Charging Order? The myth

DAKOTA45

Eggbox…

I have been racking my brains to try and find out what was behind the reason for the court completely ignoring my defence & counterclaim at the hearing for the final charging order…

On going through my documents… (& I have no idea how I missed this… probably too stressed at the imminent court appearance…)

...it seems that the judgement creditor's solicitor mentioned in her statement of truth which she sent just prior to the hearing, that she'd had some cosy chats with the court, whereby she was informed that 'none of the Defendant's applications (relating to my defence and counterclaim) had been issued by the court, due to the 'fact' that the requisite court fee had not been paid…

I am exempt from court fees and sent the necessary documentary proof of this when I made the applications to the court.

So, why did the court not inform me of this apparent oversight…?


She goes on, inviting the court to strike out my counterclaim and dismiss my applications…

It all becomes much clearer...

This is starting to smell even more than it did initially!!

Do you think the court should provide me with an explanation as to why nothing was mentioned prior to the hearing…? I mean, a charging order is a serious thing, after all!

eggbox

Hi Dakota

You have to understand Solicitor's will do, almost, anything they can to win a case as it's a black and white outcome. They either win or lose a case so they need to do this for their reputation. So don't think you, personally, have been singled out out as this applies to every case. You should also understand that Court's have no interest in fairness only the Law (which once you understand that you will deal with the Court better!)

A Solicitor inviting the Court to dismiss the other sides claim/defence is also par for the course. But if any of your applications were not presented to the Court, for an incorrect reason, then you have reason to apply to the Court to appeal your case.

Alas, this will almost certainly cost you money but a phone call to the Court to explain why and what you want to do may help you find this out?

DAKOTA45

eggbox wrote: »

Hi Dakota

You have to understand Solicitor's will do, almost, anything they can to win a case as it's a black and white outcome. They either win or lose a case so they need to do this for their reputation. So don't think you, personally, have been singled out out as this applies to every case. You should also understand that Court's have no interest in fairness only the Law (which once you understand that you will deal with the Court better!)

A Solicitor inviting the Court to dismiss the other sides claim/defence is also par for the course. But if any of your applications were not presented to the Court, for an incorrect reason, then you have reason to apply to the Court to appeal your case.

Alas, this will almost certainly cost you money but a phone call to the Court to explain why and what you want to do may help you find this out?

Yes… it just goes on and on… but here are the rules about further consideration in relation to COs…

I think there are grounds for complaint...

Further consideration of the application
73.8
(1) If any person objects to the court making a final charging order, he must –
(a) file; and
(b) serve on the applicant;
written evidence stating the grounds of his objections, not less than 7 days before the hearing.
(2) At the hearing the court may –
(a) make a final charging order confirming that the charge imposed by the interim charging order shall continue, with or without modification;
(b) discharge the interim charging order and dismiss the application;
(c) decide any issues in dispute between the parties, or between any of the parties and any other person who objects to the court making a final charging order; or
(d) direct a trial of any such issues, and if necessary give directions.
(3) If the court makes a final charging order which charges securities other than securities held in court, the order will include a stop notice unless the court otherwise orders.



*The charging order has been obtained irregularly because CPR r.73.8 (2)(c) & (d) were not complied with at the final charging order proceedings and the judge should have directed that the matter be transferred to the Queen’s Bench Division as he did not have jurisdiction/authority to deal with the equitable counterclaim.:(

I am exempt from court fees, but every time I make an application, the creditor adds the costs to my debt… Access to justice shouldn't cost money… it should be a basic human right...

eggbox

Hi Dakota

As I said before, the Court's aren't concerned with fairness only the Law. So if what you say above is correct then you have to find out how to dispute the Judgement as the Law allows.

The creditor is adding costs to your Judgement as you are losing you applications. That is why you need to be sure of what you are doing before you proceed.

And access to Justice should be a basic human right, but you will deal better with your situation when you accept it isn't. You need to focus on what you can do, not what you want to do.

colouredfrog

I wondered is this case still true in 2015.
Where you can sell your house and give the debtor just 14 days to notification and the charging order drops off after the sale from the Land registery


Need some advice, we had a house repossessed in 2000. It was on joint names. Later we bought another house in 2007, but due to the £27.000 debt from the old property, a charging order was put on the new house. The mortgage and Land Registry is in only my partners name.


Is this a full charging order? or a the other type where you can still sell and inform the lendor 14 days before.


The land registery says 'Equitable charge created by an interim charging order of the Manchester court dated 10 Feb 2007 in favour of ******* Plc


Would appreciate any help or advice please

Land_Registry

coloured frog - as far as the registration aspect is concerned it is not the same thing simply because the form K restriction scenario exists where the debt is against one of joint owners. In your case the debt is against a sole owner so the order has been noted as an Equitable charge against the title.

With an equitable charge it's release is invariably only secured by evidence to confirm that the debt has been paid off. So invariably it has to be paid off/discharged/redeemed as it would not be overreached in the same way as say a form K restriction would be in the context explained in this thread.

colouredfrog

Does that mean, the only way out is try a Final & Full settlement situation ? or just live in the house until such a day comes we have no choice, as we have not agreed to any payment plans and have not been bothered by them for several years.

Land_Registry

colouredfrog - that is probably something eggbox can advise on

All we can do is advise on the differences and approach from a registration perspective which usually comes at the end of the conveyancing process.

eggbox

colouredfrog

As LRR has informed, unfortunately, a Charging Order made against a sole owner is registered differently to a "Restriction" as would have been registered if your property was jointly owned and only one of the owners is the debtor.

Sadly, information too late for you but a stark warning to anyone else in the same position as you were prior to obtaining your new property.

The options you now have depend on a few factors such as how much equity there is in the property, who the debt is to and how much you want to stay in your current property? But the probably the biggest factor is if interest is being added to the Charging Order the creditor now has?

Can I also ask if there any reason why the new mortgage was only taken out in your partners name?

DAKOTA45

Eggbox… just an update;

Apparently, my counterclaim was dismissed because I had not paid the requisite court fee…(I am exempt from court fees due to my financial circumstances and had provided the necessary proof to this effect along with all my other documents)..I have literally just realised what happened.

All I can think is that I must have had some kind of mental breakdown and blocked it all out because I was told this very distressing piece of information in a telephone conversation with the Court a few days before the hearing for the Final Charging Order…

I have been digging around in my email archive and have just found an email I sent to the court in some distress, telling them I had sent the proof of exemption.. (which they seem to have 'lost'…) and saying that another copy of my proof of exemption would be there in time for the hearing...

It's like that old saying; "For want of a nail… the battle was lost"

If the court hadn't lost my fee exemption details, they wouldn't have dismissed my counterclaim and the judgement creditor wouldn't have got his final charging order and I wouldn't be facing an Order for Sale..

Assuming success with the counterclaim, obviously…

But the puzzling thing is the long period of silence whereby the court should have informed me that I was lacking in this vital piece of documentation… why did they not tell me that my counterclaim was dismissed, other than when I phoned them up to see why I hadn't heard anything? I have had nothing at all in writing from the Court telling me my counterclaim was dismissed...Bizzarre...

So.. the court has truly messed up as far as I can make out...I am seeing a solicitor tomorrow… will update then...