1st Credit/mbna... Applying For Finalcharging Order. Advice Please

[Guest Battleaxe]

I get the impression the Judge is trying to help you by giving you the advice that you need to get some strong legal advice. I would ditch the solicitor you have at the moment. he sounds like he is in for an easy ride (just my opinion). The Charging order really only makes sure if you sell they will get their money. It does not mean that they can force you to sell.

 

I would be writing to 1st credit/MBNA and warn them that unless they provide the information you request within 14 days, this will be used in court that they are deliberately blocking your defence preparation. I am sure the Judge wants to see that you are doing everything you humanly can to help yourseld and on the way establishing your true endebtedness.

 

At this stage ICO will be able to help, because they have provided the information you have requested via the SAR, the letter from the ICO supporting this will also be evidence for you to apply for a strike out.n a round about way, lasdt night's whistle blowers programme show that the bank don't care and are being deliberately obstructive. it doesn't matter which bank it is, it porves that the operatives are driven by targets, commission and bonuses and will help you if you complain. They are now all tarred by association. Armed with this knowledge, you should gain an advantage and put more pressure on the two companies to provide what you require. They wont, they will be as obstructive as possible, they have too much to lose.

 

It doesn't help with the Judgement, but the charging order is still in abeyance and if you play it right it wont be applied and the Judgement will most probably have to be struck out because of the unlawful charges and concealment by MBNA and 1st Credit.

 

I would be setting the wheels in motion regarding a claim against the two banks and use the CCA not the property act at this stage. You have to discover the true amount of indebtedness. of course no executed agreement, it becomes game set and match in Court.

 

There my two bob's worth, but maybe a couple more things for you to consider.

[thereshope!]

Thanks BA:)

 

I'm going to email you a bit later on today as there are a couple of things I need you to see(and I stll need to supply you with my account details for mbna re your mass complaint thread etc)

 

Rhia has been fantastic and Elizabeth1 pm'd me this morning too, I am so grateful to have you all standing by me. It makes a huge difference.

 

Actually,going to pm you now.!

 

Hope xx

[stan5131]

Thereshope. Sorry not been around, but have been away on holiday. Just catching up with your thread. So much has happened while I have been away.

 

Battleaxe has given good advice. You really need to use a solictor who is au fait with Consumer Credit Act and Data Protection Act.

 

I wish I could have been there with you.

[tifo]

i already have a charging order with 1st credit after the judgement. This seems to be a standard tactic with them.

 

Anyone advice what i can do now, as they haven't complied with a CCA s.78 request and haven't proven they own the debt.

 

I agreed at the time because i also did not know that the charges were unlawful etc.

[sequenci]

i already have a charging order with 1st credit after the judgement. This seems to be a standard tactic with them.

 

Anyone advice what i can do now, as they haven't complied with a CCA s.78 request and haven't proven they own the debt.

 

I agreed at the time because i also did not know that the charges were unlawful etc.

 

do you have any grounds to set the CCJ aside?

 

you may not have received the original claim form;

you may have moved house and not had post from your previous address;

an order was made against you in your absence in certain circumstances;

there may be an error in the judgment;

you want to put in a defence and did not have the opportunity to do this;

the proceedings did not follow the court rules.

[thereshope!]

After talking with Rhia today,it looks like the way forward for me is to try and get the original ccj set aside.

 

I think I have a bit of a fight on my hands as I admitted the debt when I was served with N1 back in july 06.

 

I think that I need to start with the CCJ because hopefully everything else will fall into place.

 

No CCJ means no interim charging order = No final charging order !

[thereshope!]

Hi Tifo:)

 

 

 

I guess the way forward Tifo might be to file N1 for non-compliance of

CCA 1974.

 

Is your charging order an interim or final order ?

 

Hope xx

[stan5131]

Thereshope... did you get fax ok?

[thereshope!]

Hi all

 

After speaking with Battleaxe on the phone(just have to say she is fantastic !) I have decided that the way forward for me is going to be issuing N1 for non-compliance on both 1st Credit and MBNA.

 

I was going to apply to have the CCJ st aside,but TBH I think it will be a lost cause as I stupidly admitted the debt,on the advice of the CCCS.

It will be virtually impossible to get a set aside on this basis.

