Can Interest be applied post Judgment/urgent advice needed

[Flintstone1]

One point you raise with regard to "you now have a second ICO for PJI", do i need to offer up any evidence in regard to PJI as the creditor is relying that that PJI forms part of the Judgment, but it does not, has neither been admitted or proven.

Could the court apply a charge without a Claim or Judgment in regard to the PJI?

 

Or with the inclusion on the ICO is that the same as the creditor saying "this is the figure i beleive to be due"?

 

In theory yes Flint " However post judgment contractual interest may continue to run on the debt but will not be ‘charged’ as it cannot form part of the judgment debt. Check with your Court though re Cert of Satisfaction.You now have a second ICO for PJI?

 

 

Regards

 

Andy

[Guest]

thats just it. they have an Interim Order for an amount that includes interest? the forthcoming hearing is to decide whether that Order should be made final. the judgment amount has been paid. so, if they continue with the hearing (which may be likely given their response above), then the interest may become in issue. and the J has the options in cpr 73.8 as mentioned. so, be prepared to object and argue against re all the points mentioned. as andy says, it's difficult to see how a 'charge' can be made re PJ contract I!

(it seems as if they are saying that interest will continue on the judgment amount even though the judgment amount has been paid!? how can they continue to charge interest on an amount that no longer exists? unless, it's interest on interest?)

what did trading standards say about the agreements/matter?

Edited January 18, 2012 by Ford

[hatesdebt]

As Ford and Andy,

 

The judgement debt is now settled (good move as it makes things slightly simpler)

The Judgement does not mention PJI, just a fixed sum, so I can't see why the court would refuse a cert of satisfaction.

As we already know, it accrues outside the j debt and not part of it, so I cant see how they can get the CO. How can a CO be given against a debt which has not been subject to litigation per se and has no ccj pertaining to it?

 

It goes back to the fact they would need to bring a separate action for the PJI, win and then get a ccj to go for a final CO. Using points previously mentioned IMVHO, I don't think they would succeed.

[paulwlton]

Although it refers to regulated agreements i think the position would be the same ie: If there is no provision in the Judgment for contractual interest then the judgment creditor would need to issue seperate proceedings to recover same.

 

 

47. There is however an underlying problem, and it is not difficult to identify. It is not possible for a lender who seeks to enforce a regulated agreement in England and Wales to obtain from the court an order for interest to be paid on the judgment debt. Section 141 of the 1974 Act provides that the county court is to have jurisdiction to hear and determine such actions and that they shall not be brought in any other court. The County Courts (Interest on Judgment Debts) Order 1991 (SI 1991/1184) enables the county court to award statutory interest, but it excludes regulated agreements from that power. It also provides that where payment of a judgment debt is to be made by instalments interest is not to accrue under that Order on the amount of any instalment until it falls due. Where there is an independent covenant to pay interest which does not merge in the judgment, contractual interest will continue nevertheless to accrue and remain payable. It is not unreasonable to think that the problem would be greatly reduced, and perhaps removed entirely, if it were possible for the lender to obtain an order from the county court which included post-judgment contractual interest when judgment was being given for the principal. If that were possible, separate proceedings to recover post-judgment contractual interest would be unnecessary. It would also enable the court to take account of the borrower's liability for post-judgment contractual interest when it is considering whether to make an order for the amount due to be paid by instalments.

[hatesdebt]

Thanks Paul,

 

I can't see anyone wanting to sign an " independent covenant " for PJI and I don't see it as the case here.

[Guest]

........ Where there is an independent covenant to pay interest which does not merge in the judgment, contractual interest will continue nevertheless to accrue and remain payable. It is not unreasonable to think that the problem would be greatly reduced, and perhaps removed entirely, if it were possible for the lender to obtain an order from the county court which included post-judgment contractual interest when judgment was being given for the principal. If that were possible, separate proceedings to recover post-judgment contractual interest would be unnecessary. It would also enable the court to take account of the borrower's liability for post-judgment contractual interest when it is considering whether to make an order for the amount due to be paid by instalments.

 

thats it. flints is regulated. so if deemed 'independent' (ie not merged), pj contract i does not and cannot form part of the judgment., seperate proceedings being required to recover (ie not poss for a cty court to include an order re pj contract i). if the pji covenant is deemed to have merged, then the judgment amount is final, ie no pji at all.

