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

[eddie303]

Thanks for all your input Mike.

 

I'd still like to know about the case law Ganymede mentioned, about instalments needing to be enough to pay off in lifetime of debtor. Not necessarily for this hearing, I just want to see the evidence if this really is true, as I find it hard to believe.

[Mike_hawk]

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

 

Lol, she's gone mate........ 15 years ago.......... god, does that make me a bad person

[Guest]

Thanks for all your input Mike.

 

... about instalments needing to be enough to pay off in lifetime of debtor. .

 

hence one of the reasons for s93!

[Mike_hawk]

Thanks for all your input Mike.

 

I'd still like to know about the case law Ganymede mentioned, about instalments needing to be enough to pay off in lifetime of debtor. Not necessarily for this hearing, I just want to see the evidence if this really is true, as I find it hard to believe.

 

Honest answer, not aware of any case law............ I'm sure there probably is something persuasive [there always is] just not aware of it or where to point you.

[eddie303]

Honest answer, not aware of any case law............ I'm sure there probably is something persuasive [there always is] just not aware of it or where to point you.

 

no worries, you've been more than helpful already. If anyone else knows of anything please do post it. Thanks.

[eddie303]

hence one of the reasons for s93!

 

sorry don't get it. was that a joke or does s93 deal with that?

[Guest]

sorry don't get it. was that a joke or does s93 deal with that?

 

eg if a genuine offer of say 1/mth would not pay off judgment during lifetime cred would be short. so, just now co (if applicable) alongside, maybe circumstances would improve later where more could be offered /month or lump sum. if not, then there is the co. ie one reason for s93 (consultation). provided of course orders for sale are strict, that's a sticking point.

if co is awarded against you could try and get the j to include that there be no order for sale.

Edited September 6, 2012 by Ford

[AndyOrch]

Hi Eddie

 

There are important amendments being made to the whole process surrounding Charging Orders. Sadly, as far as I am concerned, debtors will be greatly disadvantaged by the changes, in comparison to the system now.

Briefly, as it stands, when a debtor has a CCJ and is paying in instalments set by the court, then a creditor may not pursue a charge on a debtors property. From 1st October, that protection will no longer exist.

 

Once a CCJ is obtained, then even if a debtor is complying with the terms of the court order then a creditor can still look to enforce the debt via a Charging Order. It is my belief that this will have a very significant impact in more areas than one. I expect to see a very significant increase in the number of charging orders applied for. It is true that a debtor can still put a case to the court why it should not be granted, but whether that will sway the courts from granting the order remains to be seen.

In the current economic climate, disposable incomes are being squeezed to the bone as it is, and a lot of people are on very low contributions based Debt Management Plans. I believe creditors, whilst accepting the payments on a DMP, will be very quick to enforce if they are getting a very low repayment each month.

 

Why does this matter? It matters because it can potentially lead to an order being made to force the sale of a property. I don’t think that will happen in massive numbers, but there will be some cases undoubtedly. If it doesn’t go that far, then the Charging Order may carry statutory interest as well, currently 8% p.a. If a debtor is making a low payment relatively, then the debt may continue to grow with interest.

 

It is fair to say that most creditors are very good at freezing interest on a DMP, not all of them and not all of the time, but the odds are very good. There is, therefore, usually some light at the end of the tunnel for debtors on a DMP. Now, under the new system, the DMP may be nowhere near as effective if the interest is still mounting up. Some debtors will, inevitably, start prioritising these debts as they are now secured on the property. This isn’t fair on any other creditors though, who will obviously have to suffer. Will that then mean they go for charges as well? Probably. The only losers in this, yet again, are the debtors. Equity in property is going to be seriously eroded, if not completely wiped out. I think the Government has got this badly wrong.

 

Further, to make a Charging Order final now currently involves two stages, the claimant obtains a CCJ which facilitates the an interim Charging Order. There then follows a second hearing to determine whether to make the order final or not. Although there is not a date for this to come into force yet, I am reliably informed that the process will now be for one court hearing with the debtor being given a timescale, say 21 days, to respond. Failure to respond will mean the order becomes final, in effect, by default. This further impacts on a debtors chances of stopping such an order being made final.

 

What can be done? I think we will see a significant rise in the number of people protecting properties and the equity in them, by looking at legally binding IVAs. Although an IVA does look at equity, it also protects assets. It follows, then, that in cases where previously debtors would not have looked at IVAs because of the equity issue, preferring the less formal DMP, they will now be very attracted to the prospect of having all interest frozen by law, and a guarantee of no further action by creditors.

 

Then again we do have the option of the old favourite " Time Order " perhaps this may be the way forward.

 

Regards

 

Andy

[Old Cogger]

The above is a travesty of Justice, when is this so called Justice system going to be just & fair, those with money get away with a telling off and a minor fine, those without have to endure proceedings which even the RSPCA would frown upon if it was an animal made homeless/torture.

 

Get onto the MPs and make them earn their keep, they are there by consent of the people which can always be removed.

[Ganymede]

Thanks for all your input Mike.

 

I'd still like to know about the case law Ganymede mentioned, about instalments needing to be enough to pay off in lifetime of debtor. Not necessarily for this hearing, I just want to see the evidence if this really is true, as I find it hard to believe.