 

At least if I issue N1 for non-compliance , I can ask for full disclosure ,and the way I see it is,if they cant provide the CCA docs etc, then on this basis it should follow that no agreement =no debt.

 

Will I be able to have CCJ set aside on this basis if I got to court for the non-compliance issues,and the CCA docs couldnt be provided ?

 

Could I then make an application for a set aside of the CCJ because it had been proven at the non-compliance hearing that their was no true copy of executed agreement ?

 

What do you think ?

 

I want to thank my fellow MBNA / 1st Credit sufferers for their support.

Rhia,Battleaxe, Stan5131 and Inkogneetoh, thank you so much for taking the time to talk,pm,email and fax !

You are wonderful people and a credit to the CAG.

 

Hope xx

[InKogneeToh]

Hi thereshope

 

I thought you said that the CCJ was awarded to the creditor in default! This would mean that you did not respond to the court claim at the time. Can you clarify asap if this is, or is not the case?

 

Regards, Pam

[thereshope!]

Hi pam:)

Just pm'd you !

 

Hope xx

[Guest Battleaxe]

Carla, trying to help you is a pleasure.

[thereshope!]

Ah, thanks BA

 

That's a really lovely thing to say.!

[paulwlton]

Hi all

 

After speaking with Battleaxe on the phone(just have to say she is fantastic !) I have decided that the way forward for me is going to be issuing N1 for non-compliance on both 1st Credit and MBNA.

 

I was going to apply to have the CCJ st aside,but TBH I think it will be a lost cause as I stupidly admitted the debt,on the advice of the CCCS.

It will be virtually impossible to get a set aside on this basis.

 

At least if I issue N1 for non-compliance , I can ask for full disclosure ,and the way I see it is,if they cant provide the CCA docs etc, then on this basis it should follow that no agreement =no debt.

 

Will I be able to have CCJ set aside on this basis if I got to court for the non-compliance issues,and the CCA docs couldnt be provided ?

 

Could I then make an application for a set aside of the CCJ because it had been proven at the non-compliance hearing that their was no true copy of executed agreement ?

 

What do you think ?

 

I want to thank my fellow MBNA / 1st Credit sufferers for their support.

Rhia,Battleaxe, Stan5131 and Inkogneetoh, thank you so much for taking the time to talk,pm,email and fax !

You are wonderful people and a credit to the CAG.

 

Hope xx

Check this out from post 213 may be of use.

 

Paul

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/11427-walton-rbos-12.html

[Guest Battleaxe]

Hmmm....not sure if this applicable at the moment. bearing in mind thereshope is working to a tight time frame of 28 days and this is the reson for the N! regarding the non-compliance. MBNA and Ist credit have been stalling her. In showing that this has been happening could throw a shadow of doubt on the original CCJ, because of the obstructive actions of the claimants and also introduce a factor of concealment.

 

The CCJ could be left at the moment, iut is the Charging order of prime concern, but in saying that, it just secures the debt. I might add thereshope has been paying this debt on a regular basis and 1st credit is just getting jack of the payments and want all their so called money.

 

If the Charging order did get applied thereshope could ask for conditions to be applied. like no sale on the property. her mortgage payments have never been late and there is no black mark with her mortgage lender.

 

I do hope you can see where I am coming with my reasoning. JonCris has given some very valuable advice on how to handle this matter regarding the charging order. The debt is not large by stretch of the imagination, just the time it is taking it to be repaid to 1st Credit and they don't want it to drag on. To force the sale of the property, all parties with a interest have to be agreement and I feel the Judge is leaning towards thereshope in proving she is doing everything possible to show since discovery, that the CCJ was granted without her full understanding of the law. The Judge also said, by admitting the debt, his hands were tied. He did question her on this fact.

 

I hope I have not overstepped the mark here by repeating this, but firstly therehope, has to prove that she trying to obtain the information she needs to dispute the CCJ.

 

MBNA and 1st credit have not complied with providing these details. they are in breach of the regulations, so she has to prove this and show the Judge she trying to remedy this situation by bringing the offenders into court with the documentation required. She is not going for damages, she wants the documentation shown to the Judge. the ICO's letter will back her on this fact.

 

How can thereshope mount a defence without the information she requires?

[InKogneeToh]

Check this out from post 213 may be of use.

