charging order from Cabot

[teddygirl]

Hi
I'm new here, worried sick and looking for advice.

Last week I received a letter from Mortimer Clarke solicitors acting on behalf of Cabot financial. It contained a copy of an interim charging order placed on my house with advisement that the hearing for the full/final charging order is on 14th September.
The debt is for a Capitol 1 credit card from years ago, which, as I had not paid anything on, acknowledged the debt or even heard anything about for at least six years. I got in touch with Stepchange who advised me to look at my credit report and sure enough there is a CCJ for the debt which was issued in Feb this year. I knew nothing about this and have never had any letters from either Cabot, Mortimer Clarke or even the court informing me about the CCJ.

I know there is nothing I can do about the CCJ, my problem is the hearing for the final charging order is being held at a court almost 200 miles from where I live. I have no way of getting there and I also have children to look after. Is there any way of getting the hearing moved to a court closer to me? From what I have been able to find out on the 'net I MUST attend this hearing, but it's impossible for me to travel that far.

I telephoned Mortimer Clarke today on the advice of Stepchange who have worked out a budget/repayment plan for me. The person I spoke to was extremely rude, bordering on sadistic! She said there was nothing I could do to stop the proceedings and would not talk about a repayment plan, she also said none of it was her problem and I'd better find a way of getting to the hearing.

I visited my local CAB today but to be honest they weren't much help, I think I knew more than they did about charging orders!

I am absolutely desperate for advice, I am not in any position to repay the sum in full which is £2,400 and I am at my wits end to be facing losing my house (if they go on to file a forced sale) for such a relatively small sum.

Any help or advice you can give would be very much appreciated, thank you.

[judgemental24]

Re: charging order from Cabot

There is everything you can do about the CCJ

You can have it SET ASIDE if you were unaware of the claim and Statute barred is a 100% defence

Have you moved address during the last six years?

Get the application in to set aside and that will halt any charging order applications

Bad news is that it will cost you £155.00 court fees unless on benefits

[Kafka]

Re: charging order from Cabot

Are you certain that it has been more than 6 years since you either paid to this account or acknowledged it in writing?

[nemesis45]

Re: charging order from Cabot

Hi Welcome to LB

Some details on the card debt please and the CCJ
The CCJ was made Feb 2015, a good reason to set aside
the judgement would be that the debt was statute barred
when the claim was issued.

Do you know when the account was defaulted and / or when the last payment or acknowledgment was made
on the account.

Have you moved house in the last 6 years? Could the Court Claim have been sent to a previous address? Another reason for setting aside the judgement, but you would have to have a defence with a reasonable chance of success to achieve a set aside this way.

For the amount owing and order for sale is not likely to be granted.

If you don't have the data mentioned above, you may find a call to Cap one asking for the default and/or last payment date will be fruitful.

nem

[teddygirl]

Re: charging order from Cabot

Thank you,
I have absolutely no paperwork relating to the original debt or card, this was all stored in our loft and when our water tank burst it was all destroyed. I am 100% sure that I haven't made any payments on the debt for at least 6 years, probably longer.
I don't know why I didn't receive any mail regarding the CCJ as even though I hate doing it, I open all my post and I have lived at this property for 16 years!
The CAB and the advisor at Stepchange both said as the CCJ had been granted there was nothing I could do, as did the very rude woman at Mortimer Clarke. How could I go about challenging it without any records/paperwork? I doubt that Cap 1 would be of any help finding the date of my last payment as I don't even have the original account details.
What I am more concerned about is being unable to attend the final charging order hearing, the court is over 150 miles from me, everything I've managed to find online says I must attend the hearing, is there anyway I could submit my repayment plan to the court to show I am trying to work things out?

[Kafka]

Re: charging order from Cabot

Firstly, general advice organisations like the CAB usually advise that you can't fight banks or debt collectors, but we don't accept that and that is why forums like this exist - all staffed by volunteers who share their experience and ideas to help you get justice.

You need to apply immediately to have the CCJ set aside, on the grounds of not being notified of the original judgment and particularly on the grounds of being statute barred. That will require them to provide proof that you have either paid towards the account or formally acknowledged it in writing within the last 6 years (assuming you are in England or Wales). You will need to find the £155 for this, but it must be done urgently. If you receive certain benefits you can get that paid for you.

The Charging Order itself can only attach to a CCJ, so would fall away if the CCJ is set aside. In practice they would be unlikely to get an Order of Sale for a debt like this so they hope for a CO that will just sit there to be redeemed once the house sells. Going to a hearing for a CO won't really help because you can't challenge that easily - it's the CCJ that it attaches to that you must fight.

[Amethyst]

Re: charging order from Cabot

So you have about 4 weeks. You can apply to set aside the original judgment but need to make sure that puts the final charging order hearing on hold. I would suggest calling the court where the hearing is set and telling them you will be applying to set aside the original judgment. If you decide not to apply to set aside the judgment then you need to speak to the court anyway and ask how to have the case transferred to your local court (as this is the first you have heard of it and you don't understand why the hearing has been set so far away).

Some info on applying to set aside the judgment is here -> http://www.legalbeagles.info/forums/...lication-notes

Statute Barred - the onus is on the claimant to show it is NOT statute barred, not on you to show it is.

[FlamingParrot]

Re: charging order from Cabot

I know there is nothing I can do about the CCJ, my problem is the hearing for the final charging order is being held at a court almost 200 miles from where I live. I have no way of getting there and I also have children to look after. Is there any way of getting the hearing moved to a court closer to me? From what I have been able to find out on the 'net I MUST attend this hearing, but it's impossible for me to travel that far.

