Big Panic- Tesco/ Incasso V Me- charging order/installments

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Their argument will be that at £27 a month it will take 7 billion years to pay it off and they should have some security in return for you getting such a fantastic installment rate.

£25k is a massive whack for an unsecured loan so dont be suprised if they push hard for the charging order, just be confident that you will increase payments as soon as you are able and are committed to repaying the debt, just having a temporary blip in your finances....

Remember if try to go for a sale order they are likely to get nothing out of it as your other lenders, mortgage and secured loans are above them in the pecking order, so they have nothing to gain by that.

There was talk of legislation allowing creditors to obtain charging orders straight up but this was dropped, tho not all the courts and solicitors seem to recognise that fact. It might be worth making a not of that and the details (think it was part of the tribunal courts and enforcements act amendements that didnt happen) as to why it didnt go through....just in case.

You should also talk to your partner over the weekend, show her this site and that you are trying your best to sort things out, but that the courts sometimes just make their own minds up regardless of what you do and a charging order is a real possibility.

Also show her the insolvency page I linked you to before which explains charging orders quite well, which hopefully makes them seem a bit less scary.

[roygoodbeat]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

I haven't mentioned anything to her at the moment. It really could be the final straw for us. I am not prepared to split up my family as I care about my children. I am really scared of Monday's hearing.

I understand that the lender wants to know that they are going to be paid back, but what gives them or the judges the right to put more pressure on people who are trying their best to sort out their situation. I am determined to ensure that this is repaid but I can only do this when my financial situation allows me to.

Before this all happened I was a mortgage advisor (Ha Ha). Due to the credit crunch my income dropped and I began to fall into arrears. Once that happened and the banks started acting, I could no longer do that job. Now I have a good job that currently pays little, but long term will enable me to re-establish a decent income.

I feel that I have let Tesco know all the way of my situation and they have been trying to force me to pay more than I can afford despite being aware of the facts and the court originally ruling on my installments. Surely this is against debt collection guidlines?

A typical day for me starts at 3.45am. I currently do an early morning job for three hours. I then drive straight to my full time job and work from 8 til 6/ 6.30. I work every other Saturday. I am knackered by the end of the week and I struggle to stay awake after 8.30. My partner as well as looking after the kids, works nights at the weekend starting 10pm til 7am. On a Monday morning she will stay awake until the evening without any sleep for 30 hours. She sometimes squeezes an extra shift during the week.

This is so that we can repay everything and get back to a normal life. Throughout this ordeal, the one thing she has stated that she will do the hours providing the house is OK.......

A charging order really is not an option.

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

You need to impress on her that a charging order doesnt mean the house will be lost. All it means is that in the event you default on further payments (which WILL be set at an affordable amount) they can apply to court for a sale order, which you can defend, and it is extremely unlikely that a judge will order sale in your circumstances, joint owned, negative equity due to mortgage and secured loans, and you have kids.

She will be scared of losing the house, which is entirely understandable, but keeping her in the dark about what a charging order actually means will make things worse rather than better. You don't want to come home Monday and tell her theres a charging order, THEN try explain to her that it shouldnt affect things so long as you make the payments.

Also I would bring up in court how bloody hard you are working to get through this and keep up with your obligations.

CO's are funny things and the judges will do as they do, all we can do is try our best to argue against them. But you do need to prepare for it being granted.

[Differentjudge]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Roy....

i wish you and your family well for Monday

you need to speak to your other half.

She probably feels that you are hiding things from her, and the secrecy is what is keeping you apart

Just the other week my wife left me a note to say her and the kids had left as she could not take any more.

we are back together

Now i share everything with her.

we go on the site together and she sees all the advice and we decide together what to do next

together we make the decisions and are stronger together.

You need to share this with her

Once again.... Good luck

hope Monday goes well

[roygoodbeat]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Thanks DifferentJudge.

Don't know how to handle this with her. Have tried all week to enter into a discussion but she just switchs off.

Have tried to look up the Tribunal and Courts Enforcement Act. All I can find so far is that it is either comming in or certain things have been dropped. No explanation....

Have looked up a few things. Namely Citizens Advice Article which comment on lenders bullying people into paying more than they can afford and the increase in charing orders.

Citizens Advice Chief Executive David Harker said:

“The law as it stands leaves debtors far too exposed to unfair treatment and the risk of losing their homes from unsecured creditors. Some creditors are using the court process as a tactic to intimidate vulnerable debtors into paying unaffordable amounts. This is not only unfair to the individuals concerned who have offered payments towards their debts but is also unfair to other creditors.”

Another One: The Human Rights Act: The right to have a private family life. Shorly this could be a breach of both our rihgts.

And another quote from the Citizens Advice:

As such, the growth in charging orders
exposes a serious gap between court
enforcement processes and the requirements
of the OFT debt collection guidance and
voluntary industry codes.

