old credit card debt

[patrickq1]

Debt Help UK Forum - Charging Orders

[Belaflat]

I have read that several times before but time and time again we read in here where the District Judge has flown in the face of all that advice and granted the orders.

I have yet to see one post on this forum where an application has been declined.

Sorry to sound downbeat but thats as I have read and interpreted the posts on here.

[patrickq1]

i have put above the link for charging orders,it is a worrying trend when a judge agrees to the charging orders but here below are some guidlines for and how to stop a charging order

HOW CAN I STOP A CHARGING ORDER?

 

The court must consider whether it is reasonable to make a charging order. UnderThe ChargingOrders 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 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 makemonthly payments you can afford, or an attachment ofearnings 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. We have a factsheet on "Attachment of Earnings in the County Court".

 

* If your debt is covered by the Consumer Credit Act you can apply for a Time Order. Ask the court to look at this application before the charging order. A Time Order can change the monthly payments and extend the length of time you pay the debt for. We have a factsheet on "Time Orders".

 

* If you owe less than £5,000 in total to all your creditors, you can argue that the debt should be included in an administration order rather than the charging order being made final. We have a factsheet on "Administration Orders".

 

* If you are likely to be made bankrupt, you can argue that a charging order would give the creditor an unfair advantage over other unsecured creditors. Phone us for advice about this .

 

* If your home is worth less than your mortgage (also known as "negative equity"), then you can argue it is not worth a charging order being made, as the creditor would not be paid off, even if they forced your home to be sold.

 

* If the debt is very small in comparison to the amount of equity in your home, argue that a charging order would be unfair.

 

* You should point out any particular hardship which your family would suffer if a charging order was to lead to the sale of the home. This is particularly important if the debt is in your name but you own your home jointly so it is not even your partner's debt .

 

If none of these arguments are successful and the court makes a final charging order, you can still ask the court not to let your house be sold as long as you pay monthly instalments. Make an offer to pay in monthly instalments at the hearing. If the court will not look at your offer at the hearing, you can still apply to pay in instalments by using an application form called N245. For details of how to apply we have a factsheet on "Reducing Payments on a County Court Judgment".

 

THE HOUSE IS IN JOINT NAMES BUT THE DEBT IS IN MY NAME

 

If the debt is in your sole name, but you own the house in joint names with someone else, they have the right to tell the court all the circumstances and why they would suffer hardship if a charging order is made. They should have been sent a copy of the interim charging order and given an opportunity to go to the hearing to put their points. For example:

 

* Who paid for the deposit to buy the home?

 

* Who has made the mortgage payments since?

 

* If there are children at home, ask the court to put a condition that the house cannot be sold by the creditor until the children have grown up.

 

* The co-owner will need to file and serve written evidence of their objections at least 7 days before the hearing.

 

If a charging order is made by the court, then it will only apply to your share of the property.

patrickq1

[citizenB]

damjef, is there an update on this please ?

[damjef]

citizenB,

after sending them a cca request, we heard nothing for a short period,

they continued to pursue the monies owed but they where politely reminded that they where in breach of OFT guidelines

and that my partner had no legal agreement with them,

 

 

they replied stating that they where waiting for the cca to be passed to them from the HSBC

and still persisted on collection.

 

 

They kindly put a leaflet in with the letter 'how to complain to the ombudsman' or words to that effect.

after also telling them not to correspond by phone only post; they persistently made calls!

 

I advised my partner just to continue the original monthly amount she originally agreed with the HSBC

just on the off chance there was any litigation and totally ignore any correspondence from Marlin

until they actually instigate court proceedings.

 

 

Their last correspondence actually stated that they would extend the agreed monthly payment for a further three months,

the funny thing is there was no payment agreed!

 

needless to say we now have plenty of letters from Marlin which we have saved ready and waiting for such time that they do instigate proceedings,

 

we haven't sent our letter of complaint with all our evidence to the ombudsman as yet but it is ready to go at the lick of a stamp;

just waiting to see what they do next! TBH they must be very coy or plain stupid.

 

hope this is informative enough...

[citizenB]

Sounds like you have it all organised at the moment. The Ombudsman appears to backlogged at the moment and is only now dealing with complaints lodged last November.

[damjef]

Just a quick update, received a letter from Marlin 2 at once infact!

 

the first an overdue reminder (that we failed to pay the agreed instalment).

quite funny really no agreement has ever been made with them

and the only payments they have received where agreed with the original creditor!

