Charging Order? The myth

DAKOTA45

WEMBLEY14… if you are still around… please do you have any tips or advice re trying to sell with two separate COs on same debt, please… I need to prepare myself for any further dirty deeds by BL solicitors.
Does anyone else have any experience of this odd 'double whammy' form K restriction, (standard and modified), please?

DAKOTA45

Eggbox…. by the way, I went to the audiologist yesterday who said that my eardrums don't function normally and I was referred to a specialist as a matter of urgency…
I am just wondering if I have a case against the trial judge who refused to adjourn, forcing me to struggle through several hours of proceedings without amplification, even after I had explained I was almost totally deaf?
It surely has to be a miscarriage of justice...

DAKOTA45

Making Gifts


When spouses and civil partners transfer assets between them, the transfer must be an outright gift with no conditions attached to it. The transferring spouse or civil partner must not continue to control the asset or derive a benefit from it after the transfer, otherwise it will fall foul of the ‘settlements’ anti-avoidance provisions.


There is, however, nothing to stop the spouse or civil partner who received the gift giving it back to the other spouse or civil partner at a later date, leaving it to them in a will, or making another different gift to the transferor spouse or civil partner at a later date.


It should also be remembered that such transfers could be challenged by HMRC under what is known as Ramsay principle. In this famous tax case it was held by the House of Lords that the courts must look behind the individual steps of a transaction to ascertain the legal nature of the series of transactions as a whole.


The decision in the case was interpreted as meaning that the courts were entitled to disregard steps in a transaction (whether or not achieving a legitimate commercial end) inserted for no commercial purpose other than avoidance of tax liability.


In relation to transfers of property between spouses or civil partners, for Ramsay to apply, the inter-spouse/civil partner transfer would have to form part of a series of transactions designed to produce a tax benefit, or be a sham. For example, this could occur where the transferee spouse or civil partner agrees to return an equivalent sum to the transferor rather than keep the asset as would be the case with an outright gift.


A transfer made only shortly before an eventual sale to a third party could also come under scrutiny by HMRC.

Also;

Q The house my wife and I live in is registered at the Land Registry in both our names. Could you advise me on the costs and tax implications of transferring my half of the house to my wife? CR

A If you do the transfer yourself, by filling in forms AP1, TR1 and ID1 from the Land Registry, the only cost involved will be its fee, which ranges from £50 to £920 depending on the value of the property. However, the fee will be cheaper for all transfers completed on or after 22 October 2012, when most Land Registry fees are being reduced by 10%.

If you don't go down the DIY route you will need to pay a solicitor or conveyancer to deal with the Land Registry on your behalf.

As far as tax goes, there's no capital gains tax (CGT) bill because transfers between husband and wife (and civil partners) are free of CGT provided you are living together (or the transfer occurs in the tax year in which you separate). However, when your wife comes to dispose of the property, its "value at acquisition" would be its value when you jointly acquired the property rather than the value when you transferred your share to your wife.

There is also no stamp duty land tax (SDLT) bill provided the transfer is an outright gift. If by transferring your share of the property to your wife she takes on your share of the mortgage, or pays you cash for your share, there may be an SDLT bill based on the amount of the "consideration" given, which would either be the amount of mortgage she takes on or the cash paid.

eggbox

DAKOTA45 wrote: »

Eggbox…. by the way, I went to the audiologist yesterday who said that my eardrums don't function normally and I was referred to a specialist as a matter of urgency…
I am just wondering if I have a case against the trial judge who refused to adjourn, forcing me to struggle through several hours of proceedings without amplification, even after I had explained I was almost totally deaf?
It surely has to be a miscarriage of justice...

As the, subsequent, set aside of the Judgement against you failed, for reasons the Judge gave; what grounds would you have to claim a miscarriage of Justice occurred?

Regarding the transfer of Equity details you give, the simplest way to avoid any problems is to get divorced. That way any transfer is part of a settlement and not a gift.

DAKOTA45

eggbox wrote: »

As the, subsequent, set aside of the Judgement against you failed, for reasons the Judge gave; what grounds would you have to claim a miscarriage of Justice occurred?

I was speaking of the original trial… I am thinking that I may have grounds for reasons of disability discrimination… (The judge at the recent set aside agreed with me when I mentioned the circumstances of the original trial and said he thought it very unfair but that there was nothing he could do about it as he was adjudicating on the modified restriction only).
If a person is deaf and also a LIP, they are unable to participate fully in proceedings because they can't understand what is being said… much in the same way as someone who doesn't speak English and needs an interpreter… it is unthinkable that the Judge would proceed without the interpreter, as it would be against their human rights... yet this judge thought it ok to allow the trial to go ahead despite me telling him I was deaf and needed a hearing loop. I was denied a fair hearing and ended up withdrawing from proceedings and handing the case to the other side.

Regarding the transfer of Equity details you give, the simplest way to avoid any problems is to get divorced. That way any transfer is part of a settlement and not a gift.

Ha… we have come so close to it during the past few years! But I think any equity would still be divided 50/50 unless we made other arrangements, despite my husband being the only person who has ever made any payments on the mortgage...

Enterprise_1701C

I have a question. We have a charging order on the house (we are tenants in common).

The thing is we KNOW this was paid off, and it only came to light when we tried to remortgage some time ago.

We are at the moment struggling to find the paperwork, what is the situation if we find it and what is the situation if we do not find it please?

We are about to pay off the mortgage and would really like this clear too in case we decide to sell in the future.

Thank you for any help

eggbox

Dakota

If you still feel strongly about how you were treated you could try contacting the MOJ to explain the circumstances that occurred. Ultimately, though, I suspect you would need to be properly represented and that costs money you say you can't, currently, afford?

And I was referring to getting divorced as a way of legally transferring equity and not separating permanently from your partner.

eggbox

Enterprise_1701C wrote: »

I have a question. We have a charging order on the house (we are tenants in common).

The thing is we KNOW this was paid off, and it only came to light when we tried to remortgage some time ago.

We are at the moment struggling to find the paperwork, what is the situation if we find it and what is the situation if we do not find it please?

We are about to pay off the mortgage and would really like this clear too in case we decide to sell in the future.

Thank you for any help

Contact the creditor who is registered on the Deeds, in the first instance, to ask why they haven't sent a letter to the Land Registry to notify the debt had been settled.

Enterprise_1701C

eggbox wrote: »

Contact the creditor who is registered on the Deeds, in the first instance, to ask why they haven't sent a letter to the Land Registry to notify the debt had been settled.

Thank you for the answer, but the problem is that they are denying it has been settled. Last time we contacted them about it we rang them individually and were given very different information as to the amount "owed".

eggbox

If they are denying it was settled, and you have no proof it was, then you seem to have a problem? Unfortunately, if you didn't ensure the CO was removed at the time you say the debt was settled then you may have to take your case to the Financial Ombudsman.

And if the debt was settled in the last six years I would advise you to make a Subject Access Request to them which will provide you with a record of all your dealings with them.

Hopefully, you have (or can get) a record of the payment made to the creditor?