Notice of intention to apply for order for sale

[BRIGADIER2JCS]

Worth Sue looking at I think.

[Ell-enn]

Good thinking Seq.

[SunshineSue]

All help and advice greatly appreciated.

 

Is varying the charging order something I need to discuss with whoever I can contact when I try ringing the courts again on Monday?

[BRIGADIER2JCS]

Yes certainly ask, but court staff cannot

give you legal advice, but can expllain the

forms and processes needed for what you

intend to do.

 

Brig.

PS it's still bl**dy raining:jaw:

[SunshineSue]

Thanks Brig - still haven't received my income and expenditure form!!

 

Sun still shining - very brightly and very warmly

[BRIGADIER2JCS]

Hi Sue, is the solicitor e-mailing the form?

 

Sun's just broken through the very black clouds:violin:

[SunshineSue]

He said he would and that it would be an hour or two after I spoke to him. I do have an email address for them so I can request one though I doubt anyone will be there over the weekend.

 

So hot here just had to have a dip in the pool to cool off (rented accommodation by the way!)

[BRIGADIER2JCS]

LUCKY YOU:madgrin:

[eggboxy1]

Can I politely just ask if an Order for Sale has actually been applied for or has it just been threatened?

[SunshineSue]

Hi eggboxy1

 

It hasn't been applied for yet - that is what they were threatening to do in their most recent letter. Having spoken to them, I now need to complete and Income and Expenditure form (which they still haven't sent me) with an offer of what I can afford to pay and they will then go back to their clients to see if this is acceptable. So, for the moment they have put the application on hold.

[eggboxy1]

If the OFS is only being threatened then certainly don't get yourself worked up too much as it's almost certainly a bluff by this bunch just to get your attention.

 

Have a read here to help put your mind at rest;

[MOD EDIT: Commercial links are not allowed, sorry] - My bad! link sent by PM!

 

And you need to understand that a Charging Order is extremely simple for a creditor to obtain, whereas, an Order for Sale is very difficult for them to obtain for consumer credit debts.

 

You also need to take into account that if the debt is only in your name but your mortgage is in joint names; then the Charging Order can only be made against your "Beneficial Interest" (or your share of any equity) in the property. They can't take anything from your partner's share.

 

Given you say the property is heavily mortgaged this is not going to be an attractive proposition to the creditor to go after an OFS as there may not be enough money to go after. That your daughter and granddaughter would be made homeless in the event of a sale is also a big problem for the creditor to overcome as a Judge is unlikely to want to do this.

 

My advice is to forget trying to set aside the CCJ as it was sent to your registered address and it's going to cause you headaches being out of the country trying to sort.

 

But you shouldn't, either, forward them an I&E (they have no legal right to demand one) as it gives them ammunition for the future. Do not, either pay any deposit as it gives them encouragement to come back for more. Simply offer them an amount you CAN afford per month and just and stick to your guns that it is all you can afford.

 

It is extremely unlikely they will apply for any further enforcement to the Court (because of the nature and size of the debt). But if they are daft enough to do it then that is the time to provide your I&E to show the Judge.

 

Their tactic is to unsettle you (which they have) as they know from experience it gets results in the form of a higher repayment. So you need to stay firm and read up on these boards about other people's experiences AFTER they have received a Charging Order. You can play them at their own game and not capitulate every time they make threatening noises!

Edited August 15, 2011 by eggboxy1

[SunshineSue]

Sorry for the late response - busiest time of the year at the moment so only just got back in.

 

Thank you so much Eggboxy1. Very interesting indeed. When I did say to the guy from the solicitors that I had been advised not to send them my I&E, because they weren't entitled to see it, his response was something along the lines of me having been wrongly advised and that I do need to send them the info as there is already a charging order secured against the property by the courts (I hope that sounds right, I'm really no good at all with things like this).

 

You have also answered a couple of questions I had whirling around in my head, re the fact the CCJ is in my name only and our mortgage is in joint names, plus the amount of equity won't be much at all given the current condition of the housing market. Plus, my daughter is on benefits and renting our house with help from the council. Obviously frightened her to death too.

