charging order and bankruptcy

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Soulgrowth

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Post by Soulgrowth » Sun Sep 23, 2007 1:35 pm
Thanks one and all ... I have followed Mike's link and printed off the details and shall add it to my 'portfolio' of paperwork that I am taking with me to court on Wednesday. I'll let you know how I get on [:)]

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Lisa2009

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Post by Lisa2009 » Sun Sep 23, 2007 1:40 pm
Best of luck Debbie, i hope all goes well for you
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mikebdomain

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Post by mikebdomain » Sun Sep 23, 2007 1:50 pm
To obtain a charging order the creditor first needs to apply to the court for an interim charging order. No notice is required and the judge can grant the interim order without the debtor attending the hearing if he is satisfied that there are grounds for it. The judge will then set a date for the final hearing. The debtor must be given at least 21 days notice.

CHARGING ORDERS AND INTERVENING ORDERS
A bank obtained a charging order nisi over the defendant’s property. Shortly afterwards, the defendant obtained an interim order as a first step to an IVA under the Insolvency Act 1986, which provided that whilst the order was in force, “no other proceedings, and no execution or other legal process, may be commenced or continued against the debtor or his property without the leave of the court”.

The bank was not made aware of the order and obtained an order absolute. The defendant subsequently sought to have that order set aside under the Act, as leave had not been sought or given. The court sought to exercise its discretion and upheld the order in the bank’s favour.

On appeal, the Court of Appeal found that the court’s permission was a strict requirement before the charging order could be made absolute, and there was no discretion to maintain the order where that permission had not been obtained. So the interim order prevented an execution process without the Court’s permission.

This case can be contrasted with the decision in Ropaigealach v Allied Irish Bank (see Banking Bulletin - January 2002) where the court had exercised its discretion in allowing a charging order nisi to be made absolute where an instalment order for repayment of the charged debt had been made in the intervening period.

(information obtained from various Banking Bulletin publications)

Good luck Debbie

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Last edited by mikebdomain on Sun Sep 23, 2007 1:53 pm, edited 1 time in total.
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Soulgrowth

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Post by Soulgrowth » Sun Sep 23, 2007 2:10 pm
Thanks Mike.

I wonder what happens in the case where the Claimant failed to give the Debtor the required 21 days notice of the hearing as is the case with me.

To top it all, having paid the charge on Tuesday so as to be able to complete on the re-mortgage to release the monies for the F&F I then received a very pompous letter from the Claimants solicitors on Friday saying we have confirmed that we have received the money so we are cancelling the Hearing ... I bet they are ... sounds a bit like taking the money and running to me.

I contacted the court who, similar to other's experiences, have been brilliant and have assured me that the Hearing WILL go ahead and that I should turn up in plenty of time for the appointment.

Methinks some dirty tricks may have occured here.

I feel more confident in heading off to Kingston now ... thanks once again everyone.

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mikebdomain

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Post by mikebdomain » Sun Sep 23, 2007 2:14 pm
If they failed to give 21 days notice the court CAN NOT impose the charge. It is not a courts decision, it is a point of law.

"paid the charge" were they included in the IVA? I thought this was an interim charge....

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Last edited by mikebdomain on Sun Sep 23, 2007 2:29 pm, edited 1 time in total.
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Soulgrowth

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Post by Soulgrowth » Sun Sep 23, 2007 2:41 pm
It is a post IVA debt Mike ... the liability of which was overlooked during the original IVA proposal. I have had to come out of the IVA, remortgage to offer a F&F too ALL the creditors.

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mikebdomain

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Post by mikebdomain » Sun Sep 23, 2007 2:57 pm
OH OK ... The charging order is no longer required then, as they have had payment in full. You have to attend the hearing to stop the 'order absolute'... I understand now.

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Soulgrowth

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Post by Soulgrowth » Sun Sep 23, 2007 3:18 pm
That's about it Mike ... [:)]

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Adam Davies

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Post by Adam Davies » Sun Sep 23, 2007 5:57 pm
Hi
Just going back a bit,if NR is taken over I wonder what the buyer will think about the amount of unsecured loans that are sold alongside the mortgage product,representing upto 125% of the house value.
Very risky lending indeed and at a very low rate[low margin].
Another can of worms prehaps ?

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MelanieGiles

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Post by MelanieGiles » Sun Sep 23, 2007 6:02 pm
I suspect that will be the end of that product, don't you think - at least on an unsecured basis.

Regards, Melanie Giles, Insolvency Practitioner for over 20 years.

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mikebdomain

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Post by mikebdomain » Sun Sep 23, 2007 7:21 pm
In my opinion, this would not be before time. I am not the only person in the business who is niggled by some lenders (not naming anyone) back door methods of securing CCA debt that is only regulated by a CCL, when this sort of lending SHOULD come under the same regulation as a standard mortgage product.

Miss-selling does not come into the equation with a product where some of the debt is initially unsecured. I think these ‘together’ products ought to be considered as a single entity product and best advice regulation should prevail.

Unfortunately some lenders (again not naming any particular lender) are still offering these products and do not seemed to have learnt their lesson from recent events.

My niggle is that; the first part of the product is provided as a advice and recommendation first mortgage covered under FSA regulation, whereas the second part is provided on the basis of ‘advice only’ covered under a CCL.

I am always amazed when the courts allow these lenders to secure the second part, seemingly so easily… The lender took a risk of lending unsecured, based on their knowledge of the applicants’ ability to pay. They should be FORCED to suffer the consequences, when they get it wrong!

I have written to various lenders requesting information about their ability to secure this unsecured portion of lending as a product providing mortgage broker and recently to some of them as a shareholder – I am still waiting a response….


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LEYBRIDGE LIMITED
Mortgage Broker

Specialising in adverse credit.

see feedback and testimonials at:
http://www.leybridge.com/testimonial.php
Check out my blog at:
http://mikebdomain.blogs.iva.co.uk/
Please read our Initial Disclosure Document(IDD):
http://www.leybridge.com/Leybridge-IDD.pdf
LEYBRIDGE LIMITED
Mortgage Broker & Mortgage packager

Directly Authorised Firm FSA No:313790
CeMAP 1,2 & 3 qualified
F.P.C 1,2 & 3 qualified
Financial Planning Certificate
Certificate in Regulated Customer Care
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