Help to Get my Loan Written off

jonesMUFCforever

never-in-doubt wrote: »

Hiya

You won't get banned! You've done nothing wrong..... remember there are a lot of people on here who are ignorant to the laws and think we're wrong for utilising the law to our advantage - as if they wouldn't should the need arise :rotfl:

Unenforceability is, unfortunately, a contentious issue and so you'll find those that are ignorant will insult you you with silly one-liners like 'you borrowed it so pay it back' - best to just ignore them as they don't have a clue so resort to pathetic jealous sounding outbursts instead....

Just laugh at em :rotfl: :rotfl: :rotfl:

Of course if a lender finds out that a borrower has a property it is legal for them to put a charge on that property even if the original loan agreement was unsecured. This would then be enforced (after going to court) on the sale of the property whenever that was. Not saying this happens very often but it is legal and to balance the arguments here.

never-in-doubt

jonesMUFCforever wrote: »

Of course if a lender finds out that a borrower has a property it is legal for them to put a charge on that property even if the original loan agreement was unsecured. This would then be enforced (after going to court) on the sale of the property whenever that was. Not saying this happens very often but it is legal and to balance the arguments here.

Oh yes I agree, charging orders are certainly more frequent now than what they used to be but they are only any good as the paper they were written on and can be annulled if incorrectly placed which some lenders are too keen to issue them and as such they find the consumer is fighting back.

However, in theory if they add one it would then be best to come to an arrangement for obvious reasons, alternatively if you have collateral then let them take payment at the time you sell. Similarly, if you're in neg equity and delaying the inevitable they are no use either.

I would assume people with mortgages would take a different approach to those without, for obvious reasons

thechippy

I think the biggest problem for homeowners who DO have equity going the cca route, is once you default the lender could issue a statutory demand.

I'm not sure how often this happens, but it would be particularly unfair on your partner, if none of the debt is thiers, as they would be out of a home as well due to no fault of thier own!!

never-in-doubt

thechippy wrote: »

I think the biggest problem for homeowners who DO have equity going the cca route, is once you default the lender could issue a statutory demand.

I'm not sure how often this happens, but it would be particularly unfair on your partner, if none of the debt is thiers, as they would be out of a home as well due to no fault of thier own!!

Hi matey - see this is where its not entirely accurate, in that a judge will always take into account who owns the house and for instance, if issuing a Charging Order would be unfair to other creditors.

Ok, in reality if you had 2 loans both for say £20k, one went for a charging order and the other never - the judge would normally decline any application because the other lender would then be at a disadvantage.

Similarly, if the mortgage is paid for by your partner, they would not issue one.

Charging orders are very very hard to issue and remember, only once you have a CCJ can they do it - not with a default

I'll post you a useful link, will explain all for you mate

never-in-doubt

Read the following to learn all about charging orders. Link 2 is the simplified version, in laymans terms.


Link 1 - http://www.statutelaw.gov.uk/documents/1979/53/ukpga/c53/1

Link 2 - http://www.insolvencyhelpline.co.uk/debt_factsheets/charging_orders_in_the_county_court.php

thechippy

Hi N-I-D,

Thanks for the info, but is not a CO a different thing to a SD.

For example, I have a few mates in trouble atm. Some are going the cca route as they rent.
However, another owns the house jointly with his wife and it has just enough equity to clear the debts. The debts are all in his name and he pays the mortgage. The vast majority of the debt is with one creditor - his bank.
He is worried that if he starts to miss payments and go's the cca route, they could issue a SD. That can be done without court. He would then have to apply to have it set aside for which you need good cause. Should that fail they could petition his bankruptcy - how would this leave him with the house? and what about his wife who has nothing to do with the debts? See what I mean.....

never-in-doubt

thechippy wrote: »

Hi N-I-D,

Thanks for the info, but is not a CO a different thing to a SD.

For example, I have a few mates in trouble atm. Some are going the cca route as they rent.
However, another owns the house jointly with his wife and it has just enough equity to clear the debts. The debts are all in his name and he pays the mortgage. The vast majority of the debt is with one creditor - his bank.
He is worried that if he starts to miss payments and go's the cca route, they could issue a SD. That can be done without court. He would then have to apply to have it set aside for which you need good cause. Should that fail they could petition his bankruptcy - how would this leave him with the house? and what about his wife who has nothing to do with the debts? See what I mean.....

Hi mate

sorry - just spotted you were speaking of SD's..... My understanding of these is that they are successful, i.e. they scare people into submission, but for the same respect the basic protection is offered in that they are soooo easy to set-aside with the creditor being liable for costs.

Although i'd say, yea be cautious if you got a SD through the post, you have to bear in mind this is a warning if you like. They still have to petition for B/R. If you did get a SD though, i'd immediately suggest putting the account into dispute by disputing the balance owing (it will always be wrong cos they will have added charges that you were unaware of) and then getting it set-aside with costs going back to the creditor and keep doing this to annoy them and the judge who will eventually throw it out anyway!

Have a read of these links, similar to Charging Order ones but relevant for SD's...

Link 1 - http://www.insolvencyhelpline.co.uk/legal_issues_explained/statutory_demand.php

Link 2 - http://www.insolvency.gov.uk/pdfs/forms/6-1.pdf

The procedure to get a statutory demand set aside.

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.
One method of avoiding bankruptcy is to get the statutory demand set aside.
To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
• The person issuing the statutory demand also owes money. This is called a counterclaim.
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
• The demand was issued in error.
• The amount owing is less than £750
• Execution has been stayed on a judgement debt.
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.
• The creditor failed to comply with the rules and prejudiced the debtor in the process.

never-in-doubt

Watch the video - Statutory Demands Explained for full guidance: http://www.youtube.com/watch?v=6cnpPpF4EQ4

* I do not recommend the company promoting this video - it is purely to be used as reference. The company is unknown to me!

never-in-doubt

thechippy wrote: »

For example, I have a few mates in trouble atm. Some are going the cca route as they rent. However, another owns the house jointly with his wife and it has just enough equity to clear the debts. The debts are all in his name and he pays the mortgage. The vast majority of the debt is with one creditor - his bank. He is worried that if he starts to miss payments and go's the cca route, they could issue a SD. That can be done without court. He would then have to apply to have it set aside for which you need good cause. Should that fail they could petition his bankruptcy - how would this leave him with the house? and what about his wife who has nothing to do with the debts? See what I mean.....

Sorry, forgot to answer your questions......

Ok, how about if I say that sif your mate was to go down the CCA route then the account is placed immediately into dispute (as he'd be querying their ability to prove existence of account and/or debt). As such they cannot then issue a SD because one of the rules stopping this, is if the debt (amount on the SD) is disputed in which case your mate would ensure he did dispute it.

Can I ask, who is this bank?

Regards to the wife, the law would suggest as she lives with him she would be aware of the debt and so is jointly liable for his b/r should it occur. Is it business debt gone personal or something... i.e. using personal cards to pay for business? If so then all he has to do is make a sensible offer of repayment and they also cannot issue a SD.....

Lots of things to protect him, a good lawyer is always best in these situations though....

thechippy

You're a minefield of info....;)

About this...

"The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back. " ( being used to set aside)

What if the lender is refusing your monthly offer of payment as they deem it too low(quite common) You could have 25k debt, but only offer £20 per month if circumstances are dire - they will often refuse. Where do you stand then?

....EDIT

Sorry I think we were posting at the same time..

I suppose that if you've asked for a cca and it's non complient or does not materialise, then you place the debt in dispute. Is that enough for a set aside??