Charbydis v Platform *Claim struck out in court*

[Robertxc]

Latest development: Letter waiting Friday evening saying unless they heard from me within 7 days of receipt re: voluntary charge they would be taking instructions.

Nerve still holding - just!

'Taking instructions' doesn't really mean anything. With every month that you keep payments up, their justification for a charge on your house gets a little less. If I were in your position I'd keep my head down and just keep making payments. I suspect that part of the reason they seem quite excercised about it is down to the fact that they just don't like to be defied by people like you.

[C2mof]

Did you get anywhere on the early redemption charges as my claim will be for over £10,000 and I am prepared for the risk on costs but I would be more comfortable if someone has won before getting stuck in. What worries me is that as far as I remeber from my law studies many years ago, that a party can contract for anything provided it is not illegal or immoral and I think ERC may not be either.

[Bona]

My Information is that erc is a no go area except in certain circumstances but try it up to court with threats you may get somewhere

[C2mof]

Thanks that is most helpful as it is pointless in wasting time when things will end in tears. I am sure my lecturers would be amazed that I remembered any law.

[Charbydis]

Just had a letter from Drydens saying I have failed to maintian the monthly arrangement and they are going for a charging order, which is strange because my bank statements show the standing order is still going out to them and as far as I know hasn't been returned. I have moved house recently and the letter only arrived today dated 31/8/07. I have written back explaining this and asked them to indicate how it has broken down. THis is all I need as my wife has just come out of hospital for an op on her eye and the how thing was a nightmare so I am looking after her and our three young children single handed at present.

[Robertxc]

If you're sure that payments are prceeding as agreed then you just need to hold your nerve. If they do go for a charging order they'll have a job justifying it after all this time. So long as you're sure that all the payments have been made as agreed.

[Charbydis]

Latest communication, Drydens have sent me all the letters they sent me re voluntary charge etc and say that Platform have obtained an interim charging order. WHat is this? THe letter was still sent to my old address so does this mean this interim order is based on my old address?

[gizmo111]

Information here regarding Interim Charging Orders PART 73 - CHARGING ORDERS, STOP ORDERS AND STOP NOTICES.

 

You need to check with them where they have made this order - it would be very bizarre if it is at your old address.

[Robertxc]

Can you scan the order and post it here?

[Charbydis]

I thought everything had gone quiet on this front but today I received two copies of an interim charging order obtained on 6/9/07 and stating that a hearing would be made on the 9th November 2007 to decide if the judgement should be made final. One letter from drydens includes costs of the hearing and the other asks why it shouldn't be made final. Both are dated 30/10/07 and were sent to my old address. The charging order refers to an interest in my old address. According to my bank statements no payments have been missed. So I am mystified as to what's going on and what to do next!

[Bona]

They will get a charging order on your old address so that whoever lives there cannot sell it without paying your debt I suspect when the people who own your old house get to hear about it they will go balistic I think you should write to the court telling them that you no longer live there and that Drydens know that and that these letters you recieved today are the first you heard of it , you may feel that you should do nothing but it is bound to come out at some time and in my experience courts are much more sympathetic if you have acted correctly and the otherside has made the blunder.

[tomterm8]

For the Attention of the Case Manager

 

 

In the matter of

 

XXX vs Charbydis ;

 

Claim Number XXX

In XXX Court

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

YOUR ADDRESS

 

DATE

 

Courts Address

 

 

Dear Sir or Madam,

 

RE: ERROR IN REGARD TO CHARGING ORDER APPLICATION

 

I have become aware, as of DATE, that an interim charging order has been granted against OLD ADDRESS. With respect, I would like to inform the court that some error seems to have been made. I sold my interest in this property to NEW OWNERS on DATE. I no longer have any interest in this property.

 

I purchased NEW ADDRESS on DATE*, and subsequently informed the judgement creditors of my change of address. i would also like to inform the court that I have been repaying the creditors in the sum of £60 a month.

 

I would not object to the court ammending the charging order to my beneficial interest in NEW ADDRESS.

 

Yours Sincerly,

 

XXX.

 

* if appropriate.

[tomterm8]

The reason I added the last line is I don't really think it is sensible to fight any charging order application, since there is very little chance of actually winning such a battle in your circumstance. i believe that it is almost certain such an order would be granted, and fighting it would only incur more costs.

