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Did you defend the original claim please or did you accept the debt was owed?
Thanks. So you never received the original claim and therefore did not have a chance to defend the matter? Do you dispute you owe monies or part of the monies?
Would you like to continue?
Thanks. What kind of debt is it? Is it a consumer loan for example or something else?
Is there a reason in particular you do not want a charge placed on your property?
Thanks. On the basis of the above you can seek to set aside the judgement on the basis that you did not receive papers however if you do not dispute that you owe the monies this would be a pointless exercise in many ways.
You can apply to the judge to give you time to pay the monies however a charging order is not an order that orders you to pay monies straightaway. It is simply a charge over a property you own which will sit there until a) you repay the monies and any interest or b) you wish to remortgage or sell the property.
You will not be able to sell the property or remortgage the property without the consent of the judgement creditor.
If you were not aware that proceedings had been issued, as above you can make an application to set the judgement aside using form N244. If this application is accepted, the charging order will be suspended and a new hearing date will be set where you can defend yourself against the claim. As above this would only probably be worthwhile if you dispute that the claimant has a claim against you or disputes the amount claimed.
If you agree with the judgement in principle, you can ask for a redetermination of the judgement within 14 days of it being handed down so that you can agree repayment by installments.
Failing the above, the potential arguments you could deploy to resist a charging order are as follows - you should attend the hearing: -
The court must consider whether it is reasonable to make a charging order. Under The Charging Orders Act the judge has to consider all the circumstances of the case and in particular:
- The personal circumstances of "the debtor"- Whether any creditor would be "unduly prejudiced". This means the court has to decide if making a charging order would disadvantage other creditors.
The arguments you can use against the order being made will vary depending on your circumstances, whether you have any other debts, whether you have equity in your house and own your home in joint names or on your own.
These are some of the factors that the court may consider:
* Does any member of your family have a disability or serious illness? * If you have a number of debts and making a charging order in favour of one creditor would give them unfair priority over other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be upset by an order being made. Point out if any of the debts are larger than this debt and if any other creditors have frozen the interest. * Your creditor is supposed to list all the other creditors that they are aware of in the application for an interim charging order. * The court can order the interim order to be sent to the other known creditors but does not have to do this. This means that creditors who may want to object to the final charging order being made will not know about the hearing. You can raise this in your written objections and at the hearing if you think a creditor may be "unduly prejudiced" by the charging order being made. * Could the creditor have given you a secured loan when you first took out the loan? If they decided to offer an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made. * There are other ways the court could enforce payment of the debt. You could ask the court to make an installment order so you make monthly payments you can afford, or an attachment of earnings order so that the installments would come directly from your wages. This is only useful if you are employed and your employment would not be at risk. * If your debt is covered by the Consumer Credit Act you can apply for a Time Order. Ask the court to look at this application before the charging order. A Time Order can change the monthly payments and extend the length of time you pay the debt for. * If you owe less than £5,000 in total to all your creditors, you can argue that the debt should be included in an administration order rather than the charging order being made final. * If you are likely to be made bankrupt, you can argue that a charging order would give the creditor an unfair advantage over other unsecured creditors. * If your home is worth less than your mortgage (also known as "negative equity"), then you can argue it is not worth a charging order being made, as the creditor would not be paid off, even if they forced your home to be sold. * If the debt is very small in comparison to the amount of equity in your home, argue that a charging order would be unfair. * You should point out any particular hardship which your family would suffer if a charging order was to lead to the sale of the home. This is particularly important if the debt is in your name but you own your home jointly so it is not even your partner's debt.
If none of these arguments are successful and the court makes a final charging order, you can still ask the court not to let your house be sold as long as you pay monthly installments. Make an offer to pay in monthly installments at the hearing. If the court will not look at your offer at the hearing, you can still apply to pay in installments by using an application form called N245.
Is there anything above I can clarify for you?
Hi thanks can i get the court date changed? can i ask to pay over time before the court date or do i have to ask for that at the time ? as i have ask the landlord to pay over time and he will not talk to me and his solicitor will not respond to me as well ?
You can ask the court for an adjournment if you are unable to attend. You should give a good reason for your request. You can make an application for installments before the hearing date if you wish but the matter will be determined at the hearing when held rather than before.
You can make the application directly to the court if you are unable to agree between you and the claimant or his solicitor.
ok how do i ask the court to agree a payment plan and can that be done before the court date?
You may consider using form N245
can i send that in defore the court date?
You can do so with your letter requesting an adjournement
Does the above answer all your questions or is there anything I can clarify or help with any further?
i think that is it many thanks jonathon