C.O.'s Being Issued On Unsecured Debt.

[renegotiation]

I have banged on about this before.

 

The good folk here seem to think that this can't be challenged in court.

 

I am of the 'opinion' that when credit is CLEARLY advertised as 'unsecured' it can't then miraculously become 'secured'.

 

I don't care what small print they will try to hide behind.

 

I want to give this a bash in court myself.

 

LIKE KICKING OFF THIS WEEK.

 

I don't actually have a case to defend.

 

Is this still something I can take issue with in a County Court?

 

Could I just randomly pick on any creditor I choose over this issue?

 

I will construct my own argument.

 

Basic and brief advice appreciated please.

[Monty2007]

I have banged on about this before. The good folk here seem to think that this can't be challenged in court. I am of the 'opinion' that when credit is CLEARLY advertised as 'unsecured' it can't then miraculously become 'secured'. I don't care what small print they will try to hide behind. I want to give this a bash in court myself. LIKE KICKING OFF THIS WEEK. I don't actually have a case to defend. Is this still something I can take issue with in a County Court? Could I just randomly pick on any creditor I choose over this issue? I will construct my own argument. Basic and brief advice appreciated please.

 

Excellent post, I agree 100%.

 

There was an advert on TV the other night for a non-secured loan and it was mentioned quite specifically that the loan is "not sucured on your property".

 

Companies charge massive interest rates on non-secured loans beacuse, by definistion they are higher risk! So they can't have it both ways. I have always thought that this was ridiculous so may I wish you luck in getting something done about it. I wish I could help.

[underdog13]

Don't know about court, but have you thought about taking this to the media, renegotiation? There are cases on here where Judges have made credit cards secured by way of a charging order - most recently Murphy26.

 

I'm with you all the way on this; we should be screaming this from the roof tops. If people can get so het up over the Ross/Brand fiasco, they should be apoplectic over this outrage.

Edited November 19, 2008 by underdog13

[renegotiation]

I AM going to do something right now. I will try my hardest. I saw something on TV the other week where C.O.'s were now turning into forced 'Orders For Sale'! Something i'd never even heard of before. That just got right under my skin. If I have to randomly send off a County Court form to one of the big boys I will do that. If I win it will set some sort of precedent I hope. What exactly do they mean by 'unsecured'?

 

'We won't take your gaff as long as you pay up.'

 

Well, no **** Sherlock!

[underdog13]

Good for you. Behind you 100%

[underdog13]

Nationwide were the company who did this to Murphy26; might be a good one to start with!

[renegotiation]

Cheers Underdog. I am only looking for some very basic advice. Hopefully someone with good legal knowledge will come along and at least push me in the right direction. I will wait till Friday morning and then decide on the best course of action. This WILL be taken before a Judge. I will of course update this thread. If I lose, I lose...

 

P.S. If I win, and it sets some sort of precedent, I will get to see the looks on their faces with everything being retrospectively 'reversed' as well would I not? I think that would actually make my life! :-0

Edited November 18, 2008 by renegotiation

[underdog13]

Viscount Stair is a lawyer I believe. Think Paul (one of the site team) is studying for a law degree. Car2403 seems very knowledgeable about legal issues. Apologies to anyone I've left out!

Edited November 19, 2008 by underdog13
amended for accuracy

[renegotiation]

After further thought I think the best thing is to try and get this defence in (obviously fleshed out a bit) with someone who has a court date set. If they have nothing else to lose what harm can it do? I would be happy to go along to the court myself, as long as it isn't at the other end of the country, and present the defence. Anything south of the Midlands is fine for me and all at my own expense. As long as the person concerned knows that there are obviously no guarantees that's ok right? I would like to approach someone and see if they agree. Can a mod make some comment here please. Are there any flaws in my thinking? A key point for me in a defence is the defendant may well have not taken out the credit if they thought losing some, or all, of their home was a possibility. The industry, plain for all to see, blatantly advertise credit as 'secured' and 'unsecured'. I don't see how a judge can ignore that when creditors are seeking C.O.'s and Orders For Sale on 'unsecured' debt. Let's give this a bash in court!

