Charging Order MBNA/Arrow/Retsons - can we fight it?

[Camino55]

Hi,

Be really really grateful for any guidance.

 

Some years ago , -2007/8/9 we got into big debt trouble,

lost our business and the only thing we were able to keep, amazingly, was a 1 bed flat in my wife's name which at the time didn't really have any equity in it so wasn't much point in selling.

CAG helped enormously,

 

RMA from Amex dropped amongst other things and over time most have stopped pursuing us.

 

However while I know there are sadder stories out there than ours the stress added up and we also split up with my wife keeping and living in the 1 bed flat.

 

In 2014 MBNA produced a CCJ against my wife for €14000 on a credit card she had back in 2002.

 

She made an arrangement to pay £100+ per month and understood it was interest free etc, doesn't seem to have had paperwork on it.

 

She has never missed a payment and the balance is now £11,000 odd.

They only assets she has in the world is the flat (interest only mortgage but a low interest rate) - about £40k equity and next year at 65 she must retire from the NHS (4 years service won't amount to much).

 

So, having got through everything

she is in pieces having received a letter from the Land registry saying that they have placed an interim charging order on the flat in favour of Arrow for the £11,000 balance.

 

The letter seems to read that they automatically place the charging order if anyone asks for one and it is up to the owner to challenge in the courts to get it removed

- Fait accompli! Or is it?

 

Please can anyone help with advice because looking for information on the forum and elsewhere it seems the way the Land Registry is presenting the information is along the lines of - Its already done and dusted and no chance mate in getting it removed if you have a CCJ,

 

where I am reading that the is a timescale where you can challenge the interim order and there are grounds for a challenge such as there being other creditors whose claims would be unfairly denied (not sure that is necessarily a good way forward)

 

and another one which is that we are in the process of getting divorced, with solicitors instructed, having lived apart for more than 4 years (I am not claiming anything but nevertheless it might be grounds to put a spanner in the works).

 

Finally, are we worrying too much about it?

I don't at all like the idea of them making unsecured into secured but as long as they don't move to repossess and the £100 a month agreement stays in force interest free should we twitch too much? Is that naïve?

 

By the way if anyone is wondering why I am writing on behalf of my wife when we are getting divorced we are still friends/care/and although the debt is in her name it came about when we were together so is joint really anyway.

 

Thanks in advance and time for your replies.

[dx100uk]

MBNA would not of gotten the CCJ

It would have been sold to arrows and they got it

And ibet restons went straight for a CO

 

Did she defend the CCJ?

[Camino55]

Hi, You are absolutely right,

She was starting to get back on her feet,

moved into the flat,

had just got a job,

was on her own - ish - and panicked when she got the CCJ letter.

 

 

T elephoned them - made the arrangement - the rest is history.

 

Sorry, and no, she didn't defend it.

 

I think actually it may have already happened and she hadn't known about it because she had been living away.

[dx100uk]

if you can prove certain things like the debt was bogus

made of charges and PPI

claimform served to the wrong address etc etc

 

you could go down the set aside route and if you 'won' the charge would have to be removed.

 

there have been good results with questioning MBNA debt from the early noughties??

when was the card taken out?

 

have you a copy of the CCJ?

[Camino55]

Thank you very much for your thoughts, I will see if we can get a copy of the CCJ pronto

- the MBNA card was from sometime around 2002/2004

- I will confirm that exactly too.

 

 

Is there still the ability to challenge the debt if the judgement is 3 years old and under an arrangement? Thanks again

[Camino55]

MBNA credit card started on 5 May 2000

[AndyOrch]

" Is there still the ability to challenge the debt if the judgement is 3 years old "

 

Extremely unlikely

 

Andy

[Pinkjellybaby]

Thank you very much for your thoughts, I will see if we can get a copy of the CCJ pronto - the MBNA card was from sometime around 2002/2004 - I will confirm that exactly too. Is there still the ability to challenge the debt if the judgement is 3 years old and under an arrangement? Thanks again

 

unfortunately it doesn't sound like you would be successful in having the Judgment set aside.

quite a number of payments have been made to the Judgment debt so you couldn't claim that you were unaware of it and did not have an opportunity to submit a defence.

 

 

the payment arrangement could also be looked upon as an admission that the debt is owed.

Even if the claim form was sent to the previous address this is within the court rules as claim forms can be sent to your last known address if you havent informed the creditor that you have moved.

 

When an interim charging order (ICO) is granted the creditor must serve a copy on the owner (your wife) and anyone else with an interest in the property eg the occupier/tenant,

 

 

mortgagee or secured loans the ICO will have a date on it for either the Final charging order hearing, or a date by which you must lodge your objections to the charging order being made final to the court.

 

 

I personally have not heard of many objections being successful in stopping the charging order being made final,

simply not wanting the debt to be secured on the property is not normally an objection which is given consideration as the creditor is entitled to obtain a charging order to secure the debt even if an instalment Judgement is granted or an arrangement is made.

 

 

The charging order will simply be to protect their position in the event that the payments stop or your wife sells the property in which case the debt will be paid from the sales proceeds.

 

 

it is unlikely that they would force a sale of the property, especially if she continues to make payments towards the balance.

[AndyOrch]

The charge is merely placed to secure the judgment debt.....as long as payments are maintained the claimant cant force sale....end of.

[Camino55]

Hi, Ok, Thank you for that, you have confirmed what I was guessing

- not a great deal we can do and as it is pretty much done and dusted then just keep making the payments.

 

 

One last question,

are they allowed to change the payment terms?

They have sent her forms to assess her income with the letter?

[Pinkjellybaby]

Does the judgment state you must pay at £100 per month?

If not then yes the payment arrangement can be changed.

 

 

They will be sending out the forms to review the arrangement

e.g. Ensure she is paying the most she can afford to but also to ensure the amounts are affordable.

 

 

They can get into trouble if they are demanding payments which puts her in a worse financial position such as being unable to pay her mortgage or other priority debts etc.

 

 

As long as when filling in the forms she shows that the £100 per month is the max she can afford then they should be happy with that arrangement.

 

 

If the forms show she has a higher disposable income they may request that she increases the payments.

[dx100uk]

no harm in sending an sar to MBNA

there could well be PPI and other stuff to reclaim?

[ThedaBara]

If you are divorcing, could you oppose the CO on account that you will be dividing assets and perhaps you made payments towards the flat, etc?

 

This link is an open forum for Charging Orders and it really helps to speak to others who are in the same boat...

 

Good luck! TB

 

http://forums.moneysavingexpert.com/showthread.php?p=72033021

[Camino55]

Thank you everyone again for your help - will look into all of that!

[AndyOrch]

You are not at any liberty to complete any I&E forms if the monthly amount has been set by the court on the judgment...if the claimant wants to review the payment they must make application with fee to redetermine the payment.

 

 

Andy

[Camino55]

Hi

 

 

I have finally got a copy of the original ccj which hopefully I have uploaded and attached to this entry. It does seem to have an agreed amount of £100 per month so from the advice kindly given it can I just confirm that they can go and whistle for the moment re income and expenditure forms but otherwise we cannot stop this happening and just have to hope they don't get nastier?

 

 

Thanks again

Retsons CAG.pdf

[AndyOrch]

[BankFodder]

Camino55 - I've sent you an email. Please check your spam folder if you don't see it

[Camino55]

Hi, Just one last question - we haven't replied to the forms sent for the charging order - should we complete them? Thanks

[AndyOrch]

" The letter seems to read that they automatically place the charging order if anyone asks for one and it is up to the owner to challenge in the courts to get it removed

- Fait accompli! Or is it? "

 

Fait accompli! Im afraid....