eyeballgod v MBNA (Optima)

[eyeballgod]

It's a very short letter!

 

We have taken our client's instructions and they are not prepared to waive the charges incurred and therefore you are liable for the judgment amount of £xxx.

We note that the instalment order hearing is listed for xx where the District judge will determine the instalment amount.

We trust the above clarifies our clients position.

[slick132]

Am I right in saying the penalty charges are approx £650, the judgement amount £3.5K and their awarded costs about £1.2K.

 

Based on the sol'rs response, you could ask them why they will not negotiate about the matter of unlawful penalty charges when they know they are unenforceable at law. This leaves you with no option but to start further court action against MBNA whereas, if they negotiated now, there would be no need to trouble the courts with a case regarding the charges.

 

IMHO, you should bring this to the attention of the judge when you revisit the court for the instalment decision.

 

[eyeballgod]

That's about right - the judgement was for about £5000 in total.

 

OK - will write them another letter.

 

Given that the judge has already given his judgement, what difference is it likely to make at the instalment hearing?

I take it they have to send a solictor to the hearing?

[slick132]

Given that the judge has already given his judgement, what difference is it likely to make at the instalment hearing? - It may NOT be taken into a/c or make any difference but it's worth a go because you can suggest that you're trying to avoid further use of the court's valuable resources and the bank seems not to care.

 

I take it they have to send a solictor to the hearing? - They'll arrange representation again, probably a junior barrister.

 

[Ganymede]

Sorry to have to disagree slick, but the amount is set by judgment and this is a hearing to determine the rate of payment. The is no aruging the total amount, if the Claimant won't reduce it that is their choice and cannot be forced to negotiate.

 

This is not another trial and the DJ will not go behind the original judgment IMO.

[eyeballgod]

What can I expect from the MBNA sol during this hearing? It's only set for 20 mins so I'm guessing not much.

Do I need to send in my budget sheet, etc before the hearing or should I just bring it with me?

[slick132]

Hi Ganymeded,

 

I'm happy for you to disagree if it helps EBG here.

 

Any suggestions for how to get a reduction re the penalty charges in these circumstances.

 

[AndyOrch]

EBG would have to raise his own claim Slick...there is no way the judgment will or could be reduced its purley to determine the redetermination on payment arrangements...then of course it should have been set a side and defended as another option.

 

Regards

 

Andy

[Ganymede]

EBG would have to raise his own claim Slick...there is no way the judgment will or could be reduced its purley to determine the redetermination on payment arrangements...then of course it should have been set a side and defended as another option.

 

Regards

 

Andy

 

 

Andy beat me to it but as always he is right. The OP would need to bring a seperate claim.

[eyeballgod]

So the long day wears on.....

The judge would only accept an instalment amount that would pay the debt off within 5 years. Therefore she granted the judgement forthwith with a view to MBNA obtaining a charging order. She said she would be more than happy to grant my offered payments once MBNA had the security.

Felt like a bit of a waste of time today really - surely this could have been dealt with at the initial hearing.

 

Anyway - any idea's on where I go from here?

 

I have a horrible feeling MBNA are going to push for the sale of the house, but the judge was quite adamant they wouldn't provided I paid the instalments.

Starting to feel I should be entering these hearing rooms bent over, walking backwards.

[Old Cogger]

they cannot force a sale unless you missed payment I think you will find, and if any Basxxxs company stoop so low as to do that then they should be shot.

[eyeballgod]

What are the implications for my partner in this? They are saying the charging order would be against my half of the property. If I was then unable to pay the installments, how could they sell half the house?

[citizenB]

What are the implications for my partner in this? They are saying the charging order would be against my half of the property. If I was then unable to pay the installments, how could they sell half the house?

 

 

It is my understanding that they can only get a restriction on your percentage of the property - therefore they would have a very hard time trying to dispose of the property if your partner objects.

[eyeballgod]

I'm not understanding the difference between a charging order on my portion of the property and a restriction.

I mentioned a restriction to the solicitor and she dismissed it as if I didn't know what I was talking about.

[AndyOrch]

April 2003 and onwards

 

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 [name of... 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.

 

that is the difference between a charging Order versus a restriction post 2003

 

Regards

 

Andy

[eyeballgod]

Thanks for that. So why are the Judge and the Solictor saying they are going to grant a Charging order on the part of the property I own?

What do I need to say to these people? I presume I will now be going to a hearing for the charging order, followed by another hearing for instalments.

[citizenB]

I think for a start you would need a Witness statement from your partner confirming that they object to the order in that they are not responsible for your debt.. but others will advise on that..

 

Will try and find some more information for you.

[eyeballgod]

I've been reading up a bit and from what I can gather, it is referred to throughout as a charging order, but in reality a restriction is all that can be placed on the property.

Should we decide to sell it's a matter of telling the solicitor that they need to notify the creditor and by the time that's done it will be too late for them to do anything.

 

It seems the best I can do with the charging order is to ask for conditions to be applied in my favour.

To be fair, I can't see us selling the house anytime soon - it's more likely to fall down around our ears.

[eyeballgod]

As much as I don't want to poke the hornet's nest here, since attending court I've heard nothing whatsoever from the court or the claimant. I've been paying what I can afford since the last judgement. On my credit report there are no judgements recorded, but the amount awarded in court is registered as a defaulted debt.

What's going on here?

[slick132]

Hi EBG,

 

Perhaps they are content at the moment with the Charging Order.

 

Perhaps stay quiet and await further developments.

 

[eyeballgod]

They don't have a charging order as far as I'm aware! I would have been notified in some way if that had happened wouldn't I? Beleive me - I'm staying quiet! As far as I can see, they're happy for me to pay the amount I'm paying.