old CCJ mortgage shortfall now + CO - sb'ed? - dca adding yrs of backdated interest - is this legal?

[Ganymede]

Send it to the solicitor. State on the request, give them 7 days.

 

 

 

Send them the CPR 18. They have absolutely no intention of responding to your SAR. Do not trust these scumbags.

 

 

 

You can submit a defence to the CO application. I'm not entirely sure about this, but with CCJ's that are contested you can submit a " Draft order Directions" to the court, disclosure of documents prior to proceedings. The judge sends the request to the claimant . He gives them 21 days to comply. Any failure halts proceedings.

Perhaps with your letter to the judge, as advised also attach a "Draft order Directions.

 

 

 

So, they haven't made an application to the courts for permission to enforce the claim. This is a blatant abuse of the court procedures.

 

Debs

 

Debs

 

 

There is no formal "defence" that can be filed as such for a ICO in the same way as a defence to a CCJ. Draft directions are meaningless in these cases.

 

The point of the final hearing is to raise objections/make an offer of instalments etc.

[Ganymede]

in reality .......it means the same thing as a charging order ..................since

 

if your husband (attempts to) sells the house- at some point his sols will ask for the deeds or details of the deeds........at which point the land registry will alert YOUR creditor of an impending sale

 

the buyers sols will also see that there is a restriction

 

the buyers sols will NOT advise their client to go ahead with the purchase until they have proof that the restriction has been settled fully

 

therefore the same objective is acheived since your husband will not be able to complete the sale until the debt has been repaid

 

if you are a joint owner- then it is YOUR SHARE of the equity in the property that is charged. but it still effectively prevents a sale until the debt is cleared

 

i know of no solicitor who would advise a purchaser to complete a transaction without the charge or restriction being satisfied or removed

 

 

 

This is right, no conveyancing solicitor would complete with a Restriction in place as they would be negligent to do so especially if the purchaser is using a mortgage as the solicitor owes a duty to the bank as well and undertake to discharge all securities upon completion.

 

 

 

So, again, according to court procedures the CO should have been made to the court that issued the CCJ.

 

Which again only reinforces my concerns that they do not have a copy of the CCJ, which would state which court this claim was originally issued.

 

I would imagine that the case has been transferred at some point in the last 15 years or so.

 

 

I still believe from reading court procedures, that although the CCJ itself does not become statute barred, that the courts consider that 6 years is ample time for the claimant to either reach a resolution or further enforce the claim.

That before instigating to further enforce the claim, if a period of 6 years has lapsed, they have to make an application to the court for permission to enforce the claim. They will have to give a damn good explanation why they failed to do this.

Not only is this company not the OC, or the 1st assignee, but infact a 2nd assigned DCA. They are going to have to produce a paper trail proving that they are legally entitled to bring this claim.

 

Have you had any thing back from the court ?

 

Also, was the CO application made at the same court that granted the CCJ ?

 

Debs

 

 

I've known of CO applications after 15 years or more and it is usally a fairly simple process. If it were me I would have made the application for permission to enforce just to cover my own back so that this argument couldn't be raised at the FCO hearing but you're right the application should probably have been done.

[Ganymede]

WESTACRE INVESTMENTS INC (A company incorporated under the laws of Panama) v THE STATE-OWNED COMPANY YUGOIMPORT SDPR (AKA JUGOIMPORT-SDPR) (2008 )

 

 

At the date on which registration of an English judgment was initially permitted in Singapore, the English court would unhesitatingly have permitted enforcement by way of a third party debt order against a presumed debt situated in England.

