Charging Order? The myth

eggbox wrote: »

Hi Dakota

I've said many times the Law works best for those how know how to use it. If you add in the arbitrary nature of District Judges on the day it can be an absolute minefield.

All you can do now is your best on the day; but just be as clear and as precise as you can (with the relevant paperwork to hand to pass to the DJ) explaining the reasons how the rules weren't followed and why it makes the JO unlawful.

Good luck and please update the board of the outcome?

I will do!

The way I understand it, a JO is a bit like a contract in that both parties rely upon it & are bound by it…

In making the (without notice) application to the Court to vary the Judgement, (30 days after the JO, so too late anyway), the judgement creditor has challenged and abandoned that on which he relied and was bound by… in return, I can apparently accept his repudiation and elect rescission...

'Election to Accept Rescission of Contract on Grounds of the Judgement Creditor's Expressed & Continued Anticipatory Breach & Repudiation of said Contract.'

(What a mouthful!!)

There is also the fact that the Court does not have jurisdiction to vary its' original order once the Order has been sealed and any application to vary it must be sought by the appeal process.

Which means the 'new' Order made a few weeks after the original one is unenforceable due to illegality at formation.

Oh, and the fact I was denied the right to reply due to the application being withheld from me…

Lots to try & remember and argue…

I only know all this as someone with much more legal knowledge than I have has kindly helped me.

I guess the next step is to list all the points as in a skeleton argument…

Do you know if these are needed before the hearing where the Court decides to allow to set aside, or will there be a further (final) hearing for the arguments?

I get very confused about court procedure and when to serve papers...

As you say, it's hard enough even if you have legal knowledge, but the court certainly doesn't go for transparency… Especially for those representing themselves through no fault of their own other than they can't afford advice...all done to trip up the unwary!!

I am having to google all points of law… much of which is out of date as they keep moving the goal posts...

Anyway….Thanks again!

Dakota

All I can repeat is to be to the point and make clear to the DJ the points you say mean the creditor was out of time etc.

But I would also add in that the creditor already had a Restriction registered, so no other was required. And, if you had been made aware of the further Restriction sought, you would have requested that the creditor be required to notify the LR within 7 days that they had been given the required 14 day notification of sale they were seeking.

You can argue that you are aware of instances (Wembley) where creditors are abusing the modified Restriction by refusing to notify the LR after they have been notified of a sale with the Restrictions terms.

This would, hopefully, avoid the problems Wembley experienced when you do sell.

Coinmachine wrote: »

As Nationwide had previously said a few months ago they would be going for a judgement and charging order

Have Nationwide not yet got a CCJ yet??

eggbox wrote: »

Have Nationwide not yet got a CCJ yet??

No, not yet, I had a letter in January stating:

'Please continue to make the proposed payment to this account as it will reduce your balance and will indicate your intent to repay this debt'

'Interest is not currently being charged to your account, but due to the balance outstanding it will take considerable time to clear it'

'In view of this, it is our intention to start legel proceedings. If we get a court judgement we may then apply for a charging order on any property you may own. If granted, this will mean that this debt is secured against your property'

'However, whilst you continue to make these payments, subject to regular review of your financial means, we dont intend to take any further recovery action other than that described above'

And then the recent letter stating they have now passed it all to Shoosmiths. In between times having reviewed my DMP at the one year point I am able to increase my overall payment by £75 so taking about 15 months off the length of my DMP.

Hi Eggbox, LRR & Wembley14

I have been looking at the copy of the Judgement Order that the creditor's solicitor sent to Land Registration re the Final CO…

I still think it's a bit weird that they are trying to pass off the modified JO as being the 'original' …

It's not, as the original JO was dated more than 4 weeks earlier…yet this copy sent to me by LR has the lawyers stamp on it stating; We Certify this to be a True and Complete copy of the Original…

The judge modified the restriction on a JO dated 8 December… so why has LR sent me notice of a JO dated 3 November, but with the wording for new modification attached?

It's such a muddle… LR should have attached the modified text to the most recent JO…

If I am to attend court about this, I really need to be clear of the facts, but I just can't work out what the facts are, apart from the lawyers trying to say that the original order was a modified one… but I have the original JO and it is for a standard form K restriction…

I have also just noticed that the hearing for the Interim CO was made without notice to me at a different court miles away… I guess that's allowed but it would have been nice to have been given an opportunity to attend court...

Oh dear!!