Charging Order? The myth

DAKOTA45

Update… still waiting!!

Some thoughts whilst I await the court's decision whether to allow my set aside…because if it goes against me, then I have the scenario of the other side's continuing threats to make an application for an OFS…

When we (jointly) purchased this house, we put down a large deposit of around £130k.

Am I right in thinking that any OFS would need to raise enough equity in order to allow half of that deposit to be returned to my husband?

Or is he only entitled to half of the total equity realised, however little that might be?

D45

eggbox

Hi Dakota,


Your other half would only be entitled to receive half of any equity realised as would be the case if you chose to sell the house yourselves. However, if there is a valid reason he would be unlikely to recover his initial input into the house (if the house were ordered to be sold) he would be able to object to the sale on this basis.

The equity in a property, however, is a critical factor where an OFS is concerned as there is caselaw concerning this factor as found in "Bank of Ireland Home Mortgages vs. Bell 2001"

According to the MOJ;

"This case established the circumstances in which an order for sale would be granted, even if it concerns a family home. The equity available on the property must be sufficient to pay off the judgment creditor and all other interested parties and still leave enough money to adequately rehouse the debtor and dependants."

So it really depends on how much equity, realistically, you would expect to receive if you were forced to sell?

DAKOTA45

Thanks EggBox….

Well, there definitely wouldn't be enough left to pay off our debts, let alone rehouse us!

Looking through the files this morning… the Statement of truth which accompanied the creditor's application for the ICO is unsigned.

How can it be valid?!

I guess the court is willing to overlook this as it comes from a solicitor… but a LIP wouldn't be allowed to get away with it, huh?!:mad:

TB

eggbox

The Court will usually give another opportunity to sign the statement so I wouldn't pin any hopes on that.


And the Court will only be concerned with creditors debts secured against the house (as that would be directly affected by a sale). They won't be concerned with any other debts you have not secured against the house if that makes a difference?

DAKOTA45

Oh dear… so they can make us homeless AND leave us in debt! That's not good...

Still trawling… they are charging 8% interest on the debt, even though there was nothing in the costs order which stated that interest would be payable.

Found these rules, and wondering whether they might be applicable if needed later on:-

CPR 44.2 General Rules About Costs.

(6) The orders which the court may make under this rule include an order that a party must pay –

(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.
(8) Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.

eggbox

Hi Dakota


Well they can but whether they would is the real question given your circumstances? Remember a Judge has total discretion whether to allow an OFS or not (which is why they are hardly ever granted)


The 8% interest on the debt is not relating to the "costs" issue which is dealing with the cost of bringing the Court case.


The 8% allowed is a statutory amount allowed on your type of debt as its for an "unregulated" debt over £5000.


But this may help,
How can I reduce the interest being added to my Charging Order?

If your Charging Order debt is based on an unregulated agreement and interest is being applied this can mean that the debt is growing faster than you can afford to repay it and the balance is actually increasing.
Where this is the case you can apply to the Court to vary the terms of the Charging Order so that the creditor is no longer allowed to add interest to the outstanding debt. You can do this at any time after the Order has been issued.
You will need to complete a special application form called an “Application for suspension of a warrant and/or variation of an order” known as form N245. You can download this form here:
N245 Form – Application to vary the interest being added to a charging order debt

DAKOTA45

Ok… that's very helpful, thanks… but first I'll wait to see if the set aside is granted… then, hopefully, I can bring the defence/counterclaim I was denied by the court's maladministration… D45

DAKOTA45

eggbox wrote: »

The Court will usually give another opportunity to sign the statement so I wouldn't pin any hopes on that.


But what if the unsigned Witness Statement goes unnoticed and the Order is made anyway… is it still lawful?

The application for the ICO was a without notice one, so I didn't see the unsigned statement until after the Order was made.

Would it not be struck out if it wasn't verified within a certain time constraint?

Consequences of failure to verify

4.1 If a statement of case is not verified by a statement of truth, the statement of case will remain effective unless it is struck out, but a party may not rely on the contents of a statement of case as evidence until it has been verified by a statement of truth.
4.2 Any party may apply to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.
4.3 The usual order for the costs of an application referred to in paragraph 4.2 will be that the costs be paid by the party who had failed to verify in any event and forthwith.

eggbox

An ICO (Interim Charging Order) doesn't require notice. It's purpose is to "freeze" the asset without the debtors knowledge (thereby, not giving the debtor time to dispose of the asset)


As I previously said about the unsigned statement; Judges can disallow an unverified statement if they wish; however, they also have the power to request the omission to be rectified if its only seen as an oversight.

DAKOTA45

eggbox wrote: »

An ICO (Interim Charging Order) doesn't require notice. It's purpose is to "freeze" the asset without the debtors knowledge (thereby, not giving the debtor time to dispose of the asset) Yep...

As I previously said about the unsigned statement; Judges can disallow an unverified statement if they wish; however, they also have the power to request the omission to be rectified if its only seen as an oversight.

But can it be corrected post judgement? His lawyers didn't notice it until months after when I pointed it out as part of my defence prior to the final OFS