Charging Order? The myth

eggbox

Dakota

At the time of your article there was a recommendation by CAB that a £25,000 minimum limit should be put on Orders For Sale being sought from Charging Orders. A District Judge also wrote an article stating that most Courts were using this figure as an unofficial limit when considering OFS. It was, therefore, widely anticipated that this would be made Law when the Ministry of Justice released their White Paper review of CO's in 2012.

However, the Goverment bottled it and caved in to lenders setting the new minimum figure from the review at just £1000!

But I did correspond with the MOJ on this and they made it clear that their decision took into consideration that their were protections in place (case law and TOLATA) for family and primary householders against OFS being made on those type of property's. It was envisaged, therefore, that only second property's or other assets, such as stocks or shares, would be the subject of any OFS resulting from a CO.

DAKOTA45

eggbox wrote: »

Dakota

At the time of your article there was a recommendation by CAB that a £25,000 minimum limit should be put on Orders For Sale being sought from Charging Orders. A District Judge also wrote an article stating that most Courts were using this figure as an unofficial limit when considering OFS. It was, therefore, widely anticipated that this would be made Law when the Ministry of Justice released their White Paper review of CO's in 2012.

However, the Goverment bottled it and caved in to lenders setting the new minimum figure from the review at just £1000!

But I did correspond with the MOJ on this and they made it clear that their decision took into consideration that their were protections in place (case law and TOLATA) for family and primary householders against OFS being made on those type of property's. It was envisaged, therefore, that only second property's or other assets, such as stocks or shares, would be the subject of any OFS resulting from a CO.

1k of debt to make someone homeless is totally ridiculous!!:mad:

I am guessing BL's next dirty trick will be something along those lines…
I can't imagine they are going to sit back and wait.

I have no assets whatsoever and am on pension credits. An OFS would not only make me homeless but would disadvantage my husband who has always paid the mortgage.

A recent survey valued the property as being worth a bit less than we owe our lender, so that's good, I suppose.

I wonder if the debt would still exist in a case where there is no equity… and no likelihood of it ever being paid?

DAKOTA45

eggbox wrote: »

Dakota

Keep us informed when the hearing is due and make sure the court is made aware well in advance of the hearing of your hearing disability.

The costs sound horrendous but can I ask how much the eventual CO was made for in total and what sort of equity you currently have in your property ( there is a reason I ask)

Yes… will do!

The Judge mentioned that the costs were 'well in excess of what would have been expected as it was a very simple case' and reduced it from 39k to 24k, but still allowed them to claim the 100% success fee to which I believe they were not entitled as I doubt they were able to get one of those before the cut off for CFAs on 01/04/13.. They certainly didn't submit any evidence of the CFA to me or the Court.
There was also a serious error & their case should have been dismissed as they were not able to rely on the Land Registry rule cited.
I appealed after the hearing but the Judge refused saying that it was obviously their 'intention to rely upon the rule', even though they had not made any statement whatsoever to that effect..!

The dispute was over a strip of land worth about 2k! The Judge visited the site and said at the hearing that the land was virtually worthless… the fact that the neighbour clocked up nearly 40k worth of legal costs against such a low value is, in itself indicative of the unfairness of it all… he didn't even want the land and gave it to another neighbour just to spite me!

The Judge knew I had a valid case, too, but was so biased you wouldn't believe it…

Stitched up like a kipper… which is why I am fighting to the death.

eggbox

Dakota

If your property is worth less than the mortgage BL wouldn't go for an OFS as there is no point. They will also understand that their chances of succeeding are nil as Diistrict Judges have discretion over granting OFS and they just don't do it (search google for where it has happened and you will struggle to find any cases.) Plus, as I said, there is caselaw protecting family/primary residencies from OFS being granted. The most obvious in your case is that there has to be enough equity from a sale to rehouse you elsewhere. That, obviously, wouldn't be the case given your circumstances so you have no worries on that score.

But the reason I asked what equity you had in the property is because you could (if you so desired) walk away from the property (as you appear to have no equity) and implement a voluntary repossession with the mortgage company. What then happens is that the mortgage company can exercise their power of sale (as first charge holder) and this would remove all other charges on the register as they then become overreached. So your neighbour would then lose any "security" attached to your interest in the property.

If there is any surplus when the property is sold it is returned to the original owners ie you and your husband. Might be worth thinking about and starting afresh as this situation appears to be ruining your life right now?

DAKOTA45

Hi Eggbox… thanks for the post.

Whilst the valuation was low because the property is in need of much renovation, the location is extremely desirable, and I managed to sell the property for a figure of more than 100k in excess of the value, to a cash buyer last June, but the neighbour found out and threatened our buyer causing them to withdraw from the sale.
No doubt, my neighbour will have informed BL of this fact.
However, I was told by someone who knows a bit about such things, I have a right to counter sue the neighbour for the loss of the sale… Tort of Interference..
I had the counterclaim in place when I went to the County court for the Final CO hearing, but the judge was unable to adjudicate…I wasn't aware that I would need to take it to a higher court because of the amount… so the charge went ahead.
I would love to turn things around, but can't afford the legal advice.. this has been my downfall all along, unfortunately…

I suppose if the judge was nicer and seeing as I was representing myself and didn't know the rules, he could have adjourned instead of slapping the CO on… but I don't seem to come across any fair Judges… they suck up to the lawyers and legally represented people… they hate LIPs.

eggbox

Dakota

I'm not sure I follow how you could persuade someone to buy at 100k more than the property is now valued at in such a short space of time?

DAKOTA45

eggbox wrote: »

Dakota

I'm not sure I follow how you could persuade someone to buy at 100k more than the property is now valued at in such a short space of time?

Exactly… the stupid man has done himself no favours as I was half inclined at the time to pay him off, even though I don't agree with the amount, but it would have ben worth it because this is so stressful…
I should be able to use it against him as there was definitely an intention to cause a breach of contract...:(

eggbox

No, I meant how can a property in a "desirable" location drop 100k in value in around a year? How or why has that happened?

DAKOTA45

eggbox wrote: »

No, I meant how can a property in a "desirable" location drop 100k in value in around a year? How or why has that happened?

When my survey was done, a year ago, it didn't seem to take into consideration the amazing riverside location and just quoted the market value for a shabby 2 bed bungalow with subsidence… But my buyer liked the location so much, they were prepared to offer well in excess of the market value.

I would need a cash buyer though because it would be difficult for anyone to get a mortgage on it given that it is in such a bad state of repair and of non standard construction...

eggbox

If they liked it that much I'm surprised they were so easily put off by your neighbour?