Charging Order? The myth

eggbox

The Restriction registered is a standard Form K notifying that a Charging Order exists against one of the joint owners "Beneficial Interest" (or their share of the equity in the property). A read of this thread will tell you the strength of this Restriction.


If you were able to remortgage the Restriction wouldn't disappear but neither would you have to pay off the Charging Order its notifying, either. But, as I said before, it will be up to the mortgage lender if you are able to remortgage and whether the Charging Order would present a problem for them doing so?


If you have a decent amount of equity this may still be possible but you won't know what their stance on the matter until you ask or apply?

The_Printer

Hi there,

I separated from my wife nearly 6 years ago, we still have the house in both our names which we are trying to come to an agreement on to finalise the divorce. When we separated I had a lot of debt which I couldn't afford to pay. I have not lived at our address for nearly 6 years and I have just arrived back from holiday to find that an interim charging order has been made against the house in joint names for just over 5k, of which I probably owe to be fair however this is the FIRST correspondence I have personally received on this matter. Any other letters that are sent to my ex wives house are always returned with 'no longer at this address' on the front by my ex.

I have been told in the letter that I need to make my objections in writing 7 days before the final hearing which is on the 23rd of September. Can someone in layman's terms let me know what this means and how worried I should be, from what I can gather technically they can only leave a restriction due to the fact that its jointly owned, is that correct and should I be going to see a solicitor? If so can anyone recommend one in the Brighton area?

Any advise gratefully received!

The Printer

eggbox

The_Printer wrote: »

I have just arrived back from holiday to find that an interim charging order has been made against the house in joint names for just over 5k

If the order has been made against "joint names" then a Restriction won't be required as a Charging Order will be registered against the land (property) as it's against all the owners. A Restriction only applies if the debt is only in the sole name of one of the joint owners.


But a CCJ will have to have been gained before a CO can be obtained. If the original claim has been sent to an old address you can apply for set aside (£155) on the grounds you weren't able to defend the claim made.


If you are granted set aside make sure you send an s.77/78 request to the creditor under the CCA 1974 for a "true copy" of the original credit agreement. If the agreement was prior to April 2007 the creditor can't enforce any agreement through court unless it complies with this request.


Also check if the gap between the debt becomong due (under default) and the date of the claim made by the creditor wasn't over six years apart. If it is the debt would be "statute barred" and unenforceable which would be your defence.

The_Printer

Hi eggbox,

Thanks very much for your reply. The order is in my name only and its only an interim, the hearing is on the 23rd of September. With this in mind is it a) worth me going to the hearing and writing in a defence or b) letting them get on with it as technically they can only leave a restriction on the property? There are no plans to sell in the future due to us having 2 children that are still at junior school.

Also how do I go about applying for a 'set aside' as i'm not even sure who the debt is with, they have it down as a company called 'Aktiv Kapital Portfolio' who i've never heard of?

eggbox

To get set aside you will need to fill in Form N244 but you will need to add the claim number the creditor filed it under and send it to the court where it was filed (probably the bulk centre at Northampton). You can also defend the CO on the basis you have filed for a set aside as you were never notified of the claim and, more importantly, don't know what it's for?

But the CO would have to be removed if you get the CCJ set aside so it's worth contacting Aktiv to get the info off them as they may postpone the hearing?

But Aktiv Capital are just another bottom feeding debt purchaser so don't rely on them being helpful as they won't care how they get a CO.

The_Printer

Hi eggbox

Thanks again, i'll look into that in the morning and get in touch with Aktiv. So just so I am clear and apologies if i'm asking for information already received. If the debt is in my name, yet they are applying for a CO for a property in mine and my ex wifes name, they cannot get a CO just a restriction on the property, which from what I can gather isn't worth the paper its written on?

eggbox

The_Printer wrote: »

Hi eggbox

Thanks again, i'll look into that in the morning and get in touch with Aktiv. So just so I am clear and apologies if i'm asking for information already received. If the debt is in my name, yet they are applying for a CO for a property in mine and my ex wifes name, they cannot get a CO just a restriction on the property, which from what I can gather isn't worth the paper its written on?

The Printer


They can get a Charging Order but, if the debt is sole and the property is joint, then they can only get a CO made against "Beneficial Interest" which basically means the debtors financial interest in the property.


As these CO's can no longer be attached to the legal estate they can only be notified by a Restriction which, as this thread tries to explain, gives no legal obligation to settle the debt notified by Restriction upon the sale of a property.

CoolWhip_2

Hi,

Hope you don't mind me joining in the thread - similar to Harisumo from a couple of pages back, I've also had letters from Mortimer Clarke re a debt sold on to Marlin from Northern Rock.

I've ignored them so far, however the most recent one has really made me worried. Not only have they sent me the main letter explaining that if I do not contact them within 14 days, the application for order for sale will be issued (they use 'will', not 'may'), but they've also included a copy valuation of my property!

My flat's jointly owned, and the debt is solely mine - from reading back through the thread could this have been a restriction rather than a charging order? Also, the restriction/charging order was placed in June 2007, would it still be valid? (Sorry I've not read the entire thread yet so I don't know the answer to this!).

Regarding this letter, part of me thinks 'this is just someone sat in an office who's under pressure to meet targets in a company that's bought my debt for peanuts' but then the other half thinks 'well they seem to have done a bit of ground work here', and the letter goes on in detail about me considering the valuation and confirming I am in agreement with it! Should I contact them? I had no correspondence at all after 2007 about this until this company took it over and started writing to me earlier in the year.

Thanks for any advice or reassurance anyone can provide!

eggbox

Read through the thread and you will find other people have been threatened with the same.

You will see it's a tactic to worry you into doing something. The creditor has very little chance of getting a Court to sanction an OFS but are hoping you don't know that. Just contact them using the info in the thread and offer a £1 a week.

harisumo

Apparently 'Mortimer Clarke' are currently sending this type of letter out to most of the 'non-performing' debts they bought from NR. I wrote back to them but now they are putting even more pressure on me and want proof of this and proof of that. So far I haven't heard of anyone that has acutally had this threat carried through but surely if the letters are just empty threats then they must be acting illegally sending them.