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

[debbbbsy]

Included is a copy of the High Court Writ dated 08.11.94 which I never received.

 

30th November 1994 – High Court of Justice awarded plaintiff ( i think u mean claimant your the plaintiff) (National Home Loans) £19664.55.

 

The Judgement order will be dated 30th Nov, awarding the claimant judgement + costs. It is this that they need to provide.

[BradB]

I have spent the last week reading every thread on here regarding charging orders,

Phoenix Recoveries and Asset recoveries to understand what I need to do to try and stop the the interim charging order becoming final.

 

I telephone the county court today re the letter I sent asking them to confirm that Asset received permission to pursue the claim as it was 16 years old.

 

Was told by court staff they are very busy and extremely short staffed and that the letter is probably still in a pile waiting to be looked at.

 

They told me just to turn up on court date and discuss with the judge then!

 

Got home from work tonight to a letter from Lawsmith replying to my letter requesting the information suggested by debbbsy on 01.02.11 @ 21:56.

 

They say that there is no statutory time limit on a ccj (which I already know and was not disputing)

and refusing to supply the information as it is of no relevance to the proceedings before the court!

 

They say that all document they hold are subject to legal professional privilege and as such is exempt from disclosure and returned my cheque.

 

In the copy of the paperwork they have sent there is no deed of assignment from National Home Loans to Phoenix or Assest and I have never received a copy of it.

 

The only thing there is a General Form of Judgement or Order substituting the claimant dated 10.12.10 even though Lawsmiths say Phoenix have had it since 2007.

 

I have written up my objection but have not yet posted it and now feel that I have hit a brick wall.

 

Don't know which way to turn now and have been in tears most of the night. Any idea's?

[BradB]

sorry, giving this a bump as it has stayed hidden on page 4.

[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.

[debbbbsy]

Although there is no formal defence. A full defence outlining why the claimant should not be granted a Charging Order should be sent to the judge. Making him/her fully aware of the case. This will mean that all major objections should be raised by the judge, without any confusion.

A copy of this should also be sent to the solicitor, prior to the hearing, giving them the opportunity to respond to the issued raised.

 

They told me just to turn up on court date and discuss with the judge then!

 

Absolutely under NO circumstances do this. The case should have been transferred to your nearest County Court, they should have the court file with the all the documents. I strongly recommend you go there personally.(Make a note of date, time & the person you spoke to). Request to see YOUR file. You could also take along a SAR + your £10. It contains data about you... What documents did they provide when they applied to have them substituted as the claimant. Get confirmation that they have provided a copy of the original CCJ. Take along your SAR to the claimant & there response, have them put it in your case file.

 

They say that all document they hold are subject to legal professional privilege and as such is exempt from disclosure and returned my cheque.

 

I would resend the SAR + the cheque, and attach a suitable letter, we have the weekend to do a bit of research.

 

What this letter is actually saying is, we have no proof whatsoever that we are legally entitled to issue this claim, and have no idea whatsover what the original judgement was for. They clearly have no documents.

 

Debs

[debbbbsy]

Every site I look at states they must make an application to the court if the CCJ is more then 6 years old ( & no contact or payments) & they must attach the original Judgement. I am going to trawl the internet & we will find actual Court Procedures Referring to this.

 

Debs

[debbbbsy]

There is no formal "defence" that can be filed as such for a ICO in the same way as a defence to a CCJ.

 

You cannot submit a defence to an Interim Charging Order, as it is done without a hearing. But you must respond prior to the CO court/judge.

 

This from the Charging Orders Act 1979.

 

Further consideration of the application

 

73.8

 

(1) If any person objects to the court making a final charging order, he must –

(a) file; and

(b) serve on the applicant;

written evidence stating the grounds of his objections, not less than 7 days before the hearing.

 

If you turn up at court on the day,& say "I was told by a court clerk just to turn up and put across my objections"......you may not be given the chance.

[diddydicky]

Although there is no formal defence. A full defence outlining why the claimant should not be granted a Charging Order should be sent to the judge. Making him/her fully aware of the case. This will mean that all major objections should be raised by the judge, without any confusion.

