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  • FIRST POST
    blueback
    Charging Order? The myth
    • #1
    • 26th Jul 09, 11:28 AM
    Charging Order? The myth 26th Jul 09 at 11:28 AM
    I feel that this is so important that I thought a new thread should be made to highlight the importance of understanding the law on Charging Orders and how many people are stuck with their property in the false believe that they have had a Charging Order put on their property.

    In particular the thousands of Northern Rock customers that have had unsecured debt turned into secured debt by their tactics.

    If your property is jointly owned a creditor will not be able to obtain a CO against you, they can only get what is called a restriction.

    The laws on Restrictions are totally different to Orders, the most important being there is NO OBLIGATION for you to pay any of the proceeds of the sale to the creditor.

    However, during the whole court process you go through the reference from all parties (especially the creditor) will be to charging order and NOT to restriction. This is done in order to decieve you believing you are stuck with a CO.

    However, not all solicitors are aware of the law in this regard and it is important that you raise this point with them in the first instance before proceeding with them

    Quote:

    Restriction


    The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-
    No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).
    You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

    If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.


    So I hope I have provided benefit to everyone who has had a restriction entered against them (especially NORTHERN ROCK CUSTOMERS) who believe wrongly that they are Charging Orders.

    You now have the freedom to go and sell your houses with the knowledge that the vultures can do nothing

    I also think this VERY IMPORTANT point needs highlighting by the moderators as many many people are stuck with houses that they believe they cannot sell
Page 160
    • DAKOTA45
    • By DAKOTA45 6th Mar 17, 7:01 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    I think the Court would only have sympathy if the delay was caused due to you not being notified that an FCO hearing was taking place (regardless of where the application was made?)

    Were you notified that a hearing was taking place?
    Originally posted by eggbox
    The ICO was a without notice application…but yes, as per those 2 ICOs, I was aware of the hearing(s) for the FCO. D45
    • eggbox
    • By eggbox 6th Mar 17, 7:52 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    Dakota

    Good luck today and remember SJ is about the other side trying to prove you have no prospect of success at a full trial. So make sure you keep it simple and precise in explaining exactly why you do have a claim that should be heard.
    • DAKOTA45
    • By DAKOTA45 7th Mar 17, 6:24 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Dakota

    Good luck today and remember SJ is about the other side trying to prove you have no prospect of success at a full trial. So make sure you keep it simple and precise in explaining exactly why you do have a claim that should be heard.
    Originally posted by eggbox
    Thanks for that, Eggbox…

    The master had the full measure of him and he didn't get the SJ, where they said I'd been vexatious and frivolous and had no prospect of success... Or the 'stay' which he had asked for where I'd have to pay what I owe before I was allowed to continue with the claim… as the master said that would deprive me of the right to a justice...so that's a relief.

    Not a complete success as the master has asked that I amend my claim, saying I can't claim the full amount of the loss, i.e., the £375k my purchasers would have paid.

    So it now has to go back to court and i have to prove loss, which is the difference between what I was offered for the house and what it was actually worth.

    The master has asked that I ask a surveyor to value it at what it might have been worth 3 years ago, but this would obviously entail them having to ignore improvements made since then, so not ideal.

    I have a copy of a full survey which was carried out 6 months before the interference took place, so may ask if the other party will agree to that as I really can't afford to pay for a survey.

    I'm thinking it might be better if the judgement creditor just made me an offer instead of throwing money at his lawyers who are happy for this to drag on forever.

    But it's great that the master spotted the differences between the JC's bare denial and the evidence I provided from the purchasers, as he agreed that there had been fraudulent misrepresentations and malicious falsehood by the JC.

    I feel as though I'm winning, for once… but a long way to go yet as I'm sure the JC will make further applications.

    One day at a time….

    D45
    • eggbox
    • By eggbox 7th Mar 17, 7:59 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    Hi Dakota,

    Firstly, well done and if the Judge did agree to there being "fraudulent misrepresentations and malicious falsehood by the JC" then you should be home and dry? This is simply because any fraudulent misrepresentation is a criminal offence under section 2 of the Fraud Act 2006? So are you certain he actually did agree that this had taken place or that "it could" have taken place?

