Help needed with Charging Order/CCJ

[Exclus]

First time posting a thread, although I am a committed viewer on this fabulous site.

Have a number of credit card debts, and by going down the CCA route with some, and paying a small monthly figure to others, I am keeping the balls in the air, all thanks to CAG

However one well known company/bank has taken me to court, got a CCJ and interim CO with the final hearing early Jan. Although I did not CCA them, they sent on copies of my application form and terms etc.

My question is: I feel that they probably do not have an original agreement (why send on application form etc), so can I make an application to the court to get this judgement set aside as unenforceable until they produce the agreement, or is it too late to do anything?

[sequenci]

My question is: I feel that they probably do not have an original agreement (why send on application form etc), so can I make an application to the court to get this judgement set aside as unenforceable until they produce the agreement, or is it too late to do anything?

 

You can sure try but there is already a judgment, you would need a strong argument and the judge is likely to enquire as to why you didn't defend the original judgment. If all else fails you can still consider oposing the making of the charge final:

 

The court must consider whether it is reasonable to make a charging order. Under the Charging Orders Act 1979 the court has to consider all the circumstances of the case and in particular:

• the personal circumstances of 'the debtor';
  
• whether any creditor would be 'unduly prejudiced'. This means the court has to decide if making a charging order would disadvantage other creditors.

The arguments you can use against the order being made will vary depending on your circumstances, whether you have any other debts, whether you have equity in your house and own your home in joint names or on your own.

 

These are some of the factors that the court may consider.

• Does any member of your family have a disability or serious illness?
  
• If you have a number of debts and making a charging order in favour of one creditor would give them unfair priority over the other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be upset by an order being made. Point out if any of the debts are larger than this debt and if any other creditors have frozen the interest.
  
• Your creditor is supposed to list all the other creditors that they are aware of in the application for an interim charging order.
  
• The court can order the interim order to be sent to the other known creditors but does not have to do this. This means that creditors who may want to object to the final charging order being made will not know about the hearing. You can raise this in your written objections and at the hearing if you think a creditor may be 'unduly prejudiced' by the charging order being made.
  
• Could the creditor have given you a secured loan when you first took out the loan? If they decided to offer an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made.
  
• There are other ways the court could enforce payment of the debt. You could ask the court to make an instalment order so you make monthly payments you can afford, or an attachment of earnings order so that the instalments would come directly from your wages. This is only useful if you are employed and your employment would not be at risk.

In all honesty a charging order is a very difficult thing to stop. If it goes through you should request that the judge has conditions attached such as having no order for sale possible providing you pay instalments.

[Exclus]

I did put in a defence, managed to get the collection charges cancelled, but failed to stop the claimant getting a CCJ.

 

I will contact the claimant and try to get them to agree to the condition about non selling of the property prior to the hearing.

 

Other credit cards have agreed a very small monthly installment as we are on Pension Credit. Some of these balances are bigger than the one who has the CCJ so I will try to argue this in front of the DJ.

 

Sequenci, thanks for taking the time to give my problem some thought, its good to know you have somewhere to turn to when these problems occur.

[sequenci]

Well I think it is a given that a set-aside is unlikely. You will need to file any arguments with the court at least seven days before the hearing.

 

Is the debt regulated by the consumer credit act? If you don't mind telling me, who is the lender?

[Exclus]

I am sure the debt is covered by the CCA, or it says so on the copy of my application form they sent to me.

 

HFC Bank is the creditor. Whilst other creditors haven't exactly been friendly, none have taken legal action, and now I have found this site and have CCA'd a number of them, most have gone quiet....is it the lull before the storm! None have as yet sent on copies of agreements.

 

However on the positive side I've had far worse things happen to me in this life.