Urgent CCJ Charging Order defence question. We applied for instalments first.

[Mike_hawk]

Eddie, the instalment order only has to be 'considered'........ that's why it's important that you attend the hearing in the knowledge that the fco will likely be granted but you must request terms to protect yourself. No order for sale is a priority, although this is an app by the original creditor and they tend to stop action at security. You should also request disclosure of any other arrangement with the 3rd defendant as this could compromise the charge.

 

Joint rebuttal shouldn't be an issue, the court will consider the effect of the fco on all parties [section I of PD 73 should assist for reference]

[Gaston Grimsdyke]

Given that from 1 October charging orders can be granted even when an instalment judgment is up to date, it's pretty unlikely the court will refuse the FCO here.

[Mike_hawk]

Given that from 1 October charging orders can be granted even when an instalment judgment is up to date, it's pretty unlikely the court will refuse the FCO here.

 

Gaston........... no offence intended by why is it that neither you or Gany can actually take the time to read previous posts with the same information?

[Gaston Grimsdyke]

The point is that a judge hearing a CO application in September is not going to refuse it on the grounds of an instalment order (which has never actually been made) when 3 weeks later the creditor can simply apply for another one and the instalment order won't matter. Your best bet of avoiding it is the prejudice to other creditors route - if you are lucky you will get some panicky deputy district judge who will bottle it but I think you are wasting your time.

[Ganymede]

Gaston........... no offence intended by why is it that neither you or Gany can actually take the time to read previous posts with the same information?

 

 

Why am I getting dragged into this??! lol

[Mike_hawk]

Hi Gany

 

Read back through the thread and your responses, maybe its the way I interpret your replies. I don't actually disagree with your position at post 21 [its within the quoted text], although we seem to have moved away from the difference in opinion of procedure at post 14.

 

Quite happy to engage in meaningful exchange but repetition is lost on me.

[eddie303]

The content should be tailored to each individual. Do not simply cut as paste exactly the same Witness Statement and put a different name at the top.

 

Well, this is kind of ridiculous, I'm not going to write two witness statements with different arguments. Both my wife and I are making the same arguments together. So is it best then for only one of us to submit a witness statement? I guess it's by the by now that I've sent off a copy to the solicitors already. I'm not going to change the content of the witness statement as that would clearly give the other side something to complain about, if what I give to the court is different in content to what I sent them.

 

Or can I just leave it as it is, as a "joint" one, and give that to the court? Or does that mean the court can just throw the whole witness statement it out now because a "joint" one is invalid or something?

[eddie303]

Agi, sorry to sound negative but I'm not sure your offer of £1 pcm each will be enough as there is caselaw around that instalments should not be set that small on such large debts where is would take longer than the Defendant's lifetime to repy the debt.

 

Thanks for this. Can you point me in the right direction as to where I can find such case law? Really want to read that as I find the whole idea that a court can force someone to pay what they can't afford completely unjust. How can that be possible, you can't get blood out of a stone?!

[eddie303]

Eddie, the instalment order only has to be 'considered'........ that's why it's important that you attend the hearing in the knowledge that the fco will likely be granted but you must request terms to protect yourself. No order for sale is a priority, although this is an app by the original creditor and they tend to stop action at security. You should also request disclosure of any other arrangement with the 3rd defendant as this could compromise the charge.

 

Joint rebuttal shouldn't be an issue, the court will consider the effect of the fco on all parties [section I of PD 73 should assist for reference]

 

Thanks, I'm absorbing all of this, really appreciate it. I'll make sure to follow it.

 

Sorry, to clarify, are you saying that a "joint" witness statement is OK then?

[eddie303]

Given that from 1 October charging orders can be granted even when an instalment judgment is up to date, it's pretty unlikely the court will refuse the FCO here.

 

I spent hours on here reading posts, read the whole Charging Orders sticky, and somehow I completely missed seeing anything about this change on 1st October. Can you pleas point me to the information about this? I really need to see that. Thanks.

[Mike_hawk]

S.93 Commencement is here http://www.legislation.gov.uk/uksi/2012/1312/article/3/made

 

It's referred to in posts 19 and 21 but I've added the link below for reference:

 

http://www.legislation.gov.uk/ukpga/2007/15/section/93

 

Ideally separate witness statements should be served, but in this instance where you are co defendants with shared beneficial interest in the property I honestly can't see that the court will be concerned by a joint statement.

[eddie303]

S.93 Commencement is here http://www.legislation.gov.uk/uksi/2012/1312/article/3/made

 

It's referred to in posts 19 and 21 but I've added the link below for reference:

 

http://www.legislation.gov.uk/ukpga/2007/15/section/93

 

Ideally separate witness statements should be served, but in this instance where you are co defendants with shared beneficial interest in the property I honestly can't see that the court will be concerned by a joint statement.

 

Thanks for this. Relieved to know that a joint statement should be fine. However, do you think I should change it to a Witness Statement for handing into the court tomorrow morning, even though I've sent the copy already to the Claimant sols as a "Defence"?

 

With the new CO legislation, a couple of issues sprint to mind.

 

What happens to people who have had a CO app against them dismissed prior to 1st Oct, such as those few on here who've been lucky? Does that mean their creditor can come after them again for one after 1st Oct?

 

Also, 3(4C) says "The charge may not be enforced unless there has been default in payment of an instalment under the instalments order." At the moment, if I understand correctly, you don't have to have defaulted for a creditor to be able in theory to force a sale (although rare). But it appears under the new legislation, if you do have an instalment order, the only circumstance they can force a sale is if you default on it?

[Guest]

I spent hours on here reading posts, read the whole Charging Orders sticky, and somehow I completely missed seeing anything about this change on 1st October. Can you pleas point me to the information about this? I really need to see that. Thanks.

