Grounds for setting aside a charging order?

[Creamlily]

I am intending to challenge a charging order which was made on my house last year by Nat West. My intention is to challenge both the amount (just under £20,000 for an original overdraft of £2,000 the remaining £18,000 being entirely made up of charges and interest) and also the legality of the charging order being made on the grounds that I was not in arrears with any court orders to pay specific monthly amounts as per the ruling in Mercantile Credit v Ellis.

I am not sure what my chances of success will be but I was wondering if there is any other case law where existing orders have been overturned, any other grounds for challenging orders and/or any specific advice on how to do it? I think I need an N244 form alongside a witness statement (template?) but confirmation I'm on the right track would be very welcome.

:beagle:

[Guest]

Re: Grounds for setting aside a charging order?

You are on the right track. On what basis have NatWest applied for a charging order, if you were not in arrears with a judgment debt?

[Creamlily]

Re: Grounds for setting aside a charging order?

Part of their claim is legitimate. I had a business buying, renovating and selling houses. My last project was a disaster due to my builder having a car accident and subsequent overrun of project. This followed by three sales in a row falling through and then the Northern Rock collapse. I could have paid the mortgage if Nat West would have allowed me to rent the house out but they refused and went instead for reposession. The process ended in a forced sale at £125,000 less than the last offer I'd had on the house. This did not pay back the full mortgage and so they called in my personal guarantee of £50,000. They tacked on the extra £20,000 from a personal bank account which during my negotiations with them prior to the court case, they had undertaken to write off.

I was not in arrears with a judgement debt because they went straight for the CO without any CCJ being in place first. No other creditors were taken into account it was simply a forthwith judgement in my absence for the full amount.

[Guest]

Re: Grounds for setting aside a charging order?

Did they apply ex parte, or did you somehow miss their claim form?

[Creamlily]

Re: Grounds for setting aside a charging order?

No I cannot claim ignorance of the case just ignorance of what to do. I thought, at the time, that the extra money was legal costs and did not understand what they had done until after the event.

there were also some fairly major (and bad) life events at the time so I found myself being overtaken by events.

[Guest]

Re: Grounds for setting aside a charging order?

Have you taken legal advice on this or are you intending to do this as a Litigant in Person?

It is not terribly difficult, provided that you are prepared to learn, but it will be time consuming given that you have already stated that you were ignorant of what to do.

When did this happen and can you post up their Particulars of Claim, having first removed any identifying information?

[Creamlily]

Re: Grounds for setting aside a charging order?

I am intending to do this as litigant in person. I did go to a solicitor at the time but his advice was that there was nothing I could do. It occurred to me that I am the most motivated to find an answer to this and, therefore, with a little help from my friends, probably the best!

here comes the part when I am possibly not so good. Happy to post particulars of claim but not sure how. if someone could tell me what to do I will post as requested.

[Creamlily]

Re: Grounds for setting aside a charging order?

Would be grteful for response to last question?

[Amethyst]

Re: Grounds for setting aside a charging order?

Hi creamlilly, if they arent too long, it is probably easiest to type them out.

[Creamlily]

Re: Grounds for setting aside a charging order?

Thanks. I am hunting out all paperwork today and will upload it all over the weekend. The plan is to get everything together and send it all off by Monday.

[Amethyst]

Re: Grounds for setting aside a charging order?

A forthwith order, if not paid by the set date, even if redetermined to monthly installments afterwards, allows for the claimant to apply for a charging order. Mercantile v Ellis won't assist as you didnt have an installment order originally.

You can only apply to set aside the original judgment, but best to look at the case fully first as it could work out quite an expensive proposition if you end up with the same result.

I really wouldnt rush it.

[Ihaterbs]

Re: Grounds for setting aside a charging order?

Have you sent Natwest a DSAR?

[Creamlily]

Re: Grounds for setting aside a charging order?

What is a DSAR?

[Creamlily]

Re: Grounds for setting aside a charging order?

OK Herewith wording of orders etc for advice:

The bank was claiming a £50,000 personal guarantee on a loan taken out to buy, renovate and sell a house. This was a business deal (limited company) on a loan that was due to be paid back in six months. I now understand that the particular type of loan I had was unregulated. The builder concerned had a car accident and this was followed by sales falling through and then the Northern Rock collapse. I could not, therefore, pay the loan back in the prescribed six months as the only method of repayment was sale. At the time I could have rented it out (several times over) and this would easily have paid back any mortgage but the bank refused to convert the contract and went instead for posession. They also added in to their claim and request for a charging order a personal overdraft over just over £1,000 that, with the addition of charges and interest, has gown to just under £20,000.

Personal Guarantee
Guarantor; Me
Debtor; My company
Bank; Nat West
Interest; Interest at the rate(s) charged by the Bank from time to time,
Debtors obligations; All the Debtor's liabilities to the bank of any kind and in any currency (whether present or future actual or contingent and whether incurred alone or jointly with another together with the bank's charges and commission interest and expenses payable by the debtor.
Expenses; All expenses (on a full indemnity basis) incurred by the bank at any time in connection with the debtor's obligations or in preserving, defending or enforcing the security created by this deed or in exercising any power under this deed or otherwise with interest from the date they are incurred.
Required Currency; The currency or currencies in which the debtor's obligations are expressed from time to time.

Guarantee and Indemnity

1 The Guarantor in consideration of the Bank giving time or credit or banking facilities to the debtor

1.1 Guarantees to discharge on demand the debtor's obligations with interest from the date of demand and

1.2 Agrees that any item or amount claimed by the bank to be included in the debtor's obligations which is not recoverable under this deed for any reason on the basis of a guarantee shall nevertheless be recoverable from the guarantor as principle debtor by way of indemnity and the guarantor agrees to discharge that liability on demand with interest from the date of demand.

Provided that the amount recoverable under this deed shall not exceed the total of FIFTY THOUSAND POUNDS STERLING (50,000) together with interest on that sum since the date on which interest was last compounded in the books of the bank and interest on that total from the date of the demand and expenses.

Expenses

2 The guarantor agrees to pay expenses to the bank on demand.

3.1 ?????????????shall be a continuing security notwithstanding the death or disability of the guarantor until the ??????????/one month from the date of receipt by the bank of written notice to the bank by the guarantor or his personal representatives to discontinue this deed.

3.2 Notwithstanding notice of discontuance under Clause 3.1 :-

3.2.1 The guarantor giving notice shall remain liable for all the debtor's obligations as at the date of the expiry of the notice

3.2.2 Any guarantor other than the guarantor giving notice shall continue to be liable to the bank under this deed which shall remain a continuing security in respect of each guarantor

Arrangements with the debtor and others

4 The bank may without the consent of or notice to the guarantor and without releasing or reducing the liability to the bank of the guarantor under this deed:

4.1 Allow to the debtor or any other person any time or indulgence
4.2 Grant to the debtor or any other person any new or increased facility and increase any rate of interest or charge
4.3 Enter into renew vary or end any agreement or arrangement with or liability of the debtor or any other person
4.4 Renew vary refrain from enforcing or release any present or future security or guarantee which the bank holds from the debtor or any other person
4.5 Compound with the debtor or any other person

Preservation of the guarantor's liability

5 The guarantor's liability to the bank under clause 1.1 shall not be affected by

5.1 The absence of or any defective excessive or irregular exercise of borrowing powers of the debtor
5.2 Anything which would not ave released or reduced the Guarantor's liability to the bank had the guarantor been a principal debtor to the bank instead of guarantor

Preservation of the Bank's claim

6 Until al claims of the bank in respect of the debtor's obligations have been discharged in full:
6.1 The guarantor shall not be entitled to participate in any security held by the bank or money received by the bank in respect of the debtor's obligations
6.2 The guarantor shall not in competition with or in priority to the bank make any claim against the debtor or any co-guarantor or their respective estates nor make any claim in the insolvency of the debtor or any co-guarantor nor take or enforce any security from or against the debtor or any co guarantor
6.3 Any payment received by the guarantor in breach of clause 6.2 and any security taken by the guarantor from the debtor or any co-guarantor shall be held in trust for the bank as security for the guarantor's liability to the bank under this deed

Appropriation

7.1 Subject to clause 7.2 the bank may appropriate all payments received in respect of the debtor's obligations in reduction of any part of the debtor's obligations as the bank decides
7.2 The bank may open a new account or accounts after the security is created by this deed has been discontinued or the bank has demanded payment from the guarantor. Whether or not the bank opens any such account no payment received by the bank after such discontinuance or demand shall (if followed by any payment out of or debit to the relevant account) be appropriated towards or have the effect of discharging any part of the debtor's obligations outstanding at the time of discontinuance or demand

The bank may place to the credit or suspense account for so long as it considers desirable any money ????????/under this deed without any obligation to apply it towards the discharge of the debtor's obligations

