final Charging Order Hearing

**Caspar** · 19th September 2011, 22:11:PM

Re: final Charging Order Hearing

Will pm a couple of people who should be able to give really good advice on this one for you.

pm now sent. Hopefully may bring you some help tomorrow, though I know both are working.

**Differentjudge** · 19th September 2011, 22:58:PM

Re: final Charging Order Hearing

Thanks....i need all the help i can get

**mercury-the-messenger** · 20th September 2011, 00:32:AM

Re: final Charging Order Hearing

have you seen hmcs (her majesty's court service) EX325

Third party debt orders and charging orders - How do I apply for an order? - How do I respond to an order?.....

hopefully the file will upload

...... have cut and pasted below what i found on an advisory site

"The 'Final' Hearing
If you object to the court making a charging order, you will need to file written evidence to set out your objections. You can also request that the hearing take place at your local county court.
The onus is on you (the debtor) to show 'good cause' why the Charging Order Interim should not be made final.
The Charging Orders Act 1979, s.1(5) directs the Court to consider:
"All the circumstances of the case, and in particular any evidence about the personal circumstances of the debtor and whether any other creditor would likely be unduly prejudiced by the making of the order".
Some of the arguments you could use are:

A change in circumstances, such as evidence of new employment.
Little or no equity in the property on which to place a charge.
The CCJ debt is very small in comparison with the equity in the property.
The debt is Consumer Credit Act regulated and consideration should be given to a Time Order.
If debts are below £5,000, you could argue that an Administration Order should be made instead of a Charging Order being made absolute.
Point, if true, to the fact that all the missed payments have been paid off and there is evidence of on-going future payments.
Point to pro rata offers that have been accepted, especially with interest frozen; and amounts of money in excess of the Charging Order debt.

There may be other arguments that you could use and each case will depend on individual circumstances"
-----------------------------------------------------

moreover since the County Courts (Interest on Judgement Debts) Order 1991 states
(3) Interest shall not be payable under this Order where the relevant judgement -
(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

the charge (assuming the agreement - <i do not know what type of agreement it is> is pre 2006 there could ? be an angle here ?

**SpringerSpaniel** · 20th September 2011, 10:18:AM

Re: final Charging Order Hearing

I think your draft WS is good, but you should also refer to the overiding Objective of the CPR, that the case should be decided in a way which is 'fair and just', and that the impact of loss of employment for your wife and loss of family home for you all is not 'fair', 'just' or 'proportionate' in its impact on your family as a whole, and that those who are not the debtor would be suffering unjust detriment were the Order sought to be granted.

**Differentjudge** · 24th September 2011, 23:29:PM

Re: final Charging Order Hearing

ADMIN...... i can not access the link below.

this is one of my own threads which i would like to look at a post on there with informaton i need to check...
can you please help

http://www.legalbeagles.info/forums/...t=25166&page=4

**Differentjudge** · 24th September 2011, 23:41:PM

Re: final Charging Order Hearing

draft of my defence..... any comments please???

1 I am the Defendant in this case.

2 I am making this witness statement in support of my objection to the court granting a final charging order on the following grounds

3 An Instalment Order was made by the court in November 2010, Since that date I have maintained all payments to the Claimant on time. I have attached Exhibit XXX1 which is a bundle consisting Copies of Cheques paid to the Claimant for December, January, February and March. The payment for April was made by Standing Order and all subsequent payments have been made this way.

4 The payments were made despite the claimant being obstructive in supplying bank account details into which payment could be made. I made numerous requests for their bank details and none were forthcoming until I advised them I would notify the court. This demonstrates my commitment to honour the judgement

5 At the time of making the Instalment order the claimant made a written submission requesting permission to apply for a charging order. District Judge KKKKKKK gave consideration to the request but declined it. He also gave an instruction that my income should be reviewed at 6 monthly intervals so that as and when affordable, instalments could be increased.

6 A hearing to review my Income & Expenditure Statement took place in May 2011. At this hearing the claimant again asked for permission to apply for a Charging order on my family home.

7 As an instalment order was in place and all payments were up to date my defence was reliant on the case of Mercantile Credit Company V Ellis In The Court Of Appeal 1987 where it was found that the wording of The Charging Orders Act states quite clearly that no further action could be taken without a default in payment.

8 The Judge hearing the case amended the previous Instalment Order to a Forthwith Order and allowed the Claimant to apply for a Charging Order.

9 The claimant asked for the Charging order on the grounds of the time in which it would take to repay the judgement debt. The claimant has not objected to the amount of monthly instalment being made.

10 I wrote to the claimant to clarify a term for repayment at which they would be satisfied and not seek a charging order as I wished to negotiate an arrangement to increase the instalment accordingly with the financial support of a relative.

11 The claimant has declined to suggest a term acceptable to them.

12 In deciding what action to take I would respectfully guide court towards -

The Charging Orders Act 1979 1 (5) In deciding whether to make a charging order the court shall consider all the circumstances of the case and in particular, any evidence before it as to -
(a) The personal circumstances of the debtor

Further

I would ask the court to look at whether the interests of the creditor outweigh the interests of my family Under the Trusts of Land & Appointment of Trustees Act 1996, the court has discretion to say the family's interests outweigh the creditor's interests.

13 The judgement is for a debt that is in my sole name, our home is is joint owned. If the court were to grant a charging order on our home then this would be unjust and unfair on my wife and children.

14 My home is jointly owned with my wife NNNNNN Sssssss and we have a joint mortgage from her employer ABC Bank. We share our home with our 2 children.

15 My wife works for the bank who has the mortgage on our home, if a charging order is obtained her employer will be notified and she will face disciplinary action which could lead to demotion or termination of her employment. This will be grossly unjust as she is not party to the judgement.

16 Should my wife be demoted or her employment be terminated then our family income would be greatly reduced. Not only would this cause hardship on the whole family, it would also lead to the loss in our family home. This would not be fair on my wife and children.

17 The original debt is for a credit card agreement, the claimant previously set me an Unsecured Credit Limit of £35,000. The judgement debt before costs was £6,500. As this was an unsecured debt I was charged a very high interest rate for this facility. The claimant is now seeking to gain an unfair advantage by securing the debt on my home.

18 The judgement debt represents just 3.9% of the value of our home. Granting a charging order on such a small amount would be disproportionate and unfair. This point was raised in the case of Robinson v Bailey 1942 1 All ER 498 (Exhibit FPS2) where the judge stated

“...........I cannot conceive that it would be proper for the court, by reason of an apprehended failure of the defendant to satisfy the terms of the judgement, to lock up his property, and certainly not to lock up so disproportionate an amount of his property, to satisfy so small a debt...”

and further

“..... I think it may be fairly said that the plaintiff is here, attempting to use this
agreement in order to get a lever to force the defendant to comply with his obligation. That, as it appears to me, is not the way in which the plaintiff should proceed.”

19 Whilst Serving the Interim Charging Order the claimant has failed to follow the correct procedures.

(i)CPR 73.5
(ii) Practice Direction 73

20 The claimant has not issued any documents in support of their application thereby prejudicing any defence I may wish to make against their claim. By not informing my other unsecured creditors they are being ‘unduly prejudiced’ should a charging order be granted in favour of the claimant giving them an unfair priority over the other unsecured creditors.

I XXXX Sssssss, the Defendant, believe the facts stated above and contained within the Exhibits XXX1 & XXX2 to be true.

Signed .....................

Dated …..................

**Amethyst** · 25th September 2011, 09:11:AM

Re: final Charging Order Hearing

Your other thread was in VIP and your sub had run out hence you going blue rather than orange - have changed you back now so should be all ok access wise.

Having a read through your WS now.

**Amethyst** · 25th September 2011, 09:16:AM

Re: final Charging Order Hearing

The payment for April was made by Standing Order and all subsequent payments have been made this way.

are you including copies of bank statements etc showing these payments going out as well as the copies of cheques.

By not informing my other unsecured creditors they are being ‘unduly prejudiced’ should a charging order be granted in favour of the claimant giving them an unfair priority over the other unsecured creditors.

Are you also going to include a list of your creditors and an updated IE sheet (to go with the trying to negotiate shorter term and increased payments part\?)

**Differentjudge** · 25th September 2011, 12:30:PM

Re: final Charging Order Hearing

Thanks for giving me the VIP again

(1) yes i am going to include photo copies of the cheques which i sent and bank statements to show all payments are up to date. (The claimant has never disputed this)

(2) i will include 4 letters where i had requested the bank details and there response after 4 months of requests. They asked me to start the standing order a day before they posted the letter to me ( muppets)

(3) The claimant is aware of my other creditors as they have had my I&E statement several times with their details on so they can not say they are not aware of them.

(4) As they asked for the C/O because they time to repay was over 20 years, i wrote and asked for an acceptable time to them .. they have refuse to give me a time and have said the only way they will not go for a C/O is if i settle in full.......to give you an example

current payment £50per month finishes in 20.8 years
increase payment by £70 (with help from a relative) to £120 finishes in 8.6 years

so i am sking how long they will accept so i can get the money from a relative......

if i get a C/O then my relative has said they will not give financial assistance.

