Charging Order? The myth

DAKOTA45

RMS2 wrote: »

First off, I am sorry about your situation, I have been reading the thread on and off for a few months now, so I have a rough idea of your circumstances.

For the benefit of people reading this thread in the future, who may be worried, could you tell us how you know that?

Hi RMS2… I was informed in a letter from the JC's solicitor (when they wrote to threaten an Order For Sale) that the interest was adding around £5.40 per day to the debt… interest at 8%.

I don't remember anything being said about interest when the costs order was made, but I suppose it must have been…I am totally useless about financial matters… my brain just freezes.

But I believe if the debt is covered by the CCA, then they are not allowed to add interest…

Eggbox would probably be able to tell you more…

D45

eggbox

DAKOTA45 wrote: »

but if a person to whom you owe money acts in such a way that causes you a substantial economic loss, what on Earth are you supposed to do, just let them get away with it and allow them to carry on?!

If you have the evidence you say you have of this activity you have the opportunity to, both, take legal action and involve the police (as you say there was intimidation?) As harsh as it sounds, if you can't or aren't prepared to do either of those; then they will "get away with it"

DAKOTA45 wrote: »

His interference was a criminal act

That can only be determined by a Court which, as I say above, if you can't or aren't prepared to put it before a Court; remains an opinion.

DAKOTA45 wrote: »

So would I need to write a new Witness Statement, etc., or would I just rely on the documents I sent the last time which they mistakenly failed to issue to the court?
D45

You need to apply for a set aside of the original Judgement in the first instance using the evidence you have regarding the Court refusing to adjourn when the audio loop failed and also the Court dismissing your counterclaim in error.


As I've said before, the Law is not about fairness it's about what can and can't be proved. So you need to get all the evidence you can regarding your claim assembled and put to the Judge in a straight forward and coherent manner.


What you think your neighbour did is irrelevant as far as the Law is concerned; it's only what you can prove he did that will have any effect.

eggbox

RMS2 wrote: »

I think it may be of interest to people who read this thread, how exactly would they know if they were being charged interest or not?

I have heard this before and often wondered, it has now bugged me enough to ask, as I am sure there are people out there that don't even know this and the debt could be stacking up.

It would be included in the details of when the CO was granted by the Court. The creditor can also let you know if interest is being added.


Interest should not be added to a CCA 1974 debt. SEQUENCI on CAG (Consumer Action Group) explains the reasons why in his thread "A Guide to Charging Orders". Unfortunately, a lot of uninformed District Judges can be convinced by creditors they are allowed to add interest to the debt.

DAKOTA45

eggbox wrote: »

If you have the evidence you say you have of this activity you have the opportunity to, both, take legal action and involve the police (as you say there was intimidation?) As harsh as it sounds, if you can't or aren't prepared to do either of those; then they will "get away with it"

I do have plenty of evidence in writing from both the estate agent involved and from the purchasers themselves who stated that my neighbour was a bully who threatened them… the police were called but they refused to log a case of harassment as when they visited the neighbour he told them we were involved in a legal dispute (he probably added a few lies for good measure, too). He probably knows the chief of police or something… this is a very wealthy person of some influence and when you consider how small this place is and that everybody knows each other… (Think Doc Martin)…He plays golf and belongs to the yacht club where they all stick together… Masons, probably...



That can only be determined by a Court which, as I say above, if you can't or aren't prepared to put it before a Court; remains an opinion.


I am prepared to give it a go, but I suffer from such extreme anxiety that I fall to pieces when I enter a court room… if I had a solicitor or someone to speak for me, then it would be different…


You need to apply for a set aside of the original Judgement in the first instance using the evidence you have regarding the Court refusing to adjourn when the audio loop failed and also the Court dismissing your counterclaim in error.

Yes… I get a bit confused about filling in forms… am I the applicant, or the appellant, or the claimant, or something else, perhaps?

As I've said before, the Law is not about fairness it's about what can and can't be proved. So you need to get all the evidence you can regarding your claim assembled and put to the Judge in a straight forward and coherent manner.
I suppose it's difficult to prove anything unless people are willing to appear in court…but I do have texts and emails by way of evidence...

What you think your neighbour did is irrelevant as far as the Law is concerned; it's only what you can prove he did that will have any effect.

I wrote to him and accused him of interfering… he wrote back with a bare denial of any interference but his letter is quite contradictory and he states that he informed my buyers that my septic tank was faulty and that they 'thanked him for the advice'… but then he writes that they threw their hands into the air and told him he'd shattered their dreams' Nothing makes sense…I know that he is an inveterate liar and a cheat and have been up against this so many times, so I am inclined to believe my purchasers version of events rather than his…He obviously arranged a meeting with them in order to try and sell his parcel of land to them for an extortionate amount, then when they refused, he told them he would pursue them in court for the 'damage being caused to his land by a leaking septic tank'… he put the fear of God into them probably… Btw, I got a specialist drainage firm to inspect the tank afterwards and was told that it appears to be in perfect working order… and in any case, if there was a problem with my tank, would the neighbour not have made me aware of it, rather than just tell a 3rd party?All lies. D45

DAKOTA45

Oh… I forgot to ask;

When I make this application to set aside, (on grounds of court maladministration), will there be a hearing to decided whether or not to allow the set aside, or will that be decided without a hearing?

