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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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SETTING ASIDE A CHARGING ORDER.

Resolved Question:

I 've APPLied TO COURT TO SET ASIDE A CHARGING ORDER : I'VE READ THAT MY CHANCES ARE SLIM- MY PLAN IS TO GET AN IVA /I'M IN PROCESS OF GETTING AN IVA. TRYING TO PERSUADE OTHER CREDITORS TO AGREE TO THIS. DID WRITE TO JUDGE 7 DAYS TO HEARING TELLING HIM THAT I HAVE APPLIED FOR AN IVA.AS HAVE OTHER CREDITORS CHASING ME. AT HEARING I DIDn't SAY MUCH BUT I WAS GIVEN a n244 form .judge was sympathetic towards me, is applying for an iva gonna cut it?stand in court -obviously natwest is going to be difficult to convince to an iva.i need this charging order discharged.


don't tell me what i already know.have read a lot about this .

Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : What date is the ccj and what date is charge? Did you attend the hearing please?
Customer:

the ccj is a loan and a credit card.NATWEST.The the hearing was on25th feb i did attend .obviously didn't understand a word of what the judge and natwest representative were talking about.

Alex Watts :

what about the CCJ, was this defended?

Customer:

i must say thecc j was applied before oct 2012.when i took the loan i already had ahouse but natwest didn't go for a secured loan.which i have hilighted in y n244 form reply to the court.

Customer:

i will say no ,what do you mean defended?

Alex Watts :

Ok - when the initial claim was issued, did you defend it?

Customer:

no

Alex Watts :

Did they get Judgment in default?

Customer:

i will say no- what do you mean?

Alex Watts :

Ok - when you had the claim form, did you file a defence?

Customer:

by jugdement default

Alex Watts :

What date was that?

Customer:

i did not defend the ccj i tried to set up a payment plan that wenton for about a year but got into financial difficulty

Alex Watts :

What date was the CCJ?

Customer:

so stopped paying then they went for the interim order then final order

Alex Watts :

What date was the CCJ?

Customer:

ccj it dates back to 2011

Alex Watts :

Ok.

Alex Watts :

Then you have a problem

Alex Watts :

You cant set aside the charging order because it was granted at a hearing

Alex Watts :

You can ONLY appeal it.

Alex Watts :

But you can only appeal if:

Alex Watts :

1) there was an error in law

Alex Watts :

2) there was an error in procedure

Alex Watts :

3) or the decision was one which no reasonable Judge could have made.

Alex Watts :

Sadly because there is a CCJ and you have been paying it, if you fell behind then they are entitled to apply for a charge.

Alex Watts :

Actually the law statues even if you are not in arrears you can apply for a charge.

Alex Watts :

As there is a CCJ the Judge is entitled to grant the charge.

Alex Watts :

The Judge would have no reason to refuse the application.

Alex Watts :

Therefore all you can do is appeal. but in reality you have no grounds to appeal.

Alex Watts :

You can't apply to set aside.

Alex Watts :

I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Why did they give me aN244 then?

Alex Watts :

Court staff are not legally trained.

Alex Watts :

But if there is a hearing you can't apply to set aside, it is an appeal

Alex Watts :

You can only apply to set aside if there has been a decision without a hearing

Customer:

what for do i use for that?

Alex Watts :

Hold on

Customer:

what form do i use for that?

Alex Watts :

Form N161

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n161-eng.pdf

Alex Watts :

But you need grounds to appeal.

Alex Watts :

I dont think you do - the Judge was quite proper to make the decision

Alex Watts :

Sadly you can't appeal on merits - just because you dont like a decision

Alex Watts :

There MUST be something wrong with it.

Customer:

is being on the process of applying for an iva reason enough? more over i have other debtors chasing me

Alex Watts :

Sadly not.

Alex Watts :

You are not IN an IVA you are only applying it

Customer:

who are willing to talk about an iva

Alex Watts :

If you were in the IVA then it may have been a different matter

Alex Watts :

This does not stop you going for an IVA

Alex Watts :

It just means the charge debt is now secure on property

Customer:

can it be included in the iva?

Alex Watts :

No, because it is already secure.

Alex Watts :

They would have no reason to give it up, they have property as security

Customer:

so really there is nothing i can do?

Alex Watts :

Sadly not.

Alex Watts :

There was a CCJ, you fell behind, they applied for a charge, it was granted quite properly.

Alex Watts :

I am sorry that its not the answer you want and I wish the answer was different.

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

why did they take my N244 and my £80 if i cannot apply to set aside ? will they return it?

Alex Watts :

Because Court staff are not legally trained.

Alex Watts :

If you go back before a Judge, they will say the same thing

Alex Watts :

You have to appeal and your application will be dismissed

Alex Watts :

If you ask for a refund now then yes, you can get it back

Alex Watts :

Can I clarify anything else?

Customer:

no

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.


Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.


 


Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Customer:

just one more question - if i propose to pay through court -will they allow that ?

Alex Watts :

Yes I would think so.

Alex Watts :

You could apply to stay enforcement of the charge based on payments of £x a month (whatever you propose).

Alex Watts :

Does that help?

Customer:

what form will i need for that?

Alex Watts :

You can use form N244 for this and ask a Judge to do it.

Alex Watts :

So you could use the fee you have paid to ask the Court for a hearing for payment by installments

Customer:

will it mean the charging order is still in place?

Alex Watts :

Yes, but they can't do anything about it whilst you may the agreed payments

Customer:

do i have to go for hearing , i don't see a point of hearing as they talk over you and shut you down-most times don't understand what they are on about. better reading it .

Customer:

they don't seem to have tie to explain for slow minds

Alex Watts :

Yes you would need to go to a hearing. But take your income and expenses details and a Judge can Order.

Customer:

time not tie

Alex Watts :

Yes.

Alex Watts :

You could apply for this without a hearing if you provide income and expenses

Customer:

would rather do that - will get a new N244 form then problem is det is now

Customer:

debt is now£16000 what can i pay £100

Alex Watts :

Yes you need a new form N244. You are asking to vary the order to allow for payment by installments

Customer:

what about interest?

Alex Watts :

They are entitled to that if it was claimed on the original CCJ

Customer:

will try that

Alex Watts :

Ok.

Alex Watts :

Can I clarify anything else?

Customer:

not now, just looking at alternatives really . there doesn't seem to be much

Alex Watts :

Sadly not. I am sorry

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.


Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.


 


Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Alex Watts :

Please remember to leave feedback before you go today

Ash and other Law Specialists are ready to help you