Hybrid installment orders allowing application for C/O help please

[Shocktactics69]

Hi,

I was awarded a CCJ installment order but then went back to court in December as MBNA/RESTONS wanted redermination hearing as they said would take too long to repay and want a C/O so wanted a forthwith judgment.

The judge ruled as the following:

 

It is ordered that

There be an order by instalments to continue at the rate of £xx per month as already ordered.

Liberty for both sides to review the order.

If so advised claimant be permitted to apply for a charging order, notwithstanding the instalment order already made.

date xx/xx/xx

 

I have now recieved an interim charging order as follows:

 

We enclose by way of service an interim charging order dated 5th february 2012 which is returnable for 8th March @ 11.00am at bla local court.

we enclose n379 form dated 30/1/2012 filed with the court in support of claimants application.

if you are aware of any creditors not mentioned please advise bla bla."

 

I have read that these orders are hybrid orders and my defence would have been based on THE COUNTY COURT ACT 1984

86 Execution of orders for payment by instalments..

(1)Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order

 

Has anyone had experience of these orders as I cant seem to find out what the exact stance is based on both an installment order and the right to apply for a charging order?

 

I want to oppose the C/O but am really confused if the section 86 will be enough.

 

If anyone can shed any light on the law in this case I would really appreciate some help.

[molly13]

Hi,

 

Have a look at yhis thread....Charging Order objection - ***WON***

 

I was in a similar situation, but won with loads of help from Andy, who explained it really well.

 

It's a few years ago, and I don't know if things have changed.

 

Hope this helps a bit.

 

Regards

Molly:-)

[Shocktactics69]

Hi Molly my head hurts reading it.....well done you.

 

My forms have listed all my creditors so do the courts inform them or the solicitors?

 

Also im not sure if I should be getting the interim set aside or just objecting at the hearing?

 

If you can shed any light as I just dont understand why the judge has allowed me to make installments but given them the permission to apply for a charging order its that that I need to clarify as I want to object on the basis I have not missed any payment on my ccj even prior to redermination so they should not be able to give a c/o but I dont understand what notwishstanding the installment already made means.

 

[Shocktactics69]

Please will someone help me on this....

[Guest]

...........

Also im not sure if I should be getting the interim set aside or just objecting at the hearing?

 

 

 

you would be objecting to the interim order, re the grounds you mention and anything else.

these 'hybrid' orders are contentious, and seem to rely on the judge lottery unfortunately.

perhaps also pm cymruambyth for input. afaik, c's case (won) seemed to rest on the fact that the ICO was after the instalment order. eg http://www.consumeractiongroup.co.uk/forum/showthread.php?203298-A-guide-to-Charging-Orders-amp-Orders-for-Sale/page24 #467, but not sure whether there was a further redet'n order allowing a CO in that case or not?

Edited February 11, 2012 by Ford

[twoman]

Do you jointly own your property if so they would only get a restriction so long as the debt is only in your name.but you would have to request this at the hearing.

[Shocktactics69]

Hi, No the house is in my name only,

I will have a look at that thread and see if It will help.

 

Im just confused that they can add things in to allow charging orders when installments havent been unpaid.

 

Judge lottery is very annoying as no matter what I read it doesnt apply as he has put this in!

 

[twoman]

Restons really are a bunch of xxxxholes,hate them with a passion and would love to see them destroyed.

Restons are a bunch of liars aswell.

[Shocktactics69]

I have sent a PM as suggested so fingers crossed.

 

I can see what you mean about the thread as my origional CCJ was set and I paid it then they requested re determination and my installments were continued

as origionally ordered and they have been paid.

 

[Ganymede]

I have sent a PM as suggested so fingers crossed.

 

I can see what you mean about the thread as my origional CCJ was set and I paid it then they requested re determination and my installments were continued

as origionally ordered and they have been paid.

 

 

 

 

How much is the CCJ for and what was the level the repayments were set at?

 

Why did you not defend the CCJ?

[Shocktactics69]

Hi,

The debt is for £8500 and payments set for £50 based on income expenditure.

I couldnt defend the debt as I had the correct defaults and they sent copy of cca so did not think i would have a leg to stand on to be honest.

I do have other debts though and between credit card and o/d with hsbc it is slightly more than mbna and also card with natwest of about 5k. I have reduced payments agreed with

both and stopped interest.

Hope this helps

[Ganymede]

Hi,

The debt is for £8500 and payments set for £50 based on income expenditure.

I couldnt defend the debt as I had the correct defaults and they sent copy of cca so did not think i would have a leg to stand on to be honest.

I do have other debts though and between credit card and o/d with hsbc it is slightly more than mbna and also card with natwest of about 5k. I have reduced payments agreed with

both and stopped interest.

Hope this helps

 

 

I was going to suggest applying to det aside but looks like you already considered that.

[Shocktactics69]

I did look at papaerwork to defend but to no avail.

