Interim Charging Order

[allan.f]

I have just received a notice from the court regarding the Interim charging order started by Mortgage Express (details in forum last weekend 3/4th)it states that no-one turned up so the notice read "EX PARTE" and the order is to be discharged.Should I celebrate or wait cautiously for their next move?I did write to the court prior to the hearing date giving all the background but they just sent a reply saying they were not qualified to advise me.I then sent a letter to Drydens solicitor acting for M.E. giving them the background info,would this have had any effect? Also can they be compelled to enter the IVA like all my other creditors or are they above all this?

[MelanieGiles]

Hi allan

As the Order has been discharged, I rather suspect that this was because Mortgage Express did not turn up at the hearing. The Courts take a dim view of applicants who do not turn up to put forward their caes, but this may have happened as a result of your letter to Drydens.

What I don't understand is why Mortgage Express are applying for a Charging Order in the first place! Presumably they are a secured creditor anyway, or does their debt related to a mortgage shortfall from a previous property?

You can celebrate, but do keep your eye on the post from now on, as the action can be resurrected at any time. As they have retained their unsecured statust, Mortgage Express will need to be included in your IVA alongside all of the other creditors.

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

For further details contact me at http://melaniegiles.com and view my IVA blog at: http://melaniegiles.blogs.iva.co.uk

[allan.f]

Hi,
Thanks for your quick reply.
Yes they seem to have bought the debt from a £2k shortfall on the repo of a property that was sold in Jan 1993.I thought it was all settled until I received a CC summons for £5000 (inc Interest)after hearing nothing from them in 13 years.
It all seems a little underhanded to me.
Regards
Allan

[MelanieGiles]

Not necessarily underhanded, merely trying to put them in a better position financially. I suggest you make them an offer of token payments until you decide whether an IVA is the right option for you.



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

For further details contact me at http://melaniegiles.com and view my IVA blog at: http://melaniegiles.blogs.iva.co.uk

[allan.f]

I am already in an IVA do I have to do another one for Mortgage Express?

[MelanieGiles]

No - your IP should write to Mortgage Express and formally invite them to join in proceedings. Assuming they agree, then you should expect to pay a couple of extra payments to enable the additional dividend to be paid.

Make sure that your IP explains that their omission was due to an honest oversight - ie the debt was over 10 years old and you had thought it had been written off.

If Mortgage Express decline to join into the IVA, your IP needs to seek specialist legal advice to determine whether they are bound by the arrangement or not. There has been current case law which suggests that even if a creditor was not invited into the IVA from the outset, they may still be bound by its terms.

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

For further details contact me at http://melaniegiles.com and view my IVA blog at: http://melaniegiles.blogs.iva.co.uk

[neverending]

Hi
I thought that there was a time limit to claims like this and twelve years rings a bell.Has any one else heard of this ?

[MelanieGiles]

Yes - the statute of limitations is usually restricted to 6 years, but with property, land and mortgages this is extended to 12.

Of course if the creditor have been corresponding with you, the time limit runs from the time they last corresponded, and not the time the debt was incurred.

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

For further details contact me at http://melaniegiles.com and view my IVA blog at: http://melaniegiles.blogs.iva.co.uk

[allan.f]

Hi,
Time limit of 12 years? Mortgage Express corresponded with me the first time with a CC summons for a 13yr 7 mnth old debt I have had no contact whatever with this company I thought it was a scam until I received a summons for the charging order AFTER I had my IVA accepted.I thought all unsecured debt was in the IVA but Mortgage express told Thomas Charles they didn't want to,so being the bullies they are got their own way and are now after me for an unsecured debt outside the IVA I am not happy with this as my budget will not allow payments to Maverick companies

[MelanieGiles]

Allan

Your IP should be dealing with this for you, but if you are outside the 12 years, then the debt is null and void and you have the perfect excuse. Write to Mortgage Express and advise them that you are not recognising the debt due to the Statute of Limitations.

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

For further details contact me at http://melaniegiles.com and view my IVA blog at: http://melaniegiles.blogs.iva.co.uk

[neverending]

Hi
Maybe this is why it was set aside by the county court judge,its past the claimable date.If it comes to court again contest it under the provision that it has been in excess of twelve years since you have corrosponded about the debt.

[gizmo]

Hi Allan
The District Judge would, or certainly should, in my experience, have picked up on this and realised straight away they were statute barred from proceeding with the claim. What Melanie has said is quite right - if they contact you again inform them they are statute barred from pursuing the debt on the basis there has been no contact from the creditor with you within a 12 year period.