House sale in progress help needed with restrictions on land registry title and creditors

[AndyOrch]

Your uploads in post#47 are with regards to their application to increase your monthly payment from £7..this is referred to as a Redetermination...you can object if your circumstances are of no change.

 

Your uploads in Post#48 are responses to your DSAR and CCA request.You can not request a copy of a CCA once judgment is granted.

 

Andy

[Borris the Bold]

It seems strange that they want to drag me back to court to try and increase the monthly payment when they know that they could potentially get the entire judgment debt in a month or so.

 

I think we established in the end that post judgment statutory interest did not come into play, but there were some pretty unsavory ToCs!

 

I wanted to ask you if I should call Horwich Farrelly and ask them for a breakdown of the settlement figure?

 

Borris

Edited November 20, 2012 by Borris the Bold

[AndyOrch]

It seems strange that they want to drag me back to court to try and increase the monthly payment when they know that they could potentially get the entire judgment debt in a month or so. I would make that known at the hearing and the basis of your objection

 

I think we established in the end that post judgment statutory interest did not come into play, but there were some pretty unsavory ToCs!

 

I wanted to ask you if I should call Horwich Farrelly and ask them for a breakdown of the settlement figure? Would that not be provided within the DSAR? Possibly by way of a CPR 18.1 if not

 

Borris

 

 

Regards

 

Andy

[Borris the Bold]

Okay thanks Andy.

 

I'll prepare for this re determination hearing and set out my financial statement.

 

What are your thoughts on the ToCs?

 

If they turn round and say it's contractual interest, do they have the right to include it with the judgment debt and therefore collect it as part of the settlement figure?

 

Regards,

 

Borris

[AndyOrch]

Only if its contained within their terms and conditions of agreement and Judgment allows the addition.

 

Andy

[Borris the Bold]

Hi Andy,

 

 

So, there are 3 documents that contain text/provision that could potentially be used as grounds for adding interest to the settlement figure...

 

Judgment for Claimant (in default) document dated 12 August 2009: If judgment is for £5,000 or more, or is in respect of a debt which attracts contractual or statutory interest for late payment, the claimant may be entided to further interest.

 

Final charging order dated 6 October 2009: …the sum of £12,294.03 the amount now owing under judgment or order given on 06 April 2009 together with any further interest becoming due...

 

ToCs: If you are late paying the whole or part of any instalment you will pay us, if we so require, interest on the instalment from when it was due until when it is paid, at the rate of the APR shown. This applies before any judgement against you and afterwards if the judgement allows you to pay what you owe in instalments and states that this agreement should not be changed because of the judgement.

 

Regards,

 

Borris

 

P.S. I have just spoken to the court and they said it is an application for a financial statement but said it is an odd or tricky one as question 3 requests the statement but the judge has not asked. They said to go to the CAB and get advice, but send in financial statement as precaution and attend hearing.

Edited November 20, 2012 by Borris the Bold

[Borris the Bold]

Just read this particular thread:

 

A 'clause' in an agreement is not required re post Judgement 'statutory' interest. The application of post J statutory interest is enshrined in statute (s74), subject to the 91 Order.

 

How is the above contested and dismissed?

 

A clause in an agreement is required for any post J 'contractual' interest.

Edited November 20, 2012 by Borris the Bold

[AndyOrch]

Generally speaking, if a county court judgement has been issued against you, any interest charged on the debt should have already been included by the time the judgement is put in place. Further interest cannot normally be added to the debt after this time.

However, there are certain circumstances where where additional interest can be added after the judgement is in place.

 

On receipt of a County Court Judgement, interest on the debt will have been calculated in one of two different ways depending on the terms of the judgement:

 

1. Amount owed is the full balance owed under the agreement

 

The CCJ may require you to pay the full balance you owe under the original credit agreement. This would include court fees, the balance owed and the total interest which would have been payable under the agreement. Once you have paid the full amount owing on the county court judgment, that is normally the end of the matter and you do not have to pay any more interest.

