RBS loan -- charging order against home

[ukaviator]

So they have succeded in getting a charging order?

 

Was the PPI taken out whilst you were unemployed?

 

The court must consider whether it is reasonable to make a charging order. Under The Charging Orders Act 1979 the court has to consider all the circumstances of the case and in particular your personal circumstances. Also other creditors would be "unduly prejudiced". The court has to decide if making a charging order would disadvantage other creditors.

 

The arguments you can use against the order being made will vary depending on your circumstances, whether you have equity in your house, and whether you own your home in joint names or on your own.

 

Some factors the court may consider:

 

Whether any member of your family has a disability or serious illness.

 

Where you have a number of debts, whether making a charging order in favour of one creditor would give them unfair priority over other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be affected by a different arrangement being made.

 

Whether there are any other creditors who might object to the order being made. The charging order nisi should be sent to all your other creditors. If they have not been informed of the hearing you can ask for the application to be dismissed or at least adjourned to allow creditors to be notified and make an objection if they wish.

 

If the debt is small you can argue it would be unfair to make a charging order on your home if it is worth a lot in comparison. This is based on a case called Robinson v Bailey.

 

Whether the creditor could have given you a secured loan when you first took out the loan. If they decided to give you an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made.

 

Whether there are other ways the court could enforce payment of the debt. You could ask the court to make an instalment order or an attachment of earnings order so that the instalments would come directly from your wages. This only applies if you are employed and your employment would not be at risk.

 

If you owe less than £5000 in total to all your creditors you can argue that the debt should be included in an administration order rather than the charging order being made absolute.

 

If you are likely to be made bankrupt you can argue that a charging order would give the creditor an unfair advantage over other unsecured creditors.

 

If your home is not worth as much as your mortgage, known as "negative equity", then you can argue it is not worth a charging order being made as the creditor would not be paid off even if they forced your home to be sold.

 

You should point out any particular hardship which your family would suffer if a charging order was to lead to the sale of the home. This is particularly important if the debt is not in joint names, as it is not then your partner’s debt.

 

If none of your arguments are successful and the court makes a charging order absolute, you can still ask them not to allow your house to be sold as long as you pay monthly instalments.

 

A charging order may be made against any item in which you have "an interest". This usually means property that you own or partly own and will usually be your home. If you own your home in your sole name then the house will be covered by the charging order absolute. If you own your home in joint names with someone else then the charging order will only cover your share or "interest" in the property.

 

These should be typed out as bullet points to take into court with you. It is very easy to forget certain pieces of information in court, especially when you are stressed out. Remember Barristers do this for a living and take no prisoners, you have to do the same. I don't think there is much more i can add.

 

Uk

[ukaviator]

Hi

 

I would jot down as bullet points for your case from above to use in court. You have some very strong arguments here. A stayed case, your wife not named on the loan etc, your son's condition.

 

Example of Irresponsible lending :

 

Increasing credit card limits too easily.

 

Increasing overdraft limits without authorisation.

 

Not requesting proof of income.

 

Credit facilities being offered as incentives to purchase more.

 

Credit cards being sent through the post that are pre approved.

 

Credit card cheques being sent through the post.

 

False and Misleading adverting veiling interest rates.

 

“Small print” trickery in long and text heavy credit contracts.

 

Lending money to the unemployed.

 

Giving loans and credit cards to those on benefits.

 

At least two of the parts above you can use against them. The route cause of irresponsible lending is the staff employed at credit companies who are given incentives such as bonuses or commission to actively sell credit cards and loans. These staff are paid on the volume of the loans they sell which itself is irresponsible.

 

Did you get a rebate on the old loan PPI?

 

When you signed up for the new loan, did they just transfer the outstanding amount to the new loan?, they should have given back some of the PPI on the original loan, it is normally added on at the start, when the loan is taken out.

 

So your defence should centre around:

 

Irresponsible lending

 

Your wife owns part of the property

 

Unfair to other creditors to have a charging order

 

Your son's condition

 

PPI mis selling on the new loan

 

PPI refund on the old loan

 

Increase in the APR on the new loan ( Obviously generated commission for the employee, duty of care issue here)

 

Your charges claim on hold

 

A time order or an administration order could be used instead of the charging order.

 

You say you have no other debts, you should still do an income expenditure spreadsheet to take along to the court. Put down all of your outgoings, and what your income is.

[ukaviator]

You are welcome, please make sure you prepare a list to bring up in court, as you could forget vital information if you get flustered during your hearing. There should be enough there to see off the bank hopefully.