Charging Order? The myth

Sparklyfairy

Hi Si,


From what I understand (LRR & Eggbox can chime in on this) a Restriction has a lot more weight to it than just a CO due to the fact that my husband is co- owner of the house..and from what I understand the courts will obviously take in consideration the fact that an OFS shouldn't be granted because:


1. It would be against his wishes
2. Why should he have his home sold from under him if it wasn't his debt?


There are several differences between Charging Orders & Restrictions - this thread from start to finish highlights many of them. I don't agree, though that the LRR use the terms interchangeably or as a technicality. The courts would have a duty to hear my points listed above as to why an OFS can not be made on a Restriction. It's a minefield, but thankfully posters like Eggbox, Fatbelly & LRR help to clarify the murky legal world for us all!

sithemadmonkey

Hi Sparklyfairy, sorry if I've confused matters (that certainly wasn't the intention!),

I agree with you entirely that an OFS is very unlikely due to the reasons you have given. I only wanted to clarify a (minor) point:

A Charging Order is a Charging Order. However, it will be registered on the title register in one of two different ways; a Notice or a Restriction. As you say, a Restriction gives the creditor far fewer powers when it comes to the debtor selling the house than a Notice, but it doesn't stop the creditor applying for an Order for Sale. The underlying reason for a restriction being applied as opposed to a notice (sole debt, joint ownership) means that the OFS will most likely not be granted, but the way it is registered is not in itself a defence.

Sorry, I'm finding it really hard to put my thoughts into words without sounding like a pedantic bumhole All I meant to say was that your original point 1 (It's a restriction, not a CO) isn't quite true, as a restriction is a CO, but worded on the title register in such a way as you can get out of paying it when you sell your house.

The important thing, however, is that the solicitors/DCA can go whistle for the following two reasons:
a) They almost certainly won't apply for an OFS, because
b) They would never (ever) convince a judge to grant one, for exactly the reasons discussed.

Land_Registry

Sparklyfairy - eggbox is really the poster who covers all the bases here as our remit is the registration of such interests, which includes Charging Orders of course.

Our Practice Guide 76 covers the basic guidance from purely a registration perspective, namely how they can be protected on the register in a given set of circumstances. So it is written with legal professionals in mind whilst also aimed at those seeking to protect their interest on the register i.e. the person/company who have the CO against you.

Much of the guidance will be merely background understanding from a registration angle. It does not seek to cover the court process or how a CO can be enforced as these are not matters we would be directly involved in.

Sparklyfairy

Thank you, LRR. I know the LR are unable to respond regarding court matters, that's fully understandable as that's outside your remit. I appreciate all the info you have given on this thread.


Now, EGGBOX!! Where doth thou?!


The letter I received also said that I have to respond by the end of the week..otherwise doom & gloom...

eggbox

kookykathryn wrote: »

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]
[FONT=&quot]
[/FONT]

I know it's not easy but two things. Firstly, a letter from the company stating that they refuse to supply written notification stating that they have been notified of the sale should, in my opinion, be accepted by the LR as the objective of the Restriction is notification, and not prevention, of a sale.


Secondly, if the sale proceeds in the absence of the supplied letter; the LR would have no choice but to cancel the Restriction as it would become overreached as the buyers interests would take priority. (I should add that a CO on the Beneficial Interest of a person that no longer has any BI in the property is useless anyway)


But, as ever, it's conveyancers not understanding what power (or lack of) a Restriction has.

eggbox

Sparklyfairy wrote: »

Thank you, LRR. I know the LR are unable to respond regarding court matters, that's fully understandable as that's outside your remit. I appreciate all the info you have given on this thread.


Now, EGGBOX!! Where doth thou?!


The letter I received also said that I have to respond by the end of the week..otherwise doom & gloom...

Sorry Sparkly but I have now PM'd you! (not getting message updates for some reason??)

Sparklyfairy

Phew, I was about to have a heart attack!

eggbox

Just to update the site on Sparklyfairy's post,


This has happened to another person and the reults were as follows;


1. Letter from Restons saying they are now acting for Marlins
2. Letter from the Court to say CCJ reassigned to ME 111 Ltd (Marlins)
3. Attachment of Earnings claim quickly follows
4. Person is Self Employed so not available to creditor
5. Letter follows from Restons saying they accept the £10 offer made in the claim form filled in with the AofE form
6. Letter sent to Restons stating no offer was made (as can't afford) and please forward where they have this "offer" information from
7. Restons ignore letter and say if no offer made they will have no choice but to recommend their client to proceed with an Order For Sale.
8. Letter to Restons explaining that;
a) Any OFS would be defended with Case Law provided by the MOJ and TOLATA that protects family and primary residencies from OFS's being granted
b) Marlin decided to purchase the debt voluntarily
c) The debt will have been bought for around 10% of the original debt amount (about £1000)
d) No judge in possesion of his faculties is going to find it proportionate to evict a family from their home for this optionally purchased low amount.
e) An offer of £1 permonth is offered if Marlins are so desperate for a repayment but must be accepted until the debtors finances improve


9. Nothing further heard from Restons (about 3 months has passed)


The protections against this type of cruel behaviour are listed in this thread to protect family and primary homes so make sure you read up on them!

eggbox

Sparklyfairy wrote: »

Phew, I was about to have a heart attack!

I do wonder how some of these vermin sleep at night. Hopefully, you are feeling much better now?

Sparklyfairy

Thanks for that, Egg.


How would I find out if my debt was reassigned to Marlin from MBNA through the courts? I definitely haven't received anything from the courts about this, but clearly this is something Restons would have no problem correcting. And would change of ownership of the debt be reflected on the Land Registry Register do you think?


These tactics should be reported to the OFT..similar tactics (threatening court action when no real intention to follow through) have been made by the DCA First Credit..they were fined a few years back for each reported case, something like £20k for each instance..