Charging Order? The myth

sentient73

What a fantastically useful thread!

I've read through as much as I can and can't see an answer to my specific situation.

Creditor has a court claim against me for a £6,000 credit card debt in my name. I'm in the process of trying to negotiate with their solicitor to avoid it actually going to court.

They have agreed to £20 per month payment plan if I agree to a charging order on my jointly owned property. If I / myself and my wife agree to this, does it still automatically become a restriction, or will the fact that we've agreed to it mean that it is an actual CO?

absolutereturn

sentient73 wrote: »

They have agreed to £20 per month payment plan if I agree to a charging order on my jointly owned property. If I / myself and my wife agree to this, does it still automatically become a restriction, or will the fact that we've agreed to it mean that it is an actual CO?

Have you admitted the claim already?

If the debt is in a sole name and the property is jointly owned, it will still be a restriction.

eggbox

wembley14 wrote: »

Is there anyway that this could be done without solicitor. DIY ??

Yes you can legally do your own conveyancing (DIY packs are available at places like Staples) but the key is to convince your buyer they will fine regarding the sale.


As I said previously; allow them to withhold the CO amount until they are registered to give them peace of mind (or even whole amount as the LR can't refuse to alter the new registration)


And they can verify with the LR that their purchase for "value" will override the Restrictions interests which will be removed as overreached.

sentient73

absolutereturn wrote: »

Have you admitted the claim already?

If the debt is in a sole name and the property is jointly owned, it will still be a restriction.

I'm in the process of admitting the claim. I had previously submitted a defence which it transpires is not going to work, do it's either get a CCJ with a restriction or agree to pay £20 per month with a restriction.

The issue with the £20pm option is that they will continue to charge interest. I need to find out what this rate is to assess the potential impact on the overall debt.

wembley14

thanks for that eggbox,
but as you have said in post #1208 if they(buyers) don't comply with 14 day notification requisite in restriction the said restriction is not being complied with so could creditor use this as not being adhered to and use this technicality to have debt paid from proceeds. Maybe I am looking too much into this but I am just trying to cover all bases when looking for competent solicitor.


I have just phoned buyers solicitor and she wasn't very pleased and said that I should be going through my solicitor to contact her. I told her I no longer had one and the reason why. Her response was that she could not instruct her client to purchase the property with the restriction in place only when it is removed before sale. I am now becoming even more exasperated. I told her this did not have to be the case but she was having none of it. The buyer needs to get out of their property because that has been sold.
don't know where to turn. my property has been on market for 3 years.
looks like back to the drawing board or pay the vultures.

eggbox

Unfortunately, the continuing intransigence of Solicitors is a huge obstacle in these situations as most think the sun goes in every time they pull up their drawers! It will continue to be difficult until people stop using those Conveyancers who won't help or when buyers find out that a Restriction isn't a prevention from a sale proceeding. Non of which helps you, however.


Ultimately, though, it's the buyers decision whether to proceed or not regardless of what their Solicitor says. If they are as desperate as you say I would try and get THEM to simply contact the LR to confirm that as long as they notify the Restriction holder of the sale proceeding their registration can proceed. You have nothing to lose from trying this?

eggbox

sentient73 wrote: »

I'm in the process of admitting the claim. I had previously submitted a defence which it transpires is not going to work.

Can I ask what that defence was, if the credit card was taken out before April 2007 and if you have ever sent a CCA request to the creditor?

sentient73

eggbox wrote: »

Can I ask what that defence was, if the credit card was taken out before April 2007 and if you have ever sent a CCA request to the creditor?

My initial defence was that it was a company credit card, and therefore I wasn't liable. However because it was a sole trader rather than a limited company that defence wasn't valid.

Credit card taken out in 2008, last payment in 2009. Debt has been sold on to TBI Financial who are the ones bringing the court claim.

As part of the documentation that came with the court claim the original credit agreement was included that I had signed. (I no longer have this documentation as it was in my laptop back which got stolen last week - it's not been a great couple of weeks!).

Situation is now that I pay them £20 per month, with consent for a charging order (which is why I'm on this thread) however they would continue to charge interest at 8% per year, which means the debt would actually increase, or let it go to court and get a CCJ.

eggbox

They can only charge interest at 8% from when you defaulted up until the judgement is made. To be allowed interest added after judgement the creditor has to have it written in to the agreement. So you need to request a new agreement under s77/78 of the CCA with the £1 fee to see if this is in the agreement you signed.

sentient73

eggbox wrote: »

They can only charge interest at 8% from when you defaulted up until the judgement is made. To be allowed interest added after judgement the creditor has to have it written in to the agreement. So you need to request a new agreement under s77/78 of the CCA with the £1 fee to see if this is in the agreement you signed.

Thanks for that. What they are saying, however, is that they would be charging interest because there would be no judgement, we would be agreeing it before it went to court. Therefore the only way to stop interest being charged would be to let it go to court and get a CCJ, which I was trying to avoid.

But based on what you are saying this would be the only way to prevent the debt increasing.