 

the second letter is quite bazaar infact i've added it as an attachment for anybody to read...

 

the reason i say bazaar is that we have never received such notice,

never heard of or had correspondence with the companies mentioned

and yet again reading through they have breached the oft and possibly the csa guidelines again and again...

 

they don't actually say anywhere that 'they know we issued them with a C.C.A request in Feb 08

and have defaulted but still will proceed with the collection of the debt regardless'.

 

 

needless to say I've just stuck a stamp on the letters we prepared for the OFT and the Ombudsman.

 

 

I've also sent them a letter to say that I acknowledge the receipt of the letter and reminded them of the default

with regards to the C.C.A request.

 

 

Also pointed out for the fourth time that a legal agreement has never been made with them

and on that basis we will not offer any kind of payment schedule until they produce an enforceable C.C.A agreement

signed duly by my partner.

 

 

See what happens next??

mar.pdf

[B3rty]

It would seem that letter went out to everyone who Marlin were dealing with regardless to any previous correspondance..

[debt4get]

Just a quick update, received a letter from Marlin 2 at once infact!

the first an overdue reminder (that we failed to pay the agreed instalment). quite funny really no agreement has ever been made with them and the only payments they have received where agreed with the original creditor!

the second letter is quite bazaar infact i've added it as an attachment for anybody to read...

 

[ATTACH]3938[/ATTACH]

 

 

the reason i say bazaar is that we have never received such notice, never heard of or had correspondence with the companies mentioned and yet again reading through they have breached the oft and possibly the csa guidelines again and again...

they don't actually say anywhere that 'they know we issued them with a C.C.A request in Feb 08 and have defaulted but still will proceed with the collection of the debt regardless'. needless to say I've just stuck a stamp on the letters we prepared for the OFT and the Ombudsman. I've also sent them a letter to say that I acknowledge the receipt of the letter and reminded them of the default with regards to the C.C.A request. Also pointed out for the fourth time that a legal agreement has never been made with them and on that basis we will not offer any kind of payment schedule until they produce an enforceable C.C.A agreement signed duly by my partner. See what happens next??

 

they are entitled to chase the debt, though legally without a valid cca they cannot enforce payment in the courts, it is up to you and yours whether you pay them any money

[debt4get]

I notice from your attachment that they say they can legally enter adverse credit references on your file... you should remind them that without a valid cca they are not entitled to do so and that you will pursue them in court if they do so, also remind them that you have also not seen the letter of assignment that they mention

 

Formal Complaint

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

You have failed to comply with request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

[damjef]

Hello everybody,

B3rty did you get one aswell?

debt4get thanks for pointing this out!!

 

they are entitled to chase the debt, though legally without a valid cca they cannot enforce payment in the courts, it is up to you and yours whether you pay them any money

 

I wasn't actually aware of this I was of the understanding that if the C.C.A request wasn't adhered to that it couldn't be pursued fullstop. It would be good if this could be clarified to make more people like myself aware of this. I have read the guidlines but can't pinpoint anything regarding the accepted actions of the D.C.A after a request has been made.

does anyone know of a doc we could link to regarding this?

 

My partner has already sent them a reply was pretty similar too your Template and it reads pretty well and straight to the point. Thanks for that debt4get, twas quite helpful and i'm quite sure it will help alot of other people too.

with regards to paying them we haven't really got a problem with that we've just stuck with the arrangement which was made with the original creditor and when the D.C.A does things properly and professionally we will adhere to and consider their requests. We only exercised our right due to there tactics.

wait and see what occurs....

Edited September 25, 2008 by damjef
re-worded

[B3rty]

However under the Rankine judgement they could claim that its not an offence as the agreement is at an end!

[damjef]

Hi All,

I suppose they could quote the Rankine judgement but at the end of the day they have breached OFT guidelines and in our opinion we're prepared to let the judge decide who's right and wrong afterall we're not trying to sherk the debt. We just want D.C.A's to adhere to good practice. I'ts stressfull enough to be in debt without the added worry of harrassment, bullying, threatening remarks etc...

 

for more info on the Rankine judgement check this thread

[damjef]

Hi All,

 

This post has been dead for over a year now as no further correspondence was recieved from Marlin or Pheonix recoveries

regarding the SAR and CCA requests,

The only correspondence was the usual template letter stating 'you haven't paid your agreed amount'.

 

However we recently recieved a letter from Mortimer Clarke stating that they have been instructed to commence debt recovery procedings

against my partner on behalf of Pheonix Recoveries(UK)Ltd Sarl-Marlin Recoveries.

