Varde/Brachers claimform - MBNA card

[Smoothound]

Of course they are being unreasonable they want all the income, I would cease with any further offers, submit your holding defence to stop default judgment

( I assume all offers of mediation and responses are not " without prejudice " ? ) and proceed to trial.Introduce your attempts to mediate at Standard Disclosure

and then let the Court decide what is a fair monthly payment.Looks like you are going to get a CCJ either way SH they are frustrating your offers so in that instance get one with an installment order set by the Court.

 

Andy

 

Most of my emails have been sent WP but I may gave missed it off some.

 

I just have no idea really what to put even in a holding defence! I know I should I can see cars one above is no good for me but I'm just hopeless at this and have not a clue on constructing even something simple

[AndyOrch]

In that case let them get judgment on the 29th if its a forthwith ( I assume it will be) you can make application to vary it to an installment payment (n245)

Im all out of options now SH.

 

Andy

[Smoothound]

In that case let them get judgment on the 29th if its a forthwith ( I assume it will be) you can make application to vary it to an installment payment (n245)

Im all out of options now SH.

 

Andy

 

Ok thanks anyway Andy. I may just write a letter to the court saying that I've tried to negotiate a repayment plan just so I've said something

 

Thanks again for your help I'm just peeved that I'm too thick to actually do anything about this in court etc.

[AndyOrch]

Ok thanks anyway Andy. I may just write a letter to the court saying that I've tried to negotiate a repayment plan just so I've said something Pointless, wait until after judgment and then deal with it in your application to vary)

 

Thanks again for your help I'm just peeved that I'm too thick to actually do anything about this in court etc.

 

 

Andy

[asokn]

.Introduce your attempts to mediate at Standard Disclosure...

 

Andy

 

Not wishing to nitpick but for any others using this thread as guidance on their own cases the without prejudice correspondence should not be disclosed until after the conclusion of the trial. Such correspondence is relevant to any summary or detailed assessment of costs only.

[AndyOrch]

Not wishing to nitpick but for any others using this thread as guidance on their own cases the without prejudice correspondence should not be disclosed until after the conclusion of the trial. Such correspondence is relevant to any summary or detailed assessment of costs only.

 

Hence my statement I assumed that the mediation was not WP.

[asokn]

Mediation by it's nature has to be without prejudice to be effective, otherwise neither party would make any concessions. In any event I was referring to the suggestion that these documents be disclosed as part of standard disclosure to show the OP tried to reach an agreement, any correspondence that is a genuine attempt to settle the claim is without prejudice and therefore should not be disclosed until after the trial.

 

EDIT: As a further point the parties in this case are negotiating rather than mediating.

[Smoothound]

Heard nothing so far and then today a letter arrives from the solicitors confirming they are not willing to accept my offer. They will however ask me to "make reasonable lifestyle changes by renegotiating with internet and TV providers and any other creditors I may have to ensure their client is treated fairly and receives instalments proportionate to their outstanding balance" They then go on to indicate they would be willing to accept a payment 8 times bigger than the one I have offered which is quite absurd given my income and expenditure! I have a week to accept or they will proceed to apply for a Judgement

[Smoothound]

Property jointly owned and the debt being in just your name would be a Restriction as opposed to a Charging Order.

 

After the letter I received above, I am inclined to not respond as I feel they are just being even more stupid than they have been so far and let them have their CCJ as discussed before and see what payment the court decides is reasonable or not.

 

With regard to my quote above I was told by someone today that it is possible to get a charging order on half the equity on a joint owned property. Is this correct as in the discussions farther up it appeared that they could only push for a restriction? I realise they could do other stuff as pointed out by asokn but I'm just curious about the above currently.

 

I'd be interested in comments regarding their demands in the above letter as well.

[asokn]

They can get a charging order over your beneficial interest, this forum does seem to trumpet the distinction between a charge and a restriction which in my view is a larger distinction on the forums than it is in reality. An order for sale can still be granted and although there is an argument that a restriction holder is not entitled to be paid from the proceeds of a voluntary sale in practice they routinely are and, in any event, the debt would continue to exist even if they weren't. The creditor would just be forced to enforce the debt in a more drastic way if a debtor tried to be too clever about restrictions.

[Ganymede]

They can get a charging order over your beneficial interest, this forum does seem to trumpet the distinction between a charge and a restriction which in my view is a larger distinction on the forums than it is in reality. An order for sale can still be granted and although there is an argument that a restriction holder is not entitled to be paid from the proceeds of a voluntary sale in practice they routinely are and, in any event, the debt would continue to exist even if they weren't. The creditor would just be forced to enforce the debt in a more drastic way if a debtor tried to be too clever about restrictions.

 

 

I agree 100% with this.

 

I have to admit that it is a pet hate of mine! . A Charging Order is obtained following a CCJ and then registered in two ways:

 

1) Equitable Charge.

2) Restriction.

 

Whether it is 1 or 2 depends on how the property is held etc but BOTH are Charging Orders. Its only the method of registration at the Land Registry that differs but as you say both potentially have the power to force a sale.

[Smoothound]

Thanks asokn.

 

Think the main thing for me is the fact that they have dragged my partners income into it and in my view that is nothing to do with it. I'm a bit unsure how they are expecting me to create the additional money by cutting down on our out goings when we live pretty frugally anyway. They mention TV/Internet but we have the lowest cost Internet from out provider and the TV package is for her and the kids which is why she pays it as I rarely watch TV!!

[Smoothound]

I agree 100% with this.

