Charging Order,Bryan Carter claiming interest due. Anybody help?

[lynton75]

Hi, First post here, so please be gentle. HFC Bank obtained a CCJ against me in 2001 for non payment of a loan for a new kitchen, this resulted in Bryan Carter and Co obtaining a Charging Order against my property in 2001. The debt was for about £3600. I should say that I have only ever paid £100 against this debt since the Charging Order was obtained. I am now in the process of remortgaging and the solicitor has contacted Carter who is claiming that interest is due on the debt, approx £2000. I have written to Carter questioning his right to charge interest and he has replied stating:

"the interest relates to the Charging Order Absolute. Interest may be obtained on a Charging Order of any amount pursuant to the case of Ezekiel v Orakpo 1997. This includes all debts under £5000."

Can anybody advise if this is correct? No application was made for interest to be applied at the hearing of the Charging Order. Please help!

[Amy]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Was an interest clause included in the judgment for the charging order?

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Thanks for the reply.
Not on the copy of the Charging Order Abosute that I have, however my copy is dated July 2001 and Bryan Carter quotes a Charging Order he obtained in November 2001. How does that work?
Is the caselaw he quotes rellevant?

[Amy]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Ezekiel v Orakpo [1997] concerned the Limitation Act. A charging order had been made in 1982 to secure a judgment debt secured in 1979. The judgment creditor did not look to enforce the charging order until almost 12 years had elapsed since the making of the charging order. If interest were included it would have amounted to over £75,000.

The court of Appeal held that the judgment creditor was not bringing an action on the judgment or seeking to enforce the judgment. He was seeking to enforce his rights as a secured creditor under the equitable charge created by the charging order. As such the Limitation Act did not apply.

Interest cannot be charged if the agreement is regulated by the Consumer Credit Act, which applies to most ordinary credit agreements, including bank overdrafts or if the debt is less than £5,000 in total.

Frankly, I think Mr Carter makes it up as he goes along.

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Hi, Amy. Thanks for the reply. What is my next move? Bryan Carter is saying that unless the total amount he is claiming is paid, I cannot have the Charge removed. Is there any way that I can resolve this with him?

[Amy]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Write to him stating the figures owed in the original charging order and point out where he is wrong and why (which I'm sure he already knows).

He's just trying it on.

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

OK, will send letter today. But, assuming that BC won't play ball and demands the interest full stop, what can I do? Is there any way of using the Court process so that this can be settled? My problem is, as I said that I am in the process of remortgaging, and this is holding things up big time. Am I stupid to consider paying the interest to BC to speed things up, and then me bringing action in the County Court against him to recover it?

[Amy]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

It is entirely up to you, but a letter explaining that he is wrong on three counts:-

1. Ezekiel v Orakpo [1997] concerned the Limitation Act and interest up to the securing of the CO
2. Interest cannot be charged if the agreement is regulated by the Consumer Credit Act and;

3. the debt is less than £5,000 in total

cannot do any harm. Also put in the letter that you will report him to the relevant authorities for holding up your remortgage. If you need any help with a letter, let me know.

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Thanks. In my letter, (so that it sounds as though I know what I'm talking about!) should I list who I will report him to? If so, who is on the list? Many thanks for your help.

[Glenn UK]

OK, will send letter today. But, assuming that BC won't play ball and demands the interest full stop, what can I do? Is there any way of using the Court process so that this can be settled? My problem is, as I said that I am in the process of remortgaging, and this is holding things up big time. Am I stupid to consider paying the interest to BC to speed things up, and then me bringing action in the County Court against him to recover it?

If your situation means that not paying the interest would be a big problem for you then you could pay 'under duress' with a view to reclaiming it via the courts when the CO has been removed.

I know you can do this with items like cars that are repaired and the bill is in dispute but the garage wont let you have the car back until you pay their bill.

So it would need some thought and maybe others have a view, but it would be a real shame to pay them the interest if they are not entitled to charge it with no prospect of getting it back.

Edit i did a quick google and it seems that payments made under duress may be recoverable but there are some key issues. The first is that if a payment is made that the recipient is made aware that the payment is made under duress and that the payer intends to take action to recover it. I think from the little reading I have done that the consequences of not paying would be a factor in determining whether or not that economic duress is a real factor or not.

JMHO

Glenn

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Ok, update on this. Bryan Carter are refusing to stand down, and are demanding interest is payable. I cannot even get BC to tell me who the client is who he is working for, my suspicion is that it is not HFC Bank who probably sold the debt before it went to Court. My problem is that without an agreement from BC as to the amount I cannot remortgage as the mortgage company want the charge removed, which BC say they will only do if I pay him £2000 on top of the original amount, so it is a stalemate. How can I sort this out? Is there any way that I can get this case back in front of a Judge so that it can be decided whether BC is right? If so, how do I go about it?

[WendyB]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Did ypu send the letter as advised by Amy in post #8?

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

Hi, yes I sent the letter, they replied interest still stands, I sent a further letter stating that I consider they are wrong, and they are standing firm, asking for interest of £2000.

[Amy]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

On what grounds are they telling you that you are wrong and they are correct?

[lynton75]

Re: Charging Order,Bryan Carter claiming interest due. Anybody help?

On what grounds are they telling you that you are wrong and they are correct?

BC say that since Ezekiel v Orakpo all Charging Orders including those with amounts below £5000 that interest is chargeable.