If there is anyone in your immediate family who is need of special medical care, or who is terminally ill, point out to the court that disposing of your home to pay off your creditor will prejudice the rights of these disadvantaged family members.

There may be a possibility that all the arguments you use will find no grounds and the court decides to issue a final charging order. You may still petition the court not to have your house sold off, as long as you satisfy the debt by paying monthly instalments. Should the court not take into account this request at the hearing, secure an application called N245 which will allow you to pay your debt in instalments.

SINGULAR DEBT, JOINTLY OWNED HOME

The situation in which you have a debt solely under your name while your home is owned jointly by you and another person, can also be used to your advantage. State this fact in your written argument and bring it forward during the hearing, as well. The co-owner of your home must also be furnished with a copy of the interim order to give them a chance to present their own objections during the hearing. Some of the considerations that may be looked into include:

1.) Determining who put down the deposit to purchase the home 2.) Identifying the person who pays the mortgage instalments 3.) Presence of minor children – you can petition the court to amend the conditions of the charging order to state that the home cannot be sold until the children have reached legal adult age.

To add ground to this argument, have your home’s co-owner submit their own written objections to the court at least 7 days before date of the hearing.

In the end, if the court does decide to issue a charging order, then it can only be enforced against your share of the property.

WHERE THERE IS A PREVIOUS INSTALMENT ORDER AND YOU ARE NOT IN DEFAULT

In a 1987 landmark case of Mercantile Credit Co Ltd vs. Ellis, it was decided that if a debtor pays his monthly instalments on time and does not miss a single one, the court should not issue a charging order. Charging orders should only be made if the debtor has already been ordered by the court to pay in monthly instalments or the whole amount in a "forthwith" judgement, but fails to do so. If you find yourself in the situation where you were already issued an instalment order and are up-to-date in making payments, remember to bring up this landmark case during the hearing.

SEPARATION OR DIVORCE

When you are in the middle of divorce proceedings, which may include division of the home or property, it will be a good idea to consult your solicitor for legal advice. Depending on which stage you are at in the divorce proceedings, you may be able to halt the issuance of a charging order.

INTEREST

A creditor may actually include extra interest for the debt provided he files his claim for a charging order with the county court. However, interest cannot be added for the following conditions:

1.) The debt has been secured under the Consumer Credit Act. Debts of this type include ordinary credit agreements and bank overdrafts. 2.) Debt comes to a total of only £5,000, even if not covered by the Consumer Credit Act.

If the two conditions stated above are not present and the debt is over £5,000, the court may set the interest based on the standard rate.

Interest may also be charged only after the county court’s final decision depending on the creditor’s arguments.

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