 

2. Amount owed includes only interest added up to the date of the judgment

 

Alternatively, the county court judgment my include court fees and interest just up to the date of the judgment. Once you have paid the full amount owing on the actual judgment, as long as there is no clause in the original agreement that allows the creditor to claim interest after the county court judgment (contractual interest), that is the end of the matter and you do not have to pay any more interest.

Adding additional interest after the CCJ has been issued

There are two types of interest: Statutory and Contractual interest.

Statutory Interest

Statutory interest is the interest which the court assumes can be added to an unpaid debt where there has not previously been a provision in the agreement to charge interest. For example statutory interest could be charged on a debt which is unpaid after the supply of goods or services.

Statutory interest is currently 8%.

Note: As per the County Courts (Interest on Judgment Debts) Order 1991, statutory interest does not accrue on a debt that has been the subject of a CCJ if:

• the debt is for an agreement regulated by the Consumer Credit Act. This includes most ordinary credit agreements, including bank overdrafts; or

• the debt is less than £5,000 in total, even if it is not covered by the Consumer Credit Act.

 

As such generally speaking if you have received a CCJ for a debt which is covered by the consumer credit act such as a personal loan , credit or store card, a creditor can not add statutory interest after a CCJ has been issued.

 

Contractual Interest

 

Contractual interest is the interest charged on a debt as per the terms of the credit agreement. Once a CCJ is in place, the creditor may still be able to claim for and be awarded additional contractual interest :

 

Contractual interest on CCJs issued before 1 October 2008

 

If you have a county court judgment that was made before 1 October 2008 then the rules on how your creditor may add interest to the debt are not very clear.

Some credit agreements allow a creditor to add additional (or contractual) interest on to the county court judgment. However, to allow this there must be a term in your credit agreement that states that the creditor is allowed to add interest after the judgment is made.

There was a court of appeal case called Director General of Fair Trading against First National Bank in 2001 confirming this. This decision said that in some cases while you are paying the county court judgment, contractual interest may be charged on the amount that you still owe on the judgment.

 

If interest is still being added, it may mean that when you have paid the original balance owed on the judgment, you will find that you have an extra amount that the creditor says you owe, even though the judgment has been paid in full. To force you to pay this, the creditor would have to take you to court again.

 

Contractual interest on CCJs issued after 1 October 2008

 

If you have a county court judgment made on or after 1 October 2008, there are new rules for creditors to follow if they want to add contractual interest to the judgment.

In order for the creditor to be allowed to charge additional interest, there must be a term in your credit agreement that states that the creditor is allowed to add interest after judgment is made.

Before your creditor can take you to county court, they must send you a default notice. If there is a term in the credit agreement to allow them to add interest after judgment then the creditor must include a special statement in the default notice to tell you this.

 

This states:-

 

You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgment and the interest under the agreement on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay off the whole amount of the judgment, you may still have a further sum to pay’.

Once the CCJ is in place, your creditor must send you a notice to say they intend to charge interest on the judgment. They are not allowed to add interest until they have sent the first notice to you. The notice must tell you the outstanding balance on which interest will be charged. It must also tell you what the rate of interest is and what date the interest will run from. It must also tell you that you can ask the court to change the interest rate and the instalments you pay.

The creditor has to send you a new notice every six months if they want to keep charging interest. The notice must tell you how much interest has been added and the interest rate.

If the creditor does not send you a notice within six months, they are not allowed to charge interest until a new notice is sent. They are not allowed to add interest back in for the time they have missed.

 

How to stop contractual interest being added to a county court judgment

 

You can try to stop any contractual interest being added by asking the county court to make a ‘instalment order’. An instalment order is simply an agreement to pay off the debt you owe on the basis of affordable monthly payments.