[underdog13]

That was my thinking exactly, Renegotiation - I can remember shying away from cheaper secured loans, because I would never risk my house; what a joke!

 

I am as appalled by you as this and really admire your stance.

 

I not due in court yet, but will stay in touch and if you don't get any takers before then (which I'm sure you will), I would be more than happy to have you accompany me - I am south of the midlands;)

[angel_1]

hello renegotiation and underdog

 

i totally agree with you, i visited my local mp with my complaint letter when the petition was up which i signed for the challenge on the charging orders - been passed to jack straw

 

so while the government has been made clear on this issue from us consumers, it appears the courts are turning somewhat of a blind eye

 

so i am 100% behind you on this, and have no court cases as yet, but should i get called on one i will contact you

 

yes people getting so worked up about brand and ross in this country and yet, there is total apathy that a charging order could be put on their house by a credit card or loan company which was an unsecured debt when took out and now could be a Secured debt

 

i am lost for words at times when i try and converse with some of my friends, they really think im being very negative!

 

im subscribing and have a fun day ciao for now MAZ

[muscat329]

I had an interim charging order dismissed, when I had a CCJ for an unsecured loan.

 

I don't know which of my several arguments the judge was persuaded by, but one of them was the following.

 

Lending money is about Risk and Reward, secured loans are low risk, therefore the lender gets low returns i.e charges low interest rates.

Unsecured loans are high risk, therefore the lender gets higher returns, i.e. charges higher interest rates. What my creditor wanted to do was turn his high risk lending into low risk lending, without returning to me the difference of the two interest rates. The claimant wanted low risk and high return, which was unfair to me and to my other creditors.

 

I asked the judge could I ask for a rebate if he granted the CO. He smiled, but didn't reply.

regards,

 

Muscat

[johndeevoy]

My view on this (I have a number of years legal experience, although did not specialise in this area) is that the avenue to take would be to counterclaim/sue the creditor for breach of contract. By entering into a contract for an unsecured loan it is clearly a breach in my view for that creditor to attempt to make the debt "secured". This action could be taken even if the Court awards a C.O.

 

You cannot just pick any creditor to try this on, clearly the action for breach of contract would have to be taken by the person who has had their contract breached.

[pritchy]

I am about to start a thread "MBNA/Link - Charging Order" asking for help. Hearing is set for 9th Dec 2008. I have various factors specific to my case that I will use to fight this but any help / additional arguements would be appreciated.

[renegotiation]

Yes, definitely start your own thread and see how this develops. It could possibly be some good extra ammo. We need some mods to comment I think. Some of the posts already seem encouraging to me. Everything needs to be put together into a good, solid defence.

[hilltop]

\i took out a loan with Barclays (Premier Account) around 11 years ago. I paid my loan by standing order each monnth for about 2 years. As I was always over my overdraft limit barclays premier decided to close my account and moved me to a ordinary Barclays account and cancelled my standing order for my loan. I did not thing from hear any thing from Barclays Premier ever again. Just over a year ago I was contacted by a firm of debt collecters (HLCF) they informed me that they were putting a charge on my property for the loan amount (£5821). I understood this to mean that when I sold my flat they would be paid back. Last week I was sent a letter by their solicitors saying that they had received a final charging order and unless they receive their money within 7 days they would apply to the court for sale of my property. I have contacted the solicitor and offered to pay £150 a month and this has been refused. Can anyone suggest what I should do next. Am feeling really scared and emotional at the moment

[renegotiation]

Definitely start your own thread on this. I find it hard to believe that any Judge will even consider granting a 'Order For Sale' if you are paying such a healthy amount towards the debt. However, I am certainly no expert on this subject.

Edited November 19, 2008 by renegotiation
Wrote C.O. instead of Order For Sale.

[hilltop]

My offer of repayment has been refused

[renegotiation]

Seriously, you need to start your own thread. I hope you will follow this thread and may get some extra benefit from it some time soon. What their solicitor says doesn't always tally with what a Judge says I might add.

[renegotiation]

See what others reckon on your particular situation and if it seems you have no alternative, then please post back here before the end of the week.