Confusing… D45

eggbox

Dakota


You can request your application to be heard with or without a hearing; the Court, however, will determine if a hearing is required or not (as will be the case with your application as the other side will want to object to the set-aside)

DAKOTA45

eggbox wrote: »

Dakota


You can request your application to be heard with or without a hearing; the Court, however, will determine if a hearing is required or not (as will be the case with your application as the other side will want to object to the set-aside)

Wondering if I should ask for a telephone hearing.. it would help with my anxiety issues… can't see any reason why they should refuse.

Also, someone else has advised me that I should ask for any future hearings to be transferred to the Queen's Bench on account of my counter claim being of greater value than 30k…


I'm confused as to whether I should just be claiming equitable set off, (rather than equitable counterclaim), which would extinguish his claim against me but would not allow me to claim the rest of the economic loss caused by his interference…which is fine, even though he has cost us several hundred thousand pounds…

As long as I don't have his henchmen threatening to take my home away every few months…

I just need some peace of mind as this is making me ill with worry.

D45

DAKOTA45

Oh… I think it's starting to sink in a bit….

I can only counter claim against an actual claim…not an application for a CO which is an enforcement of a claim… is that right?

But I couldn't bring a counterclaim against his earlier claim (for costs), as he hadn't committed the unlawful act at that time…it is only since he's had the costs awarded to him that he has caused me all this grief…

But I am still able to offset the debt owed against the loss he has caused to myself and my husband, presumably…?

He has definitely acted unlawfully in causing my sale to fall through. He is not allowed to lie to and threaten innocent people...

I must get this right before making the application to set aside…I am sure his solicitor will try and get it struck out if I don't… then the court will say I am a 'vexatious litigant' or whatever it is they call you when you have been banging your head against a brick wall to try and get justice...

Iamthewalrus

Hello all,

I'm new to MSE, apologies if this has been answered before somewhere I'm just going round in circles trying to get my head round all of this so I hope someone can advise me!

My father had an unsecured loan which he defaulted on leading to a CCJ and a charge against his house in 2007 (I haven't checked the LR deeds but I'm assuming this was a 'restriction' as my mother co-owns the house but the debt was solely his). The debt has since been sold by the original creditor. Letters come asking for payment every so often, but my father hasnt replied to any of them.

My questions are these:
1. Presumably even if we were to do nothing and on selling the house inform the original creditor as per bluebacks recommendations, they would inform the company they sold the debt to and they would then come chasing for the money (and the threat of more ccjs etc would just return)?

2. The company who bought the debt have sent a letter saying they will accept a smaller amount and mark the debt as 'partially settled with a zero balance'. If we offer them an amount for F&F, can we insist that they remove the restriction against the house? Would they even be able to do this as the restriction is likely to still in the name of the original creditor (the loan company)?
What could we do if they agreed and then didn't remove the restriction?

3. I heard that these debt collectors prefer it if F&F offers are made & paid by a third party - is this true, and if so would they be likely to accept a lower F&F amount if I wrote to them instead of my father?

Thanks so much in advance! My poor mother is really suffering with all the worry - even though I know a OFS is highly unlikely I would love to be able to get rid of this blight on my parents lives! xxx

eggbox

Iamthewalrus


When you sell the house you do nothing; it's the buyers side who has to inform the creditor. The original CCJ, also, does not disappear (but it will have dropped off your Father's credit file if recorded in 2007); so the creditor can still use enforcement methods. The key is to ensure you don't have anything they can enforce against.

2. The company who bought the debt have sent a letter saying they will accept a smaller amount and mark the debt as 'partially settled with a zero balance'. If we offer them an amount for F&F, can we insist that they remove the restriction against the house? Would they even be able to do this as the restriction is likely to still in the name of the original creditor (the loan company)?
What could we do if they agreed and then didn't remove the restriction?
To have the rights of the CCJ your Father should have been informed of this by the Court as the new creditor has to have the CCJ legally transferred? Any F+F agreement as to be put in writing with the terms clearly set out and verified so you can take legal action if the terms aren't met.

3. I heard that these debt collectors prefer it if F&F offers are made & paid by a third party - is this true, and if so would they be likely to accept a lower F&F amount if I wrote to them instead of my father?


This is from the National Debtline website;


It is very important to make sure the creditor accepts your full and final settlement offer in writing. Make sure you keep a copy in case there is a dispute. This could happen years later and you may need the letter as proof.

• Never send a lump-sum payment before the offer is accepted.
• A friend or relative may be able to give you the money to make the payment. This helps your agreement to be more legally binding if the creditor accepts the money from a third party.
• If you are settling a debt that is large or particularly important, you could have a formal agreement drawn up by a solicitor and signed by you and the creditor. This is not normally necessary.