With regards to charging orders, for judgments over £1k made after October 2012, the creditor can apply even if you had kept up to the terms of the judgment, which you didn't because you weren't aware of it. There are arguments that can be put forward but in most cases the CO would still be granted. What can be achieve is to get conditions attached to the CO to prevent them applying for an order for sale, although these are hardly ever granted for debts of this size and nature. :thumb:

I telephoned Mortimer Clarke today on the advice of Stepchange who have worked out a budget/repayment plan for me. The person I spoke to was extremely rude, bordering on sadistic! She said there was nothing I could do to stop the proceedings and would not talk about a repayment plan, she also said none of it was her problem and I'd better find a way of getting to the hearing.

That was a rather silly thing to say since you would be expected to enter into a repayment plan to pay off the judgment anyway; a CO merely has the effect of securing the debt and they'd still ask for monthly instalments.

I am absolutely desperate for advice, I am not in any position to repay the sum in full which is £2,400 and I am at my wits end to be facing losing my house (if they go on to file a forced sale) for such a relatively small sum.

Any help or advice you can give would be very much appreciated, thank you.

As mentioned above, orders for sale are extremely rare, a court isn't likely to agree to force the sale of a property for that sum even if they tried to push for it.

I don't know why I didn't receive any mail regarding the CCJ as even though I hate doing it, I open all my post and I have lived at this property for 16 years!
The CAB and the advisor at Stepchange both said as the CCJ had been granted there was nothing I could do, as did the very rude woman at Mortimer Clarke.

I understand the woman at the solicitors office not telling you about it but surely the CAB and Stepchange have heard about set aside? :mad2:

I visited my local CAB today but to be honest they weren't much help, I think I knew more than they did about charging orders!

I'm not surprised! The quality of CAB advice varies wildly depending on where you go and who you speak to, some are paid advisors who have been more or less trained but others are volunteers and may not have much of a clue, especially when it comes to challenging debts.

So you have about 4 weeks. You can apply to set aside the original judgment but need to make sure that puts the final charging order hearing on hold. I would suggest calling the court where the hearing is set and telling them you will be applying to set aside the original judgment. If you decide not to apply to set aside the judgment then you need to speak to the court anyway and ask how to have the case transferred to your local court (as this is the first you have heard of it and you don't understand why the hearing has been set so far away).

It is possible to get the final CO on hold whenever there are substantial arguments surrounding the underlying court order (as opposed to merely opposing the CO application). I know someone who went to a final CO hearing over a costs order and managed to get the hearing postponed whilst they are looking into the ins and outs of the costs order. :thumb:

[judgemental24]

Re: charging order from Cabot

It is a travesty of modern life that an unsecured debt/agreement can become secured

[FlamingParrot]

Re: charging order from Cabot

It is a travesty of modern life that an unsecured debt/agreement can become secured

It is indeed! And made much worse after Oct 2012 because previously they could only secure the debt if you didn't keep up the payments agreed with the court on your CCJ. Is it a coincidence that this also happened during the Capitalist Moron's reign? :mad2: :mad2:

I also think it's something you should be warned about when you apply for unsecured credit, just like they tell you your home is at risk if you don't keep up payments on a secured loan, they should tell you if you don't keep up your payments on your credit cards and loans the creditor could secure the debt.

[nemesis45]

Re: charging order from Cabot

The use of Charging Orders for securing consumer credit debt in my opinion fall into
the same category of system abuse as the indiscriminate use of Statutory Demands
as a means debt collection, the same companies that abused the bankruptcy process
are using CO's just as indiscriminately.

nem

[wales01man]

Re: charging order from Cabot

Like it or not a charging order is a powerful weapon scares some into paying until there is a real change in the debt collection industry and the laws it operates under they will use any tactic to get their money,

[nemesis45]

Re: charging order from Cabot

The indiscriminate use of SD's was actively challenged and the OFT did take action and
some companies were taken to task about their conduct.

Perhaps a similar level of complaints now to the FCA could highlight the abuse and lead to
some form of sanction, the amounts being secured in this way are relatively small as they
were in the SD senario.

nem

[FlamingParrot]

Re: charging order from Cabot

Like it or not a charging order is a powerful weapon scares some into paying until there is a real change in the debt collection industry and the laws it operates under they will use any tactic to get their money,

This isn't to do with the debt collection industry as such since a charging order is not a threat to make you pay, i.e. a debt collection tool like SDs are still often referred to on websites aimed at creditors. The law used to state that COs could only be applied for when people failed to make the required payments into their CCJs which, at that point, could be considered as a debt collection tool, albeit only applicable to judgment debts. From October 2012, any judgment creditor can apply for a CO and the threshold is a meagre £1k!

The same government who allegedly tightened up regulation by replacing the rather feeble and ineffective OFT and merged its activities into the remit of the FCA has also been responsible for allowing creditors to secure unsecured debts very easily since there are hardly any arguments that can be used to avoid a CO, only to stop the creditor applying for an order for sale which shouldn't even be an option for debts below a certain threshold (I'd say £25k). As long as there's a Capitalist Moron (CaMoron) in charge, we can only expect things to get better and better for creditors.

Thanks to the FCA Lowell are not issuing SDs but they are blitzing the country with court claims including many for SBd debts and Wonga now advertise on TV an APR of "just" over 1000% (can't remember exactly what it is) rather than 4000%. :decision: