Conker v Natwest

[Amethyst]

Re: Conker v Natwest

not finished yet...Conker - do you want to fight the charges or just admit and work on getting installments set up ?

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Dear xxxxxxxxx

Thank you for your letter dated xxxxx in response to my attempt to negotiate a reasonable repayment of the alledged debt owing to your clients.

I am disappointed you are declining my offer, and would like to confirm I do not wish to agree to your counter offer. I think, under the circumstances, this would be best being left to the courts to decide.

You will be aware from my Income and Expenditure sheet that I am unable to make a greater offer to you at this time. Since the original judgment on XXX DATE XX ordering installments of £20 per calendar month this amount has been paid without fail. I will ask the court to allow me to continue payments by affordable installments as per my Income and Expenditure sheet and to refrain from giving permission for your clients to obtain a charging order over my property.

You will be aware of the case Mercantile Credit Co Ltd v Ellis in 1987, which states a charging order should only be made if the payments on a judgment are in arrears or if a forthwith payment was ordered and not paid. You will also be aware of the OFT debt collection guidance 664 2.6 Examples of unfair practices are as follows: f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so.


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ALSO be aware that the provisions in Part 4 of the tribunals, courts and enforcement act where a creditor can get a charging order BEFORE instalments have been missed has been revoked

Mr. Stewart Jackson: To ask the Secretary of State for Justice what the timetable is for the commencement of the provisions of the Tribunals, Courts and Enforcement Act 2007 relating to allowing a judgment creditor to apply for a charging order in circumstances in which a debtor is up to date with an instalment arrangement. [312045] Bridget Prentice: In 2008, my right hon. Friend, the Secretary of State for Justice and Lord Chancellor (Jack Straw), asked for a reassessment of the enforcement provisions within the Tribunals, Courts and Enforcement Act 2007 to ensure that they remain appropriate. Following that review, the Government announced on 17 March 2009, Official Report, column 46WS, that they would not implement the provisions in Part 4 of the Act.

Following a comprehensive review, I can confirm that the Government will not extend bailiffs’ powers of entry and the use of force by enforcement agents. In addition, the Government will not implement part 4 of the 2007 Act which would have made changes in the areas of:

• attachment of earnings fixed tables;

• attachment of earnings tracing;

• charging order reforms; and

• information requests and orders.

• So hopefully that helps set your mind at rest a little. You CAN argue against it still just keep up the judgmented payments.
  

[conker]

Re: Conker v Natwest

Thanks Ame I take it i use all of the info including quotes??Sounds really good cannot thank you enough.I think maybe i should fight the charges would this be from when the account went into default and i informed the bank of my problems,i understand this will only reduce the debt but at least its something off.
Also recieved another load of interest onto the account bit confused as they have stated the amount i owe them in court can this keep going up and then they may come back for more???

Forever in your debt(let alone the banks!!!)
Conker

[Amethyst]

Re: Conker v Natwest

I was thinking up to the dotted line, the quotes are really there to reassure you, but if you think including them will help then go for it

I think maybe i should fight the charges would this be from when the account went into default and i informed the bank of my problems,i understand this will only reduce the debt but at least its something off.

I agree with you. Can you list at some point what these charges were.

Also the interest I believe can only continue accruing on the LOAN part of the debt as there may be a clause in the Loan agreement which allows for this. Its a unsecured CCA regualted debt so I'll try check the rules on that.

Sending this letter will start up proceedings again so we will need to get on with a Witness Statement / Defence, FULL Income and Expenditure Sheet and all your charges info.

[conker]

Re: Conker v Natwest

Hi Ame

This is the letter I propose to send which should give me time to sort info out to defend the charges and or costs I believe i can fight the charges on a hardship claim.

What do you think???

"
Dear Sir/Madam
Re Claim No XXXXXXXX
Account Numbers XXXXXX & XXXXXXXX

Thank you for your letter dated xxxxx in response to my attempt to negotiate a reasonable repayment of the
alledged debt owing to your clients.

I am disappointed you are declining my offer, and would like to confirm I do not wish to agree to your counter
offer. I think, under the circumstances your request is very unreasonable so feel this would be best being left to the
courts to decide.

You will be aware from my Income and Expenditure sheet that I am unable to make a greater offer to you at this
time.
Since the original judgment on XXX DATE XX ordering installments of £20 per calendar month this amount has
been paid without fail. I will ask the court to allow me to continue payments by affordable installments as per my
Income and Expenditure sheet and to refrain from giving permission for your clients to obtain a charging order over
the property I currently reside in.

You will be aware of the case Mercantile Credit Co Ltd v Ellis in 1987, which states a charging order should
only be made if the payments on a judgment are in arrears or if a forthwith payment was ordered and not paid.
You will also be aware of the OFT debt collection guidance 664 2.6 Examples of unfair practices are as follows:
f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are
unable to do so.
Please note I intend to contest charges and or interest added since you were first informed of my financial
difficulties which was 19/06/08.I also intend to contest a proportion of the court costs for the delay in the
Claimant providing me with the necessary documentation namely the CCA for loan agreement XXXXXXX
As you have already requested a further stay of one month to the court which I did not object to I will in due
course be writing to you again with relevant details and may indeed require further information from yourselves
Please note a copy of this letter has been sent to the court.

regards
conker

[conker]

Re: Conker v Natwest

slightly revised this is what i sent hope it helps others

Thank you for your letter dated 4/2/10 in response to my attempt to negotiate a reasonable repayment of the
alledged debt owing to your clients.

I am disappointed you are declining my offer, and would like to confirm I do not wish to agree to your counter
offer. I think, under the circumstances your request is very unreasonable so feel this would be best being left to the
courts to decide.

You will be aware from my Income and Expenditure sheet that I am unable to make a greater offer to you at this
time.
Since the original judgment on 24/11/09 ordering installments of £20 per calendar month this amount has
been paid without fail. I will ask the court to allow me to continue payments by affordable installments as per my
Income and Expenditure sheet and to refrain from giving permission for your clients to obtain a charging order over
the property I currently reside in.

You will be aware of the case Mercantile Credit Co Ltd v Ellis in 1987, which states a charging order should
only be made if the payments on a judgment are in arrears or if a forthwith payment was ordered and not paid.
You will also be aware of the OFT debt collection guidance 664 2.6 Examples of unfair practices are as follows:
f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are
unable to do so.

　
Please note I intend to contest charges and or interest added since you were first informed of my financial
difficulties which was 19/06/08.I feel that in issuing these charges you have broken the FSA's regulatory
principle to "pay due regard to the interests of its customer and treat them fairly".I believe the fact that I
have been incurring bank charges goes contrary to the aims of the Lending Code(Section 9)and Banking
Conduct of Business Sourcebook(Section 5.1.4"in particular a firm should deal fairly with a banking
customer whom it has reason to believe is in financial difficulty")and previously were contrary to the
Banking Code.
I also intend to contest a proportion of the court costs for the delay in the Claimant providing me with the
necessary documentation namely the CCA for loan agreement XXXXXXX.
As you have already requested a further stay of one month to the court which I did not object to I will in due
course be writing to you again with relevant details and may indeed require further information from yourselves
Please note a copy of this letter has been sent to the court.

[conker]

Re: Conker v Natwest

Hi Ame

Hope you are well,currently have a stay till the end of March and have just recieved a letter from the claimant saying

"without prejudice save as to costs"

"our client has rejected the offer of £40.00 as would take 18 yrs to clear the debt which now stands at £8785.51.
As a copy of the loan agreement has been served on you we hope to be able to agree on judgement being entered against you for the remaining balance of the claim in the interestings of saving costs.Our client would be entitled to fixed costs upon judgement being entered pursuant to part 14.4(6).
It is our clients intention to secure the banks position by the way of a charging order once judgement for the full amount claimed is obtained.
Our client is prepared to take commercial view and will agree not to enforce the charging order if payments of £50.00 per month are maintained towards the full amount.Please confirm by the 14th March 2010.
If in agreement we will forward a draft consent order for your consideration.

to me sounds like they are trying to negotiate after the last demand of £150.00 a month however no mention of charges,costs etc.To be honest Ame I would like this off my back and settled so I don't think I will carry on trying to get a few hundred pounds worth of charges back as its not going to make much difference to my position.However........

I am able to meet the £50.00 a month they ask for the whole claim however I have to avoid this charging order as this could lead to a divorce and on a divorce i only gain a tiny percentage of any equity which may be £2/3,000 i will then have to fund somewhere else to live etc,etc so they will have even less money off me!!!!
Also i presume my wife would be in a position to contest the charging order as it is her house really???
Concerned a little on fixed costs....what does this mean as I do not want them tagging on another £5K???

Thanks as Always
Conker

[Amethyst]

Re: Conker v Natwest

Well thats much better than the £150 and charging order enforced if you miss a payment isn't it.

The £50 and charging order is most likely what the court would order tbh.

Your concerns over the CO leading to divorce - tricky one to discuss I know, the CO could be applied to just your part of the house so when/if it sells before you are paid up )or if you default and they try for a sale order) the CO is taken from your share of the equity and the remainder is in tact. She would be able to enter this agreement into the Land Registry (i think but will check later on) so that its a legal position, and her share isnt affected (If thats what the concern is)

[conker]

Re: Conker v Natwest

still would like to avoid this CO and all the grief that would go with it Ame.The judge turned them down on the last case the overdraft so why would they let them have one this time?If they were granted one does it mean that if we sell the house to move i would have to pay them off first??
Should i try and negotiate further with them by say agreeing to the £50.00 per month,explaining my personal situation(ie possible divorce)which would leave me in a worse postion,obviously request no more fees etc added,withdraw my attempt to get charges refunded and request no attempt for a CO is made whilst i am paying,after all they could still apply for a CO in the future if they wish.
How would we determine share of equity etc??Should we see a solicitor I presume??
What does the term fixed costs mean??

[Amethyst]

Re: Conker v Natwest

If you have kept up payments since the first CCJ part, up them to £50 now you have decided to go that way (and i agree with you), and try negotiate with them, if they wont then go through court and argue your case against the CO.

Fixed costs means the court fee and the Charging Order application fee. If you find Fuzzybrain's thread she worked out a voluntary order with Restons before going to court I'll dig it up for you and find out the details. I'll also find the thread about joint ownerships property charging orders.

[Amethyst]

Re: Conker v Natwest

When is a Charging Order not a Charging Order? - Legal Beagles

[Amethyst]

Re: Conker v Natwest

HFC issued court proceedings - Restons Collection Charge removed - Legal Beagles
and summarised - Restons back down on £3.5k Collection Charge - AGAIN ! - Legal Beagles

should help a lot

Fuzzy was worried about the CCJ rather than the Charge order, so did a voluntary CO consent , then changed her mind and went to court - got the CCJ and no CO. xxx

At first he said he was inclined to give a forthwith order but said he would not grant a charging order without a hearing. He asked me if i objected and i said i did and he gave me chance to raise my objections so i stated the following reasons:

We are in negative equity
We have not defaulted on any payments
It is a family home and the children need the security of their home
the debt is not joint and my husvand is not in agreement with a CO
That application for CO would increase the costs factors putiing us further in debt and that interest could be applied, thus meaning the debt would never be cleared

I questioned what the value of a CO was considering there is not any equity to secure the CO amount and that we should be given the chance of a repayment plan to show we are committeed to clearing the debt.

The judge agreed but said the repayment was a little long to be unsecured, so he offered me the option of having a payment order for 8 years @ £210 per month and he would refuse all applications for a charging orders should the repayment plan be adhered to. He did mention that the legislation of CO's maybe in changing in the future, so a CO maybe allowed when this new legislation comes in, but it is at least 3 years away.

[conker]

Re: Conker v Natwest

Thanks Ame letter of negotiation been sent so fingers crossed

[conker]

Re: Conker v Natwest

Hi Ame

The claimant is still insisting on a CO despite having explained my personal situation to them.I am still going to try one last time to get them not to apply and if not will have to sit in front of the judge and plead my case.If it goes to this stage..........

Can I appeal against the CO if the judge sides with them??

They have said the CO would only be against my beneficial interest on the property,how do they work this out??

I have also emailed you with further queries regarding this which i don't want on the public forum i hope you don't mind

Thanks
Conker

[Amethyst]

Re: Conker v Natwest

No worries. Re the personal issues I'm not sure that it would affect things directly so would be inclined to leave it alone.

Are you paying the £50 ?

Refuse the CO and continue with those payments and yes argue your case in court. Some judges are charge order happy some arent. But which ever so long as you pay the £50 a month the co cannot be enforced. If you sell in the meantime then you will arrange it yourself / through solicitors depending how the situation is with your OH, to split the equity taking that into account.

[conker]

Re: Conker v Natwest

no order to pay £50.00 has been finalised yet(still paying original ccj of £20.00) what about appealing if judge grants one?And how do they work out my interest in the house or do they not do this at this stage??
If i had to appeal would it be better with a soliitor??

Thanks again Ame(hopefully nearing the end!!)