 

Paul

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/11427-walton-rbos-12.html

 

Hi Paul

 

In the thread 're: CCJ set aside' you have stated:

 

Just returned from the hearing the judge has set-aside part of the debt this being charges that were applied to the account in 1998.

 

Can you please clarify whether the judge set the whole of the CCJ aside or just in part.

 

Regards, Pam

[InKogneeToh]

Hi

 

Have just found the following proposals for inclusion in the Tribunals, Courts and Enfocement Bill (yeah the one that has us all seeing red about bailiff powers!):

 

Proposed amendments on Charging Orders (Clause 85)

 

Amendment 1: court to consider Time Order alternative

Page 53, after line 5, insert the following new subsection:

(9) Where the judgment that is the subject of a Charging Order application relates to an agreement regulated by the Consumer Credit Act 1974, the court shall not make a Charging Order if an order under Section 129-135 of the Consumer Credit Act (Time Order) is appropriate.

Amendment 2: No order for sale in Consumer Credit Act regulated agreements

Page 53, after line 32, insert the following new subsection:

(4F) Where the judgment relates to an agreement regulated by the Consumer Credit Act 1974, the court shall not enforce the charge by an order for sale.

Amendment 3 : No commencment of this reform until pre-action safeguards are in place.

Page 53, after line 41, insert the following new subsection:

(7) Rules of court may –

(a) provide the steps that a creditor must take to reach a repayment arrangement with a debtor before taking court action in respect of an unsecured money debt and

(b) provide that the creditor may not make an application for a charging order if these steps have not been adequately complied with in the opinion of the court.

Amendment 4: Regulations preventing charging orders on small debts or where costs are disproportionate

Page 53, after line 41, insert the following new subsection:

(8) This section shall not come into force until the commencement of regulations made under Section 86 of this Act.

Some serious 'googling' must be done asap to find out if these amendments have been included in the bill and when the bill comes into force.

 

How much of your 28 day stay is left thereshope?

 

There's a small chance that this bill might come into force in time!

 

Regards, Pam

[Guest Battleaxe]

Pam,

 

I could hug you for this gem. Perhaps someone could pm Peterbard, this Bill his baby.

 

If thereshope could manage to word this in to her Defence, it just might throw another spanner in the works of ist Credit.

[Rhia]

Tremendous work here InK and BA. I think there really is hope for There's Hope. I think she has another 28 days but TH will confirm. There isn't long but I agree with BA I would start action against Ist Credit and MBNA for non disclosure. I have started my own action against MBNA for non disclosure and they are trying to defend it all.

Totally ridiculous as they have either supplied the info or they haven't. And as they haven't what is there to defend? If by doing this they are stalling and guilty of concealment then I shall bring this to the full view of the Judge in both cases. I hope they are reading this as they have now committed a criminal act but I won't hijack TH's thread. Will post my own in a couple of weeks.

[InKogneeToh]

Pam,

 

I could hug you for this gem. Perhaps someone could pm Peterbard, this Bill his baby.

 

If thereshope could manage to word this in to her Defence, it just might throw another spanner in the works of ist Credit.

 

Hi BA

 

We mustn't get too excited! It depends on whether these amendments have actually been made and if so, when this section comes into force. Some more googling required!

 

Also BA, I still am not grasping why you consider that a claim for non-compliance with disclosure will be of any use with the charging order application. Can you elaborate on this for me please?

 

Regards, Pam

[tifo]

if this bill has already come into force, do you think i can use it to have a judgment set aside and a charging order removed, citing that 1st Credit acted outside of the OFT debt collection guidelines at the time (they asked for 10 times what i was offering) or court action plus the account includes penalty charges which are unlawful (i did not know at the time), plus they have not proven they own the account by a CCA 1974 non-compliance.

[InKogneeToh]

Hi again

 

Well it seems our excitement was short lived -

 

Extract from Hansard - 21/01/07:

 

Lord Thomas of Gresford moved Amendment No. 79:

Clause 85 , page 53, line 32, at end insert—

“(9) Where the judgment that is the subject of a charging order application relates to an agreement regulated by the Consumer Credit Act 1974, the court shall not make a charging order if an order under sections 129 to 135 of that Act is appropriate.””

