Help interim charging order

petunia100

I would like advice about this. I have tried the CCCS, and a solicitor's free half hour, but I still don't know what the best thing to do.


We heard hardly anything from the creditor (RBS) until about a month ago when we received a letter from their solicitor, then another. The next thing we knew we received a CCJ which we returned in the time allowed showing our budget and offering £1 a month as a token payment as we have been paying since Oct as my husband was out of work for six months and I am too ill to work. Husband now has a job but was without pay for the first month, so we are still assessing our financial situation.

Within a week of returning the CCJ we had a letter saying that the claim was being transferred to Norwich for an interim charging order and a hearing date.We wrote to the court explaining our situation. We have now received a letter saying that the interim charging order was being transferred to our local court.

Apparently we can fill in a form and pay £35 to have the charge set aside but we don't know what grounds we could cite only that we have not had sufficient time as things have progressed so quickly.

We don't know what our rights are and have had no definate answers from the solicitor or the CCCS.

If e.g. we claimed that a charging order would be unfair to our other creditors presumably that would just encourage the other creditors to feel that they should also apply for charging orders.

CCCS said that we could allow the charging order and negoiate a deal with them asking them not to ask us to sell the property in future or add further interest, but I don't understand when we would get the opportunity to do this as apparently we cannot raise issues at the court hearing.


Just to add I thought I might as well apply for my CCA agreement and thus far I have not received it but the 12 days are not up yet and I don't know if it would make any difference anyway.

I'd be grateful for advice.
Thanks.

10past6

Hi Petunia

As stressful as it may appear, try not to worry, for most creditors & courts dealing with a charging order is just a formality to them.

As you've admitted the claim, it's going to be very difficult to have that decision overturned (CCJ) your next move should be to stop the interim charging order being made final, here's what I suggest you do, if you wish to pay by instalments, then this is the form you need to complete and send to the court, including an up to date I&E (use the one from CCCS) include your fee of £35.00, if the creditor agrees to your offer then there is no requirement for you to attend a hearing, if the claimant refuses your offer, then you can apply for a court hearing for a Judge to make a decision.

As for the Interim charging order, basically an "Interim" CO is just a rubber stamping procedure, again, this procedure is just a formality and is normal practice after a judgement has been entered, again, all an "Interim" CO does is prevents you from selling your home and taking any profit, one other point, it's extremely rare for a creditor to be granted a "Forced Sale" they can apply if they wish, but an application is very unlikely to succeed.

If the claimant insists on pursuing a CO, then the following needs to be included within your defence, this from the OFT, which states:

The OFT is monitoring the use of 'charging orders' as a method of enforcing judgment debts, where the debts originally arose under regulated consumer credit agreements

You also need to quote case law: Mercantile Credit Co Ltd v Ellis 1987, I have my own opinion of DJ (District Judges) that being said, I'm not aware of a Judge who is not aware of that case.

petunia100

10past6 wrote: »

Hi Petunia

As stressful as it may appear, try not to worry, for most creditors & courts dealing with a charging order is just a formality to them.

As you've admitted the claim, it's going to be very difficult to have that decision overturned (CCJ) your next move should be to stop the interim charging order being made final, here's what I suggest you do, if you wish to pay by instalments, then this is the form you need to complete and send to the court, including an up to date I&E (use the one from CCCS) include your fee of £35.00, if the creditor agrees to your offer then there is no requirement for you to attend a hearing, if the claimant refuses your offer, then you can apply for a court hearing for a Judge to make a decision.

As for the Interim charging order, basically an "Interim" CO is just a rubber stamping procedure, again, this procedure is just a formality and is normal practice after a judgement has been entered, again, all an "Interim" CO does is prevents you from selling your home and taking any profit, one other point, it's extremely rare for a creditor to be granted a "Forced Sale" they can apply if they wish, but an application is very unlikely to succeed.

If the claimant insists on pursuing a CO, then the following needs to be included within your defence, this from the OFT, which states:


You also need to quote case law: Mercantile Credit Co Ltd v Ellis 1987, I have my own opinion of DJ (District Judges) that being said, I'm not aware of a Judge who is not aware of that case.

Thank you so much for explaining this to me so well.

Do you understand what the CCCS advisor meant when he said that we could negoiate terms with the creditor such as not forcing us to sell the house in future etc?

GeorgeUK

I know very little about CO's and CCJ's, but was wondering if there were any charges that you should be trying to claim back from the bank.

I can't ermember if this makes any difference as the amount they are claiming would be wrong, but hopefully someone will be able to clarify this for us.

10past6

petunia100 wrote: »

Do you understand what the CCCS advisor meant when he said that we could negoiate terms with the creditor such as not forcing us to sell the house in future etc?

Yes, you can negotiate a monthly offer with the claimant, the problem with that, if they agree, there's nothing to stop them being greedy and requesting an increase further down the line, placing you back in the position you're in now.

