Questions and Info relating to Property Issues inc, Charging Orders and Repossession

Moderators: TalbotWoods, JaneClack

ByNina
#462843 Would it be possible for anyone to give me some direction on which course of action I should be taking first in respect of a CCJ and Charging order on my property issued by Hitatchi Capital via Addlestone Solicitors.
I will start by briefing you on the situation,
I purchased a kitchen from B&Q in April 2013 (unsure of the exact date as it is not actually quoted anywhere),I originally payed a deposit of £652.75 and opted to pay the rest on a fixed term loan agreement via Hitachi credit of £5400,

A couple of days later I decided I would finalise the outstanding balance of the kitchen in cash directly to B&Q AND WITHDRAW FROM THE CREDIT AGREEMENT,as I was not happy with the agreement as there were to many inaccuracies on it,
I returned to the store and the band q assistant cancelled the agreement in front of me by calling Hitatchi credit,and also sending them an email,the outstanding balance was then paid by myself by debit card to B&Q,
End of scenario, or so I thought, as a few weeks later 1 payment of £100 or so pounds was taken from my account as cancelling the direct debit had been an oversight on my behalf.
I contacted Hitatchi to state the obvious etc,and they accepted this had been a mistake and advised I manually cancell direct debit.

Roll on now to January 8 2014 ,I received a letter from Addlestone keane solicitors stating they had obtained an interim charging order on my property and that a court date was set for Feb10 were an application for a full charging order will be applied for.
It also states that a CCJ was issued against me on Dec 6 13 for an amount owing of £5983.31,which I was totally unaware of as i had not been stay at the property as it was having building work done.

I have also had a B132 notice from land registery,informing me that an equitable charge has been placed on the title,

My question is ,
Do I address the CCJ first or the charging order,
Your advice in this matter would be greatly received

I have a N 2 44 form that I have filled but now I've been advised I also need the application to set aside must be supported by evidence and best practice is to lodge a pleaded defence which complies with CPR 16

Also the date for the full charging order is feb 10 does this need to be dealt with as a separate matter to getting the CCJ set aside if so what do I need to do
Help help help please
Getting majorly confused!!!
User avatar
ByTalbotWoods
#462853 Hi and welcome

OK I can see why this is getting confusing, could you answer a few more questions.

:arrow: Am I right in assuming that you have paid the FULL amount directly to B&Q. Therefore, there is no outstanding balance due to B&Q.

:arrow: That the CCJ is for funds that Hitachi would have given to B&Q by way of the finance package you signed up to.

:arrow: Other than the now verbal matter of seeing the B&Q assistant tear up the Finance agreement, the only evidence you have of the Finance being rescinded by Hitachi, is the email from them, which hopefully you still have.

With regards the CCJ and the CO it is always the CCJ that is challenged, and without there there can be no CO. Yes a CPR19 could be needed here. But....

If the information above is correct, then there are several aspects that need to be addressed.

1. Was the paperwork served to the correct address, if it was then the court may NOT accept a charge of having building work being carried out as a defence. especially as there would have been several elements to the correspondence sent.

2. Are you sure that Hitachi actually cancelled the account off, OK the B&Q assistant may have ripped an agreement up, but normally that would just be the paperwork side of it, the normally business one would have been dealt with electronically.

3. Other than an alleged email sent by B&Q to Hitachi and your phone call to Hitachi, is there any other evidence to show the agreement was cancelled.

4. Hitachi will be able to show a court 'evidence' that they have tried to contact you, over a period of time, are you able to account for and explain why this has not been dealt with. Remember you are going to have to explain paperwork and correspondence form Hitachi, Addlestone Keane and the Courts over many months.



Which brings me towards the main point, you may be being chased for a debt that is not between you and Hitachi, but between B&Q and Hitachi "ON YOUR INSTRUCTION".

If this is the case then you will need to seek legal advise, as you can 'currently' be fully held responsible for this type of agreement and it can get very very messy.

There is a supreme court case coming up in a couple of days dealing with a very similar case which should affect your case, so a stay should be requested at this stage until the outcome of the case can be heard.

http://www.theguardian.com/law/2014/jan ... reme-court

http://supremecourt.uk/current-cases/ca ... _0135.html

HOWEVER,

Until this case has been heard and ruled on, the only advice we can give is to seek legal advice, as literally what we could suggest today may be badly flawed in 4 days time!

