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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 141
    • eggbox
    • By eggbox 14th Sep 16, 9:04 AM
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    • 532 Thanks
    eggbox
    They will have to disclose their address if you convince them it will be in their interests to write a witness statement?

    But I would give up on the idea of a default judgement as it is very, very unlikely to happen as they have submitted a defence. And as was explained yesterday, you can't be granted a default judgement if they have applied to strike out your claim?

    You really need to concentrate your efforts on getting your evidence verified (however that is best done?) Because as was also explained, in a civil trial you only have to prove that on the the balance of probability that the defendant did what you are accusing them of.

    The email and text messages should be enough to convince a Judge that there was interference in the sale that prevented it proceeding; but you must make verification of that email and text watertight in court. Any ambiguity that the evidence may not be genuine will see your claim fall at the first hurdle.
    Last edited by eggbox; 14-09-2016 at 9:07 AM.
    • DAKOTA45
    • By DAKOTA45 14th Sep 16, 3:16 PM
    • 361 Posts
    • 29 Thanks
    DAKOTA45
    Yes…. I have just emailed the purchaser and the estate agent again.

    I have no idea why they are being so reticent about helping me, other than that they fear repercussions from my neighbour… he is a thoroughly unpleasant person who threatened my purchaser… I have a text where she told me he had threatened her and that she thought he was a bully and had told him so… and the email from the estate agent is in no way ambiguous… I mean, you could make stuff like this up. Why would he say such things unless they were true?
    I have been on the receiving end of his threats… he was practically apoplectic… his wife ran away whilst he was shouting at me, such was the vitriolic rage he was in…he told me he would bankrupt me if I went against him.

    I'm confused about the ongoing litigation and feel completely out of my depth and am sure to make some kind of procedural error… I suffer from extreme anxiety and make mistake when under duress...it is very nerve wracking, and I've been at this for several years and have an ulcer as a result… I am in constant pain and have no mental energy, having been worn down by repeated rubbish meted out by the court and my neighbour's lawyers.
    I had hoped that the court would grant a default judgement as the defendant had not acknowledged or sent a defence within the prescribed time limits. I should try and call them to check the status of my claim, I suppose.
    I am very grateful for all your advice. Thank you. D45
    • Baggies16
    • By Baggies16 15th Sep 16, 9:48 PM
    • 13 Posts
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    Baggies16
    Could anyone recommend a solicitor that is up to speed with the rules regarding a restriction K, I have spoken to 5 today and they are all shocked when I say there is no legal obligation to pay it and they have to notify them.
    • DAKOTA45
    • By DAKOTA45 16th Sep 16, 10:19 AM
    • 361 Posts
    • 29 Thanks
    DAKOTA45
    Could anyone recommend a solicitor that is up to speed with the rules regarding a restriction K, I have spoken to 5 today and they are all shocked when I say there is no legal obligation to pay it and they have to notify them.
    Originally posted by Baggies16
    The Holy Grail… D45
    • eggbox
    • By eggbox 16th Sep 16, 10:30 AM
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    • 532 Thanks
    eggbox
    Could anyone recommend a solicitor that is up to speed with the rules regarding a restriction K, I have spoken to 5 today and they are all shocked when I say there is no legal obligation to pay it and they have to notify them.
    Originally posted by Baggies16
    Sparklyfairy has just exchanged contracts using a Solicitor up to date with the limitations of a Form K Restriction. The Solicitor concerned has indicated he is happy to act for other people in a similar position.

    So we're just awaiting the outcome of Sparkly's sale to ensure everything has been completed on her sale as required. Once that's been verified we will be able to pass on the relevant details to other people wishing to sell up.

    What were the Solicitors you spoke to shocked at? The information you were providing or their, own, professional incompetence in not knowing the regulations for a Form K Restriction?
    • Baggies16
    • By Baggies16 16th Sep 16, 12:17 PM
    • 13 Posts
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    Baggies16
    They basically just stated that a form k restriction needs to be settled before completion, I explained regarding the debt being in a sole name and the title deeds in joint but they are all unsure.
    • eggbox
    • By eggbox 16th Sep 16, 12:31 PM
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    eggbox
    They basically just stated that a form k restriction needs to be settled before completion, I explained regarding the debt being in a sole name and the title deeds in joint but they are all unsure.
    Originally posted by Baggies16
    Sounds about par for the course with many Solicitors.