(5) i will attach a new I&E. so that if i get a C/O then it will be at a payment i can afford

Hope that makes sense

did you also see the witness statement that my wife has prepared a few posts ago??

any comment on either would be good.....

**Differentjudge** · 26th September 2011, 18:42:PM

Re: final Charging Order Hearing

MY WITNESS STATEMENT

1 I am the Defendant in this case.

2 I am making this witness statement in support of my objection to the court granting a final charging order on the following grounds

3 An Instalment Order was made by the court in November 2010. At the time of making the Instalment order the claimant made a written submission requesting permission to apply for a charging order. District Judge KKKKK gave consideration to the request but declined it. He also gave an instruction that my income should be reviewed at 6 monthly intervals so that as and when affordable, instalments could be increased.

4 Since that date I have maintained all payments to the Claimant on time. I have attached Exhibit XXX1 which is a bundle consisting Copies of Cheques paid to the Claimant for December, January, February and March. The payment for April was made by Standing Order and all subsequent payments have been made this way.

5 The payments were made despite the claimant being obstructive in supplying bank account details into which payment could be made. I made numerous requests for their bank details and none were forthcoming until I advised them I would notify the court. I have attached Exhibit XXX2 which is a bundle consisting of copies of letters sent to the claimants solicitor. This demonstrates my commitment to honour the judgement

6 A hearing to review my Income & Expenditure Statement took place in May 2011. At this hearing the claimant again asked for permission to apply for a Charging order on my family home.

7 As an instalment order was in place and all payments were up to date my defence was reliant on the case of Mercantile Credit Company V Ellis In The Court Of Appeal 1987 where it was found that the wording of The Charging Orders Act states quite clearly that no further action could be taken without a default in payment.

Further, I would hold that where the circumstances established that an order for payment by instalments has been made and has been observed, then in any event it would be impossible to attack an exercise of discretion where that discretion was exercised in favour of a debtor (now a judgement debtor) faithfully discharging the terms of the judgement order itself

So far as the jurisdiction point is concerned I would add. Reliance was placed on the fact that under Section 1 (1) of The Charging Orders Act 1979 the charge may be imposed in order to secure “ the payment of any money due or to become due under the judgement or order.” Those words appear to me to be wholly without significance for present purposes, when one observes that section 86 of The County Courts Act 1984, having first imposed an embargo on the execution of the order until after default in payment of some instalment according to the order, goes on to provide by subsection (3) as follows ; “Except so far as may be otherwise provided by County Court Rules 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 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”

According to section 86 (1) of The County Courts Act 1984 “ 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.

Also, following a review of charging orders by The Office of Fair Trading in 2010, it was stated in their press release on 22nd November 2010. “ A charging order is one of a number of enforcement methods available to creditors to ensure that judgement debts are satisfied . A charging order can only be applied for where a court order has has already determined that a debtor owes the money to the creditor, and payment is not forthcoming”

8 The Judge hearing the case amended the previous Instalment Order to a Forthwith Order and allowed the Claimant to apply for a Charging Order.

9 The claimant asked for the Charging order on the grounds of the time in which it would take to repay the judgement debt. The claimant has not objected to the amount of monthly instalment being made.

10 I wrote to the claimant to clarify a term for repayment at which they would be satisfied and not seek a charging order as I wished to negotiate an arrangement to increase the instalment accordingly Exhibit XXX3

11 A relative has offered me financial assistance in increasing the monthly instalment on the condition that no charging order is made otherwise the assistance will not be available.

12 The claimant has declined to suggest a term acceptable to them. Exhibit XXX4

13 In deciding what action to take I would respectfully guide court towards -

The Charging Orders Act 1979 1 (5) In deciding whether to make a charging order the court shall consider all the circumstances of the case and in particular, any evidence before it as to -
(a) The personal circumstances of the debtor

Further

I would ask the court to look at whether the interests of the creditor outweigh the interests of my family Under the Trusts of Land & Appointment of Trustees Act 1996, the court has discretion to say the family's interests outweigh the creditor's interests.

14 The judgement is for a debt that is in my sole name, our home is is joint owned. If the court were to grant a charging order on our home then this would be unjust and unfair on my wife and children.

15 My home is jointly owned with my wife Nnnnnnn and we have a joint mortgage from her employer AAAAAA Bank. We share our home with our 2 children.

16 My wife works for AAAAA Bank, the bank who has the mortgage on our home, if a charging order is obtained her employer will be notified and she will face disciplinary action which could lead to demotion or termination of her employment. This will be grossly unjust as she is not party to the judgement.

