Is there any point in trying to stop a charging order?

[closetoyou]

Hi Everybody. I would really appreciate some help as I am worn to the ground with all this. I presently owe £13,000 to MBNA. I have only a pension, have no wife or dependants, and can pay them £40 per month. Restons say they have no problem with this payment but want a Charging Order on my house, which has equity enough to pay the outstanding amount should I default. When I initially returned the Court papers for a CCJ( before the Charging Order), I sent them to Restons, as requested by them, within 14 days as requested. Next thing I know, I have a CCJ recorded against me in default, as the Court said I had not replied. I contacted Restons, who said my papers reached them outside the 14 day period. I know I sent it back in time, but being stupid in retrospect, I didn't queue at thePost Office to get it sent recorded delivery.

So, having obtained the CCJ, Restons have gone on to an Interim Charging Order and a full hearing at my local court in a few weeks time. I wrote to the Court and told them I was not happy to be treated as if I had ignored them as I had not and they agreed they would hear my story about the "late arrival" of my response to the original CCJ .

One of my main questions is, Is there any point in arguing any further??. Restons will go ahead with their application in a few weeks time. Is it inevitable I will lose ?and they will get their Order, because the fact is, I owe them money?.

My main problem was that because I worked in an area whereby to have any CCJ was a no no, I have been unable to apply for any jobs where my expertise lays. That means no job, no money to pay in full. I almosted pleaded with Restons not to go ahead because it would destroy my job hopes but they ignored it. I dont get the job, they dont get their money. This could have been avoided. But back to the question of the Charging Order. What defence do I have, if any? Am I wasting my time opposing it. Sorry to go on, but I would so appreciate some help I am in pieces.

[citizenB]

IMHO, yes, I would attempt to have the Judgment set aside. Did Restons specifically say and in writing that you had to return the papers to them?

 

I will try and get some help for you.

[denzil69]

Attempt to get the ccj set aside and contested, really hard to do in my experience, once its been awarded by a judge, but you do have good reason to contest this.

Highlight any parts of the amount being claimed for that are charges for letters/late fees, etc.

These are deemed to be penalty charges and as such unenforceable under common law (lots of examples can be found by using a search engine)

Also highlight any of the amount claimed for that is for their or mbna's costs.

If mbna sells the debt on, it is not your place to pay the price they pay for this action as it is not part of the outstanding balance.

Find any solicitors fees added as well (for the original hearing), as solicitors often claim for fees but dont turn up in court on the day, so cannot claim for these costs. question everything thats not part of the original amount owed.

Then work out how much is just the original amount owed, preferably with your statement as proof, hopefully leaving you with an amount less than what they pushed through the ccj for.

 

At worse, youll then be faced with a partial admittance on the amount owed, which would give you a stronger case to have the original ccj set aside as it was for the incorrect amount.

Dca's and their solicitors come to a final amount on the application, if a judge agrees with you to remove the fees and/or some of the costs and charges, they are not supposed to be able to rule on a lesser amount. ie, change the figures claimed for.

 

if all that fails...

 

UNDER NO CIRCUMSTANCES allow an application for a charging order to be placed on your home without contesting it in your local court!

 

Use the "3 strikes" approach to your defence - find three things that you can highlight to a judge to stop this from being placed.

In almost all cases I have helped with in the past 5 years, when a debt collection agency has requested a charging order "just to secure the debt so they can accept the offered monthly payments" they will walk in front of the judge and demand full payment of debt, once the charging order is granted - which would mean you could lose your home!

 

Sorry to be so alarmist, but it is vital that you do not allow this debt to be secured against your home!

 

Your 3 strikes defence:

- have you any other debts that you are paying off at £40 per month (or more or less)?

If so you can use this in your charging order defence as it would give an unfair advantage over other creditors

 

- you can raise the issue of the dca already accepting your offer, so they are happy with the amount and a charging order is not required

this has even more weight to it, if on the original ccj, the dca listed possible costs - where they often state that if the charging order goes through unopposed then fine, but should you contest it, they will have further costs of [insert a crazy figure here]

 

- as the original debt was unsecured, mbna charged you a higher rate of interest, you would require a refund for a lower rate of interest. mbna were quite happy to lend you the money without security, so why are they now saying they require security? point out that you havent moved, you are not hiding away from the debt you have tried to make arrangements to pay it off, at an amount they have already accepted. make a point of saying that the dca have not argued against the monthly amount you have proposed.

 

- is there anyone else living in your home, even if they are non dependants?

if there is, then you can raise the point about a charging order (and enforcement of) causing undue hardship to others living in your home who have no connection with the debt

 

- have you had any payments refused? have mbna or the dca refused a payment because its not as much as they wanted? maybe they have refused to give you their account number and sort code to make a payment?

