Charging Order? The myth

fatbelly

eggbox wrote: »

section 51 states a partial settlement if,

"the lender has accepted as part of a negotiated settlement a payment that is less than the outstanding amount and the customer has agreed as part of the settlement how their credit record will be affected"

which is not the same as a Full and Final settlement where the debt (for whatever amount) has been totally and finally settled.

In the circumstance above (which is a full and final settlement in the sense that a lender has accepted a discounted payment and agreed to write off the rest of the debt and not pursue it) it says

In the last two examples the lender who is responsible for the record has decided it is not worth chasing further payment. In these circumstances, we understand a lender may be reluctant to mark the entry as ‘satisfied’ or ‘settled’. However the entry must record the position adequately, for example, by showing that no further monies are expected and the account was partially paid.

Partial settlement is an acceptable mark for a full and final settlement deal. If you can persuade a creditor to mark it settled, fine. But they're under no obligation to do so if it has been settled for a discounted sum, according to the ICO.

eggbox

Fatbelly

Section 51 isn't dealing with full and final settlements, it's dealing with circumstances where creditors have no choice but to accept a reduced payment because of other circumstances such as IVA's or Bankruptcy. In these circumstances then a partial settlement recorded would be understandable.

But in section 50, which does deal with full and final settlements, it makes clear that as the lender has accepted this offer (when it didn't have to); then it would be unfair to record a partial settlement as the matter had been formally concluded.

There is no way if a F&F settlement is undertaken that you should accept a partial settlement being recorded on your credit file.

ABBS_1995

Hi first timer here. I could do with some extremely urgent advice. I have read a fair bit of this thread but it will take days to read it all and time is of the essence.I am worried by not reading the whole thread that i miss something, especially as the thread was started some years ago and worries me that there may have been a law or legislation change that is mentioned somewhere within the thread. My situation is i have a restriction on my home (debt mine only mortgage joint with partner) i have been made an offer to buy my home from a cash buyer who can complete in 14 days i am ready to pick the phone up and say yes its just this situation which worries me. The sale price is enough to clear our mortgage and a bit more, it would easily pay the restriction if needed but i dont want to as i disputed the debt anyway and think i was hardly done too. My main concern is this:- the mortgage is through one of the high street banks (no arrears payments maintained) but the restriction is through the same bank !!! The debt stems from a personal loan and the overdraught on my old personal bank acccount. Does this put a spanner in the works. Your advice would be greatly appreciated thanks. Any other info needed just ask.

eggbox

The hurdle you will need to overcome will most likely be the Buyers Solicitor telling his client the CO has to be paid off before they can proceed.


So you will need to explain to your buyer that he/she is still able to buy the property and all they need to do is provide the Land Registry with a "certificate" (a signed for recorded delivery will do) that they (or their Solcitor) has notified the Restriction holder of the sale. The Land Registry then aren't prevented from registering the new buyers details as the owner.


If you get resistance from the buyers Solicitor come back here and we will provide the necessary info (but it is in the thread if you read through)

kookykathryn

Hi

thanks for the responses, eggbox in answer to your question about why I am might have to pay the debt:

The owners of the debt wont provide a certificate to say we have served notice and my solicitor wont give a firm undertaking on that basis so they buyers wont go ahead. Land Registry have confirmed in writing that a certificate signed by the debt company is needed. If the sale went through without it there is no guarantee that the LR would remove it. LR said this:

[FONT=&quot]The wording of this particular restriction is quite precise in that a certificate would need to be supplied despite you serving notice on them.[/FONT]

So I am a bit stuck, plus prices have now gone up so my thinking is it might be easier to pay it off from the sale, if I don't they will only chase me and seek other methods!

thanks

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Sparklyfairy

Hi all,


Just after some advice...I have a standard restriction back in 2010 & now the solicitors (R£st0ns = sharks) keep sending me letters asking for a new I & E to up my current monthly payment. I have been paying £1/month. I have ignored these requests. Latest letter I received stated that they're contemplating taking me back to court to gain an Order for Sale...!! I have 2 small children (I made this perfectly clear at court for the Restriction) & although these may just be scare tactics, it's not on. Has there been any change to the law for OFS's since 2010? Has there been an upsurge in these tactics by solicitors lately? The final paperwork I received back in 2010 from the courts never stated I even need to make the measly £1 monthly payments let alone increase any payment (no statement has been sent to me by solicitors either). The Restriction amount is about £10k.


Thank you for any advice!

Sparklyfairy

I just wanted to add a bit more info - after reading Eggbox's comments from earlier Dec..my debt (originally MBNA, then sold to Marlin) No official documents have been sent to me that this debt has been sold & registered by the courts, I have only received R3st0ns rancid letter stating it was sold to Marlin. I'm not at all ok with filling in their very invasive income & expenditure but I'm unsure how to proceed. Eggbox, what would you do in this situation?

sithemadmonkey

I'm not an expert, and please don't take this as formal advice, but I'm sure that they know just as well as you do how little chance they have of getting an OFS on your house - sounds like empty threats to me. I should imagine they are within their rights to do this, especially if the wording is along the lines of 'we are considering exercising our right to...' or 'we have the right to...'.

It's entirely up to you how to proceed, but I wouldn't sweat it unless court papers actually hit your doormat.

Best of luck!

Sparklyfairy

Thanks Sithemadmonkey.


Yes those pretty much were the exact words..actually they were "Should you fail to respond we may be instructed to explore the possibility of enforcing the CO. This means that an application will be made to the Court for a hearing at which the Court will consider, after hearing any representations you wish to make, an order for the sale of the property." Pathetic.


As far as I can tell, particulars in my corner are:


1. It's a Restriction, not a CO
2. I have small children
3. Although Marlin are stated as holders of the debt on my credit file - I've received nothing from the court to tell me this - thus taking court action is unlikely as per Eggbox's earlier advice.


Desperate bunch of solicitors trying to make themselves appear relevant & earn more cash. Grrr!

sithemadmonkey

You're pretty much there with your points. The only thing I would clarify is that the Restriction/Notice thing is only a technicality that the Land Registry use, and makes no difference in the courts regarding an OFS. They do have a full-blown Charging Order against you, but the Land Registry only note it on the Title Register as a Restriction (I'm sure LRR will correct me if I'm wrong).

To be honest, 'we may be instructed to consider the possibility of thinking about exercising our right to theoretically blah blah blah' means absolutely nothing, and is standard claptrap used by DCAs the length and breadth of the country, from the very first fishing letter onwards. If they do actually get round to trying an OFS then you'll have plenty of time (and lots of very experienced people on here, myself unfortunately not included) to prepare a watertight defence.

Do let us know what happens, so that others who have the same thing happen can make use of your experience.