Devils Advocate Charging Order

Useless_with_wonga

Long Story.......................................:rolleyes:
We had LBM about 18 months ago and since then together with help from people on this forum and our own research we have managed to settle about 24K of debt and get rid of all but 2 creditors:T
One of these relates to a CC who I have to say have been good froze interest and charges and accept our monthly reduced payments and as such the balance is steadily reducing.
The other relates to a large 21K loan:eek: with our previous bank. They have always been paid monthly through our DMP. In February 09 after taking the DMP payments for 6 months they without warning went for a CCJ in our opinion without any justification.
We complained to the FSA the outcome was negotiation with the bank who then accepted our monthly payments as being paid via the DMP and on the provision we signed a consent order they would take the matter no further and not add any further charges or interest to the amount owed provided that we kept to the arrangement to pay a set amount monthly via the DMP which we have done.
In return they dropped the CCJ action but warned if we defaulted on the arrangement they would seek a charging order plus costs and interest. We have this in writing from the bank.
Anyway we signed the consent order it was duely stamped up at the county court. The CCJ action was dropped as promised and we pay them via our DMP every month without default as per the court order.
Fast forward to August 09 and we get an interim charging order through the post........Arghhhhhhhhh !!!!!! this wasn't the deal.
We contact the county court to question it. In the consent order there is a line which says 1/ We may apply for a charging order...........well yes that's true but we were led to beleive that this was only a likelyhood if we defaulted on the installments and we have not.
We showed the banks letter to the clerk who took a copy of it and a letter outlining our objections for the district judge who will be presiding over the case on Monday.
We intend to attend and defend although we are a little nervous and not that confident that we will have the charging order discharged. The fact is we were gobsmacked that this ever went as far as a CCJ application let alone onwards to a Charging Order application.
!!!!!! we are paying about £50 short of what we were when we were paying the contractual payments. If they had left us alone on the DMP we were fully intending to get back up to the contractual payments all we needed was time to sort ourselves out and we could have done it of that we are sure.
We had initially considered IVA/bankruptcy but decided to try and resolve the matter via the DMP it seems to be working. Its been a long hard road with a rollercoster of emotions but we felt through a lot of hard work that we were getting there.
Anyway the bank obviously won't leave us alone to get on with it they seem to want it always and to us it seems very unfair the way they have/are treating us.
Here's the thing if we get this Charging Order against our home which we are more or less resigned to then when our fixed rate deal ends in 2011 we will be stuffed regarding a remortgage hence it is likely our mortgage payments will go up causing us even more financial pressure.
As it stands we have about 8K of equity at very best. So the Devil in me thinks along these lines...................... We have done all we can to get you paid back as quickly as possible but you were not prepred to accept our efforts you had to bully and push most unreasonably for this charging order despite promising that you would not.
Now you have succeded I only have 8K equity and I am no longer willing to stick by the court order in effect I decline to pay any further sums as agreed. I therefore invite you to apply for a forced sale. By the time the estate agents solicitors and HIPs have finished and we have cleared the first charge there might be about 5K left for you if you are lucky.
We then move into rented. Past caring really now am losing the will to continue with this fight its been going on way too long and just as we think its resolved they throw something else at us.
We are not too fussed about losing the house to be honest we would rather not but if I did take the above stance what would the likely outcome be in terms of the balance?

RAS

Have you checked whether the default letter on this account is correct?

Not an answer to your query but a possible show stopper.

Useless_with_wonga

Hi Ras,
It's in order. Like I say fairly resigned to the fact we will end up with the CO from our point of view all so unecessary. We admit the debt and we are paying it. Still I suppose the sceptic in me would say another secured debt will get someone at the bank a nice little bonus:rolleyes:.
Just curious what would happen if i spat my dummy out and decided to stop playing ball bearing in mind we are comfortable with the fact that our house is no more than a stack of bricks and a few tiles.
Also the fact of the matter is that we would actually be better off financially paying rent as opposed to paying a mortgage(cheaper)
Thanks anyway.

fatbelly

As you haven't defaulted on an order I'm not sure they can go for a charging order. But I'm not clear whther or not they obtained a court judgement against you. I have copied the advice that was sent out about an error in the 'green book' that judges use. It may or may not be relevant:

Specialist Support has received a number of enquiries from advisers where a district judge has made an instalment order and at the same time given the creditor leave to apply for a charging order, or has given the creditor leave to apply for a charging order even though there was already an instalment order in place. These orders have been made at a hearing after which there is no right to ask for re-determination.

The fact that district judges are making such orders may be due to an incorrect statement in the Green Book which all the district judges refer to. The notes to CPR3.3 [1] on page 1950, anticipate the insertion of s1(7) into the Charging Orders Act 1979, by s93 of the Tribunals, Courts and Enforcement Act 2007 (TCEA), where the fact that the debt is payable by instalments and there has been no default in payment does not prevent the court from making a charging order. This is incorrect because s93 has not been brought into force. Fortunately on p1943, beneath s1 of the 1979 Act it is noted that “Sub-sections (6) to (8) are inserted by the [TCEA] with effect from a date to be appointed.”

Indeed, there are currently no plans to bring this provision into force – see the ministerial statement from 17 March beginning at https://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090317/wmstext/90317m0001.htm.

The correct position is that where the county court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order: s86(1) County Courts Act 1984.

For this purpose, ‘execution’ includes a charging order. On the other hand, a charging order can be made despite the making of an instalment order where the instalment order was made after the date of the interim order (for example, on a variation application). The authority for this is Ropaigealach v Allied Irish Bank [2001] EWCA Civ 1790. Instalment orders are made under s71(1) of the County Courts Act 1984 and there is no power to attach conditions regarding enforcement to such an order.

Where an adviser is present in court and such an order is proposed, the adviser should point out to the district judge that s/he has no jurisdiction to make such an order. When advising on this issue after the event, it is essential that advisers obtain a copy of the order and look at the exact wording.

Where the court makes a forthwith order and gives the creditor leave to issue a charging order whilst staying all other enforcement so long as the client makes specified payments (so-called 'hybrid orders'), that is not an instalment order for this purpose.

It is an order for payment forthwith with a stay of enforcement: such orders are made under s71(2) which specifically allows conditions to be attached.

Useless_with_wonga

Thankyou. Not sure myself if this is or is not relevant but I think I will print it out and show it to the judge in anycase. I have nothing to lose after all.........whats the worst that can happen?..................They will get a Charging Order:rolleyes: