Charging Order? The myth

eggbox

I'd leave it until Tuesday as nothing will happen until then anyway with the Bank Holiday?

DAKOTA45

eggbox wrote: »

I'd leave it until Tuesday as nothing will happen until then anyway with the Bank Holiday?

Ahhh… yes! I'd forgotten the BH… thanks! D45

stuart30

To update regards the Interim CO..im now more confused.

Ive contacted Link and they have offerd a settlement figure...looked at credit file and ive seen they have made (assume hard search) a search on my credit file,first question is do they need permission as none was given..i simply made a phone call and offerd an amount,was told they would consider it and come back to me with offer.
Second question is ive checked my wives credit file and no record of search..if it was a joint debt would they not search both parties.?

Having checked Noodle again it states Application type Sole...so im now thinking the loan was just in my name,so if it was how would this effect us remortgaging...not selling just want to change mortgage providers.

DAKOTA45

I don't think they need permission to check your credit file… but it does make a difference if the debt is just in your name as the creditor can only place a restriction on your property rather than a full charge over it…I think you'd be ok to re mortgage.. D45

eggbox

Stuart30

Credit files are private and permission is required by a third party to view them. However, this is usually obtained in the T&C's when you apply for a loan. Link would have acquired the right to do this when they bought your loan. They probably just wanted to check who you were and what may be on your file before considering the offer?

Its worth checking if the loan was a sole or joint application as I have seen where both owners have been sued for a debt even though only one person has signed for the loan. If the Court action isn't challenged this error goes unchecked.

The new lender won't consider a re-mortgage as they require a first charge on the mortgage deeds for their loan. This won't be possible while an existing Restriction/Charge remains in place as they will take precedence by date registered.

If the charge is being removed by funds from the remortgage, however, that shouldn't present any problems.

stuart30

Many thanks for the replies...i assumed the debt was in both names,however im not so sure now.

Will check with court on Tuesday..asuming they will discuss the case.?

Yes remortgage would be including the settlement figure agreed with Link...id rather just pay it and then have a clean slate so to speak.

stayhappy

Hi I would really value some advice. I hope I am posting in correct place.
We have received notice if an interim charging order due to a credit card debt of 3500. It is my husbands debt and the mortgage is joint. I have read up as much as possible but still need some advice.
The main thing being is it worth defending this from being made final. Does anyone ever prevent this happening. Our defences are the standard ones recomended as in joint mortgage, family home, other creditors etc. Is this likely to make any difference to the order becoming final.
We are up to date with the ccj payments so am I right in thinking they cannot force an order for sale if we carry on paying. If this is the case is there any point in trying to gets conditions attached to the order.
If we defend the order and attend a hearing will this end up with us getting more court costs added to the amount than if we let it go through uncontested.
The soliciter wants to know the other creditors so they can notify them. The other creditors are on accepted payment plans. Should we give this information and is it likely to make other creditors try and obtain a ccj to protect their money?
How likely is it that they will attempt to force a sale?
I don't want to go to a hearing but obviously we will if it is worth it, just wondering what you think. Any help would be appreciated so I can think more clearly about this

eggbox

stayhappy

First of all don't be concerned by an Order For Sale happening as even if your creditor applied for one they wouldn't get it. Put simply - Final Charging Orders are virtually impossible to stop but Orders For Sale on main family residencies are virtually impossible to obtain. So put that fear away.

The creditor will be able to add any costs of the hearing to your debt but these will be relatively minor. The main reason, however, you should attend the Final CO hearing is to ensure the creditor doesn't try to apply interest to the Charging Order (around 8%) which is not allowed on loans regulated by the Consumer Credit Act. Unfortunately, some out of touch Judges don't understand this fact so you need to make them aware as some creditors try to apply for it.

Because of your other arrangements with other creditors, you can also argue, at the hearing, this would be detrimental to them as they have agreed repayment plans. Its highly unlikely this will stop the CO but you may just get lucky with the Judge on the day? If you don't attend you have no chance of getting lucky?

I know its not a pleasant position to be in but one of the benefits of attending Court is to take some of the fear and mystique out of the process. The creditor is only trying to secure his debt and queue jump the other creditors but, having done this, any further attempts to extract money out if you becomes virtually redundant.

Indeed, once they have secured their CO you can explain to the creditor you can only afford £1 a month as you need to repay more to the other creditors to ensure they don't proceed with a CO, too. You can, also, explain this information to the Judge at the Final hearing as a possible reason he shouldn't grant the Final order.

stayhappy

Thank you so much for the quick reply.
I will write the letters of defence and send them to the court and the creditor.
Much as I don't want to attend a hearing I assume it can't be that scary! Does anyone have experience of this?
Does the hearing automatically get moved to a nearer court or do we have to request this?
Is it important to forward details of other creditors to the solicitor bringing this charge as they have requested?
If we are keeping up with the individually agreed payment plans is it possible for other creditors to obtain CCJ'S.
Thanks again

eggbox

stayhappy

The hearing is usually at your local Court but if it isn't then you should request this on the basis this is the local Court to where the contract was signed.

Most creditors threaten Court as they know the average person will be intimidated by having to appear. Once you attend and see its more boring than anything else (as there is a lot of hanging around) then the psychological fear will dissipate very quickly.

Whether you want to forward a list of other creditors is up to you as there is no legal obligation to do so. The view of a creditor applying for a Charging Order is also likely to be reflected in the following info taken from Greenhalgh Kerr Solicitors website;

7. The test for granting a charging order is relatively straightforward. Namely that there is an outstanding judgment and the debtor has an interest in the property concerned. The debtor ought not to succeed in disputing the charging order application by arguing that this gives a preference to you over other unsecured creditors. It is equally up to other creditors to secure their debt if they choose to.

A creditor can also apply for a CCJ at anytime if there has been cause of action (missing payments.) But it would only, likely, do so (if you are on a repayment plan) if it wanted to pursue a CO to secure the debt as that is required first?

But you should also note another relevant part from the Solicitor mentioned above as on their guide to a creditor obtaining a Charging Order they also give the following advice;

6. The standard form of restriction available when registering an interim charging order against a single debtor’s interest in jointly owned property only requires the owners to serve you notice if they are selling the property. In other words they do not ordinarily require your consent before the Land Registry will remove your charge. Although relatively rare, this can result in the property being sold without your charge being paid. Unfortunately there is very little that can be done about it. When you are notified that a property is to be sold always supply a redemption figure and insist on payment in full before you will agree to remove your charge from the property.

And as we know from the Land Registry advice on here, if the sale of the property has been sold for value (not transferred); then the creditor can object all he likes but their interest on the deeds is wiped off as it has been overreached.