They have to accept ANY payment (no matter how low) and cannot refuse to give you paying in details you may request. If they have, raise this in your defence against the order

 

- Have mbna or dca delayed court recovery action?

often what happens is that they want more money or you cannot agree on an amount without a charging order, so payment is refused.

They then tell you that it will go to court for a ccj and then for a charging order.

In the mean time they send you letters saying you owe xxx amount and charge you for them.

Point any delays like this out and use it in your defence.

 

I hope this helps and I'm sure there will a member along soon to help with legal bits you can use.

Good luck.

[closetoyou]

I really do appreciate your help in this. I was just ready to say, "yes I owe you money and there is nothing I can do to deny this". Since being passed over to Restons from MBNA, they, Restons have acted rather quick. One month I payed £50, the next when I phoned up, the girl said that I didn't have to stretch that far and they would - and have - accepted the payments, albeit only £30 per month, which they take out by card direct debit. I will definitely go oto Court on the emphasis that I have not defaulted on the payments made so far so why should I now. As far as costs etc are concerned, I am lost in a maze of figures. I also wanted to argue that if a CCJ had not been taken out against me in the first place, I would be paying the FULL amount every month. I know 100 per cent I would be in a job in the legal sector if the CCJ was not in existance and that would be the end of the matter. Restons have cut off my nose and spited my face so we both lose out. Me no job, them no money because of that.

When I first started speaking with ERestons, I informed them that I was paying the same amount for similar debts and others like Lombard Direct, were very happy with the payment and sent me a letter confirming that all payments must be fair etc, it is Restons that have bulldozed through. As I said, part of me realises it is my mess, but at the same time, I feel there really was no need to charge ahead.

I don't have anyone else living with me. The case is up at Court in a couple of weeks. My statement of means will show that my outgoings are more than my income and the mortgage company have in fact given me a break for a year and I only pay the interest plus a sum towards the arrears unntil I get on my feet and get a job. That of course takes me back to the legal problem. I cannot claim a penny of goverment support because I have a private pension

[Desperate Daniella]

Hi closetoyou, and welcome to CAG.

 

If I have read your first post correctly Restons told you to return the Court papers to them, rather than the Court? Is that right, and do you still have that letter?

 

DD

[Desperate Daniella]

By the way, is it a Lombard Direct credit card? If so, when did you take it out?

[dx100uk]

did you ever SAR MBNA to get the satements?

pestons get really upset if you counter claim

 

you need to look into charges and ppi.

 

dx

[cymruambyth]

Hi welcome to CAG,

You are being bombarded by questions as we all try to see what the best advice is!

When was the CCJ granted, when was the CC taken out? Have you requested a copy of your CCA?

 

If you don't contest the CCJ, it is worth fighting the CO. Do you have an instalment order? Do you have proof of your arrangement to pay?

[closetoyou]

Thank you all so much for all your help.

I am certain, tho not 100 per cent, that the Court Papers said to return them to Restons. I may be wrong here, but I seem to remember them saying that unless I wanted to contest the CCJ. I spoke with Restons to confirm that I was to send them there and Restons said yes. I posted them that very day, but the alleged they received them after a 14 day cut off period hence the CCJ went ahead as a "no response".

I have been with MBNA for about 15 years, maybe longer. I am ashamed to say, I am one of these people who just paid up without checking anything. I had never any reason to request any charges because I was ignorant. I never had reason to think of any discrepancy there might be. Like other folks, MBNA were just chucking credit at me, up to £13,500. I am not blaming them. I agreed, spent the money but always paid on time until my job situation changed.

The CCJ was granted a few months back and as soon as the relevant amount of time passed, they then went in for an Interim Charging Order.

I complained to the Court at Norwich regarding the papers being returned and they agreed that the Judge at my local court will hear my story regading this at the same time as the full Charging Order is heard which is next week.

Restons wanted £130 per month to halt proceedings but I was not going to agree with something that was not sustainable whilst I did not have a job. I explained fully to them the problem that having a CCJ would mean to my employment, but they said they had to act in the best interest of MBNA etc.

I guess it is too late to ask for a break down of charges etc over the years. I accept that the CCJ will remain when I go to court, but I am desperately unhappy about the Charging Order.

How can these companies/ solicitors demand a unrealistic amount each month just to keep things out of Court?

They can quote any outrageous amount, knowing full well the person cannot afford it and so they have the green light to go to Court for whatever order they want.

Isn't there a law which says that the amount required as a repayment, should be reasonable, taking into consideration, the persons present circumstances??

 

Thank you especially to Denzil69. I will take your advice re fighting the CO. I have paid so far although not what Restons want, so there is no reason I wont pay in the future.