 

I have to admit that it is a pet hate of mine! . A Charging Order is obtained following a CCJ and then registered in two ways:

 

1) Equitable Charge.

2) Restriction.

 

Whether it is 1 or 2 depends on how the property is held etc but BOTH are Charging Orders. Its only the method of registration at the Land Registry that differs but as you say both potentially have the power to force a sale.

 

Thanks Ganymede.

 

I was always led to believe only the Revenue/VAT or your lender could force a sale but I am now enlightened

[AndyOrch]

As per post #608

 

April 2003 and afterwards

 

The Land Registration Act 2002 (LRA) and Land Registration Rules 2003 (LRR) introduced significant changes to

land registration procedures. Cautions were no longer to be used. Instead when a creditor obtained a charging

order against a debtor:

 

If the property was solely owned by the debtor, or all owners of the property were debtors, for example husband and wife owning the property jointly and being joint debtors, then an ‘agreed notice’ was to be filed at the Land Registry by the creditor. Effectively this was almost as good as having a mortgage.

 

The debtor could not realistically sell the property without repaying the debt to the creditor. However, if the property was jointly owned by the debtor with other none debtors, for example husband and wife owning the property and only one of them being the actual debtor, the creditor was not entitled to enter an agreed notice. Instead the creditor could only file a ‘restriction’ at the Land Registry in the following terms: “No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [creditor...]

being the person with the benefit of an interim/final charging order on the beneficial interest of [nameof... debtor].”This restriction was, and remains, practically useless.

 

 

The effect of the Restriction The debtor and his joint owner’s freedom to sell the property is not affected by

such a restriction. They could sell the property as if there was no charging order against the debtor.All that was

required was that the new buyers or their solicitor write to the creditor informing them that they now owned

the property and then confirm to the Land Registry that they had given that notice.

 

Then the buyers could register the property with no further complications. The creditor, who is sitting back,waiting to get paid,instead just receives a letter confirming that a sale has already taken place, typically a week or two after the sale so there is little they can do to get the debt paid. In theory the creditor could apply for a freezing order against the debtor to try and obtain the cash from the sale proceeds. However, most creditors will never make such an application: The cost of applying for such a freezing order would run into thousands of pounds. The debtor might have spent the cash from the sale of the property before the freezing order was obtained so there is little, if anything, for the freezing order to bite on.

 

 

Andy

[asokn]

Both have the power to force a sale and if the creditor isn't paid from the proceeds of sale it will look to enforce the debt in other ways, how about bankruptcy where the creditor will take the debtor's new house?

 

I do think people need to be a lot less self satisfied about this apparent distinction as I have never seen it have any practical effect and any short term benefit it may give by the creditor not being repaid will be extremely short lived.

[asokn]

Also, see the note at CPR 73.4.3.1 which makes clear that in reality the new proprietor would only buy the property on condition that the charge is redeemed first. In addition many creditors are obtaining non-standard restrictions anyway which entirely circumvent this issue.

[Smoothound]

So in that case I need really to get the creditor to accept my offer which at the moment they are refusing! I am surprised they have not just gone back to the court and got their CCJ rather than delay a week and a half and come back with this ridiculous request!

 

Assuming it goes to a CCJ because I don't respond or do respond but point out I cannot make any further savings by withdrawing funds from other creditors to service their debt how would court look at my finances? Would the court only be interested in my income/expenditure as it is a personal debt or would it insist on combined ? I would also be inclined to point out that their demand is ridiculous given my income/expenditure sheet as I can only just afford the amount offered!!

[brokebutnotbeatn]

The judge will go by your I&E; just make sure its accurate and you have e.g. bank statements to back it up.

[Ganymede]

Both have the power to force a sale and if the creditor isn't paid from the proceeds of sale it will look to enforce the debt in other ways, how about bankruptcy where the creditor will take the debtor's new house?

 

I do think people need to be a lot less self satisfied about this apparent distinction as I have never seen it have any practical effect and any short term benefit it may give by the creditor not being repaid will be extremely short lived.

 

 

In most cases the conveyancing solicitor is also acting for the lender and owes a duty to them too and will have to undertake to discharge all prior charges etc on completion.

 

Obviously if you have no mortgage this isn't an issue.

[Smoothound]

The judge will go by your I&E; just make sure its accurate and you have e.g. bank statements to back it up.

 

Thanks for that

 

Should I make any further response to the solicitor to try to keep this simple and out of court? The last response in my eyes is wholly unreasonable and impossible to come close to complying with as the figure is absurd! If I could hav afforded to pay that much I wouldn't be where I am today

[Smoothound]

So they now have their judgement and I am requested to pay the full amount forthwith or they may send the boys round to repossess all the stuff I don't have and can't afford

[asokn]

So did you file your I&E details? What was your proposal in the end?

[Smoothound]

Only got the judgement letter yesterday. They refused my offer out of court and were asking for an amount which if I could have afforded it would have probably meant the debt would've stayed with MBNA in the first place! What peeves me more is that I'm sure if the original case went to court and I had more understanding they would probably have lost as has been said farther up this thread

Edited March 21, 2012 by Smoothound

[Smoothound]

When filling in my N245 to try to get the court to allow me the monthly payment I've already asked the claimant for do I need to fill in the I&E part? Can I just include the spreadsheet I've already done which was said to be acceptable in court? Limited space on the N245 for categories of expenditure that is all! I'll have to combine some as it doesn't even have a space for or telephone bills! Only 3 spare spaces at the bottom!

Edited March 27, 2012 by Smoothound

[asokn]

Just attach your i&e and mark the form accordingly.