Edited January 19, 2012 by Ford

[Guest]

Thanks Paul,

 

I can't see anyone wanting to sign an " independent covenant " for PJI and I don't see it as the case here.

 

there was a 'covenant', q is whether it is deemed 'merged' or not (my post#79 for eg). if merged, then judgment amount is final (ie no interest at all). if not, then the interest could run seperately, but seperate proceedings would be required to try and recover the interest.

still though, what will the J do at the hearing? according to the cpr, the J would have the option to 'decide any matters in dispute'?

Edited January 20, 2012 by Ford

[paulwlton]

Pick the bones out of the HOL Judgment below - I'm sure there's enough ammo in there to give the Judgment creditor a bloody nose.

 

 

 

http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd011025/fair-1.htm

[hatesdebt]

there was a 'covenant', q is whether it is deemed 'merged' or not (my post#79 for eg). if the former, then judgment amount is final (no interest at all). if the latter, then seperate proceedings required to try and recover the interest.

still though, what will the J do at the hearing? according to the cpr, he/she would have the option to 'decide any matters in dispute'?

 

Thanks,

 

I didn't read that carefully enough....

Hopefully the J will see sense on this one...

[Flintstone1]

Thanks for all the input, i am trying to take it in fast.

Getting quite "Full on" as dealing with Trading Standards, Land Registry and getting ready for the Charge Hearing.

 

One point previously discussed here,:

Should the DN have included the prescribed wording of Intention to charge PJI.

The DN was prior to 1st October 2008 but the Judgment was after this date. (2007 regs ammend the 1983 regs )9a.

 

I have differing views on this the last being from Nat Debtline, who said it would not have been applicable.

[paulwlton]

Final agreement was taken out March 08 over what period? If the judgment amount is settled early then the judgment debtor is entitled to a interest rebate - assuming the interest on the agreement was front loaded.

[Flintstone1]

Paul, not too sure i understand, but here is the final loan agreement,Terms and bill of sale.

 

DN July 08 £64,716.11

CCJ July 10 £137,067.12

 

Payments made Oct 11 £123k

13/01/12 £13,167.12

The rest paid by £100 per month instalments over 2011

Fully settled by 13/01/2012

 

ThanksFinal Loan Agreement 19-04-08.pdf

[paulwlton]

Paul, not too sure i understand, but here is the final loan agreement,Terms and bill of sale.

 

DN July 08 £64,716.11

CCJ July 10 £137,067.12

 

Payments made Oct 11 £123k

13/01/12 £13,167.12

The rest paid by £100 per month instalments over 2011

Fully settled by 13/01/2012

 

Thanks[ATTACH=CONFIG]32895[/ATTACH]

 

The interest rebate would not apply in this case.

[gezwee]

I'm confused........... how did a 50k loan with a BoS and sealed indemnity attached get enforced under a part 7 CCA regulated claim?

 

Gez

[Flintstone1]

I assume you refer to Terms of the agreement .3 "The interest will be calculated on a daily basis from the date the amount falls due until it is received and will run at the above rate both before and after Judgment."

there was a 'covenant', q is whether it is deemed 'merged' or not (my post#79 for eg). if merged, then judgment amount is final (ie no interest at all). if not, then the interest could run seperately, but seperate proceedings would be required to try and recover the interest.

still though, what will the J do at the hearing? according to the cpr, the J would have the option to 'decide any matters in dispute'?

[Flintstone1]

I feel i am getting a good grasp of my arguments now.

But i dont want to get complacent, so i feel its worth looking at a opinion/advice and may as well see if my relative could be due part Legal aid or if the family could rally around for him, due to the size of a potential claim.

Any recommendations in the North West/Manchester?

 

Thanks

[paulwlton]

I feel i am getting a good grasp of my arguments now.

But i dont want to get complacent, so i feel its worth looking at a opinion/advice and may as well see if my relative could be due part Legal aid or if the family could rally around for him, due to the size of a potential claim.

Any recommendations in the North West/Manchester?

 

Thanks

 

I know a good direct access barrister in Warrington.

[Guest]

I assume you refer to Terms of the agreement .3 "The interest will be calculated on a daily basis from the date the amount falls due until it is received and will run at the above rate both before and after Judgment."

