Charging Order? The myth

DAKOTA45

eggbox wrote: »

I know its difficult (and expensive), Dakota, but you should really be suing your neighbour for the loss he incurred you by preventing your sale.


You need to keep your actions a little bit simpler and a bit more direct. You should be able to get 30 mins free advice from A solicitor and, if you have the evidence as you say, you may find someone willing to take it on a no win no fee basis.


It could also work out that if your evidence is as irrefutable as you say, that your neighbour may well prefer to settle out if Court? A letter to the MOJ may well help with what you say regarding your application being refused.

Yes… sometimes it's because people are too close to the action to be objective… but I will get there in the end, or die trying...

I am waiting for a decision from the FOS …I am sure my husband should have a good chance of overturning the OFS….He is not involved in the original dispute and does not owe the debt but has been adversely affected by the creditor's actions.

DAKOTA45

JAS2015 wrote: »

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

The first charge gets priority… that will be your mortgage lender and has to be paid… the others get half of what's left of the equity in the date order that they made the restrictions.. BUT, they will get nothing if the house is repossessed as the lender will sell it and give you anything left over… (apparently- I was unaware of this rule).

As for the pending CO, if there is no equity and you can prove it, it might be worth pointing that out to the court… however, the creditor might then want to take the money by other means… sometimes a CO is not always a bad thing…and it is usually granted in any case.

eggbox

JAS2015 wrote: »

Thank you Eggbox!
Can i just ask what is the best way of opposing this new restriction or is it a "done deal"?
Thanks again

Your only real hope is to get a Trust Deed in place before the hearing. This is an agreement you make with your ex to limit his share of the property to the value of the 2 Charging Orders in place (But you will need his agreement for this.)


Explaining there isn't enough equity (at the moment) won't stop the CO as the Court will take the view CO's are long term and the value of the property will increase.


So if you can get a Trust Deed in place it would mean any CO is pointless as your ex's share of the property will be fixed. You should also contact the creditor if you can arrange the TD as they may well take the view the Court hearing is pointless and prefer to save the fee?

DAKOTA45

eggbox wrote: »

Your only real hope is to get a Trust Deed in place before the hearing. This is an agreement you make with your ex to limit his share of the property to the value of the 2 Charging Orders in place (But you will need his agreement for this.)


Explaining there isn't enough equity (at the moment) won't stop the CO as the Court will take the view CO's are long term and the value of the property will increase.


So if you can get a Trust Deed in place it would mean any CO is pointless as your ex's share of the property will be fixed. You should also contact the creditor if you can arrange the TD as they may well take the view the Court hearing is pointless and prefer to save the fee?

How difficult would it be to get a Trust Deed in place and how would one go about it, please?

eggbox

DAKOTA45 wrote: »

How difficult would it be to get a Trust Deed in place and how would one go about it, please?

Very easy, just needs both people's agreement and an independent witness to verify all above board and both parties are in agreement. The date made is important too.


Solicitors will do for you (and will look better) but you will pay a fee.

eggbox

Beachsideboy


Is your property jointly owned and what is the reason for you having just found out about the Charging Orders (as a CCJ would have need to be obtained first with a Court hearing you should have been notified of and the same with the CO's?)

Beachsideboy

hi,
in an earlier post you said if the credit card or bank loan debt was pre April 2007, then it was a different matter.
I have just found out I have 3 COs relating to ccs prior to this date.
can you help please.
thank you
Pat

Beachsideboy

eggbox,
Thank you for swift reply, we are selling our home, and my solicitor has informed me of the 3 COs.
the property is jointly owned, all COs in my name.
the dates of cos are 27/03/08, 19/09/09 and 13/05/08.
I honestly didn't know about these,
thank you

eggbox

A large amount of Pre April 2007 CCA agreements are unenforceable as creditors didn't always take the care to put the correct prescribed terms in the agreement and, often, didn't bother to get them signed, either. If that is the case with your credit agreements then you would have been able to defend the Court action when made.


So there needs to be a reason why you didn't get the Court papers sent through? Have you changed address before the action commenced? If there is a "valid" reason you didn't get the papers through (and were, therefore, unable to defend the Court action) you can apply to set aside the judgements which, if successful, would remove the Charging Orders.


But that all rests on the reason why you didn't get the papers through (and not only for the CCJ's but also the CO?)


If your property is jointly owned, however, you should have read enough of this thread to understand you have other options when you sell?

eggbox

Beachsideboy


Its extremely unlikely you would achieve set aside of the Judgements with the above reasons for not knowing. Documents only need to be served on the last known address and it is up to the person they are served on to deal with the documents accordingly (it's also extremely doubtful a Judge would accept the reasons given for your returning the Court documents, either?)


Courts also can't give legal advice. So in the event you asked them if you needed to attend Court they would say - no, as you, legally, don't have to. That it would have been in your interests to do so, is not their concern.