Charging Order? The myth

eggbox

DAKOTA45 wrote: »

I had secured a sale long before the Interim Charge was placed, but the creditor interfered with the sale by threatening my buyers, causing them to withdraw….

Can I ask in what form the "threat" was made?

DAKOTA45

Hi Eggbox…

The creditor lied to my buyer, telling them that my septic tank was leaking over his land and had caused substantial damage and that he would pursue them through the courts if they purchased my property. He was extremely threatening and I have all the evidence. I believe its called a Tort by Interference and that I have a legal counterclaim for the loss of the sale.
As he lives next door it's hard for me to sell without him finding out…

eggbox

Gas442 wrote: »

They have now decided to almost double the debt and claim contractural interest based on original loan agreement? I thought they were not allowed to do this?

The below is written by Sequenci (who practices Law) and is on the CAG forum on the "Charging Orders a Guide" thread; I'm sure he won't mind me relaying the information here.


Sequenci states;
In a nut-shell post judgment interest can no longer be applied to CCA regulated charging orders at all.
- Charging orders and their effect are determined by the Charging Order Act 1979
Section 1 COA says that a Charging Order is made ‘for the purposes of enforcing that judgment or order’ and that the charge is for ‘securing the payment of any money due or to become due under a judgment or order’. Although enforcement of a Charging Order is not execution of a judgment, s1 means that the order and the judgment must be coextensive. Therefore no money can be recovered in excess of what is due or to become due under the judgment.
- Section 3(4) opens with the words ‘Subject to the provisions of this ACT…’ and so unless the interest is due under the judgment or order under the Interest on County Court Judgements Order, it cannot be included in the Charging Order
- The amount of interest depends on the amount of interest due on the judgment.
- Some CCA regulated agreement judgements do not have an interest post-judgment clause.
- Even if there is an interest post-judgement clause on a CCA regulated agreement the lender still cannot enforce these rights by levying contractual interest – unless that rate forms part of the judgment, the lender would have to bring seperated action for the interest. (Supreme Court Practice 1999 Ed. Para 42/1/24 and Re European Central Railway 1877 4 Ch.D.33
- The claimant may try to use s3(4) COA to claim that an equitable charge attracts interest on the principle sum. However, the rate of interest payable under an equitable charge depends on its terms. In the case of a CO, the judgment debt would be in essence the principle sum. The rate payable on this sum is prescribed by statute or set out in the judgment. S3(4) wouldn’t justify applying a different rate.

eggbox

DAKOTA45 wrote: »

The creditor lied to my buyer, telling them that my septic tank was leaking over his land and had caused substantial damage and that he would pursue them through the courts if they purchased my property. He was extremely threatening and I have all the evidence. I believe its called a Tort by Interference and that I have a legal counterclaim for the loss of the sale.

Ah, sorry, I thought this was bank that had done this. Still, if you have evidence of a lost sale it has to be worth pursuing?

eggbox

I'm just reading up on the recent posts as I've been involved in a Court Claim myself with the lovely Capquest. But my opinion of how arbitrary the legal system is and the Judgements that are made goes down and down every time I visit Court (and I'm talking as someone who came out with the decision in my favour!)

With regard to the discussion on Form K Restrictions, LRR is totally correct in saying it's a legal issue. That is why you have to try and do everything can to try and get the Law working in your favour. The Law, unfortunately, is swayable and usually gets bent into the shape the person with the most persuasive argument has. It's not about what's fair or correct!

As a brief example; the Court case I helped a friend with today was in relation to a Mastercard agreement being supplied for a Visa Card account in relation to a CCA request for a Court claim Capquest had made. A fairly clear error you would have thought to get the claim dismissed? Wrong.

It has taken 15 months to sort out simply because the person concerned couldn't get the claim struck out as the Courts kept giving the claimant more time (as the claimant was more learned in how to do this) I've now managed to get the claim struck out today but only because I could knock down the claimants arguments for requesting more time to get the documents required. The fact that the wrong type of agreement had been supplied and 15 months later the right one hadn't appeared seemed a minor problem to the Judge!

The point I'm making here; is that anything you can use to push the Law in your favour should be used. That is what DCA's do to great effect and its time the balance was redressed.

DAKOTA45

EGGBOX

Exactly! My experience of the legal system as a litigant in person has been dire. The other side won, only, in my opinion, because they were represented.

It didn't help, of course, that the Judge refused to adjourn my case when it was discovered that the audio loop I had requested (I'm deaf) did not work on the day and I could not participate fully. I panicked under cross examination and (stupidly) withdrew. I only found out the details of what went on afterwards when the court transcript was produced!!

I noted several serious procedural errors and appealed, but the Judge refused to allow me to set aside my decision to withdraw and awarded substantial costs to the other side. Just dreadful!

At the hearing for the Final Charging Order I came fully prepared to counterclaim, only to be told the Judge wouldn't adjudicate because of the amount of my claim, as this was a County Court and it needed to be heard at a High Court.

Hence I now have a charge on my property. It certainly helps to know the law.

DAKOTA45

Hi Eggbox…

With regard to the discussion on Form K Restrictions, LRR is totally correct in saying it's a legal issue. That is why you have to try and do everything can to try and get the Law working in your favour. The Law, unfortunately, is swayable and usually gets bent into the shape the person with the most persuasive argument has. It's not about what's fair or correct!

