Charging Order? The myth
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To be able to apply for an OFS you have to have a CO in place, to have a CO in place you must first have obtained a CCJ against the debtor. You've probably just misread the article concerned but if you post a link I can have a look?
Sorry… I have lost the link.. I was just browsing and noticed something to the effect that an Order for Sale is a new and separate application…
But can't one defend a CCJ with a counterclaim to extinguish the debt if successful? I know this should have happened at the hearing for the final CO but the Judge just went ahead and made it final, despite me producing the necessary documents in my defence, as he said he could not adjudicate on it.
I thought you had the buyers letter confirming "bullying" and "intimidation" and you had other means of proving his actions of providing false documents?[/QUOTE]
I have lots of written evidence including texts from the buyers telling me how he bullied and threatened them and lied about the septic tank leaking, and a letter from the estate agent dealing with the sale, telling me why the buyers had pulled out. I also have the email conversation I had with the police as I immediately reported him for harassment after he interfered with my sale… but they refused to take action.
What I don't have is any evidence to say that he nobbled my witnesses… and I know for a fact that he did. However, they won't get involved… maybe he paid them off...:(0 -
You would need to get the CCJ "set-aside" but to do this you would need a case of why the CCJ should be set aside. However, if you have no evidence (as you say) then on what grounds would you apply?
The evidence regarding the sale of the property, however, will certainly help your letter to the Solicitor (which you should send off asap!)0 -
You would need to get the CCJ "set-aside" but to do this you would need a case of why the CCJ should be set aside. However, if you have no evidence (as you say) then on what grounds would you apply?
The evidence regarding the sale of the property, however, will certainly help your letter to the Solicitor (which you should send off asap!)
Many thanks! I just had a word with a debt advisor who said I should fill in form N245 as a matter of urgency as if they make the OFS it will be too late to vary the amount.. although I doubt they will want a fiver a month, which is all I can afford and anyway, the interest is being added at £5.30 per DAY!!
I may qualify for Civil legal Advice, too as I am at risk of losing my home… waiting for someone to call me back...0 -
I just had a word with a debt advisor who said I should fill in form N245 as a matter of urgency as if they make the OFS it will be too late to vary the amount..
No it won't be, the Judge can rule on not granting an OFS on the basis of an improved offer. This is why OFS's hardly ever proceed to Court as the threat of them often has the desired effect of getting debtors to cough up something.although I doubt they will want a fiver a month, which is all I can afford and anyway, the interest is being added at £5.30 per DAY!!
But this is another reason why OFS's hardly ever darken the Court doorways as Judges have complete discretion over granting them. It's not up to the creditor to set terms its the Judge. If he says he is not granting an OFS the creditor is stuffed as the air will have been let out of the threat balloon.
So its extremely risky for a creditor to try follow through with an application as creditors know an OFS is extremely difficult to achieve (especially on jointly owned property where only one owner is liable for the debt.) The last thing they want is for debtors to understand that, too.0 -
No it won't be, the Judge can rule on not granting an OFS on the basis of an improved offer. This is why OFS's hardly ever proceed to Court as the threat of them often has the desired effect of getting debtors to cough up something.
This person was from National debt line… but I'm not sure she was particularly very helpful…she just kept saying that I need urgent legal advice… so hard to find when you are not waving a sackful of money in the lawyers' faces… yet they will defend crooks like my neighbour purely by offering him a No Win No Fee arrangement...:mad:
But this is another reason why OFS's hardly ever darken the Court doorways as Judges have complete discretion over granting them. It's not up to the creditor to set terms its the Judge. If he says he is not granting an OFS the creditor is stuffed as the air will have been let out of the threat balloon.
But I have no doubt they will go for it… they have been very aggressive so far and the rules are different for individuals (rather than loan companies) who are owed money..
So its extremely risky for a creditor to try follow through with an application as creditors know an OFS is extremely difficult to achieve (especially on jointly owned property where only one owner is liable for the debt.) The last thing they want is for debtors to understand that, too.
