MBNA court Activ Kapital

[shamrocker]

They were making a claim that s.78 CCA request didn't apply as the agreement had ended. My argument was that they were pursuing a claim based on an agreement so they couldn't pick and choose which bits of the legislation applied and which didn't. Their counter-argument to that was that they had complied anyway, to which I questioned obvious lack of terms....then they can skip back to 's.78 doesn't apply'.

 

I might have been able to force the judge into deciding on which of their positions was correct, but I was such a mess in terms of asserting myself on the process that I probably made it easy for the judge to simply skip past it.

[shamrocker]

Hiya everyone. I'm after a bit more advice on this.

 

Since losing the case I have offered a voluntary charge on my property to the value of the order. I'm currently struggling to meet my everyday outgoings, utilities, etc. so can't pay anything so felt it was best to cut to the chase and just offer what they will end up asking for themselves.

 

I sent back an I&E form half completed as my income is from self-employment and is currently really very low and unpredictable, so is impossible to ascertain. If/when it does improve I have other priority arrears that will need clearing first anyway. So, I sent them a few months of bank statements as proof of my poor financial position.

 

Today, myself and my wife received separate letters - "We enclose by way of service upon you a sealed copy of an interim Charging Order." The property/home is jointly owned and the court order is against me personally.

 

Given that I volunteered a charge, did they need to take this approach? Would you advise that I do anything at this stage? Would I need to attend the hearing?

 

I'm happy for the charge to be made as it enables me to just get on with working towards a better financial position without more hassle and worry. However, can these things be set up to include interest? I really want to avoid that scenario as it will only compound the current situation, besides I feel they've already had the trousers off me without the need to return for my underpants!

 

Thanks!

 

Sham

[Old Cogger]

it is a Restriction only if property is in joint names but CCJ is in one partners name, suggest you read up on restrictions as can be overcome in any sale it seems, others will advise also?

[shamrocker]

it is a Restriction only if property is in joint names but CCJ is in one partners name, suggest you read up on restrictions as can be overcome in any sale it seems, others will advise also?

 

Thanks Mike

 

I'm not looking that far ahead, but am aware that my current situation with regards property ownership & dependents is favourable to me (at least in the short-term).

 

My concern is about whether I need to do anything, or just let them get on with it? I would rather not have to attend court again, but it's not the end of the world if I do have to, just an inconvenience. I thought that since I offered a voluntary charge these 'legal experts' would be able to deal with it as a formality.....or is it better to go via the court which, as you say, means it only ends up as a restriction?

 

Thanks again!

 

Sham

[Old Cogger]

if you do not attend the final charging date then it goes thru automatically, as you volunteered it would seem just a formality as you are not opposing it1 we had the same in the same situation as you sa few years ago CCJ for one of us only therefore restriction only!

[AndyOrch]

The charge is only a means of securing the debt sham...it does not incur interest.....only the judgment can do that if its allowed within the judgment/agreement.

 

Regards

 

Andy

[shamrocker]

Thanks Mike. Maybe I'll just pop a letter off to the court to put on file so that the judge is aware there's a real human on the receiving end of the outcome and that I have already offered the voluntary charge to the claimant. It might appear that I really don't care too much if I didn't show up.

 

Sham

[shamrocker]

The charge is only a means of securing the debt sham...it does not incur interest.....only the judgment can do that if its allowed within the judgment/agreement.

 

Regards

 

Andy

 

Thanks Andy. Do you think I'm ok to just let them get on with it without making an appearance at the hearing?

 

Also, the judgement didn't state any requirement for structured repayments and, to date, I haven't paid anything. Does the charge in effect absolve me from making agreed regular repayments and, therefore, I can just chip away at it as and when I can afford to it? The claimant would then lay claim to to the balance as part of any future sale of the property?

 

Regards

 

Sham

[AndyOrch]

Normally its advocated to attend the hearing...say if you wished to attach conditions...or just to ensure you are in the loop and understand what is happening.

 

With regards to payment...you had a forthwith judgment ...correct? The charge does not absolve you from payment.....it is the defendants responsibility to arrange a payment plan or at the least get it converted to a monthly payment from forthwith by way of a variation order (N245).

 

This use to protect the defendant from the CO being made final assuming you were up to date with payments and no arrears.Since the reason changes of 2011 the variation offers no protection and all claimants are allowed to secure a judgment by way of the charging order.

 

Should you not offer any payment the claimant may choose other means of execution such as Attachment of earnings or a Third party debt order or even try a Statuary Demand to commence bankruptcy proceedings...although because of their charging order they would struggle with the last one because they already have security of the judgment...but the other options may be exercised...better come to some arrangement if only for peace of mind.

 

Regards

 

Andy

[shamrocker]

Normally its advocated to attend the hearing...say if you wished to attach conditions...or just to ensure you are in the loop and understand what is happening.

 

With regards to payment...you had a forthwith judgment ...correct? The charge does not absolve you from payment.....it is the defendants responsibility to arrange a payment plan or at the least get it converted to a monthly payment from forthwith by way of a variation order (N245).

 

This use to protect the defendant from the CO being made final assuming you were up to date with payments and no arrears.Since the reason changes of 2011 the variation offers no protection and all claimants are allowed to secure a judgment by way of the charging order.

 

Should you not offer any payment the claimant may choose other means of execution such as Attachment of earnings or a Third party debt order or even try a Statuary Demand to commence bankruptcy proceedings...although because of their charging order they would struggle with the last one because they already have security of the judgment...but the other options may be exercised...better come to some arrangement if only for peace of mind.

 

Regards

 

Andy

 

Thanks Andy. Yes, it probably was 'forthwith'. My problem is that my current financial position doesn't leave me with any scope to pay them anything. You can't give me an answer to that predicament, but I'll have to negotiate something.

 

Just so I'm clear, is a 'third party debt order' applicable whereby they believe I may have funds available in a bank account and the bank is instructed to hand it over? As it so happens, I don't.

 

Thanks again. I appreciate you taking the time to help!

 

Sham

[jackreacher]

please go to the hearing.

 

These things have a habit of going strange if you don't.

[AndyOrch]

"Just so I'm clear, is a 'third party debt order' applicable whereby they believe I may have funds available in a bank account and the bank is instructed to hand it over? As it so happens, I don't."

 

Then that option is not available to them:wink: