charging order on my home.

paddywack20

After a creditor that was originally being managed by Debt Free Me,decided to
issue a CCJ against us,they are now going to obtain a Charging Order on my house.
They say that they are doing this because i defaulted on my CCJ arrangement.
Each payment per month has been set up as a Standing Order,and that the courts said the payment had to reach them by the 27th of each month.
After checking all my bank statements i can see that the payment has left our account before the date specified,upon checking with the creditor ,they say that on 2 occasions the payment has reached them on the 29th, rendering us in a default situation.
Does our bank statement show the correct date they receive the money or is it that i havent taken into account the clearance time of these funds ,thus them receiving the money late.Making me default?
As i have paid each month without fail can i use this in defence of the claim for a charge on my house?

pepe2008

First, check to see if the payments they say were late are over weekends. i.e was the 29th a Monday or Tuesday. that may be the problem.

You still have a good defence though as you have a SO in place to pay the CCJ. Whatever you do, dont let them just walk over you, the Courts can be very helpful as long as they know the whole story as told ( and proven ) by you. Any paperwork you have to support your argument should be copied and presented at Court or with Court paperwork, the Courts like to make quick decisions due to limited time so anything that helps them do this is appreciated.....If your story is good then its to your advantage.

Good luck.

~Beanie~

Standing orders generally take 3 working days to arrive so it really needs to leave your account on about the 24th.

RAS

it is going to be essential that you go to court to fight this charging order.

Technically, they are right assuming that the dates the payment arrived are correct. However, a judge might not be prepared to grant a charging order on a technicality, partcularly if you alter your SO so that it comes out eqrly in the month, to aviod a repeat.

RAS

This is the case i referred to

I had a blinding flash of inspiration (Martins money forum) and mentioned that I thought they were unable to place a charging order on her house as Mum had not defaulted on any payments since the CCJ had been placed back in June. I also mentioned a landmark case ( Mercantile Credit Co Ltd v Ellis in 1987. ) that set president for similar cases such as Mums - Well as quick as a flash, the Judge sat back in her chair and said I was totally right that she was unable to challenge the order in place as Mum had not defaulted – case dismissed!

You need more infor but I have to go now. hopefully fermi will be along shortly?

paddywack20

My standing order was set up for the 23rd of each month,whether or not it fell on weekends i dont know ,i will confirm this.
Surely the courts would take into consideration weekends in my defence.
As changing the date of the SO per month to accommodate weekends is impractical.

fermi

Have a good read through the following link.

Link: Factsheet | Charging orders in the county court

That explains a lot about charging orders and possible objections. I think it would be very harsh for a judge to conclude that you had defaulted on an instalment order where a few payments were simply a day or two late. However, we have seen some quite inconsistent decisions by judges here lately, so I wouldn't like to swear by that.

paddywack20

I have been informed that as we are not in arrears with our CCJ order,when we go to court ,we can use the Mercantile Credit v Ellis case 1987 in our defence.
But have learnt recently that this may not be the case,.
Can someone clarify this.

Thanks

shinyhead

There is a change in the law that means a creditor can get a charging order as early as the same time as the CCJ is awarded. It hasn't come into effect yet so you can still use the Mercantile Credit V Ellis precedent as a defence. I don't think the judge will award against you if payments have been a few days late, particularly as you've set up a SO. If you have to go to court I suggest you take along your bank statements.

I think you've been the victim of a typical trick to get a charging order placed by making it seem that you've paid late. Like fermi says things can be inconsistent if it goes to court but if you quote MC V Ellis you should not have it made final.

I take it you haven't received the interim order yet. You have the right to object and it will be very important that you quote this case in your written objection.

In your written defence you may want to suggest that the creditor has deliberately falsified its receipts to make it seem you've paid late.

isgman

Look here : http://forums.moneysavingexpert.com/showthread.html?p=5309963
or Here http://www.newcastle.gov.uk/core.nsf/a/wr_debtfs6
The info may help...Good Luck

paddywack20

I have got the Interim Order,with dates on it for the hearing for the final charge.
I have also requested that the case be heard at a court closer to me,so i can attend,and i will fight my case.
Do i need to send a letter arguing this or can i just do it on the day.