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

[lynton75]

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

Can anybody give me advice on what to do now? Can I somehow get this in front of a Judge at the Court where the Charging Order was made? If so, how do I do it? My problem is that the mortgage offer expires in May.

[Amy]

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

Do you have the details of the clause in the original contract?

The interest element (if indeed there is one) will need to have been fully particularised in the original agreement to allow BC to apply contractual interest post judgment since the debt is below £5k and is subject to the CCA 1974, despite what BC seem to think.

Ezekiel does not supersede the CCA 1974 and nor does it provide for an automatic right on the adding of interest.

[lynton75]

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

Do you have the details of the clause in the original contract?

The interest element (if indeed there is one) will need to have been fully particularised in the original agreement to allow BC to apply contractual interest post judgment since the debt is below £5k and is subject to the CCA 1974, despite what BC seem to think.

Ezekiel does not supersede the CCA 1974 and nor does it provide for an automatic right on the adding of interest.

Hi, no I don't have a copy. As far as I can find out, nobody has a copy. I have SAR'd HFC and Bryan Carter with no response and now it seems that Bryan Carter doesn't want to respond to my letters. The interest that BC is claiming is from the day of the Charging Order not from the day of the original CCJ. Carter claims that all Charging Orders are liable for interest to be charged since Ezekiel irrespective of the circumstances of the agreement. Twice I have asked BC who the client is that he is representing, but he won't tell me. I am of the opinion that HFC sold the debt long before it ever got to Court. I need to get this sorted ASAP. I don't mind giving BC £3500, but I do object to him having an extra £2000 when he is not entitled to it. Can you tell me what is my next course of action so that I can get him to accept the sum on the Chargeing Order?

[Amy]

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

Hi, no I don't have a copy. As far as I can find out, nobody has a copy.

You have a copy of the CO Absolute, as advised at post #3, is that correct? When BC took you to court, did you not receive any court papers at all?

The interest that BC is claiming is from the day of the Charging Order not from the day of the original CCJ.

Both occurred in 2001 though, yes?

Carter claims that all Charging Orders are liable for interest to be charged since Ezekiel irrespective of the circumstances of the agreement.

He is wrong, but I can see what he's thinking.

Can you tell me what is my next course of action so that I can get him to accept the sum on the Chargeing Order?

In your letter, who did you threaten to report them to?

[lynton75]

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

You have a copy of the CO Absolute, as advised at post #3, is that correct? When BC took you to court, did you not receive any court papers at all?




Both occurred in 2001 though, yes?



He is wrong, but I can see what he's thinking.



In your letter, who did you threaten to report them to?

I do not have a copy of the Charging Order now but one was sent to me at the time. I have requested a copy from the Court about three weeks ago. I did receive Court papers at the time which I cannot find. I was suffering from depression in 2000/2002, and I was being chased by four DCAs. So BC obtained the judgment by default. I could not face Court at the time.
The CCJ was in April 2001 and the Charging Order Absolute in November 2001. BC is calculating his interest from the Ist Nov 2001 when the CO was made.
I have reported him to the legal complaints service, but they replied:


I understand that the firm acts for another party in this matter. I can confirm that solicitors are obliged to act in the best interests of their own clients and to follow their instructions. If the firm does not do so, it is open to the client to complain. A solicitor is entitled to rely on the instructions that they are given by their client and, as long as they do not know that they are false or untrue, they have no obligation to apply a pre-trial screen to establish the truthfulness of any instructions.
It therefore follows that we are unable to consider the way in which the firm chooses to represent their client. If the matter does go to Court and the Court makes any criticisms of the solicitor’s conduct in conducting the matter before it, please contact this office again and the matter can be reconsidered in the light of any criticism that has been made.

[Amy]

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

Would you mind posting up your letters to BC?

[lynton75]

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

This was my first letter:

03 February 2009

Dear Sir

I am in receipt of correspondence sent from yourself to XXXXX Property Lawyers dated 29th Jan 2009 regarding a Charge secured against my property as referenced above claiming a settlement figure of £5,495.29.

I would take this opportunity to point out that I dispute this amount and I require you to provide a statement with a fully detailed breakdown showing how you have arrived at this figure, so that I may have this inspected.