Preservation of the Bank's ights

8.1 This deed is in addition to any other guarantee or security present or future held by the bank in respect of the debtor's obligations and shall not merge with or prejudice such other guarantee or security or any contractual or legal rights of the bank
8.2 This deed shall not be released or affected by by any failure of the bank to take any security or by any other guarantee or security held by the bank or any intended guarantee or security in respect of the debtor's obligations being void or unenforceable or not completed or perfected
8.3The guarantor shall remain liable under this deed notwithstanding any settlement between the bank and the guarantor or any release given by the bank to the guarantor until any security given or payment made to the bank by the debtor or any other person cannot be avoided or reduced under the law relating to insolvency from time to time in force and the bank shall be entitled to retain any security held by it for the Guarantor's liability until it is satisfied that it will not have to make any repayment under such law
8.4his deed shall remain the property of the bank after any release or settlement of the Guarantor's liability to the bank
8.5 The guarantor shall not claim any set-off or counterclaim in respect of any payment due from the guarantor to the bank under this deed

Powers of the Bank

9.1 The bank shall have a lien on all proerty of the guarantor held by the bank whether for safe custody or otherwise
9.2 In addition to any lien or right to which the bank may be entitled by law the bank may from time to time without notice and both before and after demand set-off the whole or any part of the guarantor's liability to the bank under this deed against any deposit or credit balance on any account of the guarantor with the bank (whether or not that deposit or balance is due to the guarantor)
9.3 Despite any term to the contrary in relation to any deposit or credit balance on any account of the guarantor with the bank that deposit or balance will not becapable of being assigned dealt with mortgaged or charged and will not be repayable to the guarantor before all the guarantor's liability to the bank under this deed has been discharged but the bank may without prejudice to this deed permit the guarantor to make withdrawals from time to time
9.4 The bank may exchange or convert to the required currency any currency held or received

Certificate of the debtors obligations

10 A certificate signed by an official manager of the bank as to the amount of the debtors obligations or the amount due from the guarantor under this deed shall be conclusive evidence save in the case of manifest error or on any question of law

Notices

11.1 Any notice or demand by the bank may be sent by post or fax or delivered to the guarantor at the guarantor's address last known to the bank
11.2 A notice or demand by the bank by post shall be deemed served on the day after posting
11.3 A notice or demand by the bank by fax shall be deemed served at the time of sending

Governing law

12 This deed shall be governed by and construed in accordance with English law

13.1 ??????????more persons are included in the expression 'debtor' then the use in this deed of the word ?????/shall be deemed to refer to such persons both together and separately and the debtor's obligations shall be their joint and several obligations
13.2 Where the debtor is a partnership the debtor's obligations shall include those (in relation to the partnership business) of the persons from time to time being members of the partnership and the guarantor's liability under this deed shall continue and this deed shall remain a continuing security despite any change in the constitution of the partnership
13.3 If two or more persons are included in the expression 'guarantor' then the use in this deed of the word 'guarntor shall be deemed to refer to such persons both together and separately and their liability under this deed shall be joint and several. None of them shall be released from any liability to the bank nor shall the security created by this deed be discontinued by reason of this deed not being or ceasing to be binding upon any other of them whether or not by agreement with the bank
13.4 The expression Bank where the context admits includes its succesors and assigns
13.5 The expression debtors obligations also includes (except in Clause 1) any interest and expenses payable by the guarantor under this deed
13.6 Interest will be calculated both before and after judgement on a daily basis and compounded according to agreement or in the absence of agreement monthly on such days as teh bank may select
13.7 Each of the provisions of this ded shall be several and distinct from one another and if one or more of such provisions is invalid or unenforceable the remaining provisions shall not in any way be affected.

Signed dated and witnessed


That is the guarantee. I will post it and then type out the claim for any advice you may be able to offer.

many thanks

the borrower has offered the bank the above security.

[Creamlily]

Re: Grounds for setting aside a charging order?

Herewith the wording of the claim.

The defendant is indebted to the claimant in respect of funds outstanding on the following two accounts:

1. Advantage Gold Account Number
2. Guarantee dated 4 October 2004 for the borrowings of my limited company

Advantage Gold account is a regulated account under the Consumer Credit Act 1974.

The claimant sent Default Notices and/or Formal Demand to the Defendant. The Defendant has failed to repay the sums demanded within the specified time limit or at all.

AND THE CLAIMANT CLAIMS:

(A)

1. £3,719.29
2. £64,635.10

(B)

Interest at the contractual rate or alternatively to Section 69 of the County Courts Act 1984 from 17th August 2009 until such time as the court deems just.

(C)

Costs

dated 17th August 2009

If someone could look at this for me and give me their thoughts on both this and the guarantee I posted before I would be really grateful.

One of the biggest difficulties I have had is getting Nat West to give me any information - statements etc - so I can see how the claim is made up - although I do have that for the personal account overdraft but not for the mortgage resulting in the personal guarantee claim. Interestingly the ombudsman is having exactly the same problem. My complaint to them has been in since September last year and he still says that he is waiting for information from Nat West which has been requested but yet to be provided.

Looking forward to response.