Tim
ByNina
#463003 Hi
many tks for your email,
Yes the debt was paid in full to B&Q I have a bank statement, showing this transaction.(the finance agreement states the incorrect finance figures,
as my store receipt states the overall cost was £6052.75 a deposit was paid on the day of order for the sum of £652.75 leaving a balance of £5400,the loan agreement states kitchen was £6000
total cash price £6000
advance payment deposit £600
the amount of credit once agreement has been made £5400
total charge for credit 0
total amount payable £6000
I paid £652.75 initial payment next day outstanding £5400)

yes the CCJ is for the funds that Hitachi would of paid to B&Q
I did not receive any email or any thing from Hitachi in the next few days,

when I left the house I informed every one that I had financial dealings with my address were mail was to be sent ,as I did not consider Hitachi as anyone who I had to inform my I did not update any details,
it was pot luck really as to any letters that went to green lane as it was like a building site,,
I returned back home at beginning of new year and received the solicitors letter Jan 8
User avatar
ByTalbotWoods
#463023 Right

As this is a what I am going to call a Durkin type case, it is very hard to advise.

Simply because at present the law is saying one thing, and it is very possible that it is about to change.

As to what is being challenges is where and who has the finance money, I would even go as far as to suggest that if B&Q have had the finance money, AND your money, then B&Q owe you either the finance money or even your own money back.

It maybe that the correct case shoud be Hitachi v B&Q as they had the money, but until the Durkin case reports we do not know!

Hopefully we will have a clue in the next day or two, but if it is going to be delayed, then you should be requesting a continuance until AFTER the Supreme Court has ruled, and for that we can only and must recommend the service of a solicitor.

Tim
ByNina
#463033 Also should I be filling in a N244 or an N245
Should I ask more time on the date of the charging order as I'm opposing CCJ
I have both my loan agreement and Hitatchi / store copy agreement both undated and signed by either partys
It also clearly states on my loan agreement "you have the right to withdraw from this agreement without giving any reason for a period of 14 days the 14 day period will begin after the day we both sign it

NEITHER PARTY HAS SIGNED THE AGREEMENT
IT GOES ON TO SAY THIS CAN BE DONE IN WRITING OR ORALLY
IF YOU GIVE NOTICE OF WITHDRAWEL THE AGREEMENT WILL BE TREATED AS IF IT WAS NEVER ENTERED IN TO
User avatar
ByTalbotWoods
#463043 Do you have ANY written confirmation that you withdrew from the agreement.

All notices of cancellation are normally only legally binding if confirmed is in writing, this is nearly always a standard clause in finance agreements.

A verbal request is not accepted as a legal notice, this must and always will require the written back up proof that the verbal cancellation has been received and acted on, without that there is no proof of your request to cancel.

In ANY civil court the judge will want to see the prove, not a verbal statement, the onus is on YOU to prove the facts you are relying on.

I refer you once again to the fact that there is a case going through the Supreme Court that may completely effect the outcome and ALL the laws/rules/guidance that effects this type of case.

This is why at this stage ALL that can be suggested is:

Hopefully we will have a clue in the next day or two, but if it is going to be delayed, then you should be requesting a continuance until AFTER the Supreme Court has ruled, and for that we can only and must recommend the service of a solicitor, as there is a supreme court ruling involved.

If you beleive the CCJ should never have been awarded you complete a N244, you cannot stop the CO as that is now the full right of any and all creditors since last year. That will go ahead unless you stop the CCJ.

All you can do on the CO is request a continence for the Interim CO until the N244 has been heard AND the Durkin case reports back. This may or may not be accepted by the judge hearing the CO case.