I note that you claim interest is payable under the order. I would dispute that any interest is due, and that any attempt to recover interest is unlawful. No application was made at the hearing in Uxbridge County court for interest to be applied under the order, nor was any order made regarding interest. You will also be aware that no interest is recoverable on a County Court Judgement that was obtained due to a debt that was for an agreement regulated by the Consumer Credit Act, or is below £5,000.00. As the judgement at Northampton County Court dated 18-04-2001 was a claim against a debt regulated by the Consumer Credit Act no interest is recoverable. Therefore I require you state your reasons why you believe interest is payable under this Order and for you to supply copies of the relevant Court papers regarding this case in your possession that grant you authority to claim interest.

I also require you to provide me with the full name and postal address of any company that is seeking to receive monies in way of interest from myself under this Order, as I intend to bring action against any such company that obtains money unlawfully from myself.


They replied six days later with:

Thank you for your recent correspondence.
You should note that the interest relates to the Charging Order Absoloute obtained 01 November 2001. Interest may be claimed on a Charging Order of any amount at the statutory rate persuant to the case of Ezekiel v Orakpo 1997. This includes all debts under £5000. We therefore ask that you reconsider your position.
The outstanding debt is £3483.65.
Interest is calculated at the rate of 8 per cent per annum being 76 pence per day for 2690 days until 10 Feb 2009 which amounts to £2044.40.
The total due as at 10 Feb 2009 is £5528.05. We look forward to hearing from you with your proposals for payment.


I then replied on 11th Feb with:

Tank you for your letter dated 9th Feb 2009 and I have noted it's contents.
I have not changed my position and I consider your attempt to claim interest on this Charge as unlawful. You quote Ezekiel v Oprako (1997) However, this case concerned the Limitation Act and interest up to the securing of the Charging Order. This is of no relevance to the matter we are discussing.
As I stated in my previous letter you are aware that you are not able to claim interest if the original agreement was regulated by the Consumer Credit Act, or if the debt was below £5000.
I therefore request confirmation by return that you are willing to accept payment of the sum listed on the Charging Order as full and final settlement, otherwise I will be making a formal complaint to the relevant authorities.
In my previous letter I requested the details of your client who will receive the monies detailed in the Charging Order. I note that you have ignored this request. Please supply the full name and address of your client.
I have attached a formal Subject Access request for your compliance.

They have not been so quick to reply to this letter as I have had nothing from them. Both letters were sent special delivery.


Th

[Amy]

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

Very good letters.

BC is even wrong on the type of interest. Ezekiel was contractual interest not statutory.

Is BC aware that the mortgage offer expires in May per chance?

[lynton75]

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

Very good letters.

BC is even wrong on the type of interest. Ezekiel was contractual interest not statutory.

Is BC aware that the mortgage offer expires in May per chance?

BC may shoot himself in the foot here, because if the offer expires he will be receiving nothing.
Is there anything more I can do myself now, or is it time to consult a solicitor? The problem with that is paying a solicitor may be more expensive than paying BC.

[lynton75]

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

Knock me down with a feather!!!

Letter received from our friend this morning::


Whilst we do not accept your contention that we are not entitled to charge interest, in order to resolve this matter, we will accept the sum of £3483,65 in full and final settlement of the balance outstanding provided that payment is received by us within twenty-eight days from the date of this letter.
On receipt of £3483.65 cleared funds, we will take steps to release the security attatched to this account

Interestingly BC has headed this letter WITHOUT PREJUDICE. Is this because he feared that I was returning to Court?

[Amy]

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

Excellent news! That is a fantastic result, I'm really pleased for you.

It just goes to show that he was trying it on in the hope that you wouldn't query it. I wonder how many other people he has fleeced in this manner.

[WendyB]

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

Great news! Another one in the eye for Bryan..

As Amy says, how many more people has he tried it on with and got away with it?

Well done!

[lynton75]

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

What is interesting is that he actually complied with my SAR. Nowhere is there a copy of the original agreement, original CCJ papers, or even a copy of the Charging Order. All there is is a time line of events, plus about three pages of transcripts of telephone calls when they had phoned me demanding payment, after securing the CCJ.
I have also had a letter from the Court today saying that due to the length of time involved no paperwork exists for this case anymore.
So BC has probably had a result because if I had more time to play with I reckon that I could apply to have the judgment set aside because nothing exists showing that I ever owed HFC any money or any paperwork showing BC purchased the debt or has any right to collect.
However I do accept that I do owe the money to someone, even if not BC, and it is easier at this time just to wipe my face of it.
Thanks for the help.

[Amy]

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

Like I said earlier, he was trying it on. BC knows full well that Ezekiel is completely irrelevant.

It's a great result.