Charging Order? The myth

DAKOTA45

Hi Eggbox…

The reason I am so petrified is that I have not seen any fairness at all from the Judicial system during my previous dealings with them…

As you say, the judge would have to be crazy to grant an OFS in my case…and yet, at the back of my mind I am thinking about how much injustice has gone before...you'd think that it would be totally wrong for a Judge to force a deaf LIP to struggle through a trial without the necessary audio equipment… but he did… and that's why I am in this situation now.

Can I ask what is the reason for writing "Without prejudice" when replyng to them…?

Also… why should I not say the creditor 'threatened' my buyers? Certainly, I have written evidence from the buyer to say that he threatened them and that he was "bullying and intimidating…" their words, not mine…

Just wondering… because if the court knew the real nature of this horrible person, they would realise that I have told the truth throughout… he even prevented my main witness (who worked as his gardener) from attending the trial by phoning him up and threatening to tell the Inland Revenue that he wasn't paying tax on his earnings!! The man is seriously nasty…he shouldn't be getting away with this.

eggbox

Hi Dakota

I do understand what you say regarding the unfairness you originally suffered at Court but, as in life, you will achieve more by learning from the unfairness rather than complaining about it.

So understand that nobody is going to do you any favours regarding the problems you, unfortunately, suffer from; and concentrate instead on how best to deal with the letter you have been sent.

Without Prejudice, basically, means anything said or offered in the letter cannot be used by your opponent as evidence in Court, nor can what you say or offer be taken as your final word on the matter. But it also lets the other side know you know what you are doing, legally.

I advised not using the word "threatened" as it's an emotive word and, at this stage, you just want them to know you have all aces up your sleeve if they are daft enough to apply for an OFS and for them to back off.

However, now knowing you do have written evidence that confirms your neighbours actions, feel free to use whatever, actual, words are in the letter but only those words. And you make sure you supply the Solicitor with a copy of the letter, too, so they are in no doubt what you have. But be concise and factual about what was said so you ensure the significance of the evidence you have is punched home.

The gardners experience is also very interesting? What your neighbour has done there is actually commit a criminal offence (under section 39 of the Criminal Justice and Police Act 2001). If that could be verified then you would make life really uncomfortable for your neighbour?

DAKOTA45

Eggbox… many thanks for the post…

My neighbour will stop at nothing to get his own way… he doesn't care about the law… he is seriously wealthy and just buys his way out of trouble… he produced fraudulent documents at the trial… I could prove they were false, too… but the judge was in cahoots with him… the judge, the neighbour and his counsel all arrived together at a site meeting, discussing things without me being present!! But yes… he nobbled my witness.. the only person who knew all the facts and could have helped me get justice. But there is no way the gardener will get involved…he is too worried about the repercussions.

geoffken

And how is your electricity bill saga going.

eggbox

DAKOTA45 wrote: »

he produced fraudulent documents at the trial… I could prove they were false, too…

Why didn't you use this at the recent hearing you applied for?

DAKOTA45 wrote: »

but the judge was in cahoots with him… the judge, the neighbour and his counsel all arrived together at a site meeting, discussing things without me being present!!

That may be true; but unless you can prove it you have to move on and concentrate on redressing the problem by other means (like I said; complaining about unfairness rarely achieves anything)

So you need to get a letter off to their Solicitor asap and see what response you get, ok.

DAKOTA45

eggbox wrote: »

Why didn't you use this at the recent hearing you applied for?

The recent hearing was just a 10 minute one and the judge was only interested in whether or not the modified restriction should go ahead.



That may be true; but unless you can prove it you have to move on and concentrate on redressing the problem by other means (like I said; complaining about unfairness rarely achieves anything)

Exactly… he is extremely good at covering himself, too...

So you need to get a letter off to their Solicitor asap and see what response you get, ok.

Ok… thanks! Will report back again soon...

DAKOTA45

You also explain that you have previously placed your house up for sale and received an offer to purchase which would have enabled payment to your client. However, due to the actions of your client who contacted the buyer (don't use the word threatened), the buyer pulled out of the sale as they felt intimidated. Should this matter go to Court, a statement will be provided, from the prospective buyer, to verify these actions.