Until the Durkin case reports we cannot offer any further advice, as much of what you are discussing also forms part of the case, so is subject to the outcome of the case.
ByNina
#466903 ]Well they got the charging order but in the meantime I applied to have the CCJ set aside ,the hearing is today,
what will happen today
also I asked for a true original copy of the agreement ,bearing in mind that I have them both the customer copy and the store hitatchi copy as it was given back to me when I cancelled both unsigned and in dated,
but they now seem to have 1 ESIGNED !!
but there is a row of number on the bottom that are different to on the forms I have so this can not not be the original ones I was given in store

notice the service number on bottom of for of thee sighted copy are different to on my copy.
User avatar
ByTalbotWoods
#466913 Hi

It is a shame that the set-a-side is today as the Durkin Case form the Supreme Court reports tomorrow!

So as before all that you need to do is prove the debt is none existent and as I have said before, one thought that may be worth considering is that someone owes Hitachi, who did they pay the money to.

I have a slight concern about the e-signature, di you or did an employee of B&Q type this in for you, OK if you did it at home, then the e-signature would be your, but it is a wee bit odd when a store fills the on-line stuff out for you

It maybe a case of showing proof you paid the money to B&Q to clear the outstanding amount. So if Hitachi also paid B&Q then there should be a money trail.

The judge today can be quite understanding, but dont try and pull the wool over their eyes, if you can provide the proof then you win the day. If not then I am afraid they will win the day

Tim
ByNina
#466923 ]I have just received an email from solicitors 1 hour before hearing stating they think my documents have been tampered and have provided a witness statement stating this
How can I defend this I have no legal representation
User avatar
ByTalbotWoods
#466943 I am sorry to hear of this new event.

Unfortunately this is something we cannot advise of, and really does the help of a solicitor.

However, I would comment that if evidence is threatened at this stage, I would be asking the judge to discount it at this late stage and most certainly I would be asking for a delay in the case.

Tim
ByNina
#468253 Well sorry for no reply earlier been a bit ill and stressed,
Well my app got dismissed as solicitors bough a statement from some so called expert that anyone could make a proof of payment ,so judge said unless I could bring a witness to say otherwise it would stand,
Tried not to think about it much last couple of weeks but now I need to get myself together send at least get a bit of protection while I ponder on my next step,as I know ther goin to go for an order if sale can just tell by how the dealt with my app to get CCJ discharged,
There are no restrictions on my charging order,
Does any one know how I can apply for a restriction preventing force of sale untill my children are 18 as at the moment there 10 and 11 and just me ,I will be really buggered if they try a force of sale
User avatar
ByTalbotWoods
#468263 Hi

Sorry to hear how this has gone, but lets see what can be done and I also assuming this was a final charging order hearing rather than an interim one.

First thing to do is "reluctantly" accept the CCJ and CO is in place and must be paid.

Now I suspect the CCJ is set up so that the amount is either being repaid in full 'forthwith' or in high instalments.

What you need to is now apply for a variation so that the repayments are set at a level you can afford. For this you will need to submit a N245 form. This is where you tell the judge DIRECTLY what your Income is, what your expenses are and what you can afford. It is unusual for the Judge to demand to see proof of income and expenditure, but please be aware they CAN as to see if they think you are telling porkies to them!

Remember the CCJ is against YOU so you are only dealing with your income

Providing you are honest and dont take the wee wee to much Judges tend to agree these, and once set that is all you have to pay each month. Providing the repayments are made, then the Creditor will not be allowed to push for a sale.

Creditors can object, but few do, as it can cost them, which cannot be recovered from you, and I have seen some set as low as £1 a month, but most agreed repayments are higher, but realistic into the long term!

The N245 (Application for suspension of a warrant and/or variation of an order) can be found here:

http://hmctsformfinder.justice.gov.uk/c ... 45-eng.pdf

You must send this to the court that awarded the the ORIGINAL CCJ, however some courts are accepting and dealing with Northampton Issued CCJs, please contact your local court to seek further advice


There is a fee of £80, but depending on your circumstances you may be eligible for a fee reduction.

The EX160A (Court Fees – Do I have to pay them?) Guidance and the EX160 Form (Application for a fee remission), can be found here:

http://www.justice.gov.uk/downloads/for ... upto-6.pdf

This is sent to the court that will deal with your application, if you have already paid you can use this to claim a refund of fee's paid


So get the variation done, and get the amount being repaid each month to a very sensible level, then revisit all other options

Tim
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