I dont believe Restons promise to me that they "are not after the house just a security you will pay"

Any further advice very welcome.

Many many thanks

[denzil69]

it is essential that you are prepared to defend against the charging order, even though you will first be trying to set aside the ccj. Last thing you want is to get in there and be unable to set aside the ccj then find you are up against it on the charging order.

 

print out 3 copies of all your defence documents, 1 for the court, 1 for your reference, highlighter pen will assist you, and 1 for whomever the dca send. often it is a locum.

 

please remember that the court is their to help resolve the issue in a fair manner.

sorry if i sound arrogant, but i have always found that a defence works much better, if you give the judge something to go on against the dca in your defence.

the dca may be able to fend off one from the top of their head, maybe two, legal points, but given 3, 4 or 5, the judge starts to see this for what it is, wrong and unwarranted.

 

the dca's try to secure the debt, increasing the chances of getting their money, you are just a number to them, another profit to make, etc. they dont see the human cost of their actions, they are to put it bluntly, not bothered how they get their profits.

 

write down each individual argument you have why the charging order should not be granted, then work on each one, gathering legal cases to quote where the courts ruled against things like fees, charges, etc, that help your case.

keep your personal view to a minimum, use hard facts.

where you can find a law or common law to back up your point, eg, an unfair advantage over other creditors, even better.

highlight any inconsistancies between what the dca are demanding each month and how they have stated that you can pay a reduced payment, using your bank statement as proof

mention that you havent run away from the debt you have stayed in contact and made payments, etc. you are not denying what you have borrowed, you just want charges (for which they havent produced a breakdown to show they are "actual loss") taken off the balance outstanding

each time finish by throwing a suggestion or claim back at the dca.... the judge can then use this directly.

the best form of defence is to arm the judge with facts, happenings, laws, and then he can use your questions or raise his own, questioning the dca instead of the questions being fired at you.

 

prior to going before the judge, send a polite letter to the court, outlining that you intend to contest the ccj, as instructed by the court, i would include a brief "timeline" sheet starting with month/year when you started having problems and how mbna/dca have acted, delaying court action whilst sending out letters and charging you for them? saying one thing on the phone but no record of it on your account notes when youve spoken to them about it at a later date? etc.

 

you will meet their representative/solicitor outside the court prior to going in. say as little to them as possible, play dumb.

in one case i dealt with, the solicitor informed me that he didnt understand why we were even defending against the charging order, it was a formality for security, as soon as we sat in front of the judge he immediately stated he wanted the charging order and would seek full immediate payment of outstanding amount, in effect, actioning the charging order forcing the sale of my clients home.

 

it is stressful, it is worrying, but try to keep calm and remember the judge is their to help you resolve matters, the judge will not make you pay anything you cannot afford.

[denzil69]

an after thought re: charges on your outstanding balance.

you could phone mbna and ask them to look at your account history and tell you the dates when charges were added to your account, dont tell them why, just write down each date - charge amount, what it was for - go back as far as you can, if they only have say 2 years, then at least you have something to contest.

 

include these in your timeline and your case, you have another reason for contesting the ccj/charging order

 

if you dont defend against this charging order, then it will go through.

if you try to stop it, you might win and stop it and have a regular set amount to pay instead of increased worry/stress and difficult payments, i dont think you can lose anything more by fighting it.

Edited June 14, 2011 by denzil69
Im rubbish at typing

[Ganymede]

Hi closetoyou, and welcome to CAG.

 

If I have read your first post correctly Restons told you to return the Court papers to them, rather than the Court? Is that right, and do you still have that letter?

 

DD

 

 

 

If the OP was admitting the debt then he was correct in sending the forms back to the Defendant's solicitors. What he did wrong was not getting a proof of postage/send it special delivery.

 

If you cannot get the CCJ set aside try and get the Charging Order to state that no further enforcement can be taken whilst you are paying the currently agreed rate of £40.00 pcm.

[Desperate Daniella]

Sorry, I stand corrected. I thought the Court had said that closetoyou should have replied to them, and that closetoyou had intended to defend the claim.

 

I do think denzil69 is giving you some very good advice, closetoyou. I think you must fight this charging order because there is nothing to stop them forcing the sale of your house if they get it, unless the judge is very clear that they cannot enforce while you are paying what you have agreed and don't default on it.

[denzil69]

as i understand it, in this case a charging order should not be granted as payments are being made.

 

I have always understood it, that court papers should be returned to the court, as it is the judge who is deciding what action to take, be it ccj, charging order.

A charging order can only be requested from the court, once a ccj is in place and no payments are made?

The charging order is being more commonly used by dca's seeking security of unsecured debts that they have purchased, as its immediately enforceable at a judge's ruling, as opposed to the other methods used to obtain payments. These other methods were an attachment of earnings order, or use of the court bailiffs, both actions which are commonly used for high priority debts, such as council tax recovery, council rent arrears, etc.

