Charging Order? The myth

eggbox

With children that age there is absolutely no chance that your creditor will be granted an order for sale as the children are protected under TLATA 1996 (The Trusts of Land and Appointment of Trustees Act) whereby the interests of the children have to be taken into account. Judges have total discretion over whether to grant orders for sale or not and any Judge granting an order for sale where children are resident will have to have lost their mind to do so.

If you search through this thread, you will also see that there is caselaw which prevents orders for sale being granted unless certain conditions are present. One of those is that if an order for sale is granted, there must be sufficient equity in the house to rehouse you elsewhere.

So I wouldn't be too concerned and you will most likely find that on the day of the hearing the creditor will try to offer you a deal to repay more of the debt off to halt proceedings? It has to be your decision what you do if that event occurs, however, you must not offer money that you cannot afford.

If you cannot offer anything further then you will need to explain that at the hearing. But One of the reasons you are struggling to find any details on orders for sale, is because of the rarity of them happening. Only 5 in 1000 charging orders ever progress to an order for sale stage (and that is only progress not those granted) so don't be intimidated by the creditor as they have an extremely difficult (and I would say impossible) job to gain an OFS given your circumstances.

DAKOTA45

eggbox wrote: »

You can request Judgement by default. But I would leave it a few days after the allowed time has passed before requesting Judgement as often the court office is behind on the post and if an acknowledgement has been filed last minute it will take priority over your judgement request.

So waiting a few days after the allowed time ensures everything is clear for you to request Judgement.

Ok… many thanks! I can't imagine this person would fail to acknowledge when such a large amount is at stake… but who knows? Even if I get judgement by default, that's just the start of the battle… he will have salted all his assets away where they can't be accessed…. he is a wealthy city broker who knows exactly how to avoid paying out… Hmmm.. never say never, though. D45

DAKOTA45

locochocolatecoco wrote: »

Thank-you eggbox. Ive been reading mixed statements over the matter and there is very little information about on the stage we are at with this. We have pretty much got everything in line now but occasionally we get things creeping up out of the woodwork!!

So in short I'm going to write a letter to the court and a copy to DWF saying I haven't been informed of the situation this is in and havent had time to prepare/seek legal advice. I'll get it into the post this afternoon recorded. My husband is going to attend Friday anyway in case the hearing goes ahead hopefully though it will get postponed.

This is our only home and we have 2 children in the schools locally aged 3 and 8. Its still ultimately scary getting letters like this saying something both me and my husband work our butts off for could be taken away!

I agree with what Eggbox said… they won't get an OFS if you have children and it's your only home…


But also… the Land Registry would have needed to notify you when the Interim charging order was applied for…and the court should have notified you when they granted the Interim CO because you would have been expected to attend the hearing for the final OFS in order to make any objections…

This is not your debt, but you are joint owners, so the creditors can only apply for half of any equity…

Both you and any other creditors, plus your lender, would have been notified at a much earlier stage about an impending Charging Order!

Perhaps you can make an application to the court to set-aside the final CO (see below) as there have been procedural errors in that you were not notified…then you would have a good reason to delay the OFS hearing. Take legal advice if you can… a solicitor can usually arrange a free half hour…

CPR 23.10 states -

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.


Service of application where application made without notice

23.9

(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person –
(a) against whom the order was made; and

(b) against whom the order was sought.


(3) The order must contain a statement of the right to make an application to set aside or vary the order under rule 23.10.


D45

goulp99

Can anyone tell me what happens when a creditor has a restriction (form k) put on the land registry and then further down the line the debt is sold? Does the new owner of the debt have the power to remove the restriction? Does the restriction still stand even though the debt has been sold?


Any help appreciated.

eggbox

goulp99 wrote: »

Can anyone tell me what happens when a creditor has a restriction (form k) put on the land registry and then further down the line the debt is sold? Does the new owner of the debt have the power to remove the restriction? Does the restriction still stand even though the debt has been sold?


Any help appreciated.

For the Charging Order (which the Form K notifies) to be transferred to a new debt owner, the original CCJ has to be transferred by the Court and which you should be notified of.

The Restriction will still stand but the new owner, if verified as above by the Court, does have the power to remove the Restriction if they so wish. Whether it would want to is another matter.

goulp99

eggbox wrote: »

For the Charging Order (which the Form K notifies) to be transferred to a new debt owner, the original CCJ has to be transferred by the Court and which you should be notified of.

The Restriction will still stand but the new owner, if verified as above by the Court, does have the power to remove the Restriction if they so wish. Whether it would want to is another matter.

Thank you for your reply.


The restriction on the land registry is showing as Halifax, however I contacted Halifax and they have advised that Link Financial now own the debt. I've been in touch with Link Financial and negotiated a lower settlement figure, but I want the restriction removing.

eggbox

If the debt has been settled, then an application to remove the Restriction can be made using the appropriate Land Registry RX3 or RX4 form.

However, you must ensure that you have it in writing that the creditor agrees to the removal of the Restriction as the settlement is full and final!

DAKOTA45

Update;

Well… no acknowledgement of claim received.. (claim was issued on 5th July)… so I have asked the court for judgement by default…

Hmmm… I bet there will be some such nonsense that he didn't receive the claim or something…

Will be back when I hear further…

D45

eggbox

Dakota

If it was sent to the current address then it will pose them problems as they will have to apply to set aside if Judgement is obtained? Its definitely not cut and dried that the Court will accept non delivery as a reason for set aside if the papers were sent to the correct address.

You will also have the opportunity to contest any set aside application in Court.

DAKOTA45

eggbox wrote: »

Dakota

If it was sent to the current address then it will pose them problems as they will have to apply to set aside if Judgement is obtained? Its definitely not cut and dried that the Court will accept non delivery as a reason for set aside if the papers were sent to the correct address.

You will also have the opportunity to contest any set aside application in Court.

Yeah, I know, but this guy is an epic liar and will probably say he's been away on business (he hasn't- I live a few yards away and have seen him coming and going).

He also has a lot of influence in this very small town and bribes people to shut them up… like he did at the original trial when he interfered with my main witness by threatening him…

I think I may be in this for the long term… D45