final charging order despite up-to-date instalment order

[lilly3333]

Hi everyone,

apologies for such a long first thread, if anyone has any ideas about this case, or anything re an appeal I'd be most grateful.......

The facts are as follows:

my partner and i left changed our current account from natwest to barclays and are on a DMP with CCCS. All our creditors (37k in total) accepted the DMP except natwest (I owe 5k to, my partner 8k) who after much wrangling and going round in circles decided to take us to court.

We accepted responsibility for the debt but couldn't afford Northampton's repayment terms at £760 each a month so applied for redetermination at our local court.

Redetermination took place on the 26th April. We had to be defendants in person as we were £200 over the legal aid limit! The judge accepted we were trying to pay natwest back but equally pointed out that Natwest should have some security - so he set out the judgement as follows;

1. the claimant do have permission to apply for a charging order
2.the defendant do pay the judgement debt as follows (then the sums of £43 and £60 each month are stated for my partner and I and the DMP to follow).

Unfortunately Natwest applied for an interim charging order on the 28th June. We got in touch with the CAB, national debtline, CCCS and a local solicitor who all stated that if we hadn't defaulted on the instalment order then we could object to the order being made final due to case law Mercantile credit v Ellis and the Ropaigealach case etc. Despite the "permission to apply" clause everyone we consulted thought that the case law would definitely still apply. (One institution even suggested that perhaps the CCJ would not stand up legally.....?)

Our house is also in negative equity so we also used that in our defence.

Anyway, roll forward to last friday morning (6th August), and the DJ looked at the notes and quickly dismissed the defence we had saying that neither case law applied as the previous judge at redetermination had include the "permission to claimant to apply for the charging order" as part of the judgement. Hence the charging order was made final despite the fact that we haven't once defaulted on the instalment order.

I'm aware that the 2007 Act was going to let the Court administer charging orders even when a default hadn't been made but thought that this hadn't been put into practice.

Sorry if this is a tale of old news to people, but if anyone has any thoughts regarding our case i'd really appreciate it - the DJ even refused permission to appeal!!

Cheers, lily

[Amethyst]

Re: final charging order despite up-to-date instalment order

The charging order is just security for Natwest, are the installments now set at a rate you can afford ? Keep up with those and keep records of payments too incase they decide to try anything regards a sale order, the mortgage company hold the first charge anyways.

I have had similar, in the judges mind it was a play off between affordable installments and the lender having security if we defaulted on those, or massive installments we wouldnt be able to keep up wasting more court time and money to go back to argue for a charging order. So we took the CO, that was in 2006 and we've kept up the installments under our DMP with CCCS and had no problems at all.

[Aquasition]

Re: final charging order despite up-to-date instalment order

The Charging Order is only being used as a means of security and they have now converted your unsecured debt into a secured debt. Whilst this may seem unpleasant, provided that you maintain your regular monthly payments, there would be very little chance of them persuading the Court to force the sale of your house. There would be little point in them taking this action in view that your asset is in negative equity. Maintain the payments and little else will happen - hope this helps.

[lilly3333]

Re: final charging order despite up-to-date instalment order

Many thanks to both of you. You're both sounding right and I think the judge has made it a condition that they can't go for a point of sale or try again to get their money. Minor plus point was that natwest asked for £800 MORE costs on top of the £1000+ costs we've already paid, luckily the DJ told them to whistle for their money and that they weren't getting any.

Ho hum, will stick to the ten year long DMP I think. Thanks again.

[pompeyfaith]

Re: final charging order despite up-to-date instalment order

DJ told them to whistle for their money and that they weren't getting any.

That shows that the Judge was/is siding with you the courts also know that an order for sale is very much a last resort and will not grant it unless there is no other option.

With the bail out of the banks the government is on the side of the homeowner as far as repos go this back up by the decline in repos over the last few months.

Good Luck the advice you have been given is spot on.

PF

[lilly3333]

Re: final charging order despite up-to-date instalment order

Hi everyone,

quick question re my final charging order as outlined above.....

Natwest via shoosmiths have recently sent me a letter saying that

"seeing as they have a final charging order, they have been instructed to negotiate payments to reduce my liability rather than with continuing with further enforcement and that they are unable to accept the payments until we can assess whether or not they are reasonable....therefore we enclose an income an expenditure form and ask that you complete this asap"


Are they legally allowed to do this? The judge stipulated the terms of the final charging order as being an instalment order and that as long as we paid instalments on time then Natwest would be unable to ask us for more money........

Thanks for reading, Lilly

[SickotheCSA]

Re: final charging order despite up-to-date instalment order

If I was you, I would stick to making the payments as per what you understand of the ruling, any changes to the payment amounts are irrelevant at this time. I would check with a solicitor but as an instalment plan has been agreed from a previous income and expenditure analysis, I do not believe you are obliged to give them any further information unless they can give you good reason i.e they believe you have increased ability?

CAB are pretty good with these things and you may even find an answer on http://www.adviceguide.org