Not sure it is risky at all as they have nothing to lose by making the application… they will just add the costs to my already spiralling debt as they have done with their previous applications...0 -
It's risky because if the application fails (as most do) they know they are stuffed until you sell the house (which could be years away) and they no longer have any leverage to force you to pay off the debt by installments.
The costs of the application are also not guaranteed, either, to be paid by the debtor. There is a guide (for creditors) here that makes clear several times that Judges have "unfettered" discretion over whether to grant them. Which is another way of letting creditors know its extremely difficult.
But the rules are the same for everyone (unless you can provide evidence to the contrary?) and the case law that protects makes no difference who the creditor is.
Your best defence right now is to let them know what you know to make them know they will have difficulty if they do apply (especially with the evidence of your neighbour sabotaging your sale?) But if you don't do that then you run the risk of them applying for the OFS to heap more pressure on you to cough up.0 -
It's risky because if the application fails (as most do) they know they are stuffed until you sell the house (which could be years away) and they no longer have any leverage to force you to pay off the debt by installments.
The costs of the application are also not guaranteed, either, to be paid by the debtor. There is a guide (for creditors) here that makes clear several times that Judges have "unfettered" discretion over whether to grant them. Which is another way of letting creditors know its extremely difficult.
But the rules are the same for everyone (unless you can provide evidence to the contrary?) and the case law that protects makes no difference who the creditor is.
Your best defence right now is to let them know what you know to make them know they will have difficulty if they do apply (especially with the evidence of your neighbour sabotaging your sale?) But if you don't do that then you run the risk of them applying for the OFS to heap more pressure on you to cough up.
Hi Eggbox… I have drafted a letter…
Dear Sirs,
I acknowledge safe receipt of your letter dated xxxxx and note that your client wishes to proceed with an application for an Order for Sale.
May I please inform you that it was always my intention to pay your client's costs in full, and in order to do so, my home was placed on the market with xxxxxx, in xxxxx Essex in January 2014.
An offer was made in March 2014 and negotiations were well under way and set to complete in June.
However, shortly before exchange of contracts, your client intervened, seeking apparently to capitalise on my sale by offering to sell my buyers the land adjoining my property which houses my septic tank.
When they refused his offer to buy the land at a hugely inflated price, he untruthfully stated that my tank was damaged and leaking over his land.
Your client then informed them of his intention to pursue them for damages should they proceed with the purchase of my property.
My buyers subsequently withdrew, leaving me without the means to settle my debt.
Your client's unlawful interference with the sale of our property has caused substantial economic loss both to myself and to my husband, and his further applications to the court since June 2014 have added extra costs and interest to my debt.
I suggest that your client considers very carefully the implications of taking this extremely serious step and also that he seeks further legal advice, disclosing the full facts of the aforementioned matter so that you may advise him accordingly.
I intend to defend your client's application for an Order for Sale and it is my belief that my factual evidence will reveal that he acted unlawfully, lied and was extremely threatening to my buyers and that he ultimately acted against his own best interests by preventing the sale of my property.
Yours faithfully,
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Hi Dakota, no problems with that and it is nicely succinct.
The only bit I would change is to take out the "unlawful" comment (or add "in my opinion")
And the only bits I would add would be to enclose a copy of the letter sent from the estate agent to confirm what you have outlined as to why the buyers pulled out. And I would also put that you intend to using existing case law, supplied by the MOJ, to defend the OFS.0 -
Hi Dakota, no problems with that and it is nicely succinct.
The only bit I would change is to take out the "unlawful" comment (or add "in my opinion")
And the only bits I would add would be to enclose a copy of the letter sent from the estate agent to confirm what you have outlined as to why the buyers pulled out. And I would also put that you intend to using existing case law, supplied by the MOJ, to defend the OFS.
Eggbox… whilst threats and intimidation may not be unlawful, they certainly should be…:mad:
However, what is unlawful is something called a Tort of Interference… where somebody deliberately interferes with the contractual relationship between two parties, causing that contract to fail… Hmmm..
I just think I will have to go for it as he leaves me with no choice…
Many thanks for all the amazing help and advice… I will report back as soon as I hear anything further.0 -
It's your letter so your call what to do! But good luck!0
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