Will look up the OFT debt collection guildlines as well.

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

moj - A charging order, which enables the creditor to obtain security for the payment against assets owned by the debtor, typically property. There were 26,400 applications made for charging orders in the second quarter of 2010, a decrease of 18 per cent on the same quarter of 2009. There were also 270 orders for sale, forcing the sale of the debtor’s assets.

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 http://www.publications.parliament.u...0317m0001.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.

The link doesnt work above

5.3
Written Ministerial Statement - Part 4 of the TCEA 2007
On 17 March 2009, Bridget Prentice MP, Parliamentary Under-secretary of State, Ministry of Justice, announced in a written Ministerial Statement that following a comprehensive reassessment of the provisions in the TCEA 2007 the Government would not be implementing Part 4 of the Act, including sections 93 and 94.5 This means that there is currently no minimum financial threshold for obtaining a charging order.

Full statement Bailiff and Enforcement Law: 17 Mar 2009: Written answers and statements (TheyWorkForYou.com)

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Now in your case you had a forthwith order, then applied for redetermination and had that changed to installments. Incasso are not applying for a CO on the installment order, they are applying to overturn that order(appealling it) and return to the forthwith order which then allows them to ask for a CO. Then installments would be reset.

So they can and likely will argue Mercantile Ellis doesnt apply as its a forthwith order.

[roygoodbeat]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Reading my judgement, it was a determination order and they have objected to this order.

On the claim form I admitted the debt and offered to pay the amount of £20.

The judgement form says

The Claimant has objected to the rate of payment you have ordered.

The court have therefore decided the rate which you should pay.

You must pay £32,969

In installments of £27.20 per month until the debt has ben paid.

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

ahhhhh ok. thats much better.

I received a CCJ. I appealed to make instalments and the court granted that I would have to pay £27.12 per month. That was about 4/5 months ago and I have been paying £28 per month by standing order ever since.

Where you said CCJ you meant the claim form. The original CCJ was for installments and there was no redetermination application.

ignore my last post in that case, your case in much better

[shell]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Just a wee question.

If the original loan was for 25k, but the loan amount is for 32k, does that mean you have 7k ppi on the loan?

[roygoodbeat]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

How much better???

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Well as it was a stright up installment order without permission to apply mercantille ellis definately applys.

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. The district judge has no jurisdiction to make such an order unless you have defaulted on your installment order.


If however the judge agrees with them that the original order should be overturned into a forthwith order, or installment with permission to apply, then they could still apply for charging order. Which is what I assume is what they have appealled for.

[roygoodbeat]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Loan was for 25k. Looks like they have added their interest to the claim. PPI was not taken.

The judement at the time was for 32,659 plus costs. The balance owing was 32613
------------------------------- merged -------------------------------
This is why they are saying that they want the payments to be done over 5 years, then the next step if not agreed with would be the charging order.

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Only if the judge awards a forthwith order instead of the installment order you already have. Only if he orders a forthwith order can he allow a charging order application. If he changes the current installments to 5 year installments (which he wont as you cant afford that and your IE will show that) they still cant have a CO until you default on an installment.

This is the important bit

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.

http://www.opsi.gov.uk/RevisedStatut...#pt5-pb1-l1g87

86 Execution of orders for payment by instalments

(1)Where the 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.
(2)[F1Rules of court] may prescribe the cases in which execution is to issue if there is any such default and limit the amounts for which and the times at which execution may issue.
(3)Except so far as may be otherwise provided by [F1rules of court] made for those purposes, execution or successive executions may issue if there is any such default for the whole of the said sum of money and costs then remaining unpaid or for such part as the court may order either at the time of the original order or at any subsequent time; but except so far as may be otherwise provided by such rules, no execution shall issue unless at the time when it issues the whole or some part of an instalment which has already become due remains unpaid.

From Mercantile v Ellis

Acting upon that, on the 3rd July 1986, on form N30, which is a standard form, judgment was entered against the plaintiff for the sum claimed, which he admits on his defence admission form, plus £111 for costs, giving a total sum of £2,904.57p. The court ordered that to be paid by instalments of £80, which I note is the precise figure suggested by Mr. Huxtable, the first instalment again being deferred, this time by precisely one calendar month. The first instalment was to be paid on the 3rd August 1986.
The position was then reached, almost certainly without the attendance at the court of the defendant, of a judgment being entered against him, and an order being made for the satisfaction of that judgment by instalments of a quantified amount.

................................. the legal arguments...............................

I would hold that there was not jurisdiction in the court to make a charging order as long as the instalments were being regularly paid by the judgment debtor.

[Amethyst]

Re: Big Panic- Tesco/ Incasso V Me- Notice of Hearing after a CCJ Judgement

Have got the budget sheets just having a look through