 

your term is similar to that one in issue in the HL First Nat Bank judgment, but yours does not include the 'independent/not merged' sentence. see my post #79 for eg.

[Flintstone1]

Hi, if you can let me have a name etc, i will check out.

Many Thanks

I know a good direct access barrister in Warrington.

[Guest]

your term is similar to that one in issue in the HL First Nat Bank judgment, but yours does not include the 'independent/not merged' sentence. see my post #79 for eg.

 

and so, if your term is not deemed to be 'independent' and 'not merged', then no pj contract int at all.

[Flintstone1]

Exactly, and as Emphasis is added "(such obligation to be independent of and not to merge with the judgment)" is not included in my "Term". Would i argue that parties cannot be bound by something that is absent?

Also looking at the case in a whole, Andy i believe refers to me to pick through it also to show the "unfairness" "unbalance" and "detriment to the Consumer" here, "Good/Bad Faith" Maybe, lets not forget more than £100k has been paid in interest and charges!!

First National is good but is there any more authority's to look at, Ezekiel v Orakpo is one looking at "Charges".

Any good reading P Madge maybe?

 

If you recall i have to first stop the Charging Order and then deal with PJI when it raises it head.

I cannot see a 10 minute hearing will settle it, but dont want to get "steamrolled" on the day.

I may have enough to stop the charge solely based on him supplying misleading/outdated info, one point i realised in the bundle was in November they wrote to the court asking for the ICO to be granted, for the full £186k, but conveniently forgot to mention that 3 half weeks earlier a payment of £123k had been paid.

and so, if your term is not deemed to be 'independent' and 'not merged', then no pj contract int at all.

[Guest]

Exactly, and as Emphasis is added "(such obligation to be independent of and not to merge with the judgment)" is not included in my "Term". Would i argue that parties cannot be bound by something that is absent? - if required, you could argue that there should be no PJCI at all as the required term re independence/not merged is not present, as stated in HL First Nat Bank.

Also looking at the case in a whole, Andy i believe refers to me to pick through it also to show the "unfairness" "unbalance" and "detriment to the Consumer" here, "Good/Bad Faith" Maybe, lets not forget more than £100k has been paid in interest and charges!! - yes, can raise s140 cca. when doing so, they would have to show that there is no unfairness.?

First National is good but is there any more authority's to look at, Ezekiel v Orakpo is one looking at "Charges". - First Nat Bank case is House of Lords (highest court at the time equivalent to the now Supreme Court) so binds all (unless can be distinguished, but unlikely given the similarity). yes, any other favourable authority can be used.

Any good reading P Madge maybe?

 

If you recall i have to first stop the Charging Order and then deal with PJI when it raises it head. - yes. but the PJCI may raise its head at the CO hearing, as previously posted, the J would have the option to deal with any matter in dispute. and, it seems that they are going to continue re the 'interest' even though you have paid the judgment amount.

I cannot see a 10 minute hearing will settle it, but dont want to get "steamrolled" on the day. - precisely, so be prepared. if you can get good representation then great.

I may have enough to stop the charge solely based on him supplying misleading/outdated info, one point i realised in the bundle was in November they wrote to the court asking for the ICO to be granted, for the full £186k, but conveniently forgot to mention that 3 half weeks earlier a payment of £123k had been paid. - there should be enough here on your thread to stop the Order, and perhaps even the PJCI once and for all?

 

 

what about gezwees post?

what did trading stand's say?

 

Edited January 26, 2012 by Ford

[Flintstone1]

Please elaborate more.

Thanks

I'm confused........... how did a 50k loan with a BoS and sealed indemnity attached get enforced under a part 7 CCA regulated claim?

 

Gez

[gezwee]

Really not sure if I know how to, it's left me befuddled

 

The agreement you posted was at circa 50k principal sum, secured by bill of sale on a motor vehicle? [could be wrong but its states comp insurance as a condition]

 

Terms were for 3 months only

 

All of the above would/should exempt from CCA...... but the agreement states its CCA regulated. There's partial exemptions to the act ie: overdrafts, but even they can be defended. This just doesn't appear to fit into any inclusive category.

 

Was the original judgment effective on a part 7 or part 8 claim and do you have a copy of their original particulars?

 

Gez

[gezwee]

Oh and, can't see anywhere on the bos where it could have been sealed....... does it contain one?

 

Gez