    As I've stated before, my daughter is a Solicitor (Family Law) but she will be the first to say she was shocked to discover just how clueless (and lazy) Solicitors there are operating in the legal system.
    • fatbelly
    • By fatbelly 16th Sep 16, 12:32 PM
    • 9,863 Posts
    • 7,399 Thanks
    fatbelly
    They basically just stated that a form k restriction needs to be settled before completion, I explained regarding the debt being in a sole name and the title deeds in joint but they are all unsure.
    Originally posted by Baggies16
    Surely a restriction means that the restriction has to be complied with. And then you have to look at what the restriction says.

    The standard form K wording does not mention settlement. I can't understand why some solicitors find it so difficult to understand a simple sentence "...a certificate signed by the applicant for registration or their conveyancer that written notice of the disposition was given to...'
    • eggbox
    • By eggbox 16th Sep 16, 12:34 PM
    • 1,006 Posts
    • 532 Thanks
    eggbox
    Surely a restriction means that the restriction has to be complied with. And then you have to look at what the restriction says.

    The standard form K wording does not mention settlement. I can't understand why some solicitors find it so difficult to understand a simple sentence "...a certificate signed by the applicant for registration or their conveyancer that written notice of the disposition was given to...'
    Originally posted by fatbelly
    It's called indoctrination....
    • DAKOTA45
    • By DAKOTA45 19th Sep 16, 5:13 PM
    • 361 Posts
    • 29 Thanks
    DAKOTA45
    Hi Eggbox… I've now given up on default judgement.. I emailed the court this morning to see what was going on as they are giving me the silent treatment (again)…

    Seems the defendant filed an acknowledged of the claim a week after I served it, more than a month ago! (Are they not required to serve that on me too?)

    So.. the court making me jump through hoops re the certificate of service was just academic… why did they not inform me of the acknowledgement when I requested the default judgement instead of saying I'd not completed the cert of service… I thought they were against wasting time...duh!!

    Not sure if I should provide a counter defence or just wait for the court's directions… D45
    • eggbox
    • By eggbox 19th Sep 16, 5:25 PM
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    eggbox
    Hi Dakota

    I wouldn't take the silent treatment from the Court personally, it happens all the time and usually reflects the calibre of people employed in the Court rather than the Court process itself?

    But here is a quick guide to the reasons a strike out will occur.

    As you will read, a strike out is seen as a last resort so as long as you can demonstrate you have a case there is no way it should occur.
    • DAKOTA45
    • By DAKOTA45 20th Sep 16, 7:49 AM
    • 361 Posts
    • 29 Thanks
    DAKOTA45
    Hi Dakota

    I wouldn't take the silent treatment from the Court personally, it happens all the time and usually reflects the calibre of people employed in the Court rather than the Court process itself?

    But here is a quick guide to the reasons a strike out will occur.

    As you will read, a strike out is seen as a last resort so as long as you can demonstrate you have a case there is no way it should occur.
    Originally posted by eggbox
    Many thanks for the link, Eggbox.

    They are saying that this claim follows on from previous litigation and that it was struck out because I'd failed to ask the court's permission to counterclaim… whatever, I think it would be outrageous to strike out a claim which was struck out for those reasons and has not been properly adjudicated upon… the Judge at the hearing told me I should make a separate claim, it being struck out for a procedural error and not because it has no merit.

    They haven't asked for summary judgement, so that's helpful, but they have asked that the claim be stayed until I pay the £30k I owe to the defendant from the previous litigation.

    I don't know if you would be interested in seeing the defence document in it's entirety…? They say I am a vexatious litigant and must be restrained from pursuing any further litigation.

    His defence is a bare denial that he threatened the purchaser, but I emailed them recently and they have told me that he was extremely aggressive when they met up, and also confirmed that everything they told the estate agent, re him threatening to pursue them for damage caused to his land by my septic tank was true. I have once more asked them to put this in writing, so that I can take it to court, if I have the opportunity of bringing my case, that is.

    How on Earth do I make the court keep me up to date, though? I had so much of this from them with the previous case, and it was directly their fault that I lost the chance to bring my counterclaim, when they didt provide any directions following my application, instead, I found out from the other side that the court had refused my counterclaim, saying I'd not paid a court fee, which wasn't true, but to late to defend.
    This court is ignoring important emails, taking up to 2 weeks to reply… I don't use the phone as I can't hear very well and get confused.