    If its the former, then you should have necessary leverage to come to a settlement with your neighbour rather than him risking going to Court again, losing, and then facing possible criminal charges?

    But if you still have to go to Court, remember any loss is any loss associated with the sale not proceeding because of your neighbours actions? (for example the interest on the CO from that date onward's is a loss as you wouldn't have incurred those charges had you settled the CO from the house sale?)

    But the chips are currently stacked in your favour as a Judge has ruled there is a case to answer? Your neighbour, therefore, will have had it explained to him the consequences of losing the claim you have brought and the, possible, repercussions that could follow?

    No matter how vindictive he may be, I'm sure he will see (and will be explained to him) that an offer to settle the dispute, out of Court, will be a great benefit to him?

    So I would take a breather for a while and see if any offers come from his side before putting a "without prejudice" offer to him to settle out of Court?

    But well done as I'm sure it would have been a little nerve wracking on the day!
    • DAKOTA45
    • By DAKOTA45 7th Mar 17, 8:32 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Thanks, Eggbox… yes… I'm thinking along the same lines as you. It would be much better to draw this mess to a close than drag it out for another year, because he is incurring huge costs which would probably exceed my offer to settle…
    When the judge read out my evidence and said that I could rely upon certain authorities relating to fraudulent misrepresentation and malicious falsehood, his barrister, (quite rightly) looked embarrassed and concurred that there had 'obviously' been 'something' which gave rise to the claim….I must admit to feeling quite smug at that point… this bloke is a well qualified officer of the court and shouldn't be losing to a LIP.

    At the time of his interference I was facing repossession… it was a very stressful time as i had no money to redeem the mortgage and the mortgage interest was £800 per month! Although the interest has now reduced because I receive pension benefit, I've had to continue to pay reduced mortgage interest for 3 years when I had intended to be mortgage free once I'd sold the house… I had already instructed a solicitor on another property…

    I feel very happy with the result, but have a niggling feeling those underhanded lawyers of his won't advise him to settle as they should… they are lining their pockets and don't care who wins.

    I will sleep much better tonight, though!

    D45
    Last edited by DAKOTA45; 07-03-2017 at 8:40 AM.
    • eggbox
    • By eggbox 7th Mar 17, 8:42 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    I feel very happy with the result, but have a niggling feeling those underhanded lawyers of his won't direct him to settle… they are lining their pockets and don't care who wins.D45
    Originally posted by DAKOTA45
    I do understand why you think that way but there are, possible, criminal repercussions from the claim and, as bad as we make solicitors out to be on this thread at times; this is something they can't overlook in their advice to him.

    So if you do have to make the first step to settling you must hit him hard using the possible, personal, consequences to him should he risk losing the claim.

    Just don't expect them to roll over and accept what you offer, however, at the first attempt. But (as much as you would prefer to settle) you must leave them with no doubt you are happy to now go trial given the Judge has accepted your evidence should be heard.
    • DAKOTA45
    • By DAKOTA45 7th Mar 17, 1:22 PM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Yes.. I'd be all for a tricksy solicitor if I only I could afford one… haha!
    I think it is now up to me to prove actual loss before any offers are made… which I am able to do, as long as they aren't frantically searching for a legal loophole which will prevent me from amending my particulars of claim… although the master did say there would be permission to amend, but whether they can override that or attempt to set aside, or whatever… I have no idea which way it will go… but I am confident in that I can prove a 6 figure loss…

    I'd rather settle out of court, though as this is going on 5 years and my health is suffering…

    D45
    • eggbox
    • By eggbox 7th Mar 17, 3:56 PM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    They can't "set aside" or find a "loophole" around the Judge granting you permission to amend your POC, so don't concern yourself with that.

    And I wouldn't worry about trying to "justify" any loss at this stage, either, as the other side will be aware you must have made losses as the sale was prevented? They will only, really, be concerned with you being able to prove the losses were as a result of your neighboured actions?

    As the Judge has refused their strike out application on the basis it does appear their was interference in the sale they will be extremely nervous about going to trial? So you just need to make them realise how serious it could be for your neighbour if you win your claim?
    • DAKOTA45
    • By DAKOTA45 8th Mar 17, 8:24 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    They can't "set aside" or find a "loophole" around the Judge granting you permission to amend your POC, so don't concern yourself with that.