A copy of this should also be sent to the solicitor, prior to the hearing, giving them the opportunity to respond to the issued raised.

 

 

 

Absolutely under NO circumstances do this. The case should have been transferred to your nearest County Court, they should have the court file with the all the documents. I strongly recommend you go there personally.(Make a note of date, time & the person you spoke to). Request to see YOUR file. You could also take along a SAR + your £10. It contains data about you... What documents did they provide when they applied to have them substituted as the claimant. Get confirmation that they have provided a copy of the original CCJ. Take along your SAR to the claimant & there response, have them put it in your case file.

 

 

 

I would resend the SAR + the cheque, and attach a suitable letter, we have the weekend to do a bit of research.

 

What this letter is actually saying is, we have no proof whatsoever that we are legally entitled to issue this claim, and have no idea whatsover what the original judgement was for. They clearly have no documents.

 

Debs

 

you only need a statement for an objection to a CO hearing- not a defence or case law etc

[debbbbsy]

you only need a statement for an objection to a CO hearing- not a defence or case law etc

 

 

Everybody states that inorder for a claim where there has been no contact for a period of 6+ years, for the judgement to be further enforced the claimant must make an application to the court for permission to do so.

That the claimant must provide a Copy of the original CCJ to the defendant and with the Claim.

 

Its all very well going to court & saying this, and stating.....but I read it on a Forum so it must be true your honour. We need to establish from which specific Court Procedures these Pre- action protocols refer to.

[sequenci]

As far as I'm aware the judgment claimant only needs leave of the court if they wish to apply for a warrant of execution. The reason being is that there is no further hearing for such a warrant to be granted. All other forms of enforcement have a hearing where the matter of time can be raised to the judgment. I'm in the office in the morning, I'll dig out the relevant legislation for you then

[diddydicky]

apologies if i misled anyone- i was referring ONLY to an objection to a CO hearing

[sequenci]

The warrant of execution thing is CPR Schedule 2 CCR Order 26 rule 5. For High Court enforcement officers it's CPR Schedule 1 RSC Order 46 rule 2(1).

[sequenci]

apologies if i misled anyone- i was referring ONLY to an objection to a CO hearing

 

[BradB]

I have been reading lots of threads on here again and was just wondering if I have got this right. A DCA (mine being Asset Recoveries) cannot buy a CCJ so there is a fictitious company set up (in my case Phoenix recoveries in Luxenbourg) who buy's it and then hands it over to a DCA to collect (probably all the same company). If Phoenix acquired my CCJ in August 2001 should they have sent me a deed of assignment and why would they wait until December 2010 to go to court to be substituted as the claimant?

[BradB]

I have found this today and would like to know if it means that they cannot put a full chargin order on only a restriction and therefore it would be up to me to make the payment if my husband sold our house.

 

http://www.hmrc.gov.uk/manuals/dmbmanual/dmbm667320.htm

 

Any advice?

Thanks

[diddydicky]

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

[BradB]

Thanks for this, but as I have said all along I do not have any capital in the house. My husband purchased it and paid a very large deposit which he had made on 2 previous house sales. He had a serious health scare and put my name on the mortgage so that if anything happened to him I would have one less thing to worry about. He put down over 50% deposit and with house prices falling would not get all of that back at the moment so in effect if he decided to sell the house (and he has every right as it is his) he would end up paying mine and someone else' debt!

I really am not trying to avoid this debt but just think it is extremely unfair if he ends up paying it.

[debbbbsy]

I really am not trying to avoid this debt but just think it is extremely unfair if he ends up paying it.

 

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

[BradB]

Hi

Phoned court as did not receive a reply only to be told that they are extremely short staffed and to discuss it with the judge at the hearing. Have sent my objection and quoted this in it as I know they have not treated the request correctly. Having checked all the paperwork I have there is not a notice of assignment from National Home Loans, Phoenix or Asset so have also put that in. The CO is being heard in a different court to the original one but I did attend this one in 1995 for an attachment of earnings that was dismissed by the court.