    D45
    • eggbox
    • By eggbox 20th Sep 16, 8:21 AM
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    eggbox
    Hi Dakota

    Your neighbour's defence document will all be about trying to diminish your actions as unjustified and vindictive. It will be trying everything to get your claim struck out at the first hurdle by whatever means possible.

    But whatever their defence, you have evidence to confirm the claim you are making. So its crucial you get further verification of your evidence from the prospective purchaser and the estate agent to concrete your position of making the claim.

    And your counter to the stayed claim attempt is simply that your neighbours action has prevented you from being able to pay him the £30k due, by selling your home, as his actions prevented the sale?

    Court's can be slow (and unhelpful) and I understand its difficult for you to telephone the Court; so you may get better help by turning up at the Court office if you are able to manage a trip over there?
    • DAKOTA45
    • By DAKOTA45 20th Sep 16, 9:26 AM
    • 361 Posts
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    DAKOTA45
    Ha! It's being held at the High Court in London… I am in North Essex… I can hardly 'pop' over there…

    But yes, it is exactly that… He knew full well, because i mentioned it at the trial, that I had no savings or assets at all and would need to sell my home to pay the costs.

    Knowing this, he effectively prevented me from settling the debt.

    His actual 'Defence', leaving out all the stuff from the previous litigation, where they are obviously trying to make me out to be an idiot, is pretty feeble; (It's in a PDF format at the mo & I don't know how to attach it here)…but it really is the most basic, bare denial of any guilt.

    I came across this re reluctant Witnesses;

    Where a witness does not co-operate in giving a witness statement
    If a witness whom a party wishes to call does not co-operate with solicitors in producing a signed witness statement or affidavit, the solicitors should explain the problem at a by order hearing and produce the correspondence to vouch the request and the witness’s non-co-operation.


    Not really sure at this stage if I should mention to the court that my witnesses have failed to sign a statement…

    I guess the next thing will be a Directions Questionnaire… I may need some help in filling it in, though… Gaahh!!

    So very grateful for you help, Eggbox… I have such trouble understanding the legal procedures… I think most reasonably intelligent people have the same problem… as per this quote;

    'We are guiding litigants in person through a court system that is historically designed for professional interpretation and which is predicated on litigants having professional representation. 'This system is not designed for the mass volumes of litigants in person'.

    Keep Calm & Carry On, then…

    D45
    • eggbox
    • By eggbox 20th Sep 16, 11:20 AM
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    eggbox
    Sorry Dakota I thought you were dealing with your local Court I just thought the hearing was in the High Court? (and I have sent a PM regarding the Defence Document)

    All I can say is, however, you achieve it; you need to get some sort of verification from the witnesses that the emails and texts you have are genuine and that they were, effectively, scared off from making the purchase by your neighbour.
    • DAKOTA45
    • By DAKOTA45 20th Sep 16, 12:17 PM
    • 361 Posts
    • 29 Thanks
    DAKOTA45
    Yep! I am trying to get disclosure from the police who I believe took a statement from the estate agent… they want a fee for basic disclosure, but they have said I might be able to get the court to enforce it…I don't trust the PC who was involved as i believe she is a friend of the defendant… I really want a witness statement from her, rather than forcing her to court and her denying everything… she has told me she didn't interview the defendant to get his side of the story… which kind of beggars belief, really.
    Thanks for everything… it really means a lot. I had a lovely person, a para legal, who was helping me free of charge, but he is unwell and cannot continue… I miss him so much.

    D45
    • Baggies16
    • By Baggies16 22nd Sep 16, 6:17 PM
    • 13 Posts
    • 0 Thanks
    Baggies16
    I have tried 9 Solicitors now and all state that form K restriction needs to be removed before sale.
    • eggbox
    • By eggbox 22nd Sep 16, 6:40 PM
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    • 532 Thanks
    eggbox
    Hopefully, Sparkly will be along shortly to confirm her sale then we can get a Solicitor who understands different on the case?
    • Baggies16
    • By Baggies16 22nd Sep 16, 7:02 PM
    • 13 Posts
    • 0 Thanks
    Baggies16
    Thanks eggbox, its a worry that so many don't understand how a form K works...
    • eggbox
    • By eggbox 22nd Sep 16, 7:36 PM
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    • 532 Thanks
    eggbox
    It is, especially as they are being paid to represent the person who's money they want to hand over?
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