Although it's a bit late in your case, I've stated this many times on here, and will say again for anyone viewing this thread, if you're in a DMP, NEVER, EVER involve your DMP agent once litigation has commenced, there are procedures in place to ensure the claimant has followed the correct legislation when instigating litigation, correct termination within a default notice, correctly termination the account, DMP agents will NOT become involved within these very important aspects.

10past6

The CCA route is no good to you at this stage, due to you admitting the claim, however, to see if the claimant has added any unlawful charges, make an SAR request, using the following template letter:

Data Protection Act 1998 Subject Access Request


Dear Sir/Madam

Account number: xxxxxxxx

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 in relation to detailed occurrences relating to the account Numbers xxxxxxxx and xxxxxxxx-x

The following is by no means an exhaustive list but in the main this is what I require.

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation.

Additionally, all records you hold on me relevant to the above accounts, including but not limited to:

1. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

4. True copies of any notice of assignment and/or default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

11. A copy of all account statements for the duration of the agreement.

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

13. A True copy of the consumer credit agreement section 77-79 of the Consumer Credit Act of 1974.

Any other information relating to the account.

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, I shall be reclaiming them, and reclaiming the enclosed £10 Data Protection Act subject access request fee.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have found to be acceptable.

petunia100

10past6 wrote: »

Yes, you can negotiate a monthly offer with the claimant, the problem with that, if they agree, there's nothing to stop them being greedy and requesting an increase further down the line, placing you back in the position you're in now.

Although it's a bit late in your case, I've stated this many times on here, and will say again for anyone viewing this thread, if you're in a DMP, NEVER, EVER involve your DMP agent once litigation has commenced, there are procedures in place to ensure the claimant has followed the correct legislation when instigating litigation, correct termination within a default notice, correctly termination the account, DMP agents will NOT become involved within these very important aspects.

What I don't understand is that the court took no notice of our budget and issued a CCJ for the full amount (£8,500) straight away.
I think we made a mistake in sending back the forms to the creditors solictor (which they stated we had to) instead of the court. So I don't actually know if the court ever saw our budget.

Other points are that the debt is in my husband's name only, we have two teenage children and although the small mortgage is in both our names my husband only owns a quarter of the house.

petunia100

10past6 wrote: »

The CCA route is no good to you at this stage, due to you admitting the claim, however, to see if the claimant has added any unlawful charges, make an SAR request, using the following template letter:

Data Protection Act 1998 Subject Access Request

Dear Sir/Madam

Account number: xxxxxxxx

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 in relation to detailed occurrences relating to the account Numbers xxxxxxxx and xxxxxxxx-x

The following is by no means an exhaustive list but in the main this is what I require.

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation.

Additionally, all records you hold on me relevant to the above accounts, including but not limited to:

1. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

4. True copies of any notice of assignment and/or default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

11. A copy of all account statements for the duration of the agreement.

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

13. A True copy of the consumer credit agreement section 77-79 of the Consumer Credit Act of 1974.

Any other information relating to the account.

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, I shall be reclaiming them, and reclaiming the enclosed £10 Data Protection Act subject access request fee.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have found to be acceptable.

Thanks.

We do not have a court date yet but presumably it will be before the 40 days, so what shoulsd we do if it doesn't arrive in time?
Also if we did negoiate with them, if they agreed in writing could they still change the agreement at a later date?

10past6

petunia100 wrote: »

What I don't understand is that the court took no notice of our budget and issued a CCJ for the full amount (£8,500) straight away.

They won't, judgements are awarded by default, i.e if you admit the claim, make an offer to pay, if the claimant refuses your offer, they win by default (Giving you a CCJ) (Talk about justice hey?)

petunia100 wrote: »

I think we made a mistake in sending back the forms to the creditors solicitor (which they stated we had to) instead of the court

That's correct, the claimant has to have an opportunity to accept / reject your offer.

petunia100 wrote: »

Other points are that the debt is in my husband's name only

Have YOU been informed an "Interim CO" has been placed on your property?

YOU can also object to the CO being made final.

10past6

petunia100 wrote: »

We do not have a court date yet but presumably it will be before the 40 days, so what should we do if it doesn't arrive in time?

You can request an adjournment due to xxxx

petunia100 wrote: »

Also if we did negotiate with them, if they agreed in writing could they still change the agreement at a later date?

YES, which is why you're better of having a Judge make a decision, once a Judge has made a decision, it cannot be changed without them applying to the court.

petunia100

10past6 wrote: »

They won't, judgements are awarded by default, i.e if you admit the claim, make an offer to pay, if the claimant refuses your offer, they win by default (Giving you a CCJ) (Talk about justice hey?)

That's correct, the claimant has to have an opportunity to accept / reject your offer.

Have YOU been informed an "Interim CO" has been placed on your property?

YOU can also object to the CO being made final.

Yes I have. We also both had letters from the land registry and have been given to the 12th June to object, but don't really understand what to do about those either.