 

31 Jan 2007 : Column 290

 

The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 80, 81 and 82. We expressed concern in Grand Committee that an unsecured debt could become a secured judgment. We had a valuable discussion on the relevant amendment. Considerable concerns were expressed to me by Citizens Advice about the effect of these provisions. However, since that time—it was 12 January—the Minister has written to me at length and has pointed out that everything is in the hands of the court and that, where a judgment has been obtained, whether a charging order is granted in the first place is at the discretion of the judge. She has pointed out also that the order for sale under the charging order will not be made so long as the debtor complies with any instalment order that may be made. The concerns of Citizens Advice seem to have been answered by the letter which the Minister has sent to me and has placed in the Library. I move the amendment simply so that she can put it on the record in her response. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord. I hope that my speaking note will completely reflect what is in the letter. Perhaps the letter will reach me in the next few minutes to make sure that it does—I left my copy of it behind.

The critical point which the noble Lord has rightly accepted is that we are concerned that the impartiality and discretion of the judiciary are not interfered with when considering whether to grant an application for a charging order or order for sale in respect of debts regulated by the Consumer Credit Act.

I am confident—I am sure that the noble Lord is, too—that judges will consider applications for the granting of time orders made in the proper manner, but to require them to do so would be to ask them to take the debtor’s side in the case. That could leave them open to a charge of bias. It is not the first time that this proposal has been raised. It was raised in the course of consultation on proposals for reforming the consumer credit regime in 2002 and 2003. The judiciary does not wish to have this responsibility foisted upon it, because it believes that it would compromise its impartiality. The noble and learned Baroness, Lady Butler-Sloss, who is not in her place, reinforced in Grand Committee the need for any decision regarding the granting of a final charging order to be a judicial decision, and subject to judicial discretion.

Under our proposals, therefore, even where a debtor is complying with an instalment order in a judgment, the court has discretion to make a charging order to give security to the creditor. However, the charge property may not be sold unless the debtor defaults in making payments under the instalment order. The charging order system is neither automatic nor administrative. The final charging order hearing is held before a judge, and all parties are able to participate in it. Each case is treated on its merits. The judge has complete discretion whether to grant the charging order or to place conditions on the granting

31 Jan 2007 : Column 291

 

of it. Therefore, an order will be granted only where the judge feels that it is appropriate. That is a critical part of the Bill.

 

 

But it looks as though it's still possible to apply for a time order instead of the charging order (or as a condition of it).

 

 

Since TH has been making regular payments anyway the judge might look more favourably on this.

 

 

So i have to agree with you now BA that TH should use all she can to show the DCA in a bad light!

 

 

 

Regards, Pam

[tifo]

hmm interesting ...

[InKogneeToh]

hmm interesting ...

 

Hi

 

Yes, it seems to be a case of 'one step forward and two steps back'!

 

Re: your CCJ from 1st Credit - was this granted in default, i.e. did you contest it, or agree to it, or not receive notice, or just ignore it?

 

Regards, Pam

[Guest Battleaxe]

Hi BA

 

We mustn't get too excited! It depends on whether these amendments have actually been made and if so, when this section comes into force. Some more googling required!

 

Also BA, I still am not grasping why you consider that a claim for non-compliance with disclosure will be of any use with the charging order application. Can you elaborate on this for me please?

 

Regards, Pam

 

This is to show the Judge that thereshope is trying to get the information she needs and also make MBNA and 1st Credit realise she is serious. She went into court without any supporting evidence that these companies are being obstructive. She has to show she is doing to something to get this information. I am going on the lifeline a Judge handed another CAGger to redo her defence. It would be wrong not show thereshope's Judge that everything is being done to get the documentation. if they will not provide through and SAR, they can bring the Agreement into court and let the Judge rule if it should be enforced. thereshope's case is exactly the same as the one I am working on except thershope has had the CCj applied and the charging order applied for. When the other CAGger issued the N1 for non compliance MBNA repaid all the penealty charges and made the debt to the DCA considerably less, The Judge has given MBNA until 19 April to produce the documentation. MBNA has now left the DCA which bought the debt out on a limb. The debt they bought is now considerably less than what was being claimed.

 

Maybe I am not explaining this clearly. No documentation, no case to answer. Only difference thereshope admitted the debt, because she was advised to by CCCS. The judge in the case I am referring to told the DCA they had better get MBNA involved and prove their case.

 

This is why the non-compliance is being filed. The judge advised us in the other case to do this.