Charging Order? The myth

eggbox

Hi Tracydc49


Whilst a creditor with a Charging Order is able to apply for an order for sale their chances of succeeding depend on the circumstances of the debtor. Given what you relate about your circumstances their chances are virtually zero. This is because whilst a Court is almost duty bound to grant a Charging Order; Judges have total discretion whether to grant an order for sale or not.


Current Court statistics relate that less than 6 in a 1000 CO's ever progress to the OFS stage so they are extremely rare. So do bare this in mind and relax.


Also, if your home is jointly owned then the chances of a Creditor even applying for an OFS is virtually zero. Blake Lapthorne even put out a leaflet on the internet bemoaning that the new Land Registry rules meant that a jointly owned property gave no protection to creditors as the debtor was able to sell the property very easily without any obligation to pay the debt.


So if you are in that position have a read of this thread to put you mind at rest.

JAS2015

Hello,
I am hoping someone can help me.
I separated from my husband a year ago, joint mortgage. House has been up for sale since November. Husband has basically "done one"..not helped financially at all since this date. I finally have a buyer after dropping the house price. Buyer is not in a chain and is keen to proceed ASAP. Through the normal sale process, it has thrown up that my (soon to be ex) husband has two charges on the property in his name that I knew nothing about. It seems unlikely that his share of the equity will cover these. I spoke to the conveyencer two days ago who says they have contacted these companies to find out what they require to lift these charges but normally its "payment in full". This wont be possible.
I've got home yesterday to another letter from the Land Registry saying that there is ANOTHER impending charge in his name and I have until October 21st to respond.
Basically, if this sale falls through, the house will be repossessed (there is a suspended court order on the property), myself and our two children (aged 9 and 5) will be homeless and I guess these chargees will get nothing? Surely it is within their interest to accept something and lift the restriction, than nothing? Also how does it work - do they split the equity between the two or does the first charge get priority?
Finally, how should I respond to this impending third charge? There is literally no equity of his left in the property after these first two are paid. What's annoying is he soley owns another property that appears to be getting away scot free!
I am hoping to get some "real" legal advice within the next day or so but hoping someone can give me some advice now so I don't go to the appointment blind.
Thanks in advance

JAS2015

Can I just add, he refuses to acknowledge these charges now and is basically burying his head in the sand.

traceydc49

Eggbox thankyou so much, I couldn't sleep last night through the worry, I don't think they are going to agree to a reduced settlement, but at least they have little power to take our house, we've had to have it adapted & the thought of having to go through a forced sale would certainly excellerate this damn illness, thank you again Tracey

eggbox

Hi Jas


It can seem complicated but just bear with me.


1. Creditors usually play hardball in asking for full payment before removing restrictions and they are entitled to do this. However, the creditors Charging Order is against your ex's share of the property only! (Do not under any circumstances let any Conveyancer tell you different!)


2. A Restriction will be registered on your deeds (rather than a "Equitable Charge") as the property is jointly owned but only one owner is responsible for the Charge.


3. The terms of the Restriction (unless it has been modified which is rare) will state that your buyer or their conveyancer only has to notify the creditor with the Restriction that a sale is proceeding to allow the sale to proceed.


4. There is no legal obligation for any creditor to be paid any of the proceeds from the sale but, should that happen, they are only entitled to your ex's share of the proceeds.


5. If your house is repossessed, then the Mortgage company has power of sale and all other charges on the deeds are wiped off. This has the curious effect of repaying the mortgage with the proceeds being returned to the ex-owner (as the creditors no longer have any claim on the proceeds as their "Charge" has been removed.)


6. If you explain you will be repossessed to your creditors and they will lose any, legal, claim on the proceeds, you should find a change in their attitude.


7. You should also inform the creditors of your situation and your ex's other property as an asset they can, perhaps, persue for the balance of their debt.

eggbox

traceydc49 wrote: »

Eggbox thankyou so much, I couldn't sleep last night through the worry, I don't think they are going to agree to a reduced settlement, but at least they have little power to take our house, we've had to have it adapted & the thought of having to go through a forced sale would certainly excellerate this damn illness, thank you again Tracey

We have seen instances where creditors say they are applying for a forced sale and even send a valuation of the property to the debtor. But they still don't proceed as they know it's a waste of time and effort.


So don't be intimidated by these vermin as they are trying profit from people's misfortune. But any contact from them just post it up on the board and we'll help.