 

I have since my redermination however put in a complaint to ombudsman on unfair lending practices, the banking crisis hit in 2008 and they increased my limit 5 times in a 12 month period by 6k! from 3k limit to 9k. I have complained as my details and affordability to repay was not checked they sent blank cheques with every statement so i feel they have added to my financial difficulties as when times got hard I started to use the available balance and now are turning an unsecure debt into a secured debt.

 

I know Im clutching at straws but I want them to justify that to the ombudsman and if upheld they can reduce my debt.

[Guest]

did you make any objections at the redetermination?

[Shocktactics69]

No it was all very quick and to be honest it was only after the re determination I examined my statements and thought wow thats a lot!

 

my main aim was not to get a forthwith as I knew I would be heading for a c/o but it seems irrespective of not getting forthwith judgement Im over a barrell still anyway.

 

Oh to be a debtor

[cymruambyth]

Hi, I will give you any help that I can. My thread which has been posted above covers just about everything.

 

When I lost in court I was given 4 weeks to come to an arrangement; when I got a letter of confirmation I belatedly applied for an instalment order. The solicitors applied for the ICO a couple of days after my application. My instalment order was granted days before their application was granted. I prepared this defence CO defence master.pdf. My DJ said that as I had an instalment order the case of Mercantile Credit was applicable and the CO application was thrown out. They tried to throw other cases into the mix but the DJ said that Mercantile Credit had precedence.

I sent my WS defence plus an abbreviated version for my OH to the court a week before the hearing was due. I also took copies of the instalment order as the DJ didn't have it on file. Plus I wrote out the dates to show that the instalment order was granted first. I also took proof of my payments.

 

 

Just because they have leave to apply for a CO doesn't mean it will be granted. In agreeing to my instalments the creditor wrote to say that they would be applying for further enforcement ........ but didn't get it.

 

If you any more information let me know and I will try to help.

[Shocktactics69]

Hi, Thank you so much I will use that argument as my CCJ was agreed and maintained prior to redermintation hearing so hopefully that rule should still stand. Your info was really helpful as I am not very good at wording legal stuff.

 

Another question ....Do I have to sent Restons a copy of my defence? or can I just send to the court. I dont really want to give them a heads up on my defence.

[Guest]

..........

 

Another question ....Do I have to sent Restons a copy of my defence? or can I just send to the court.........:

 

 

ordinarily, both. at least 7 days before the hearing. see civil procedure rule part 73.8 etc

[Shocktactics69]

Thank you Ford.

Interesting word ordinarily..

 

Ok lets try another word lol... hyperthetically if I dont what would or could happen?

 

[Ganymede]

Thank you Ford.

Interesting word ordinarily..

 

Ok lets try another word lol... hyperthetically if I dont what would or could happen?

 

 

 

You may not be able to rely on it.

[Shocktactics69]

Ok thank you,

[Guest]

Thank you Ford.

Interesting word ordinarily..

 

Ok lets try another word lol... hyperthetically if I dont what would or could happen?

 

 

don't read too much into the word. was just posting that the cpr say that both 'must' be done not less than 7 days before the hearing.

did you not get any procedural notes to that effect with notification of the ICO?

 

anyway, note also practice direction 73 para 1.2 (4) etc.

could it not follow then that the 'notwithstanding' order means that a co can be applied for but only when there are unpaid payments re the instalment order 'if so advised'? ie reaffirming the current legal position? as in the cpr? why does cpr specifically ask for info re unpaid instalments if that is not relevant in considering a final CO?

Edited February 12, 2012 by Ford

[Shocktactics69]

Hi,

I will send them a copy of my defence then in that case as I dont want to jeopordise my case.

 

I did not recieve any instuctions on the interim c/o and the covering letter just gave details of the date and time and asked me to disclose any other debtors not mentioned in the list they had on the c/o.

 

It doesnt even say if I want to object to send objections to the court 7 days beforehand, I have just established that from what I have read so thats why I am questioning if I have to send them details as they havent provided me any instruction to do so, as a layman who knows nothing about law its a bit cheeky to expect me to comply with the rules

 

The application completed for the c/o in section 2

Judgment debt is annotated as follows

X £ (see paragraph 7) of the instalments due under the judgment or order has fallen due and remains unpaid

(or) The judgment or order did not provide for payments by installments

 

Section 7 is the further information section and they have put the following:

The judgement creditor asks the court to take into account the following:

further to district judge smith and order dated xx/12/2011, claimant has permission to apply gor a charging order.

 

Do they not need a reason to apply or just that because the judge said we can so we will.

[Ganymede]

Do they not need a reason to apply or just that because the judge said we can so we will.

 

 

 

They have permission to apply for a C/O so unless you can give some very good reasons they will get it.

 

The likelihood is the FCO hearing will have the same DJ sitting that made the Order so you will need to fight for him/her to change her mind. Not an east task with DJs.

[Shocktactics69]

Hi

my reasons are county court act 1984 section 86 installments not in default.

 

I have not defaulted on ANY installments on my CCJ since issued and my installments were ordered on a CCJ prior to redermination then kept the same so no changes to amounts etc at hearing so surely that is the law and that is how he should make a judgment?