RBS taking me to court - *Struck Out* ** New claim issued by RBS **

[dpac123]

Then thats all you offer

 

Eversheds have already told me before the trial that they would seek a charging order - does that judge decide what amount is acceptable or can they challenge it?

[citizenB]

Eversheds have already told me before the trial that they would seek a charging order - does that judge decide what amount is acceptable or can they challenge it?

 

 

They can challenge it, yes.

[dpac123]

I just want to say thanks for all the help so far and give an update on what happened last week when we were issued with a CCJ. There are many different views that have been given to us and its hard to know with any certainty what is true and what isn't. We were under the impression that if a the same claim is reissued it would be struck out - apparently not. We were also under the impression that if a discontinued claim was reissued it would be struck out - apparently not. Multiple claims against the same person - apparently this is also ok.

 

Reissued default notices - also ok. Apparently they can be issued as many times as the claimant likes. Incorrect monthly payment stated on the credit agreement - also ok. Attempting to charge VAT on top of costs - disallowed by the judge, but no sanction against the claimant for trying it on.

 

We quoted sufficient CPR and sample cases to back up our argument but still the judge wouldn't have it. Now we find ourselves with a forthwith judgement. The judge has said to hammer something out with the claimant in the form of a payment before submitting an N245. I don't trust Eversheds to play fair and although I`m told they wouldn't enforce a charging order. My income is on the up so I could offer £200-£300 per month, is this enough to fend off a charging order/order for sale?

 

I'm very confused at the moment because what I though was true appears not to be and still not sure whether to send in n245 or try to negotiate with Eversheds as the judge directed.

[downsouth]

dpac - seek out a local IP please. It's a lot of money / you've got assets / and income / and kids / and options. Protect your family and your income.

Don't rush into anything without the right advice. But don't dither any more either.

[Andyorch]

I just want to say thanks for all the help so far and give an update on what happened last week when we were issued with a CCJ.

 

There are many different views that have been given to us and its hard to know with any certainty what is true and what isn't.

We were under the impression that if a the same claim is reissued it would be struck out - apparently not. We were also under the impression that if a discontinued claim was reissued it would be struck out - apparently not.

 

My post dated 30th Dec2013.... so unsure why you was under that impression

 

Default Re: RBS taking me to court - *Struck Out* ** New claim issued by RBS **

 

Res Judicata only applies to claims that have been adjudged...not discontinued or struck out (subject to the reasons)

 

 

Multiple claims against the same person - apparently this is also ok.

 

Its not the same person this is joint and several so they can issue against both of you..jointly or separately

 

Reissued default notices - also ok. Apparently they can be issued as many times as the claimant likes. Incorrect monthly payment stated on the credit agreement - also ok. Attempting to charge VAT on top of costs - disallowed by the judge, but no sanction against the claimant for trying it on.

 

Again ...current accounts do not have default notices...Recall Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974)

 

We quoted sufficient CPR and sample cases to back up our argument but still the judge wouldn't have it. Now we find ourselves with a forthwith judgement. The judge has said to hammer something out with the claimant in the form of a payment before submitting an N245. I don't trust Eversheds to play fair and although I`m told they wouldn't enforce a charging order. My income is on the up so I could offer £200-£300 per month, is this enough to fend off a charging order/order for sale?

 

I did advise a Tomlin Order the middle of last year...my post dated 11th September 2014

 

Re: RBS taking me to court - *Struck Out* ** New claim issued by RBS **

 

If your defence is only reliant on default notice errors/arguments...I personally wouldn't take it to trial dpac...its not a strong enough argument.

Your WS has obviously had impact...hence the offer of mediation.....only you can decide what best for you and making sure that any Tomlin Order is amicably drafted to your satisfaction.

 

Would have only cost you £40 per month as they offered " - £30k payable at £40 per month "

 

 

I'm very confused at the moment because what I though was true appears not to be and still not sure whether to send in n245 or try to negotiate with Eversheds as the judge directed.

 

Regards

 

Andy

[dpac123]

Hi Andy, thanks for the above. The main debt was a loan so presumably default notices would come into play, although I take your point about a week defence. We also discussed the Tomlin Order at £30k with charge and agreed that it was worth taking it for trial. Obviously I need to move forward, so will submit N245 for variation. The only thing that has stopped me is that when I phoned the court to clarify what the judge said, he specifically said to contact the claimant to hammer something out before doing anything else. Would the court view it negatively if I submit the N245 before contacting the claimant (I have my budget ready and have emailed them to find out when they are available to talk, hopefully later today), will the judge see that negatively or should I take the view that Eversheds can't be trusted and it needs to go straight to court.

[Andyorch]

The only foreseeable problem with agreeing with the claimant rather than officially setting payment by variation (N245) is that they can hold you to ransom and up the payments at their desire...Eversheds are a reputable and professional Litigator IMHO and I would expect that they would honor any formal agreement...you could layout your agreement similar to a Tomlin Order Schedule which both parties sign and agree.....you could add that the agreement is subject to annual review and subject to change in income and expenditure.....You could request that no further execution take place IE Charging Order providing you stick to the agreement.

 

So there are ways and means of securely agreeing payment terms without the court involvement.

 

One further point dpac...with regards to your comments re Charging Order and forced order for sale....as previously stated not possible if children reside and not possible if there are no arrears in repayments....just for your peace of mind.

[dpac123]

Hi Andy, I really do appreciate your help. I have been out of my mind with worry about the potential of losing my property so it is reassuring to hear that this shouldn't happen as long as monthly payments are honoured. It was a forthwith judgement, but presumably there is an expectation from the judge to sort out a payment plan?

 

My thoughts are along the lines you have suggested, which is something like a Tomlin Order where we make monthly payments, reviewed every 12 months and approved by the court. I am hoping to hear back from Eversheds today and will ask if we can set a monthly payment with NO charging order and ask the court to approve it. Does this sounds like a good idea? Just want to check your comment above about Eversheds that they are reputable and WOULD honour an agreement - you meant WOULD and not WOULD NOT?

[dpac123]

PS. Were told by the court that if Eversheds apply for a CO before a payment plan is approved, the judge would grant it!

[Andyorch]

Would honor....you dont need to have it sealed by the court...just a formal arrangement between yourselves and signed.

 

Normally forthwith means with immediate effect but there is a little leniency normally 28 days...but get cracking on that payment arrangement sooner the better.

[dpac123]

ok will do. Are they likely to apply for a charge in the meantime?

[Andyorch]

ok will do. Are they likely to apply for a charge in the meantime?

 

Hence you need to get into action...today

[dpac123]

Hi Andy, just spoke to Eversheds and they suggested I get the payment proposal over ASAP. Could you check/amend below before I send it:

 

Mr and Mrs DPAC - payment proposal

 

Our proposal is a monthly payment of £200.00, to be reviewed every 12 months, subject to income and expenditure.

NO charging order is to be placed on the property as long as the payment plan remains up to date.

 

Budget

 

Expenditure

Mortgage

Utilities

Tax

Insurances

Council tax

Phone/broad

Mobiles

Other creditors

Children/leisure

Food

Petrol

 

Total:

 

Income

 

Mr Dpac

Mrs Dpac

Tax credits

Child benefits

 

Surplus: £200+

 

Additional comments

 

Our expectation is that Mr Dpac's income will increase over the 12 months, so would expect payments to increase year or year accordingly.

 

We would be happy to sign an agreement, similar to a Tomlin Order Schedule, on the basis we have proposed above. We understand that if we fail to adhere to the terms of the agreement, NatWest will apply for a charging order against our property.

Edited January 22, 2015 by Andyorch
amendment

[Andyorch]

Yes that should suffce...make provision for both yours and their signature and date.

[dpac123]

Thanks. Should I include the budget at this stage? If they say no, I want to be able to increase the offer slightly and wouldn't be able to do this once the budget has been given?

[Andyorch]

If your budget is the true reflection of affairs...then they are unlikely to refuse...if you dont include it they may refuse and request it...so by including it it removes one less barrier...in my opinion

[dpac123]

That makes sense, thanks. Will submit it and see what happens...

[dpac123]

Got a response from NatWest - happy with the £200 per month but want to put a charge on the property as well. They also want to review payments every 6 months rather than every 12. We managed to agree that the charge wouldn't be enforced unless payments are missed, but I am concerned about reviewing every 6 months - they have said non-disclosure of budget will result in enforcement of the charge but what if they think we can afford more and we think we can't. It's a grey area I would rather get cleared up. Any thoughts?

[Andyorch]

Then don't enter into that agreement...just make your payment every month..there is nothing to be gained so its pointless.The charge cant be enforced any further as already stated...children reside and you wont be in any arrears.

 

Once you make first payment ...and I would advise that you make this promptly...then submit the N245 with the same payment details and get it rubber stamped...should they then wish to review payments they will have to go back to court vis a ve re determination and they pay the fee...and they wont get a re determination as the payment figure is already generous.

[dpac123]

So I need to ask them for payment details for the first payment as they haven't given me their bank details yet? Then submit N245 - will the court want to see proof of income as I am self-employed and figures are as accurate as they can be without end of year accounts.

 

 

Presumably Evershed will apply for a charging order whether we agree a payment plan or not? Will the judge still rubber stamp a N245 if he asked us to liaise with the claimant to agree a payment plan? I'm happy to and would prefer to increase payments to get the debt paid of as soon as possible, but would prefer 12 monthly reviews - should I suggest that or just proceed as you suggest?

[Andyorch]

Of course you will need bank details......I would advise a standing order..then you have control.Once your first payment has been accepted then submit your N245.

This is to give you protection..as the payment will be rubber stamped by the court...the claimant cant refuse as they have accepted and agreed first payment.

 

The N245 has its own I&E attached when you complete it..Im not sure if they will ask to see proof or accounts of self employment.There is no need for a review once the N245 is complete...as stated the only way to change payment is via a re determination application by the claimant...which they have no grounds on the current payment.

 

As regards any charging order...as you may probably know its in 2 stages Interim application...which any claimant can submit once they have a judgment the second is the Final Charge.This is merely to secure the debt..they have no grounds to execute it...unless you default.