17 Should my wife be demoted or her employment be terminated then our family income would be greatly reduced. Not only would this cause hardship on the whole family, it would also lead to the loss in our family home. This would not be fair on my wife and children.

18 The original debt is for a credit card agreement, the claimant previously set me an Unsecured Credit Limit of £35,000. The judgement debt before costs was £6,500. As this was an unsecured debt I was charged a very high interest rate for this facility. The claimant is now seeking to gain an unfair advantage by securing the debt on my home.

19 The judgement debt represents just 3.9% of the value of our home. Granting a charging order on such a small amount would be disproportionate and unfair. This point was raised in the case of Robinson v Bailey 1942 1 All ER 498 (Exhibit FPS5) where the judge stated

“...........I cannot conceive that it would be proper for the court, by reason of an apprehended failure of the defendant to satisfy the terms of the judgement, to lock up his property, and certainly not to lock up so disproportionate an amount of his property, to satisfy so small a debt...”

and further

“..... I think it may be fairly said that the plaintiff is here, attempting to use this
agreement in order to get a lever to force the defendant to comply with his obligation. That, as it appears to me, is not the way in which the plaintiff should proceed.”

20 Whilst Serving the Interim Charging Order the claimant has failed to follow the correct procedures.

(i)CPR 73.5
(ii) Practice Direction 73

21 The claimant has not issued any documents in support of their application thereby prejudicing any defence I may wish to make against their claim.

22 The claimant has not informed my other unsecured creditors allowing them the courtesy to submit a witness statement should they feel necessary. They are being ‘unduly prejudiced’ should a charging order be granted in favour of the claimant giving them an unfair priority over the other unsecured creditors.

23 I would respectfully ask the court to make the order an instalment order with a review of my finances every 6 months so that when my income increases then the instalment can increase also and the claimant can receive their money sooner.

Statement of Truth

I FFFFFFFF, the Defendant, believe the facts stated above and contained within the Exhibits XXX1 - XXX5 to be true.

AND MY WIFES WITNESS STATEMENT

1 I am Nnnnnn and I am the spouse of the defendant

2 I make this statement to the court so that they may take my personal circumstances in account when considering what action to follow.

3 The debt is in my partners sole name, yet my children and I will be penalised greatly should a charging order be placed on our family home for the reasons below.

4 I reside at 111 Road, with my husband and 2 children. I am joint owner of the property and joint mortgagee with the defendant

5 The mortgage on our property is held with AAAAAA Bank

6 I am employed by AAAAAA Bank as XXXXXXX Manager

7 It is a condition of my employment that I do not have a derogatory credit history or bring my employer into disrepute

8 Should a charging order be placed on our home the Bank would be notified. This action will be seen by my employer as a derogatory marker on my credit file and also bringing the bank into disrepute.

9 This will mean that I will face disciplinary action which could lead to demotion from my current position or my employment being terminated.

10 The result of demotion would lead to a reduction in earnings and the inability to meet our financial obligations and our outgoings would be higher than our income.

11 The mortgage interest rate which we pay is a staff reduced rate. Should my employment be terminated this would be increased to the rate at which the general public pay and our payments would increase to a level that is not affordable.

12 We would not be able to stay in our family home

13 The debt is solely my husbands debt. It would be unfair to penalise myself and my children in this way.

14 I would respectfully ask the Judge that these circumstances are taken into account and not grant a final charging order on our family home.

Statement of Truth

I Nnnnnn, believe the facts stated above to be true.

**Differentjudge** · 29th September 2011, 12:28:PM

Re: final Charging Order Hearing

Why am i not surprised

i know by now to expect the unexpected.....

the hearing is due to be heard on 4th October. i send my Witness statement to the claimant on 26th Sept to arrive with 7 days to go.

No witness statement arrives with me from the claimant (usual tactic from Optima)

Then suddenly recieve new Hearing date for 24th November.

Phone the court to ask why.

It is because Optima Have not filed the relevant details and notified my other creditors before 21 days so they have asked the court for a new hearing date and the court have given them one.....

beggars belief. a claimant dost not get their act together and follow procedure so gets the court to change the hearing date to give them time to do so .....

**Brian** · 29th September 2011, 18:24:PM

Re: final Charging Order Hearing

make sure thats documented that they are clearly frustrating proceedings, its all bullets in the gun for you to use...

Judges from my experience do NOT like having the **** taken, and this is a clearcut case of just that...

((

**Differentjudge** · 15th November 2011, 13:09:PM

Re: final Charging Order Hearing

hearing on 24th November

what is the latest date i should receive Their witness statement etc????

final Charging Order Hearing