Charging Order? The myth

eggbox

Forkinhardground


£400 to prepare a case she isn't attending sounds like an awful lot of money to me? However, do make sure you read what LRR has put as, in the eyes of the law, you ex is not currently a legal owner and you are classed as a sole owner.


So make sure you have hard evidence to back up what you are saying in court regarding the mortgage and her health problems.


I will post up a few more things tomorrow to help you on the day.

forkinhardground

Excellent stuff.
Yes she was always to be part owner of the property when I changed mortgage providers.
I changed from one provider to a virgin one mortgage and this was a new mortgage on the existing property but in joint names as when I took my original mortgage out she wasn't working and so only my earnings were taken into account.

When we changed mortgage provider she was working and so both earnings could then be taken into account thus then having a joint mortgage, I assumed everything would be transferred as a joint ownership at that point.

Yes the solicitors fees do seem to be a little steep but that's the catch 22 I guess when you get a half hour free session and their then scaring you!

Thank you LLR AND eggbox once again for your help!

eggbox

You should, perhaps, contact whoever did the conveyancing for this mortgage and find out why your ex's name wasn't added to the LR if that is what you wanted?

eggbox

Forkinhardground

The Case Law that exists for protection from OFS are,

Caselaw - 'Mesher' type orders – provides protection as long as a minor is resident at the property concerned. The use of such orders was confirmed by a ruling in the case of Harman vs. Glencross 1986. Further powers are provided in the Trusts of Land and Appointment of Trustees Act 1996.

Caselaw - Royal Bank of Scotland vs. Etridge 2001 - This case established the precedent that, where a joint loan has been taken out by, with a jointly owned property as collateral, such as the matrimonial home, it is incumbent on the lender to explain to all lendees at the time of signing the potential consequences of default. In this case it was ruled that one party had signed the forms without being informed by the lender of the possible consequences and that the Royal Bank of Scotland did not have the legal right to enforce by way of charging order.

Caselaw - Bank of Ireland Home Mortgages vs. Bell 2001 - This case established the circumstances in which an order for sale would be granted, even if it concerns a family home. The equity available on the property must be sufficient to pay off the judgment creditor and all other interested parties and still leave enough money to adequately rehouse the debtor and dependants.

The Bank of Ireland case is the most useful to you as, in today's market, what equity you would be left with after a forced sale is not going to rehouse you and your ex.

forkinhardground

Thank you eggbox you have been a star in finding this information out for me.

Incidentally I've been doing a bit of ssearching into who owns ME III ltd.

Seems to be a right dubious set up being owned by about 4 different companies leading up to some of the big banking people. Some of which have been investigated for various not so legal practices!

forkinhardground

Oh and the conveyancing solicitors were virgin one's own solicitors. They told me I didn't need to use my own solicitor and could use theirs which would make legal fees cheaper for us.

In hindsight that wasn't such a good idea looking at it now, it was about 10 years ago plus now.

eggbox

Marlin (ME III) are utter scumbags as shown by the Channel 4 Despatches program. That's why you need everything you can to help in court. My own opinion is that this is more of an attempt to extract payment rather than get you to sell up so make sure you have everything to explain your limited funds.

And you need to check what Virgin should have done as if they have put you or your ex at a disadvantage then you may be able to make a claim for negligence.

eggbox

Forkinhardground


Good luck for today and please let the board know how you got on (good or bad) as all experiences are invaluable to others reading this thread.

forkinhardground

Thank you Eggbox and LLR.

Went in today and the judge was brilliant. She was not happy at all about them bringing this action.

Had struck a deal with them before going in and agreed to some payments.

However the judge scowled at the barrister and told her straight that if no deal had been done she would not of allowed a force of sale to go ahead. She stated that my ex partner could demonstrate she was a beneficiary of the property and so should be allowed to challenge as there were areas that needed to be resolved with the land registration and the original conveying solicitors.

So the upshot is the case has been adjourned and I can make repayments at an agreed monthly amount and if I fail to make payments, which I won't, then their still back at square one!

eggbox

Forkinground


That's great news! It's easy to say it's almost impossible to get a forced sale on a family home, but I'm sure you have had a few sleepless nights worrying actually going to court?


At least your case has highlighted, now, that any unscrupulous, scumbag creditor going down this route is going to get shourt shrift from the judiciary (especially, given the Judge said she wouldn't have allowed it anyway?)


Hopefully, you haven't been forced to over extend yourself with the repayments (and I'm sure you are a lot happier tonight!) but your experience will give a lot of people reading this thread a lot of hope and peace of mind understanding the threats from these vermin are just that. A debt collection company that has, optionally, purchased a debt at a fraction of its value is not going to get a forced sale.