Court and Predicted Outcome Advice

[moneytroublesindeed]

Hi all,

I hope I've posted this in the right place, sorry if not.

Here's my current situation. Please advise.

After being made redundant last june i have struggled to find work and therefore my loan and credit card repayments have suffered also.

My loan with citi Financial has been passed to capquest who have accepted an offer of £10 / month with all interest capped and the same with Barclaycard. However my isses lie with MBNA and their solicitors Restons. Restons first sent me a letter saying that court proceedings will follow if the balance of £2300 isnt met within a couple of weeks (which i might add is £3000 less than what I owe capquest). I communicated via email a few times basically explaining my financial situation and that I am currently unemloyed and that I can only afford £10 / month. They then sent a letter saying this amount was unsufficent to prevent court proceedings. i then asked them to advise what would be an acceptable offer to which they ignored. about a week later i receive a letter from the county court asking for my current financial details to which i failed to send back in the 2 week time slot (big mistake i know!)

so now i have a ccj and a request to pay the full sum forthwith or there will be an application for a charging order against my property.

so i rang the courts and filled in a n245 form and also sent a plea letter and evidence of my emails sent to restons.

The only issue is that i jointly own the property with a friend who has just had a child with her partner and due to have another, the house is in negative equity and i have other higher priority debts with other lenders.

Where do i stand and what are restons objectives?

Can they make me sell my house in my current situation? Can my friend object?

Does the fact Restons ignored my emails trying to settle out of court help me in any way?

Can my other lenders object to the charging order?

Lastly, can i perform a transfer of equity at this stage, to prevent the charging order?

I know I have ranted on a bit, but if you have any advice, i would greatly appreciate it?

Thanks

[Amethyst]

Re: Court and Predicted Outcome Advice

Restons like to get charging orders to secure installment orders off the back of CCJ's.

What will most likely happen is the court will allow Restons to apply for a Charging Order and ordr you to pay installments at the affordable rate evidenced by your income and expenditure sheet. They are unlikely to go for a sale order unless you default on those installments.

Do you only own that property or another as well, and do you live in the property ?

[moneytroublesindeed]

Re: Court and Predicted Outcome Advice

this is the only property i own and i also live here.

what will happen about my higher priority lenders, i've heard that it can be unfair on them if restons are granted a charging order?

thanks
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sorry, one more thing.

What about the fact that I have eveidence of trying to settle this matter out of court, restons blatently ignored this email and pursued court proceedings.

[Amethyst]

Re: Court and Predicted Outcome Advice

Restons usually do but their lack of actions can swing things in your favour with the judge so they are worth mentioning, especially if you have tried your best to stop it getting to this stage and are offering a reasonable amount (as shown by your IE sheet).

Yes you can defend the CO on the basis of your 50% share of the property and other creditors .. some useful info below for you.

How can I stop a charging order?
The court must consider whether it is reasonable to make a charging order. Under The Charging Orders Act 1979 the court has to consider all the circumstances of the case and in particular:
The personal circumstances of "the debtor"
Whether any creditor would be "unduly prejudiced". This means the court has to decide if making a charging order would disadvantage other creditors.
The arguments you can use against the order being made will vary depending on your circumstances, whether you have any other debts, whether you have equity in your house and own your home in joint names or on your own.
These are some of the factors that the court may consider:
Does any member of your family have a disability or serious illness?
If you have a number of debts and making a charging order in favour of one creditor would give them unfair priority over other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be upset by an order being made. Point out if any of the debts are larger than this debt and if any other creditors have frozen the interest.
Your creditor is supposed to list all the other creditors that they are aware of in the application for an interim charging order.
The court can order the interim order to be sent to the other known creditors but does not have to do this. This means that creditors who may want to object to the final charging order being made will not know about the hearing. You can raise this in your written objections and at the hearing if you think a creditor may be "unduly prejudiced" by the charging order being made.
Could the creditor have given you a secured loan when you first took out the loan? If they decided to offer an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made.
There are other ways the court could enforce payment of the debt. You could ask the court to make an instalment order so you make monthly payments you can afford, or an attachment of earnings order so that the instalments would come directly from your wages. This is only useful if you are employed and your employment would not be at risk.
If your debt is covered by the Consumer Credit Act you can apply for a Time Order. Ask the court to look at this application before the charging order. A Time Order can change the monthly payments and extend the length of time you pay the debt for.
If you owe less than £5,000 in total to all your creditors, you can argue that the debt should be included in an administration order rather than the charging order being made final.
If you are likely to be made bankrupt, you can argue that a charging order would give the creditor an unfair advantage over other unsecured creditors.
If your home is worth less than your mortgage (also known as "negative equity"), then you can argue it is not worth a charging order being made, as the creditor would not be paid off, even if they forced your home to be sold.
If the debt is very small in comparison to the amount of equity in your home, argue that a charging order would be unfair.
You should point out any particular hardship which your family would suffer if a charging order was to lead to the sale of the home. This is particularly important if the debt is in your name but you own your home jointly so it is not even your partner's debt.
If none of these arguments are successful and the court makes a final charging order, you can still ask the court not to let your house be sold as long as you pay monthly instalments. Make an offer to pay in monthly instalments at the hearing. If the court will not look at your offer at the hearing, you can still apply to pay in instalments by using an application form called N245.

The house is in joint names but the debt is in my name

If the debt is in your sole name, but you own the house in joint names with someone else, they have the right to tell the court all the circumstances and why they would suffer hardship if a charging order is made. They should have been sent a copy of the interim charging order and given an opportunity to go to the hearing to put their points. For example:
Who paid for the deposit to buy the home?
Who has made the mortgage payments since?
If there are children at home, ask the court to put a condition that the house cannot be sold by the creditor until the children have grown up.
The co-owner will need to file and serve written evidence of their objections at least 7 days before the hearing.
If a charging order is made by the court, then it will only apply to your share of the property.