    And I wouldn't worry about trying to "justify" any loss at this stage, either, as the other side will be aware you must have made losses as the sale was prevented? They will only, really, be concerned with you being able to prove the losses were as a result of your neighboured actions?

    As the Judge has refused their strike out application on the basis it does appear their was interference in the sale they will be extremely nervous about going to trial? So you just need to make them realise how serious it could be for your neighbour if you win your claim?
    Originally posted by eggbox
    I'm surprised he's not in clink already… he is a crook. I think you know that he stole the land from me (this is hat the proceedings related to initially)… He bribed the estate agent to reveal the sealed bids… mine was the highest and had I bought the land and moorings, it would have added hundreds of thousands to the value of my property. I can't believe, having cheated me already, he'd throw money at solicitors when I tried to retrieve a small bit of the land with my septic tank on it… land that was worthless.
    But there you go…

    Thanks for your help on here… so much more friendly than the 'other' place, and good, unbiased advice, too, although I did meet a wonderful person on there who is legally trained and who has been knight in shining armour, sticking by me these past 3 years without any payment and who just wants to see justice done and I would never have had the courage to take the claim into the High Courts without his support and advice. They broke The Mould when they made him

    Onwards and upwards, hopefully...

    D45
    • DAKOTA45
    • By DAKOTA45 11th Mar 17, 10:46 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Well… the hearing was Monday 6th and still no directions received from the court.
    I need the directions so I can proceed and serve and file relevant documents on time.
    Emailed the court on Thursday, but nothing back so far…
    I hate it when they go quiet and expect you to know what's going on…

    D45
    • DAKOTA45
    • By DAKOTA45 15th Mar 17, 1:19 PM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Directions received at last!

    Judge allowed me to rely upon malicious falsehood and causing loss by unlawful means… He also dismissed the JC's allegations that my claim was frivolous or that I was being vexatious or that my claim had no merit… but still carried their costs over, which I don't understand as I seem to have won on points as the SJ application wasn't allowed including the stay that the JC had requested…
    All I need to prove is my loss and that's easy…D45
    Last edited by DAKOTA45; 19-03-2017 at 7:38 AM.
    • Choochybaby69
    • By Choochybaby69 20th Mar 17, 9:58 AM
    • 18 Posts
    • 0 Thanks
    Choochybaby69
    Hi eggbox, just a question on bankruptcy again. If a creditor applied to make me bankrupt, what would the process be? and what would be the first things I would know about it happening?
    Thank's, PB.
    • eggbox
    • By eggbox 20th Mar 17, 10:12 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    The first thing you should get is a Statutory Demand which requests you pay the debt within 21 days. If not paid then the creditor can apply for your bankruptcy.

    However, don't assume that receiving a Statutory Demand automatically means the creditor does want to bankrupt you? They can also be used to put pressure on debtors to pay up their debts thinking they are going to be made bankrupt.

    Also, if there is no Judgement on the debt they can't usually be issued if the debt is over 6 years old?

    You can also apply to set aside the SD if you dispute the debt. This is particularly relevant to any credit card or loan debts, regulated by the CCA 1974, and which were taken out prior to April 2007? This is due to a high number of those debts not being enforceable due to lenders not complying with the terms of the CCA 1974 in their contracts.
    • DAKOTA45
    • By DAKOTA45 20th Mar 17, 12:47 PM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    You can also apply to set aside the SD if you dispute the debt. This is particularly relevant to any credit card or loan debts, regulated by the CCA 1974, and which were taken out prior to April 2007? This is due to a high number of those debts not being enforceable due to lenders not complying with the terms of the CCA 1974 in their contracts.
    Originally posted by eggbox
    How did lenders not comply with terms of CCA 1974, please, Eggbox?

    How would you find out if there was no compliance?

    D45
    • eggbox
    • By eggbox 20th Mar 17, 1:47 PM
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    • 597 Thanks
    eggbox
    They were supposed to put the prescribed terms into the contract required under section 60 (1) of the CCA 1974;

    s.60 (1)The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

    (a)the rights and duties conferred or imposed on him by the agreement,

    (b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

    (c)the protection and remedies available to him under this Act, and

    (d)any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

    Many didn't and suffered section 127 (3) of the act that stated;

    s.127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

    Meaning they couldn't take Court action if the debtor stopped paying. It should be noted the CCA 1974 was subsequently amended and the above only applies to contracts before April 2007.

