stupidly?

[toymaker1]

If a company admits to you that the agreement they have is unenforceable, then sell the account, would this be an uneligible account?

 

BF

The sale contract between the original creditor and the new DCA purchaser usually contains a clause stating that if the debt is designated by the seller (i.e the original creditor) as being an uncollectable account, then it is also an ineligible account. - i.e it is not eligible to be sold on to a DCA. If that account is later the subject of a county court case, it is usual for the Claimant to redact that information ( i.e black it out) and the claimant will maintain the fiction that it is "privileged information", so can be concealed from the defendant.

Work it out for yourself.

I notice that at least one cagger has stated that they dont think it is anytthing to do with the debtor!!!!!!!!! - what chance have we got?

[eggboxy1]

The sale contract between the original creditor and the new DCA purchaser usually contains a clause stating that if the debt is designated by the seller (i.e the original creditor) as being an uncollectable account, then it is also an ineligible account.

 

Hi Toymaker

 

What are the reasons why an OC would designate an account as being "uncollectable" ?

[Gaston Grimsdyke]

If the the debtor's case is that the creditor should not have sold the account because it was the subject of an actively ongoing still unresolved dispute, and the buyer should not have bought the debt for the same reason, then it would be very relevant to know if the account is an eligible account, as defined in the contract between the original creditor and the new buyer. That is not information which should be concealed from the debtor.

As Lord Browne-Wilkinson said in the House of Lords in July 1993 (Linden Gardens Trust) "The burden of a contract can never be assigned without the consent of the other party".

The other party (the debtor) cannot give his consent if he does not even know if the account is eligible to be sold or is not eligible to be sold.

The only reason for redacting that information is so that the Debtor will not get to find out if it is an ilegible contract. - the creditor keeps up the pretence that it is commercially sensitive information.

 

Still don't follow your logic as, apparently, neither do the judiciary. There is almost invariably a clause in any credit agreement which provides that the OC in question is entitled to assign the benefit and burden of the agreement. That constitutes the debtor's consent, so Browne-Wilkinson's dicta are of little value here. The details of eligibility are a matter of negotiation between the OC and creditor and commercially confidential. All that matters, as far as the debtor is concerned, is whether or not his account was actually transferred, not whether it was eligible to be transferred. It is not for the debtor to complain that his account shouldn't have been sold, it is for the purchaser.

[mercyblue]

Is the house registered in your sole name and, if not, is the debt solely in your name? The answer to that will determine what you can do when you sell up.

 

If you sell up and there isn't enough money to pay off the CO (providing they are not registered as Restrictions as you aren't obliged to pay those) then the debts just revert back to being unsecured again.

 

Am afraid that doesn't give the full picture whilst it might be true if you were repossessed if you were selling it yourself you wont be able to give free title and the sale will fail. The fact that they are interim judgements and not final makes no odds

[eggboxy1]

Am afraid that doesn't give the full picture whilst it might be true if you were repossessed if you were selling it yourself you wont be able to give free title and the sale will fail. The fact that they are interim judgements and not final makes no odds

 

In what situation are you saying a sale would fail?