 

the reason i do not believe that you would win a charging order application are:

 

1. That there is a judgement debt outstanding.

2. You are clearly unable to pay the debt in full

3. The defences against charging orders in these cases tend to be geared at other creditors interests. in practice, I have known only a very small number of charging orders actually being refused; in each case, the DJ set the original judgement debt aside. If a creditor complains, you would have a chance.

 

Really, the attitude of DJ's on these matters is that if the judgement debtor can't pay, but has large assets, it is reasonable to enforce the judgement debt via a charging order.

 

There is another, arcane and technical matter. When parliament repealed the law that allowed people to be imprisoned (in the Debtors Act 1869 ) for debt they left one or two major exceptions . it is still a crime for a judgement debtor to fail to repay a judgement debt according to s5 of the act if they had the means to repay the debt and did not do so. Technically, for the moments between selling the house and buying the next, you DID have the means to repay the debt.

 

 

5. Saving of power of committal for small debts.

 

Subject to the provisions herein-after mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.

 

Provided—

 

 

(1)

 

That the jurisdiction by this section given of committing a person to prison shall, in the case of any court other than the superior courts of law and equity, be exercised only subject to the following restrictions; that is to say,

 

(a) Be exercised only by a judge or his deputy, and by an order made in open court and showing on its face the ground on which it is issued:

 

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1

 

© Be exercised only as respects a judgment of a county court by a county court judge or his deputy.

 

 

(2)

 

That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same.

 

 

.....

i just personally wouldn't give the court cause to consider you were acting to prevent them getting their money, i.e. by selling the house and thereby prevent them from gaining a charging order.

[Bona]

I think that you could add that this mistake is entily the creitors snd not yours and you should not have to pay the costs of any amendment. We had a charging order on us and as long as you are paying they would hve to wait

[sequenci]

I've just had a brief look through this thread, would it be possible to ask if you have an instalment order granted via the court for the judgment? if the court has stated that you can pay in instalments AND you are not behind on them then you can defend the CO from being made final by quoting "Mercantile Credit V Ellis" which states that a CO should not be made final if you have adhered to the instalments. You might need evidence to the court such as all the payments you've made.

 

If there is a forthwith order then a CO is notoriously difficult to stop.

[Charbydis]

no instalment order through the courts. Platform(via Drydens) asked for £60 a month plus voluntary charge. I have been paying this regularly but did not want to agree to the voluntary charge. The payments have been made since April but they only applied for a charging order in September having told be I had failed to maintain the agreement without giving me any evidence of how I had failed .

[Esio Trot]

In his suggested letter he wrote:

"I would not object to the court amending the charging order to my beneficial interest in NEW ADDRESS."

 

I would be very wary of adding this sentence.

 

Allowing a charging order to be made will add further legal costs which you will then have to repay.

 

There is no reason for them to add a charging order to your new property. There are links where you can learn about charging orders, and in particular excellent defences against one. I can't post them here, as previously they have been removed as "commercial links" even though there is no financial cost to you, nor benefit to me. Use a search engine. Put "Charging Order" as the search - and use the quotes to make sure the whole phrase is searched. Add words like defence, interim, absolute, to further narrow results.

 

I don't see how the court could transfer the charging order to your new property under their existing action. It is their error, it is a major one, and the costs of taking this action should rightly be borne by the plaintiffs, not you.

 

If they want a charging order, then they will have to start again. This way, you will get an opportunity to show that you have kept to the agreement. Do everything you can to avoid a charging order - otherwise you will face expenses in having it placed, and again having it removed (and if you are selling and they don't play ball in replying, you could lose the sale). And when money is tight, the less expenses the better.

[Charbydis]

Thanks for that, it tie in with my thoughts and I will definitely look up Charging orders.

For the record here is a copy of the interim order

Interim charging order

 

 

In the

NEWPORT (GWENT)

County Court

Claim Number

6NP03452

Claimant

(including ref.)

xxxxxxx

Defendant

(including ref.)

Platform

ASF/T47

 

 

On 06 September 2007, DISTRICT JUDGE A J P WEAVER considered the application of the defendant ('the judgment creditor'), from which it appears:

a) a judgment or order given on 07 February 2007 ordered the claimant ('the judgment debtor') to pay money to the judgment creditor;

b) the amount now owing under the judgment or order is £xxxxx (including any interest and costs); and

c) the judgment debtor is the owner of, or has a beneficial interest in the asset described in the schedule below; and the court orders that

1. The interest of the judgment debtor xxxxxx in the asset described in the schedule below stand charged with payment of £xxxxxx together with any further interest becoming due and the costs of the application.

