Charging Order Hearing Tomorrow. Help Please!!!

JimmyRiddle_2

Hi all,

Am new to posting in the forums but have been reading for a few months to help me along.

Long story short - Made Redundant in June 2008 (only been there 9 months) went from earning £25k (plus about £5k in bonus's) as a Mortgage broker to earning £15k as an insurance advisor - not able to get another job earning same money due to credit crunch.

Realised major problem so contacted Payplan for help -15 debts totalling circa £57000 all unsecured between me and my wife - not a problem on my old salery paying it all.

18 months down the line and Restons (acting for MBNA - second largest debt @ £7500) have a CCJ registered against my wife which they got re-determined to forthwith (never missed a payment on the original order) and an interim Charging order granted. The hearing for the Final Charging Order is tomorrow at 10:30.

Paypl have been less than useless with the advice they have given other than Resgons have not informed the other creditors of their intention to go for a chaging order. They told me this 5 days ago so cannot get CO postponed.

My wife is ill with Flu so won't be able to go tomorrow, but i intend on attending and need some advice as to our best defence.

So far all i can think of are:

1 – Restons have not informed all creditors. They have not followed correct procedure and is a breach of directions given by county courts on form EX325
2 – Unfair to other creditors , Especially RBoS who are owed £17k (14 other creditors)
3 – negative equty – Currently owe £127,000 to Northern Rock – house value is at best £105,000, House is also jointly owned.
I also need to mention that we have our 4 yr old daughter living in the house.
All other creditors, bar 3, have agreed to our DMP payments so i feel Restons are being totally unfair. I admit it is our fault for getting into this level of debt, but if i were on my previous salery we would have easily maintained all the payments.

Any help would be greatly apreciated as am nervous enough for tomorrow.

Charco_2

Probably your best defence would be to show that you have acted fairly in all dealings with all your creditors and have made your best offer to pay towards this debt... If Restons are being greedy despite you trying your best then the judge is more likely to throw them out than to force you into an unaffordable arrangement.

You should have come on here earlier. But your attempted DMP is going to stand you in good stead i would imagine.

Unf no-one can guarantee what will happen tomorrow but if you're honest with the judge and show that you are doing your best you stand a better chance of protecting yourself so good luck

JimmyRiddle_2

Thanks for such a quick response.

I thought i'd manage without posting and get as much info from everyone else's posts as i could, but really needed to 'speak' to someone for some help.

Not feeling too confident for tomorrow though. Last time we went in front of a District judge was for the re-determintion hearing when he set the Order to Forthwith. Despite him having all the info in good time he said that MBNA were within their rights to the money so he was allowing them to apply for the Interim order. I did put forward that we acknowledge the debts and that before the unforseen circumstances (redundancy) we had never missed a payment, and asked him to set payment as agreed at the previous CCJ, but he said he was within his rights to allow MBNA to apply for the order and would ammend the ccj to forthwith.

Fingers crossed for tomorrow

RAS

Once you admit the origina debt on the charging order, there is very litle scope to challenge it except that you could have quioted Mercantile v Ellis if you had paid all the CCJ installments.

Try sending a pm to 10past6 and he may be able to help you.

GeorgeUK

I can't help with this, but would advise you to aslo post on the consumeractiongroup forum if you haven't already done so. I quite often look at their 'legal' board for info so they may be able to assist.
http://www.consumeractiongroup.co.uk/forum/legal-issues/

Verbatim

There was a thread about charging orders being unenforceable?? or similar? if a house is jointly owned. Does anyone know where this thread is?
Good Luck tomorrow.

mouncey

Jimmy -best of luck for tomorrow. Let us all know how you get on.Fingers crossed for you.

JimmyRiddle_2

Ok - quick update.

Very worried when i walked into the chambers as it was the same Judge that allowed the CCJ to be ammended to forthwith.

No representative for Restons / MBNA turned up.

Judge asked if i had anything to say so i told him that Restons / MBNA had not informed all of my creditors. Judge said that Restons were only aware of N.Rock (mortgage Lender) to which i countered that they were made aware of all creditors when I entered DMP and had recieved confirmation aswell when setting pro-rata payments.

Judge stated that he would re-shedule the hearing to allow Restons / MBNA to contact all creditors.

I also stated that the house is in serious negative equity - approx £22k - so the CO shouldn't be granted, but he said that was a matter for Restons / MBNA not him.

Will it make any difference to the proceedings if Restons don't send someone to the re-sheduled proceedings, because they have had me to court twice now and both times not turned up themselves.

So, now got to wait till the new year for another hearing

10past6

JimmyRiddle wrote: »

they have had me to court twice now and both times not turned up themselves.

If that's the case, you should ask for the case to be “Stayed” if granted, this means they will need permission from the court to continue the case, they'll need a very good reason why permission should be granted considering they've failed to turn up on 2 separate occasions.


If your application to have the case “Stayed” you should make an application for any costs you've incurred.

JimmyRiddle_2

thanks for the help 10past6

Having a bit of a dumb moment though not quite understanding.

Restons didn't show to the re-determination hearing (and got the ccj changed to forthwith even though i'd paid both payments due on time), and then today didn't show up for the Final Charging Order hearing today.

Are you saying that I can ask the court to Stop proceedings in the Charging Order?

If so how do I go about this?

What do Restons need to do to get things going again?

Restons have been a real pain in the a*se. I owe more to MBNA on my credit card, being dealt with by 1st Credit. 1st credit have accepted my payments on the dmp, yet Restons have pushed for the ccj an are now pushing for the CO on my Wife's card.

I'm not bothered about claiming travel costs etc as the cout is only 5 mins drive and I've had holidays I needed to use anyway.

Thanks agian

10past6

JimmyRiddle wrote: »

Are you saying that I can ask the court to Stop proceedings in the Charging Order?

Yes

JimmyRiddle wrote: »

If so how do I go about this?

If Restons have not informed the court why they failed to turn up on both occasions, make an application to the court on the grounds the claimant has failed to present there case.

JimmyRiddle wrote: »

What do Restons need to do to get things going again?

Comply with the judges instructions.

JimmyRiddle wrote: »

I'm not bothered about claiming travel costs etc as the court is only 5 mins drive and I've had holidays I needed to use anyway

You should not be out of pocket for any expenses you may have incurred.

When they failed to turn up on the first occasion, what was the ruling from the judge?

The claimant brought this against you, the onus is on THEM to prove there case, if they don't, you have to legal right to apply to have the case “Stayed”