 

If I offered them, say, £20 a month and no deposit, are you saying they have to accept this - all he kept telling me was that he would have to go back to the clients and see if they would accept whatever offer I make, but until I completed and returned the I&E to them, he wouldn't be able to go back to them.

 

I will do as you suggest and search others posts for Charging Orders - I was searching for "order for sale" which didn't bring up much info (or I missed it).

 

Thank you again.

[eggboxy1]

Hi Sue

 

The next time you are asked for the I&E ask him to state, legally, where you have to provide one. Your personal circumstances are nothing to do with them and only a Court could request them.

 

They don't have to accept your £20-00 a month but the question, for them, is what is the benefit of proceeding with an OFS given the highly unlikely outcome that they would succeed or, given your circumstances, that they would even get paid. Remember an OFS is a business decision and would only proceed if they were sure they would be paid (or else what's the point?)

 

Stand by your £20-00 as all you can afford at present and that if their client isn't happy with that they can take their chances with a DJ and your circumstances in Court.

 

You can send them a copy of this too to let them know the current thinking of District Judges,

http://webcache.googleusercontent.com/search?q=cache:BHDpLDrWlEoJ:www.lawgazette.co.uk/in-practice/benchmarks/proportionate-orders-sale+trusts+of+land+and+appointment+of+trustees+act+1996+order+for+sale&cd=9&hl=en&ct=clnk&gl=uk&source=www.google.co.uk

 

Also the reason you didn't turn up much for OFS is that only 0.3% of CO's ever progress to an OFS. There is a very good reason for that!

[sequenci]

Whilst a creditor cannot force an I&E sheet to be sent to them it is generally good practice to send one. To reaffirm Eggboxy, orders for sale are indeed VERY rare.

[SunshineSue]

I will ring him again tomorrow and see what he says - just can't face it today.

[eggboxy1]

Hi Sequenci

 

I agree that prior to a CCJ being obtained it would be good practice to supply an I&E in order to avoid that being granted at any cost.

 

After that, unless it's for the Court, it's just letting your creditor know what hand you have been dealt. And don't forget this creditor has, allegedly, tried to obtain this information under the false pretence that they have a legal right to it.

 

And we are both in agreement that an OFS is very difficult to obtain. As I have previously argued, the creditors determination to seek a CO subsequently backs them into a corner because of this. Future threats etc in trying to obtain a higher repayment are diminished as they have nowhere to go.

 

I know it's hard for someone worried about losing their home but they have to look at the facts of this and not be persuaded by the fear.

[eggboxy1]

Email your offer, making clear it is all you can offer, then you wait for them to contact you.

[SunshineSue]

They really are well rehearsed in their intimidation tactics. If someone sounds so positive that what they say is correct, I unfortunately tend to believe them. Thank goodness I found you good people.

[sequenci]

Hi Sequenci

I know it's hard for someone worried about losing their home but they have to look at the facts of this and not be persuaded by the fear.

 

Absolutely, I couldn't agree more!

[eggboxy1]

Solicitors have to be, by the nature of their profession, assertive or they don't survive. You just have to match that anyway you can and learn not to fall for the tricks they use.

 

Believe nothing of what you hear and half of what you see and you won't go far wrong with Solicitors!

[BRIGADIER2JCS]

hello Sue, do your own I & E

Take all priority debt taxes, utilities bill, rents etc.

Living costs, food, clothing etc,.

HP, catalogues, other loans or debts,

an amount for contingencies.

From your net income the result is what

you can afford to pay.

BTW it's raining again:!:

[SunshineSue]

lol Brig - very hot and humid here I did an I&E a while back for the people who were helping me sort out what payments I could afford - it was depressing then and I doubt much has changed since then (which is what I based my offer on) but, you are right, a current review of things is required.

 

At least we have the sunshine

[victoria_siempre]

Hi eggboxy

 

Your reference here is great:

 

"

Threshold

When, then, will it be ‘proportionate’ to evict the debtor from his home in order to satisfy the creditor?

Section 94 of The Tribunals, Courts and Enforcement Act 2007 contains a power to introduce a threshold on applications for orders for sale. Although in March 2009 the former government indicated that it did not propose to implement it, consultation took place in early 2010 as to whether there should be such a minimum figure in respect of debts under the Consumer Credit Act.

A strikingly strong view found its way into the Coalition Agreement of May 2010, at page 12: ‘We will provide more protection against … unreasonable charging orders … and ban orders for sale on unsecured debts of less than £25,000.’

The present government does admittedly appear to have retreated somewhat from this position, presumably in the face of lobbying from the financial sector.

Solving disputes in the county courts: creating a simpler, quicker and more proportionate system (March 2011) embarked on further consultation as to whether there should be a threshold, the figure at which it should be set, and whether it should be limited to Consumer Credit Act debts.

The court will not normally take account of pending legislation, but Mr Justice Sedley, as he then was, said in Sparks v Harland (1996) The Times, 9 August, that ‘there was no rule of law that impending legislative change was never a material consideration in the exercise of the court’s powers and discretions’.

And I suggest that as it exercises the discretion that it undoubtedly has, it would be wrong for the court not to recognise which way the wind appears to be blowing.

If a creditor is owed many tens of thousands of pounds and can credibly say that absent an order for sale he is never likely to be paid at all (in Taylor, the judgment was for £47,675; in Bell £300,000; in Pile £319,000; in Rushmer an eye-watering £987,480), it will continue to be difficult for a debtor to resist such an order.

If, however, the debt is modest in size, the creditor will struggle to satisfy a court that it is proportionate to deprive the debtor of his home in order to satisfy it.

Any creditor seeking an order for sale in respect of a debt of under £25,000 will be well advised to address the issue of proportionality specifically, convincingly and in detail.

A further issue is that many creditors seeking charging orders have acquired the debts which they seek to enforce by purchasing them for a fraction of their face value – I have personally seen sales at four pence in the pound and there is talk of debt changing hands for as little as two pence in the pound.

While of course the creditor is entitled to be paid the full face value of his debt, in assessing the proportionality of forcibly evicting the debtor from his home it must be relevant to know whether the creditor is £20,000 out of pocket or only £400.

Again, creditors will be well advised to address this issue in their evidence to the court.

District Judge Neil Hickman sits at Milton Keynes County Court.

He is the General Editor of Civil Court Service (‘Jordans’)"

 

As Ali G might put it, it knobs two birds with the one cony.

 

Thanks again

 

love

 

vic

[SunshineSue]

Hello everyone (again)

 

Been a while since I posted but I haven't really had anything new to report (or ask questions about!). Letters were still being sent to my daughter, despite promises from the guy I spoke to that he would send future correspondence via email. Anyway, finally sorted on that front and eventually received yet another letter, via email, asking me to complete an I&E form and return it to them. I again told them that I calculated what I could afford to pay without causing myself hardship and today have received the following reply:

 

"Thank you for your email dated 13th October.

 

You are aware this matter is at a critical stage and that it is imperative you provide full disclosure and evidence of information requested.

 

However, you have failed to complete and return the income and expenditure forms sent to you on over 3 previous occasions.

 

Our client cannot accept any repayment proposals from you, without having full knowledge of your financial situation.

 

We therefore enclose a further income and expenditure form for you to complete and return, within 7 days, together with documentary evidence to support the information provided.

 

Failing which, our instructions are to proceed with an order for sale application."

 

One of you wonderful people did tell me earlier that they cannot insist of an I&E form, only a judge can do that, and to stick to my guns. I am absolutely prepared to stick to my guns and not give them the info but just wanted to be absolutely sure I am doing the right thing before I reply to them again.

 

I'm not quite sure what they mean by "you have failed to complete and return the income and expenditure forms sent to you on over 3 previous occasions" - do they mean I have received the I&E form four times, five times, three and half times???, because I haven't - I have received it exactly 3 times lol, twice after my daughter scanned it and emailed me it the 3rd time when they finally got round to emailing me it.

As always, help and advice very much appreciated

 

 

 

[Abrigadier]

Hi, Sue it's BRIGADIER2JCS here under an alias

due to account hacking.

You are right in saying that you

are not obliged to supply an I&E

to them, so write again saying in

view of their recent correspondence

you have been prompted to review

your personal circumstances you have

had to reduce the offer of payment

by 20%.

State this is your final offer and

should they wish to escalate the

matter to court you inform the

court of their refusal of reasonable

offers of payment.

 

BRIG.