 

In this case I would definately oppose the charging order as with an unreliable dca - conveniently not receiving court papers within a 14 day period so they can request a charging order - there would be a high probability of the dca solicitors requesting immediate payment of the amount in full and putting closetoyou's home at risk.

It is quite obvious to me, as I would hope it would be to a judge, that in this case closetoyou has not made attempts to hide away from the amount outstanding, has made efforts to pay this debt off and has made offers that, at £40 per month, are more than a reasonable amount.

There really was no need for the dca in this case to seek to secure the debt, common sense and good will with the customer should have been used to stop things getting this far.

 

I'm hoping that closetoyou puts together a number of valid arguments to present before the judge and has this attempt at a charging order stopped. Hopefully this will also stop all the messing around and needless worrying that yet another individual has been subjected to, and payments can be made in a regular manner and at a value that does not overstretch closetoyou's budget.

[cymruambyth]

Are the payments an actual instalment order form the court or an informal arrangement? You can fight using Mercantile credit v Ellis but I think there has to ba an actual court order in place for payments

[Ganymede]

Are the payments an actual instalment order form the court or an informal arrangement? You can fight using Mercantile credit v Ellis but I think there has to ba an actual court order in place for payments

 

 

The OP said that there is a default judgment for not replying in time so it will be a forthwith.

 

Denzil69, if you are admitting the debt then the Admission should go to the Defendant's solicitors. It only goes to the Court if the amount is disputed. Also, only an offical instalment order set by the Court can stop the Charging Order, not an informal agreement with the Claimant (although it will go in the OP's favour they payments are being made).

 

Closetoyou, is £30/£40 all you can afford as that would take almost 30 years to repay your debt which will go against you at the hearing.

[denzil69]

I have always returned forms for ccj to the court, maybe this is because charges/fees were always objected to, so it was only a partial admittance?

 

The £30/£40 per month offer should not go against a person at the hearing.

In a case I worked on for example, I opposed the charging order, just the minimum £5 payment was offered. The judge was told by their solicitor that it would take 114 years to pay the debt off, the judge dismissed this argument, saying times were difficult for both creditors and individuals, the £5 per month offer was deemed to be adequate by the judge, as it was a low priority debt that had been sold on to a dca and they refused the charging order as payments were being made despite being unacceptable to the plaintiff.

 

It is vital that closetoyou does not get into a position whereby they could promise a payment they may not be able to afford in the future (bringing with it more action), better to pay a minimum amount and pay extra as funds allow.

 

The fact that closetoyou has made payments is a far more important factor, than the actual monthly amount.

[closetoyou]

Hi Everybody.Just my absolute luck my PC crashed last week until now and this is my first chance to get access and to reply to you all. I thank you all so much for your hel. The case is due later on this week. I will do as suggested and concentrate on the hard facts. I have spoken to Restons and the person said the usual "i dont knoiw why you are contesting because i guarantee we will not be asking for more than £30 per month" He then went on to say "however we do reviews every so often" That to me, spoke volumes. They said they had no record of my previous payments, they could not tell me how long I had been a customer, and had only corres from MBNA since Dec 2010 stating how much I owed. I have been with MBNA for at least 15 years in my reckoning. As I said, I will take on board everything you said. I sincerely hope that the judge doesnt treat me like a number, but sees that I intend to pay every month and have not given Restons any reason to believe I wont.

Any relevany Acts and Sections of Consumer Laws that anyone can provide so I can look up, would be greatly appreciated .

Again, Thank you all so very much

[cymruambyth]

You need to take proof of your payments.

 

Post 22 on my thread http://www.consumeractiongroup.co.uk/forum/showthread.php?299564-Yet-Another-Charging-Order-Thread!-***WON***-ICO-removed***/page2 may help with ideas for your defence.

[closetoyou]

Hi All.

I have just come across this, "Any arguments that you wish to raise need to be filed with the court and the creditor at least 7 days prior to the Final Charging Order Hearing (CPR 73.8).

 

I am at Court for the final charging order on Wed. Have I left my objections too late? I thoughtthe reason I would go to Court was to put my objections in person, to the Judge?

[jfk_8]

Hi , how did you get on with the court hearing ?

[duck1967]

it is not until the 24th January.

[AndyOrch]

If you gather the required info Duck ASAP and we can see if a possible set a side can be in place before the FCO. You require the N1 your defence and the AQ and any General Order and responses from the Court.

 

Regards

 

Andy

[duck1967]

Thanks Andy, I have sent a request for my file and will follow up tomorrow to see if i can recover it. Thank you for your help.