[underdog13]

Hilltop, I am so sorry for the disgraceful way you have been treated.This kind of injustice makes me almost speechless with rage and frustration. I should imagine that the judge, if he has any shred of decency in him, will take into account that you have made an offer to pay and that Barclays have been unreasonable in the extreme.

 

That's a really valid point JohnDeevoy made about breach of contract - so good to have another legal on here.

[veryannoyed]

I had a charging order made against my property (which is both my home and also my commercial property) a couple of years ago, which I always maintained was totally unfair.

 

Now, this wasn't a consumer credit agreement, but a sort of contract hire agreement on a piece of equipment.

 

To cut a long story short, the deal was totally mis-sold to me, so I refused to pay any more for it. The finance company took me to court and won on grouds of breach of contract by me. - As an aside, the contract is not sound anyway, for various reasons, such as all the details not being present when I signed it, and they filled in some later and then signed it etc., I pointed this out best I could to the judge, but he wasn't at all interested.

 

Anyway, I refused to pay the judgment, and so they got a charging order on my property WHICH CONTINUES TO ACRUE INTEREST on a daily basis.

 

I have always wanted to take this one back into court, but quite simply cannot afford a good lawyer to fight it, in case I loose. It doesn't qualify for legal aid in any way, so just another case of unjust law due to lack of fighting funds.

 

Don't know if this would be of interest? - the principles are the same about gaining a security when it wasn't intended to be a secured deal in the first place, but it is a business rather than a consumer contract.

 

Let me know. PM me if you like

[FunkyFox]

Hi, I'm not a mod but I do have some experience of charging orders, having had 2 discharged. I also set up a petition on the No.10 website which finished last month with a little over 300 signatures (would have been a lot less if it wasn't for Maz).

 

Like you and many others I think the fundementals of charging orders on unsecured debts are unfair. There are some here that will disagree with that view and believe that they are a fair and just form of enforcement.

 

Whatever ones opinion of the subject of charging orders, what you can't avoid is that the creditors ability to obtain a charging order is set down in law. The Courts, Tribunials and Enforcements Act which has not been made law yet will actually make it possible to obtain a charging order on unsecured debt with a default on a CCJ. This is a step to far in many peoples opinions.

 

My Grandad always advised me to start fights I knew I could win. I would offer you the same advice. Although I would be delighted to be proved wrong I do not think you have a hope in hell of defending a case for a charging order because it doesn't spell out what enforcement action they could take if you default. Sorry.

 

As an aside I complained to the ASA about the advert (or similar) mentioned above and they were very much of the opinion that there was no problem at all.

 

If you want campaign to get the law changed, to get guidelines drawn up to limit the use of CO's or to stop the new act comming in, then go for it. It you want to avoid a huge amount of pain, wasted effort and cost, then don't attempt to do what you have described above.

 

This is just my opinon and morally I agree 100%, I just don;t beleive your approach will succeed.

 

All the best, FF

[underdog13]

Posted your question on another thread, Renegotiation, and got the following reply from Viscount Stair, who is a qualifed lawyer;

Quote:

Originally Posted by underdog13

Question from Renegotiation on another thread - any advice guys?

 

C.O.'s Being Issued On Unsecured Debt.

I have banged on about this before. The good folk here seem to think that this can't be challenged in court. I am of the 'opinion' that when credit is CLEARLY advertised as 'unsecured' it can't then miraculously become 'secured'. I don't care what small print they will try to hide behind. I want to give this a bash in court myself. LIKE KICKING OFF THIS WEEK. I don't actually have a case to defend. Is this still something I can take issue with in a County Court? Could I just randomly pick on any creditor I choose over this issue? I will construct my own argument. Basic and brief advice appreciated please.

 

Would there be any mileage in trying to invoke sections 140A-C (the new Unfair Relationships provisions)?

 

As far as I know, these are untested yet but thinking it through from the provisions themselves and such guidance as there is, it strikes me that there would be scope for arguing that the interest rate should be reduced (perhaps even retrospectively) to reflect the security being sought.

 

Any thoughts on that?

 

However, an application made at half cock against a random creditor would do more harm than good.

Edited November 19, 2008 by underdog13

[veryannoyed]

Does interest normally continue to be added on a daily basis after a charging order has been granted (like in my case?)