The waiving/bending/altering of CPR and Land Registry rules happened time and time again during the 4 year course of my litigation… in favour of the represented party! It's really hard out there for anyone who doesn't have the means to pay for advice…

I would definitely have gone to the highest court in the land about that DJ who denied me the right to a fair trial, all the time favouring the other side who had made serious, if not fatal errors…

I now owe a substantial debt and have a Charge on my property when the case shouldn't have even reached court!

An error by the creditor when completing a Land Registry Form NAP and failing to tick the relevant boxes means that after 65 days had passed, his case against me should have failed. I am sure LRR is familiar with this scenario, as LR has very precise rules about it;

The Form NAP notices sent out by the Land Registry provide that the application must be dealt with under paragraph 5. Failure to complete the form properly ( eg tick the right box) or in time ( 65 days under LLR 189 and 190) has dire consequences for the respondent landowner : Paragraph 4 states :

4 If an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate.


But of course, when I pointed this out to the swine of a DJ, he just dismissed it by saying it was 'obvious' that the objector intended to rely on paragraph 5…

I have no idea why LR even bothers to make any rules when they can so easily be waived.

So… I am still trying to unravel the legality of this 2nd Judgment Order which was made more than a month after the original JO which was for a standard form K.

The creditor and his solicitor were present at the hearing for the first JO, so were 'on notice' of the decision, so why did they not make any request at that time asking the DJ to modify?

Why wait more than 4 weeks to make the application, then make a (without notice) application, denying me the right to reply?

They were out of time to appeal the original order, if I understand the rules… or can they just request the modification at any time, without asking permission for a variation of time, etc.?

Does the new JO extinguish the original…? If not, how can there be TWO JOs in place for the same debt? Bizarre!!

I would like to hear back from Wembley14, whose modified order appeared 5 months after Judgement… how did this happen? Was there another hearing? It all seems very underhanded to me…

Sorry to bore on, re the injustice of it all, but I am sure there are many people out there being failed by the courts, just because they can't afford to pay. So unfair.

eggbox

Hi Dakota45

I can see you are unleashing a fair degree of frustration in your posts but curiosity has got the better of me, I'm afraid. So can I ask what the debt was regarding that led to the CO?

DAKOTA45

Hi Eggbox….

Frustration is a gross understatement… the 'debt' is my neighbour's 30k legal costs which he ran up willy nilly having had the benefit of a Conditional Fee Agreement (which he failed to notify either myself or the court about but was allowed to get away with)….

CFAs were done away with last year and it is doubtful he even applied by the deadline.

Never mind that he stole the bit of my garden containing my septic tank, which was given to me by the previous landowner, who met with a fatal accident before the land transfer took place. (Arrrgh!)

When said landowner's estate came up for sale by sealed bids, he then, by his own admission, (the arrogance!), went on to cheat me out of the purchase by bribing the estate agent to reveal my bid...

When I had occupied the bit of garden for more than 10 years, I made an application to register the land by adverse possession and the b'stard made an objection, even though he had no interest in it and has now given it to another neighbour just to spite me…

I had previously offered him ten times the market value (the judge even made comment at the trial, saying the land was practically worthless, but that the owner was free to sell or not to sell, etc), to buy this bit of garden, and having spent money on a survey to measure the land, he reneged on the deal… I had given him a 500 quid deposit which he refused to pay me back, lying and saying that it was ME who had backed out!!

I am sorry if I sound bitter and twisted, but what with the unfairness of the court and the bent/biased Judge, who arrived for a site visit prior to the trial, along with the neighbour and his counsel, all having had a cosy discussion about the case without me being present and who turned to me and made such a biased remark, (out of hearing of the neighbour and his counsel), that I knew the case was lost before I even arrived at court.

I am just so angry...

Keaton_2

Evening All

Firstly what a great and informative thread!

Just finished reading through all previous posts so I thought I'd post our problem and see if someone can help so please bear with me.

We have been on a DMP since Aug 2011 with Stepchange.

All of our creditors accepted our proposals except for HFC who obtained a CCJ and subsequent Charging Order in April 2012 - I now realise that it is just a restriction as the house is in joint names but the loan was only in mine.

Anyway we recently approached our mortgage lender - Halifax - to see if we could move off their SVR to a better product. Several hours later the advisor was confident we could switch to a product which would save us approx £100 a month which we could then use to increase our payments to all our creditors. We even received a mortgage offer through the post.

They said that as our Mortgage was on their old computer system we would need to redeem it and then be given a new one on their new computer system.

However, we have just heard back from their appointed legal team Optima who have a problem with the restriction. They have said

"We are unable to proceed with this remortgage as this is a third party interest and Halifax will not agree to proceed whilst this is registered as there is money owed under the charge and is not being repaid. This interest will rank ahead of Halifax's charge and if the property was ever repossesed then HFC's interest would be repaid first and then the Halifax would be left with the remainder and as a Mortgagee in Possession they will not proceed on this basis.

Unfortunately, a restriction cannot be postponed and we would therefore require the amount owed to be repaid on completion for us to be able to proceed with the remortgage.

If HFC were to register a second charge over the property by way of a Legal Charge then we could approach them to see if they would agree to postponing their charge in favour of Halifax and execute a Deed of Postponement. Please note they may not agree to this."

Needless to say we are a bit confused by this and wondered if there was anything we can do.

Appreciate any assistance.

Many Thanks