 

eddie

s93 was mentioned in that sticky thread @ post #517 with further MoJ info on it re the consultation/coming into force, and a discussion thread link. some background info, if you're after it.

Edited September 2, 2012 by Ford

[Mike_hawk]

eddie

 

From reading your posts I think you're going to keep worrying about the w/s unless you do something, I really can't see the court dismissing the 'defence' but hopefully this suggestion should help settle your nerves;

 

______________________________________

 

Using the defence served on the other side as your template:

 

Copy the body of the statement into a w/s [assume you know the correct format?]...... do not make any material changes with the exception of the header amended to 'Witness statement - Final charging order hearing'.

 

Make 3 copies for each of you, each to sign your own copies as a statement of truth [6 statements in total]. Ensure there are 3 copies with your name and 3 with your wifes.

 

______________________________________

 

Draft a further short witness statement to the court, just a few lines will do;

 

Again, make 3 copies for each of you, each to sign your own copy as a statement of truth [6 statements in total]........ I'd suggest something along these lines, but really it's entirely up to you what you say as long as you cover all bases.

 

1. I am a litigant in person

 

2, Not conversant with the civil procedure rules both defendant parties to charging order hearing served a joint defence [enclosed Document xx] to charging order application.

 

3. I now understand that the correct procedure would be for each witness to file and serve separate statements.

 

4. In the event that the court cannot accept the joint defence pursuant to Practice direction 32.25(2), I respectfully request that the individual witness statement enclosed [Document xx] is substituted.

 

5. Copies of this and enclosed documents have been served on the claimant party

 

______________________________________

 

Take 1 copy of each for filing at court [that's 1 w/s to the court with your name on, 1 with your wifes name on, 1 joint defence, 1 each of the witness statement created from the joint defence] 5 pages in total for filing at the court.

______________________________________

 

Send an identical bundle to the claimant with a short covering letter stating the reason for service.

______________________________________

 

Practice direction referred to above is here http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part32#IDA5YVJC

 

Defects in affidavits, witness statements and exhibits

 

25.1

 

Where:

(1) an affidavit,

 

(2) a witness statement, or

 

(3) an exhibit to either an affidavit or a witness statement,

 

does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.

 

25.2

 

Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge17 in the court where the case is proceeding.

[eddie303]

Mike_hawk, thanks a million for this, I'll do exactly that. Yes I'm familiar with witness statement format from another case I was a defendant in.

[Mike_hawk]

No probs, although tbh I think you'd have been OK anyway.......... this is really a 20 minute fix just for your peace of mind.

 

One thing you should question at the hearing is the current status of the judgment value. This is all supposition until/if the claimant discloses otherwise but........ judgment value March at 15k, payments totalling £300.00 by application date in May would infer a repayment schedule of either 50 or 100 months. The latter is stretching it a bit but 50 months is reasonable enough for the court to consider against the c/o application.

 

I don't know the reason for the business relationship breakdown with the 3rd defendant but if at all possible it may prove useful to try to make contact and discuss.

[eddie303]

ok, I'll question that. Re making contact with the 3rd defendant, I can't see that happening.

 

Just started converting the joint defence to individual witness statements, and it's not really possible without changing the content a little. For example I'd referred to "our" 12 creditors in one point, but not all the creditors are in our joint names, some in just mine, some in just hers. So this would need to be changed in the individual statements, on mine, just the ones I'm named on and same for hers, along with total amounts stated. Also, I'd need to change "we" and "our" to "me" or "I" and "mine".

 

Is that going to be OK?

[Mike_hawk]

I wouldn't change any of the text,whilst its a pain reading a change from 1st to 2nd person the reality is that the other side are seeking security of joint beneficial interest in the property. No matter how its drafted all other creditors 'should' be considered, the judge will take a balanced view, ask questions if necessary and interpret accordingly.

[eddie303]

OK. Actually it's not a problem anyway as even though a witness statement might be written by 1 person, that person can still use we, us, etc

[Mike_hawk]

OK. Actually it's not a problem anyway as even though a witness statement might be written by 1 person, that person can still use we, us, etc

 

You can indeedy, think of it as writing a short story of events so that the court can better understand your position

[Mike_hawk]

Re making contact with the 3rd defendant, I can't see that happening.

 

 

No possibility of an intermediary involvement [family, friend etc] or are things too far down the road to consider? Appreciate it may be difficult but when faced with a challenge such as this it may prove worthwhile for both sides to make a little effort.

[eddie303]

Thanks again for your help at the weekend, Mike. I handed in the WS Monday morning and posted off identical pack to the other side.

Nope, contact with the 3rd defendant is out of the question, it ain't gonna happen.

[eddie303]

Agi, sorry to sound negative but I'm not sure your offer of £1 pcm each will be enough as there is caselaw around that instalments should not be set that small on such large debts where is would take longer than the Defendant's lifetime to repy the debt.

 

Ganymede, or anyone, can you point me in the direction of some of this case law you refer to? Thanks.

[Mike_hawk]

For 15k? I'd sell my granny....... joking, sorry nan

 

Wait on the hearing now. You've asked for and covered everything that you could in the circumstances. It really is a game of chance on the day when it falls to charging orders.

 

I think the thrust of any argument should be to protect yourself for the future, if you believe the hearing is moving away from you try to mitigate your exposure to any future enforcement and/or compounding of interest as best you can.

 

Would probably have shown you in a better light if you had serviced the order during the previous 6 months but it's a bit late in the day now. Work on what you have and remember to bite your tongue even if you don't like what you hear.

[Guest]

For 15k? I'd sell my granny....... .

 

wait there, i've got a buyer. 10% broker fee though.

Edited September 6, 2012 by Ford