Worried sick about appearing in court.

fatbelly

How did it go then?

lancashiregirl

Hi there, I told the judge that as I understood the reasons for them applying for the order, but I wanted to state that I have lived at my current address for over 17 years and I also brought a couple of letters from other creditors stating that those accounts have now been cleared - I thought this may demonstrate that I am not about to sell my house and disappear and also told them that I will shortly be in a position to increase my payments once I've submitted a new budget with my DMP company. The judge granted the order on the proviso that no application to force a sale can be made whilst I am keeping up my current monthly repayments.

Not exactly brilliant I guess, thanks for asking.

fatbelly

There seems to be a trend for judges to behave this way. I think they see it as being even handed.

I see it as fundamentally incorrect for a creditor to be able to use any form of enforcement while there is no default on a court judgement.

fermi

If we are talking about being even handed, then playing devil's advocate, I suppose a judge might consider enforcement in a practical sense to be action to realise the charge itself (by sale), rather than the making of the charge?

Not that I agree with that ^^^^ view.

fatbelly

fermi wrote: »

If we are talking about being even handed, then playing devil's advocate, I suppose a judge might consider enforcement in a practical sense to be action to realise the charge itself (by sale), rather than the making of the charge?

Not that I agree with that ^^^^ view.

I think it's called the 'reasonable security' argument. There was a CAB report that noted the trend a few years back.

http://www.citizensadvice.org.uk/out_of_order

CAB evidence also shows how it has recently become harder for those debtors who have been granted an instalment order to avoid a charging order if the creditor subsequently applies for one. In the past where a debtor had not defaulted on an instalment order, they had good grounds to challenge a charging order application successfully. Even where a debtor had fallen behind with payments, they could try to head off enforcement action by asking the court for further help before the creditor applied for a charging order. CAB advisers, however, are now seeing cases that suggest this legal safeguard has started to slip. It seems that some creditors may be taking advantage of incorrect information in the 2008 HM Treasury Green Book, which contains relevant civil legislation and rules, about the application of Section 93 of the TCE Act.

This suggests that both creditors and judges have been working round existing legal safeguards for debtors to put the reasonable security argument into effect even before Section 93 of the TCE Act had commenced.
Consequently, we believe that the MoJ announcement not to proceed with Section 93 is likely to make fairly little difference in practice and creditors will still find charging orders easy to get.

Learning2Budget

Good luck for Wednesday!!
L2B.x