Charging Order? The myth

eggbox

Well I'd try to see if you can verify that, in some way, in case he tries to set aside. But you will be amazed how many people ignore Court papers thinking they can ignore them?

Can I ask how much you have sued for?

DAKOTA45

eggbox wrote: »

Well I'd try to see if you can verify that, in some way, in case he tries to set aside. But you will be amazed how many people ignore Court papers thinking they can ignore them?

Can I ask how much you have sued for?

My claim is for an unspecified amount in excess of £25k, to be dealt with by the High Court.
Although his interference caused an economic loss of £375k, given the complexity of the case and notwithstanding that there would be a huge fee involved if I claimed the whole amount, I decided this would be the best approach… then the court can decide how much, if anything, to award in compensation and if it goes pear shaped, I won't be left owing a massive court fee.

Cornish-Blue

Hello Peeps

I am new to this site and am finding it brilliant.

I have read most of these post on this thread but i am still unsure if this law is still current today?

Also will this apply to married couples?

thanks

eggbox

Yes and yes

Jayneyw

Hi would love some advice about a charging order and interest to be paid out of the proceeds of my house sale which is due to complete very soon. My partner and I got hoodwinked into a lifetime membership for a timeshare (before you say it, yes we were fools) anyway long story short, loan was through GE money paid ok for a while, fell on hard times, offered a reduced figure they didn't want to know, sold the debt to Asset Link/ Link Financial we paid them for a while, hard times again, they applied to court for CCJ got it granted, then a few years later they got a charging order for just over £9k. I didn't really think anything of it as never thought I would have equity in the house to sell it, I now discover that for them to discharge the charging order they want nearly £27k, this is the interest they say they are entitled too because they took the debt in the same terms as the original GE money was. I have spoken to CAB, National Debt Line and no one seems to know the answer. I stupidly thought that interest could not be added to a charging order. The interest they are charging is a whopping 19.12%. They have said unless that amount is paid they will not discharge the charging order. Any help would be appreciated. Thanks

eggbox

Janeyw

Have a look HERE

I would also add that any contractual interest being claimed has to be in the original contract. So I would check what was claimed for on the CCJ and also what was detailed on the Final Charging Order?

Always remember that, should it be financially in your interests to do so; you can also do a voluntary repossession of your property by handing your keys back to the Mortgage company. As first charge holder, the mortgage company have power of sale whereby all other charges are wiped of the register to allow them to sell the property.

This still leaves you with having the CCJ but the debt is no longer "attached" to any asset you have.

eggbox

rodes

Unfortunately, you have been given (yet more) duff information from a qualified Solicitor. They are, quite frankly, talking nonsense as your wife has no more, legal, responsibility for her ex's debt than I have

The reason there is a Form K Restriction is quite simply because the debt was ONLY in your ex's name and is, therefore, nothing to do with your wife. Being married does not make you responsible for a loan taken out by your partner. So talk of a Breach of Trust is just a nonsense.

If there is 8k equity in the property at the time of sale (and assuming your wife owns the property equally with her ex) then, legally, 4k is hers and 4k belongs to the ex. That is all the creditor is entitled to under the law as the Charging Order was made on the "Beneficial Interest" of your wife's ex.

So this is all the creditor is, legally, entitled to lay claim on. The fact there is not enough equity in the property to settle the Charging Order is just tough titty for the creditor. It's there problem to chase the debtor up for the rest owed.

A Form K also cannot prevent the sale of a property as it becomes "overreached" when transferred for money and, also, does not guarantee any form of payment for the debt it notifies. If your Solicitor disagrees with that simply get him to show you where the Law explains otherwise?

rodes

Gosh, this is complicated isn't it. Thank you for the response eggbox.

I had only just come off the phone with the solicitor before I posted. He said that it is a technicality of the way property is held, 'in trust' and that since we know there is a charging order for the debt, because of the restriction in the Title, it would be a breach of trust to dispose of the property without complying with the court order against her ex's beneficial interest, and that they could pursue either of us. He was very clear on this.

However, I'm not clear from your response whether you are saying the creditors are entitled to the ex's half of the equity, and that should be paid directly to them? I think that's what you are saying - in which case there is no breach of trust and they get his half of the equity. I understand they are not entitled to my wife's share, unless by selling without agreement with them they can pursue under the breach of trust path mentioned.

The problem is that the ex probably won't sign sale agreement if he's not getting anything. I think we could offer to give him my wife's share of the equity and his share goes to his creditor, perhaps that would work?

if this is not the case, what do you do? I am not a solicitor. I did point out to him that I know of people who have done this (via this forum), and the equity was paid out to the joint owners, but he said perhaps the creditors hadn't pursued the breach of trust issue and written it off, or pursued the debtor directly knowing he/she had some funds.

I am a little confused now I do appreciate the input though.

eggbox

rodes wrote: »

Gosh, this is complicated isn't it. The Law can be very complicated but its can also be further complicated by muddied Solicitors not understanding their subject.

He said that it is a technicality of the way property is held, 'in trust' and that since we know there is a charging order for the debt, because of the restriction in the Title, it would be a breach of trust to dispose of the property without complying with the court order against her ex's beneficial interest, and that they could pursue either of us. He was very clear on this. The Court Order is nothing to do with your wife it only affects her ex. As long as the Restriction is complied with (which for a standard Form K is the BUYER'S side notifying the creditor the house is being sold) then any sale proceeding does not create a "Breach of Trust" if the proceeds aren't automatically paid over as there is no legal obligation to do so. As the Land Registry put it; The Restriction is a reminder the debt exists and affords the creditor the opportunity to claim the proceeds they may be entitled to.

However, I'm not clear from your response whether you are saying the creditors are entitled to the ex's half of the equity, and that should be paid directly to them? I'm saying that is all the creditor is entitled to, legally, lay claim to

The problem is that the ex probably won't sign sale agreement if he's not getting anything. I think we could offer to give him my wife's share of the equity and his share goes to his creditor, perhaps that would work? If this is the case then, to sell, you would have to apply for an Order for Sale. But if you are giving your share away you are probably better to just give the keys back to the mortgage lender?

if this is not the case, what do you do? I am not a solicitor. I did point out to him that I know of people who have done this (via this forum), and the equity was paid out to the joint owners, but he said perhaps the creditors hadn't pursued the breach of trust issue and written it off, or pursued the debtor directly knowing he/she had some funds. The reasons for not pursuing are usually made on economic grounds. However, if it was possible to pursue the non debtor for the debt they would all be doing it. It really is laughable what he is telling you.

I am a little confused now I do appreciate the input though.

I'd certainly get a new Solicitor

DAKOTA45

Hmmm… thinking the confusion may be in the way that the non debtor automatically becomes a "co-defendant" when the creditor applies for a CO…
How can it be lawful for the non debtor to lose their home if an Order For Sale is obtained, for instance? Especially where that person may have been the one making all mortgage payments for the last 25 years… it's so very unfair.
It's as if they are holding two people responsible for one person's debt… and that doesn't happen anywhere else...
The law is an !!!, and those solicitors who are supposed to know all about it are just scared of losing their jobs if they don't comply with the stupid rules. D45