If the court agrees to make the order, it can revise the rate of payment and alter the rate of interest, from that which is written in the agreement to that which it thinks is just and fair. This could mean a zero rate of interest, if the court agrees to make the order in those terms.

[Borris the Bold]

Hi Andy,

 

Thanks for the info. I spoke to Robinson Way's solicitor or at least some legal assistant and again she confirmed that they are adding 8% statutory interest. I requested another letter with this to be included instead of just a single figure. This is not mentioned anywhere in any document or been judged upon in my view.

 

So, Robinson Way is applying the statutory interest via The County Courts interest on judgment debts order 1991

 

However, the judgement (attached previously) states:

 

To the Defendant

 

You have not replied to the claim form. It is therefore ordered that you must pay the claimant £11979.03 for debt (and interest to date of judgment) and £320.00 for costs. You must pay the claimant a total of £12,299.03 forthwith.

 

So if this is the case, I will quote s2(3) of the order, which is applicable in my case:

 

The general rule

 

2.—(1) Subject to the following provisions of this Order, every judgmentdebt under a relevant judgment shall, to the extent that it remainsunsatisfied, carry interest under this Order from the date on which therelevant judgment was given.

 

(2) In the case of a judgment or order for the payment of a judgmentdebt, other than costs, the amount of which has to be determined at alater date, the judgment debt shall carry interest from that later date.

 

(3) Interest shall not be payable under this Order where the relevantjudgment—

 

(a) is given in proceedings to recover money due under an agreementregulated by the Consumer Credit Act 1974(1);

 

(b) grants—

 

(i) the landlord of a dwelling house, or

 

(ii) the mortgagee under a mortgage of land which consists of or includesa dwelling house,

 

a suspended order for possession.

 

(4) Where the relevant judgment makes financial provision for thespouse or a child, interest shall only be payable on an order for thepayment of not less than £ 5,000 as a lump sum(whetheror not the sum is payable by instalments).

 

For the purposes of this paragraph, no regard shall be had to any interest payable under section 23(6) of the Matrimonial Causes Act 1973(2).

 

Regardless, the solicitor is still saying that the Act only applies to judgements of £5,000 or less.

 

Regards,

 

Borris

Edited November 20, 2012 by Borris the Bold

[Borris the Bold]

Ref. last post and all attached documents. Do you think it's time to write to Robinson Way & Co. regarding the statutory interest that has been applied to a post county court judgment debt? The county court judgement did not allow for statutory interest to be added and as far as I am aware there is no provision in law for it to be added.

 

Regards,

 

Borris

[Borris the Bold]

Hi all CAG colleagues

 

Ref. last two posts. Is there any particular legal text that you should use in a letter to a DCA when contesting statutory interest? Is there a template available?

 

Kind regards,

 

Borris

[Borris the Bold]

Hi CAG members

 

I would really appreciate any feedback regarding my proposed letter (see below).

 

Dear Sirs,

 

I am writing in response to your letter dated 11 November 2012 regarding the redemption charge of £XXXXX in favour of your client Robinson Way & Co Limited. Firstly, would you please kindly provide a breakdown of the above figure showing the number of repayments made to date towards the reduction of the judgement debt and the calculation used to determine the amount of unsubstantiated statutory interest.

 

Secondly, I refer specifically to statutory interest that has been applied to the post county court judgment debt in 2009 and which I now believe to be wrong. The county court judgement did not allow for statutory interest to be added and as far as I am aware there is no provision in law for it to be added.

 

The original loan taken out in 2004 was subject to the Consumer Credit Act 1974 and this continued to apply at the time of default in 2008. Under the County Courts (Interest on Judgement Debts) Order 1991, any agreement subject to the CCA 1974 would not accrue any statutory interest post judgement.

 

Please refer this matter to your legal and/or compliance manager, so a proper response may be provided. I am expecting any statutory interest added post judgement to be removed or a proper legal explanation as to why you consider the above argument to be incorrect.

 

You will be aware that I consider the debt to be in dispute as a substantial amount of this sum is made up of disputed charges and interest charged thereon.

 

I await hearing from you.

 

Yours faithfully

 

 

 

Regards,

 

Borris

Edited November 21, 2012 by Borris the Bold

[AndyOrch]

Hi Borris this little gem may be of interest (pardon the pun)

 

7 NOTICES OF POST-JUDGMENT INTEREST

 

7.1 From 1 October 2008, creditors will be required by section 130A of the

1974 Act

59

to notify the debtor if they intend to charge post-judgment

interest under a regulated agreement in connection with a sum that is

required to be paid under a court judgment. The creditor will not be

entitled to charge interest on the judgment sum until the first required

notice has been served.

7.2 Further notices must be given at intervals of not more than six months

for such time as the creditor wishes to charge post-judgment interest.

7.3 The notice may be incorporated in any other statement or notice under

the 1974 Act. The provisions do not apply in respect of post-judgment

interest which is required to be paid by virtue of a court order.

7.4 The 2007 Regulations set out the information and forms of wording to

be included in notices of post-judgment interest.

60

7.5 The first required notice must include a prescribed statement indicating

the creditor's intention to charge post-judgment interest, and the

procedures involved. This must indicate the rate of interest payable, and

the date from which it will be payable, and that further notices will be

given at least every six months for so long as the creditor intends to

charge post-judgment interest.

61

 

7.6 In addition, the notice must indicate the amount on which post-judgment

interest will be charged. It must also include prescribed statements

highlighting the debtor's right to apply to the court to vary the terms of

the instalment order or to reduce the amount of interest payable, and

that the debtor can obtain advice and information about dealing with the

 

59

As inserted by section 17 of the 2006 Act

60

Regulations 34-35 and Schedule 5 as amended

61

Schedule 5 Part 3

OFT1002 | 24debt from a number of organisations (with contact details taken from the

OFT default information sheet).

62

 

 

7.7 Subsequent notices must also indicate the total amount of postjudgment interest charged since the date of the last notice, the dates on

which interest was charged, and the rate of interest (and whether this

was variable).

63

 

Regards

 

Andy

[Borris the Bold]

Hi Andy,

 

Thanks for getting back to me, especically with such nice information, it's really encouraging. So, as I understand it, as no post statutory interest or contractual interest was awarded by virtue of the court order, and the fact that I have no documentation from Robinson Way in relation to post judgment interest, means that they cannot add anything to the judgment debt or should I say in this case settlement figure.

 

My question now is, if you don't mind assisting further, how do I go about getting Horwich Farrelly / Robinson Way to review and send out a revised settlement figure? Is the letter in my previous post adequate?

 

Kind regards,

 

Borris

[AndyOrch]

Hi Borris

 

The above letter is adequate in confirming there is a dispute with the the offered settlement figure.Armed with all the necessary information we have discussed over your thread its really for your acting Solicitor who is dealing with this matter to now force compliance in either providing a true revised settlement or justifying their entitlement to add this interest to the judgment.

 

Regards

 

Andy

[Borris the Bold]

Hi Borris

 

The above letter is adequate in confirming there is a dispute with the the offered settlement figure.Armed with all the necessary information we have discussed over your thread its really for your acting Solicitor who is dealing with this matter to now force compliance in either providing a true revised settlement or justifying their entitlement to add this interest to the judgment.

 

Regards

 

Andy

 

Thanks Andy, you've been absolutely brilliant throughout this, offered so much information and advice, which has really got me into gear! Let's just hope Robinson Way & Co. don't put up to much of a battle!

 

I'll speak to my conveyancer now and see if he wants to get involved. They've been a bit reluctant to date, mainly because they do not have any of the documents or know the history. I suppose it's their job just to send out standard letters requesting settlement figures.

 

Regards,

 

Borris

 

P.S. I have one more restriction to deal with and I hope I can use the same process (Egg Banking c/o Shoosmiths moved to Barclaycard; waiting for settlement figure but dragging their heels).