2. The application will be heard at xxxx on 8 November 2007 at Newport (Gwent) County Court, 3rd Floor, Olympia House, Upper Dock Street, Newport, NP20 1PQ when a judge will decide whether the charge created by this order should continue (with or without modification) or should be discharged.

3. Service is to be effected by the Judgment Creditor.

The Schedule

The address of the land or property charged is MY OLD ADDRESS

It was received by Drydens on 12/9/07 but their letters each enclosing a copy are dated 30/10/07 so they didn't rush to send me a copy did they!

[Esio Trot]

3. Service is to be effected by the Judgment Creditor.

 

This is odd. In ones I have been involved with, service has been effected by the court. My guess is that they must have asked for this - for whatever reason.

 

It was received by Drydens on 12/9/07 but their letters each enclosing a copy are dated 30/10/07 so they didn't rush to send me a copy did they!

 

So to get this clear, they sent the court notice to the old address, and dated this 30 October, then sent you copies later? Or did they send copies of it direct to you at your current address?

 

In either case there has to be a minimum amount of time before a court hearing for parties to be notified of this. I don't know the time limit, and it does vary depending on what is being done, but I would guess that 14 days should be the minimum. If this is true, then service was not effective, the the case should be struck out, or restored to a new hearing.

 

In case you are not aware, the plaintiff creditor always gets an interim charging order and only has to provide minimum information to get this. The defendant is not informed at this stage in order to prevent actions detrimental to the plaintiff. Once granted, the plaintiff can have this lodged immediately with the land registry (£40 cost) against the property. The defendant is then informed and given a full hearing date. The full hearing decides the fate of the charging order.

 

On one I attended, the defendant lodged through his lawyer by fax a affidavit defence, and didn't attend. The judge was going to strike out the case due to the points made, but as plaintiff we queried disclosure as there must be 14 days for this, and we hadn't got anything beforehand. The case was adjourned. Three months later it was heard properly, and the defendants did not attend, nor submit anything else. Our case was weak (the house was apparently "sold" to a relation prior to our interim order, but just not registered with land registry) as evidence to support this could not be obtained in time. However, as they did not turn up we got the absolute order. We are now waiting until 20 November (allowing 28 days for any appeal to elapse) then we are going for an order for sale. The house, according to land registry, is now owned by a "third party" not the person who owed the money (although a cousin of the debtor).

 

I am giving details of the above to tell you that despite some posts you have a strong case to resist any future order, and for getting the current one struck out. There was no disclosure beforehand (you weren't given the evidence they intended to use) and you didn't get notified of the hearing in time. Because you then didn't attend, they more or less just got a rubber-stamp approval, without looking at the evidence.

 

Lastly, although it will cost you £3 a pop, you might want to go onto land registry on-line and get title copies of your old and current properties. This will reveal if the interim was lodged with either or both addresses. If your current one, I would contact land registry and ask them to remove the order as erroneous, not being related to that property.

[Charbydis]

The letters and accompanying interim orders were sent to my old address and redirected to my new one. The letters sent to my old address were both dated 30/10/07(why two letters I don't know) but the court order was stamped received by Drydens on 12/9/07. I wrote to Drydens on the 11/9/07 telling them my new address and asking how I had failed to maintain payments but have had no response.

[Charbydis]

Dydens have sent me a copy of a letter they have sent to the court regarding their application for a charging order. I haven't heard anything else to date. Should I write to the court explaining my side of the situation.

The previous chargining order on the wrong address was set aside and an order for costs refused. What is the best option? Am I the only one they are doing this to?

[Charbydis]

And today I received a copy of the interim charging order. The hearing is on the 14/7/08 to make it full or not but is in Newport whereas I now live near Milford Haven and am rarely in Newport. What should I do?

[gizmo111]

I'm not sure what your best option would be, but I'll ask around and someone will get back to you.

[Charbydis]

In the absence of any response I sent a letter to the court, copied to Drydens, stating that I couldn't attend the hearing(why risk incurring extra costs) and that I had been paying regularly since April and included bank statements to prove it. I don't hold out much hope and don't really care anymore. Platform are clearly out to get their pound of flesh and make me pay them to take if off me.

[sequenci]

The payments you are making, are they subject to a court instalment order?