 

 

The claimant judgment creditor (W), in the context of enforcement proceedings in Singapore, sought a declaration that on certain assumed facts the English court would have made a third party debt order. W had obtained an award in Switzerland against Y and the English court had entered judgment in terms of the award in March 1998. W took steps to enforce the judgment. In July 2004, it discovered that Y had a shareholding in a Singapore company (D) which had a Singapore bank account containing funds held by D for Y. Y disputed that it had a beneficial interest in those funds. In October 2004, W applied ex parte to the Singapore court for registration of the English judgment with a view thereafter to obtaining a garnishee order in respect of the funds held at D's bank, and garnishee orders to show cause were made against D and the bank. The Singapore court then set aside the registration of the judgment on the ground that it was not just and convenient that the judgment should be enforced in Singapore. W appealed and the Singapore Court of Appeal directed W to apply to the English court to determine whether it would have made a third party debt order in respect of an assumed debt in England at the date on which registration of the English judgment was initially permitted in Singapore. Y argued that the body of authority to the effect that the lapse of six years after judgment would ordinarily justify refusing a judgment creditor permission to issue a writ of execution should apply by analogy to the regime for third party debt orders under CPR Pt 72.

 

 

HELD: (1) Conceptually a judgment, although interest bearing for only six years, remained enforceable without limit of time, A v Hoare (2008) UKHL 6, (2008) 1 AC 844 considered. Different procedural rules applied to the different methods of enforcement. The power to make both an interim third party debt order, and the final order, was discretionary. The rule made no reference to the time elapsed since the date of the judgment. The difference in the provisions governing garnishee orders and writs of execution had existed for well over 100 years. There was no warrant or support in authority for applying the law applicable to writs of execution to third party debt orders by analogy. That would run counter to the scheme established in CPR Pt 72, which expressly placed upon the judgment debtor the onus of making good any objection to the making of a final order. There had never been any practice of declining to grant the interim order on the ex parte application on the ground alone that the lapse of six years since the judgment cast upon the judgment creditor the onus of showing why the order should be made. The lapse of six years since judgment enjoyed no special significance and was simply one factor to be taken into account in the overall exercise of discretion, Fellows v Thornton (1884-85) LR 14 QBD 335 QBD considered. (2) The court would have made a third party debt order in the instant case, on the assumption that there was a debt within the jurisdiction. Neither CPR r.72.3 nor CPR PD 72 required the judgment creditor to explain when precisely it had learned of the existence of the third party debt or to justify any lapse of time between the judgment and the application to enforce. Had the judgment debtor objected to the making of an order on the ground that six years and seven months had elapsed since the judgment that would of itself have been a factor of very little weight. The court would have been most unlikely to regard as of any great significance arguments directed to showing that the judgment creditor might, with the exercise of greater diligence, or had it prioritised its efforts differently, have been able to discover the existence of the debt sooner. In the absence of some compelling evidence of prejudice to the judgment debtor accruing from the delay in enforcement, the court would regard the grant of garnishee relief as virtually axiomatic. Even if the court had concluded that it should adopt by analogy the approach in the writ of execution cases, still in the circumstances of the instant case the court would have permitted enforcement by way of a third party debt order. W had made active efforts to enforce the judgment, Society of Lloyd's v Longtin (2005) EWHC 2491 (Comm), (2005) 2 CLC 774 and Patel v Singh (2002) EWCA Civ 1938, (2003) CPLR 149 considered. Y did not suggest that it had been led to believe that W was not intent on enforcing its rights, Good Challenger Navegante SA v Metalexportimport SA (2003) EWCA Civ 1668, (2004) 1 Lloyd's Rep 67 considered.

 

Declaration granted in favour of claimant

[Ganymede]

Thanks dx, very useful.

 

I think the first thing that should be pointed out is the fact that the CO is registered as a Restriction on the Defendant's beneficial interest in the property. This doesn't necessarily have to be paid off if the property is sold.

 

An Order for Sale is very, very unlikely so the Restriction will just sit there and do nothing in all likelihood.

 

Other than that I don't see much else the Claimant or Defendant can do.

[Ganymede]

I thought that they had applied to be substituted as the Claimant. Apologies if I misread and that is not the case.

[Ganymede]

Have a copy of deeds from Land Registry and showing an Interim Form K Restriction in the name of Phoenix Recoveries dated January 2011. Should the register have been altered when it was make final in March 2011?

 

 

No, there is no need to register the FCO if the ICO is already registered.