    You find out if the contract complied by, either, checking your copy of the contract or by paying £1 and requesting a "true" copy of the contract from the lender under s78/79 of the CCA 1974. The debt cannot be enforced until the lender has supplied you with a "true" copy of the contract.
    Last edited by eggbox; 20-03-2017 at 1:50 PM.
    • Choochybaby69
    • By Choochybaby69 20th Mar 17, 6:11 PM
    • 18 Posts
    • 0 Thanks
    Choochybaby69
    Who do you pay the £1. to?
    PB.
    • eggbox
    • By eggbox 20th Mar 17, 6:26 PM
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    • 597 Thanks
    eggbox
    The company who owns your loan. If it's been sold on to a DCA they still have to provide the true copy or they can't enforce the debt, either?

    A lot of DCA's struggle to comply as the original lender can't find the document or reconstruct an incorrect copy? So it's well worth the effort if the debt is prior to April 2007 and you are being threatened with Court?
    • DAKOTA45
    • By DAKOTA45 21st Mar 17, 7:05 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    They were supposed to put the prescribed terms into the contract required under section 60 (1) of the CCA 1974;

    s.60 (1)The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

    (a)the rights and duties conferred or imposed on him by the agreement,

    (b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

    (c)the protection and remedies available to him under this Act, and

    (d)any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

    Many didn't and suffered section 127 (3) of the act that stated;

    s.127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

    Meaning they couldn't take Court action if the debtor stopped paying. It should be noted the CCA 1974 was subsequently amended and the above only applies to contracts before April 2007.

    You find out if the contract complied by, either, checking your copy of the contract or by paying £1 and requesting a "true" copy of the contract from the lender under s78/79 of the CCA 1974. The debt cannot be enforced until the lender has supplied you with a "true" copy of the contract.
    Originally posted by eggbox
    Thanks, Eggbox… but what's the guessing that they will just 'amend' their agreement and present it as a 'true' copy…?

    How to tell if anything has been altered…

    Interesting… there may be some old debts which are pre 2008, so I'll have a check.

    D45
    Last edited by DAKOTA45; 21-03-2017 at 7:07 AM.
    • eggbox
    • By eggbox 21st Mar 17, 9:56 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    Many have and I've also seen the wrong agreement sent for the wrong account if the person had more than one loan/credit card with the same lender. But from the huge amount of cross referencing that is available on the net (from people who took out the same type of loan/credit card) helps greatly to ensure any "errors" in the information sent are notified.

    The "true" copy sent should also be legible which let's many lenders down as the storage method used was poor. Many DCA's, who bought the debt off the original lender, also struggle at times as the lender cannot find the original agreement and the debt becomes Statute Barred before they are able to forward a copy?

    I've also seen dozens of cases where Court action by a DCA has been "stayed" due to the defendant exercising his right under CPR 31.14 to request a copy of the evidence document (which should be a copy of the agreement) the claimant is using for his claim? As they, often, aren't using one the claim get's "stayed" as the document never arrives?

    However, the real test is if the claimant has a document it is relying on as it is down to the defendant to prove to the Court it's not "enforceable". There was a frenzy of activity on this subject between 2009 and 2015 as many DCA's made Court claims before many of the debt's became statute Barred. There also several Court rulings that defined what had to happen in these cases?

    One of the main people who represented defendants with enforceable agreements was Paul Watson who worked for a firm of Solicitors. There is a blog HERE that is a few years old but still a good read on how to approach dealing with any agreement you feel is unenforceable?
    • Hootin_Heck
    • By Hootin_Heck 21st Mar 17, 11:01 AM
    • 16 Posts
    • 1 Thanks
    Hootin_Heck
    choochybaby69

    Have sent you details by PM
    Originally posted by eggbox
    Hi Eggbox, can I ask that you also share the information regarding the solicitor with me too please?
    I find myself in the same situation with CO's for both my wife and myself (both in sole names but registered against a jointly owned property), and we need to sell to relocate to another country...soon.

    Many thanks in advance
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