You further state that your partner is having to work abroad to make ends meet and you are currently finding it difficult to locate employment due to your disability.

However, (and this is important to add!) as soon as your husband returns to the UK you will be seeking to sell the house as and when you can. However, if your client is so desperate for repayment I am willing to make a token repayment of £1 per month until the house is sold.


Hi again, Eggbox…

I am just trying to frame this letter as best I can…
As I understand it, it is preferable from the Court's point of view that I am willing to make arrangements to pay the debt, as and when I am able… but the fact that there is a possible counterclaim which, if successful, would completely extinguish the debt, kind of confuses things...
I am wondering how best to include this in my letter to his solicitor so that it is not seen as a complete refusal to pay, but rather pending a decision re the counterclaim…
The creditor has clearly sabotaged my attempt to repay the debt by causing the sale of my property to fail, so surely, it is only fair that this should be taken into consideration at any hearing to decide if we are to lose our home?
So only if my counterclaim fails should I then make an offer to pay…? Or do I offer to pay anyway..?

Very confused, because I don't know if the court is going to allow the counterclaim to be taken into consideration..:(

eggbox

Dakota

You can't make a counterclaim against the OFS (if its made) as a Judgement has been made; you can only defend it. But to stop the OFS in its tracks you need to get the original CCJ set aside on the grounds (you say) there was fraudulent activity.

If you say you have definite proof (and it needs to be definite and immediately available) then my first call of port would be the police. Once the "crime" has been reported there then you can convey these details to the Solicitor concerned.

So to advise further I need to know what proof of the offence is available?

DAKOTA45

eggbox wrote: »

Dakota

You can't make a counterclaim against the OFS (if its made) as a Judgement has been made; you can only defend it. But to stop the OFS in its tracks you need to get the original CCJ set aside on the grounds (you say) there was fraudulent activity.

If you say you have definite proof (and it needs to be definite and immediately available) then my first call of port would be the police. Once the "crime" has been reported there then you can convey these details to the Solicitor concerned.

So to advise further I need to know what proof of the offence is available?

Hi Eggbox…

I am confused…I came across some other information which states that an Order for Sale is a new application and does not become a CCJ until after it has been adjudicated on…

Whilst an Order for Sale cannot be brought without first obtaining a Charging Order, the applicant would still need to make a new application for an Order for Sale… it is not automatic.. does this sound right?

If I cannot counterclaim, then the debt will remain… I tried to bring the counterclaim at the hearing for the Final Charging Order, but the Judge stated that he could not adjudicate on it because it needed to be moved to a Higher Court because of the amount involved, (£375k). I suppose what he should have done was to adjourn refer it to the higher Court, but when does the judiciary ever make any sense?

Have I now lost the right to counterclaim?:(

As for the creditor's irregular/illegal actions… there have been at least half a dozen to date, none of which I can provide evidence for… and this is going on for 5 years now… I can't backtrack at this stage even if I were to find the proof… the only thing I have are the statements made by my estate agent and my buyers who were lied to, threatened and bullied by the creditor in his attempt to sell them the land adjoining my garden at a hugely inflated price (£50k for literally a few yards of ground containing my septic tank).
I contacted the police when he caused my sale to fall through, citing harassment, but after visiting him they wrote to me saying that they could not take further action as he told them he was in the process of taking me to court as I owed him money… who knows what other rubbish he told them…? He is an inveterate liar.

eggbox

DAKOTA45 wrote: »

Hi Eggbox…

I am confused…I came across some other information which states that an Order for Sale is a new application and does not become a CCJ until after it has been adjudicated on…

Whilst an Order for Sale cannot be brought without first obtaining a Charging Order, the applicant would still need to make a new application for an Order for Sale… it is not automatic.. does this sound right?

To be able to apply for an OFS you have to have a CO in place, to have a CO in place you must first have obtained a CCJ against the debtor. You've probably just misread the article concerned but if you post a link I can have a look?

DAKOTA45 wrote: »

As for the creditor's irregular/illegal actions… there have been at least half a dozen to date, none of which I can provide evidence for

I thought you had the buyers letter confirming "bullying" and "intimidation" and you had other means of proving his actions of providing false documents?