 

We have replied stating that we have made SAR and CCA requests which still have not been complied with,

and when they do comply providing the paperwork is in order we will take appropriate action.

 

 

We also stated a few of the other inconsistencies provided by Marlin over the duration.

 

 

We also asked that they may ask their client to produce the DOA as our requests for this have also been ignored,

 

Unfortunately in reply to our letter Mortimer Clarke have just stated that if a payment arrangement isn't made within 14 days they will commence procedings...

 

Waiting for the paperwork!

[damjef]

Hi

I didn't really know if I should update this or start a new thread given the time between the update,

 

 

from reading other threads i can see people having the same lengthy issue's.

 

from the last post my partner never heard anything from Mortimer Clarke and she just received the usual template letters until August this year.

 

We now have Shoosmiths on the case to which my partner has replied with a letter containing the same information as the reply to the previous solicitor.

 

Again we will wait to see what happens,

 

Could this be Statute Barred given the time periods?

Edited September 4, 2014 by damjef
question

[dx100uk]

when did she last pay?

 

 

is this on her credit file?

 

 

CCA request might have been the best move

 

 

dx

[damjef]

hi dx

 

she last payed nov 2007, a cca was requested in feb 2008. did you mean send another cca to marlin or shoosmiths and if so what is the reason for this as I thought it only had to be done once?

the only thing on the credit file is the default marlin placed in 2010

 

thanks

[BRIGADIER2JCS]

hi dx

 

she last payed nov 2007, a cca was requested in feb 2008. did you mean send another cca to marlin or shoosmiths and if so what is the reason for this as I thought it only had to be done once?

the only thing on the credit file is the default marlin placed in 2010

 

thanks

 

 

Hi, What is the default date showing on that credit file entry? If the last payment was 2007 a default date in 2010 is very odd.

[dx100uk]

yes get another CCA to shoes

 

 

the default will not be from marlin but the OC before they sold it I suspect

[damjef]

Just to update further,

 

when I made the previous post I was working from my partners notes,

 

 

i asked her to check the info regarding the default on her credit file

(i definitely recall it was from marlin), good news it's no longer there!

 

If she should send another cca to Shoosmiths what part will this have in the scheme of things, i don't quite understand?

 

Thanks for the constructive replies,

[BRIGADIER2JCS]

Just to update further,

 

when I made the previous post I was working from my partners notes, i asked her to check the info regarding the default on her credit file (i definitely recall it was from marlin), good news it's no longer there!

If she should send another cca to Shoosmiths what part will this have in the scheme of things, i don't quite understand?

 

Thanks for the constructive replies,

 

 

Marlin will have up dated the credit files with its information when the debt was acquired,

the default would have been placed by the original creditor.

 

 

You can send a CCA request to Shoosmiths if you wish just to see what game they are playing in regard to the existence of a CCA.

[Belaflat]

Hi

I didn't really know if I should update this or start a new thread given the time between the update,

 

 

from reading other threads i can see people having the same lengthy issue's.

 

from the last post my partner never heard anything from Mortimer Clarke and she just received the usual template letters until August this year.

 

We now have Shoosmiths on the case to which my partner has replied with a letter containing the same information as the reply to the previous solicitor.

 

Again we will wait to see what happens,

 

Could this be Statute Barred given the time periods?

 

Given the dates from your first posts and providing you have not acknowledged or paid anything between then and now..its Statute Barred IMHO.

[BRIGADIER2JCS]

It is difficult to ascertain if this debt is stat barred or not, there are problems with the dates.

[damjef]

For sure the dates need to be confirmed, as I said in the previous post I was working from her notes, on reflection that was a bit daft especially when you have took the time to read and post.

What I do know, is that the default is no longer there. It could have been the case as suggested whereby it was there from the start and has now expired through the normal process. I will dig the old report out and verify.

She has now sent a CCA request so will post back with any updates,

Thanks Guys

[BRIGADIER2JCS]

For sure the dates need to be confirmed, as I said in the previous post I was working from her notes, on reflection that was a bit daft especially when you have took the time to read and post.

What I do know, is that the default is no longer there. It could have been the case as suggested whereby it was there from the start and has now expired through the normal process. I will dig the old report out and verify.

She has now sent a CCA request so will post back with any updates,

Thanks Guys

 

I feel that the likelihood is that the debt (s) are stat barred, but it is essential to be sure of the date the gap between last payment and default is a potential problem.