DAKOTA45

eggbox wrote: »

We have seen instances where creditors say they are applying for a forced sale and even send a valuation of the property to the debtor. But they still don't proceed as they know it's a waste of time and effort.


So don't be intimidated by these vermin as they are trying profit from people's misfortune. But any contact from them just post it up on the board and we'll help.

Hi Eggbox! I hope you are well…

I see Blake Lapthorn has surfaced again… They are very nasty and anyone who is being threatened by them should take it seriously…
Do you remember that they managed to secure a charging order on my jointly mortgaged property by the way of TWO CCJs? One was for a standard form K restriction which they said did not provide adequate security over the debt… they then made a 2nd (without notice) application for a modified restriction, so that now we have to notify them 14 days prior to disposal… a caution, in other words.

In May this year they wrote and threatened to make an appellation to the court for an Order for Sale if I didn't pay the debt within 7 days. Well, I don't have £30k so waited for the court letter…and waited a bit more…
Anyway, 6 months down the line we have received another threat from them along the same lines. I don't know what they are playing at, but I still don't have the £30k.

I am thinking perhaps my husband should prepare some kind of defence. He does not owe them money so should not be threatened by them. Is it Article 8 he needs to quote, please?

You may also remember that the creditor caused our house sale to fail. This was before he had managed to obtain the FCO. His unlawful interference (Tort) when he threatened our perspective buyers caused us a loss of £375,000, and prevented me from settling the debt. (Moron).

So, effectively, my husband should be able to counterclaim against the creditor. I wonder if this is the reason that Blake Lapthorn has so far failed to carry out their threat? Very strange….

I would appreciate any advice, please!!

Many thanks in anticipation and great to see that the thread is still providing help to those in need...:)

Wish us luck!! Dakota45

DAKOTA45

eggbox wrote: »

Hi Jas


It can seem complicated but just bear with me.


1. Creditors usually play hardball in asking for full payment before removing restrictions and they are entitled to do this. However, the creditors Charging Order is against your ex's share of the property only! (Do not under any circumstances let any Conveyancer tell you different!)


2. A Restriction will be registered on your deeds (rather than a "Equitable Charge") as the property is jointly owned but only one owner is responsible for the Charge.


3. The terms of the Restriction (unless it has been modified which is rare) will state that your buyer or their conveyancer only has to notify the creditor with the Restriction that a sale is proceeding to allow the sale to proceed.


4. There is no legal obligation for any creditor to be paid any of the proceeds from the sale but, should that happen, they are only entitled to your ex's share of the proceeds.


5. If your house is repossessed, then the Mortgage company has power of sale and all other charges on the deeds are wiped off. This has the curious effect of repaying the mortgage with the proceeds being returned to the ex-owner (as the creditors no longer have any claim on the proceeds as their "Charge" has been removed.)


6. If you explain you will be repossessed to your creditors and they will lose any, legal, claim on the proceeds, you should find a change in their attitude.


7. You should also inform the creditors of your situation and your ex's other property as an asset they can, perhaps, persue for the balance of their debt.

I didn't know about this one… very interesting!:)

DAKOTA45

traceydc49 wrote: »

Eggbox thankyou so much, I couldn't sleep last night through the worry, I don't think they are going to agree to a reduced settlement, but at least they have little power to take our house, we've had to have it adapted & the thought of having to go through a forced sale would certainly excellerate this damn illness, thank you again Tracey

Hi Tracey… when did they get the Charge against your home? Is it definitely just a standard form K restriction? I know what you are going through… I have been made very ill by this wicked firm… they are evil and underhanded!

I believe if they have accepted an offer of payment, as long as you don't miss any they cannot force a sale. If they are asking for money you can't afford, I believe you can make an application to the court to vary the amount. If they accept the amount you have offered, even if it's only £1 per month, they can't force a sale.

Dakota45

traceydc49

Hi Dakota, reading your post has really upset me! Not only my own fear, but for you! Had heard they were callous. I was looking for the article in relation to them 'bemoaning' the COs are not a safe guard for them to get their money, & I came across their support of certain charities, 1 of which is an MS 1!!! I was contemplating a letter to appeal to their nicer side & maybe accept a reduced F&F, I don't think I'm going to get very far. I wish you all the luck, for both of us & anyone else up against them, really hope you will get it sorted, take care