 

 

 

I was referring to the Court of Appeal decision in Alliance and Leicester v Slayford Times, December 19, 2000:

“[N]o Judge could properly exercise the power conferred by section 71 of the County Courts Act 1984 to make an order for payment of a money judgment by instalments which it was known would not satisfy the judgment within the lifetime of the debtor or indeed within a reasonable time.”

[AndyOrch]

Irrelevant posts removed

[the tinkerman]

eddie303

 

(I haven't seen anything in the legislation anywhere that allows the courts to grant a CO anyway even if you keep to instalments. Nowhere is this implied anywhere in the 1979 act. But my experience of DJs so far, personally and from reading on here, is they just do what they want anyway without regard to the law, because we're the little people with no money to fight back against the system.)

 

RE your above comments eddie to damm right they do what they want, I paid religiously every month on my CCJ for four years NEVER MISSING ONE PAYMENT told the DJ so, but just fell on deaf ears and got a CO on my property for a unsecured loan.

 

Tinks

[the tinkerman]

From what I remember also about my hearing the DJ did mention something about the debt had to be paid within your lifetime as one of the reasons I received a CO

[Guest]

tinks

a recentish co thread comes to mind posted on where dj was advised s93 concurrent co not yet in force but j said something along lines of well its coming in soon, and cred would be able to apply once in force anyway! co was granted despite instalments.

Edited September 6, 2012 by Ford

[AndyOrch]

I assure the change is coming as stated in my post 1st October 2012.

 

Regards

 

Andy

[the tinkerman]

My hearing for CO was Feb this year and did bring the instalment issue up with the DJ and the law stating that if never missed a payment on a CCJ then a CO cannot be granted,the DJ said yes they can and did so.

[Guest]

found the thread was referring to #64. was re a 'hybrid' order where claimant then went for co and got it despite the instalments.

[Mike_hawk]

Hi Ford

 

Do you have a link please mate, I remembered seeing a few posts [quite a while back] and considered the possibility of a N24 earlier but couldn't find anything relevant on here?

[Guest]

Hi Ford

 

Do you have a link please mate, I remembered seeing a few posts [quite a while back] and considered the possibility of a N24 earlier but couldn't find anything relevant on here?

 

this one http://www.consumeractiongroup.co.uk/forum/showthread.php?337719-Hybrid-installment-orders-allowing-application-for-C-O-help-please

not a long thread, and prob not quite what you're looking for. but referenced s93.

[Mike_hawk]

this one http://www.consumeractiongroup.co.uk/forum/showthread.php?337719-Hybrid-installment-orders-allowing-application-for-C-O-help-please

not a long thread, and prob not quite what you're looking for. but referenced s93.

 

Cheers Ford

 

Not sure what to say except ooooer!! Variable consent grafted to a judgment...... I honestly thought the courts had started to distance themselves from hybrids, there isn't a procedure, rule or S.I that covers it so I'd guess someone got mugged and it gradually winged its way down through the system from Northampton

[Guest]

they've been doing it 'unofficially' (and will continue to do so), but its not long now till it is 'official'!

Edited September 8, 2012 by Ford

[eddie303]

Well as expected the hearing today was a complete farce. We knew the outcome would be against us but it still it's bitterly disappointing anyway.

 

It was the same DJ who has presided over the last 4 hearings I've attended with another different case with another bank. Coincidence? Today, as on all the other occasions, he has never agreed with not even a *single* point I've ever argued. Every time, without fail, even when very clear legislation is pointed out to support an argument that a creditor is doing something wrong, he just dismisses it and comes up with his own rationale as to why he is right.

 

As on previous occasions he's always seemed quite cosy with the other side's solicitor, never criticising anything they say. The other side was extremely patronising, inviting us to "take a seat" in his office (consulting room) before the hearing and proceed to dismiss points on our witness statement. I got up and told him we're not going to sit there while he can conduct his own pre-hearing. After the hearing, as my wife and I were leaving the chambers, the DJ said he and the other side were staying to do some work "together".

 

One of the DJs comments as I raised legal points was along the lines of the law is fine in black and white, but it doesn't work "in practise".

 

I have another creditor preparing to take us to court at the moment. No doubt he will assign the case to himself once it comes in.

 

It's just shocking to see how completely and unashamedly biased the courts are towards creditors, and how they seem to ignore legislation. It's not like they try and even hide it, they just seem to go about things thinking there's not much the little fish can do about it, we can just do whatever we like.

 

Rant over. Thanks everyone who's helped us on this thread. For anyone facing injustice, I'd say it's still worth fighting the system, even though it may be inherently biased against you and it seems pointless. Because if you don't the banks just literally get handed things on a plate without so much as a raised eyebrow. You have to go along and object so that there is at least one voice of opposition.

[Mike_hawk]

Hi Eddie

 

As you say, not an unexpected result but at least you gave it a shot.

 

Were there any terms applied?

[eddie303]

No, everything was very rushed and despite having written down in my notes to MAKE SURE to ask for conditions, I completely forgot. I don't suppose we can file anything post hearing to request conditions, can we?

[Ganymede]

No, everything was very rushed and despite having written down in my notes to MAKE SURE to ask for conditions, I completely forgot. I don't suppose we can file anything post hearing to request conditions, can we?

 

 

 

Not really. Just make sure you never miss a payment.