[Borris the Bold]

Hi Andy,

 

Sorry to bother you again, but should I sign the letter and add “Without Prejudice” at the top?

 

Kind regards,

 

Borris

[AndyOrch]

No there's nothing in that that should prejudice you/creditor.

 

Andy

[Borris the Bold]

Thanks Andy; and no signature either?

 

Kinds regards,

 

Borris

 

P.S. I have another debt with Robinson Way & Co., but there is no order against the property. It will be interesting to see the breakdown. I'll report everything back to CAG in order that it may help others in similar positions.

Edited November 22, 2012 by Borris the Bold

[AndyOrch]

Of course you must sign it...it may be needed at a later date should you have to compile evidence.

[Borris the Bold]

Hi Andy and all CAG members,

 

The response to the settlement figure went off today, recorded delivery. I was wondering, are Robinson Way & Co. allowed to add my other debt I have with them to the settlement figure relating to the restriction? It's just that when I add the two figures together it's not that far off the figure given in the letter, plus if they felt justified to add some interest of sorts, it could be a possibility.

 

Kind regards,

 

Borris

[Borris the Bold]

WOW, knowing my luck I bet this is how my situation will run, talk about a similar case...

 

http://www.google.info/forums/showthread.php?15157-Charging-Order-Bryan-Carter-claiming-interest-due-Anybody-help

 

 

Regards,

 

Borris

Edited November 24, 2012 by Borris the Bold

[Borris the Bold]

Hi all CAG members,

 

Some further advice would not go a miss in this instance. I'm really getting nervous regarding an upcoming court hearing, the details of which are attached in a previous post. I've prepared a financial statement, a letter to the judge and will attend in person. What's really concerning is the fact that the DCA in question knows that my house is being sold and has given a settlement figure to my conveyancer, which is being contested. So, what are they trying to achieve hauling me back into court? Are they trying to false me to default on my payments in some way by asking for some extortionate monthly payment? Are they trying to change the current judgement order to justify the interest charged in the settlement letter? It seems odd that after all this time of paying regularly each month and being left alone by them that they should drag me to court even when they know they could get paid out shortly. I can't help but think that it's all a bit underhand.

 

The form says:

 

What order are you asking the court to make and why?

 

1. The Judgment dated 6 April 2009 is varied.

 

2. This application be dealt with at a hearing;

 

3. The Defendant do file with the Court and serve on the Claimant's solicitors at least 7 days prior to the hearing data a financial statement of his income and expenditure for consideration at the hearing to enable the Claimant and the District Judge to consider a variation in the current instalment order.

 

4. In default of the Defendant filing and serving the financial statement set out at paragraph 3 above, the judgment be varied to be payable forthwith.

 

Regards,

 

Borris

Edited December 1, 2012 by Borris the Bold

[Borris the Bold]

Hi CAG members,

 

I just rang Horwich Farrelly ahead of the letter reaching them! The guy again confirmed that it is post statutory interest that has been applied, but this time he said 'at the claimants discretion' and to look at CPR rules. I ran through the contents of the letter, which took him off guard a bit. He then said that I was obviously unhappy with the figure and the amount of interest, and that I could make them an offer in writing.

 

Regards,

 

Borris

[Borris the Bold]

Hi CAG members,

 

Does anybody know what my chances would be of pursuing a counter claim if I'm forced to pay the settlement figure given by Horwich Farrelly? I've had some bad news this afternoon in that my buyers buyer has had enough of waiting and wants to pull out of the sale. Horwich Farrelly will just drag their heels, even though they know must of the contents of the letter. They don't seem to be worried even though they may be in the wrong. I think they go through this often and know how to play the game.

 

Can anybody please provide some guidance on what to do. I'm at my wits end with this now because it will be the second time I have lost my buyer, although the first time was for less complicated issues.

 

Regards,

 

Borris