Thanks for helping with this.

[debbbbsy]

The CO is being heard in a different court to the original one

 

When can a creditor apply for a charging order?

 

The creditor can apply for a charging order if they have a county court judgment against you and:

 

• You have been ordered to pay the whole debt immediately or by a certain date, (this is known as a "forthwith" judgment) and have not done so.
  

or

 

• The court has ordered you to pay the judgment by instalments and you have missed one or more payments.
  
• If you have an order to pay the debt in instalments and are not behind on the payments the court should not make a charging order. This is because of a very important case called Mercantile Credit Co Ltd v Ellis in 1987. See the section "I already have an instalment order" on page 4.
  

 

 

(2) An application for a charging order must be issued in the court which made the judgment or order which it is sought to enforce, unless –

(a) the proceedings have since been transferred to a different court, in which case the application must be issued in that court;

 

 

 

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.

[debbbbsy]

ENFORCEMENT OF JUDGMENTS AND ORDERS: GENERAL

 

Enforcement of judgment to do or abstain from doing any act

 

Service of copy of judgment, etc., prerequisite to enforcement under rule 5

 

Rule 7

 

(1) In this rule references to an order shall be construed as including references to a judgment.

(2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless –

(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and

(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

(3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5(1)(b)(ii) or (iii) unless –

(a) a copy of the order has also been served personally on the officer against whose property permission is sought to issue a writ of sequestration or against whom an order of committal is sought; and

(b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act.

(4) There must be prominently displayed on the front of the copy of an order served under this rule a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible.

(5) With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there must also be served a copy of any order or agreement under CPR rule 2.11 extending or abridging the time for doing the act and, where the first-mentioned order was made under rule 5(3) or 6 of this order, a copy of the previous order requiring the act to be done.

(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either –

(a) by being present when the order was made; or

(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.

 

1. The court may dispense with service of a copy of an order under this rule if it thinks it just to do so.
   

 

CPR rule 2.11 refers to thte fact that with this application, they must produce an "Origianl" copy of the judgement order.

[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.

[BradB]

What would happen though if (off our own back) we decided to sell our house in 12 months and because of falling house prices my husband did not get back everything he put in (this is what would happen). With a charging order on would he end up paying a debt that is not his?

[smiffeee]

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.

 

Interesting.... am quite confused as this completely contradicts the information in current thread titled 'To those that have or are getting Charging Orders this should allay a lot of fears' thread number 296006. Have a look at the document quoted by minmoo which states about the normal restriction wording (not a charge, just a restriction in case of jointly owned property) "This restriction was, and remains, practically useless"

Hi alangee, this should give you the information.

 

.bllaw.co.uk/pdf/financeandrecoveries_0806_charging%20orders%20on%20property.pdf

(Can't post the link as my post count is below 20, but add www in front of the above and it should work!)

 

Also see the other comments which state the restriction does not affect a sale, it just means that the solicitor/conveyancer must notify the creditor that a sale has taken place.

Edited February 27, 2011 by smiffeee

[Cadbury1879]

Previous post on above mentioned thread

Indeed, just google charging orders restrictions and it's all laid out, incliuding charging orders the myth.

IMHO dd,s comments are not correct.

The LR do not notify creditors of anything,

why would they any one can apply for the title deeds to a property for any reason extentions,boundary disputes etc.

The point that no solicitor would agree to agreeing the transaction is also incorrect, I know at least one.

 

You can definetly complete a sale, without paying of the creditor.Having said that, it is not straight forward and without risk. Most conveyancers/solicitors are not clued up and basically want a easy life,so are a little retiscent to go down this line.

Once they are confident, that it's lawfull and causes very little extra work there fine.

The purchasers solicitor/ conveyancers is the same, but this restriction can result in loss of the sale,if the purchaser becomes a bit nervous.

Taking this route is not for every circumstance, you may be better to pay the restriction and it's done or ask the creditor for a f&f before you sell. On the understanding that this amount to pay from the proceeds. Each case is different.