Charging Order? The myth

eggbox

harisumo wrote: »

I think the problem is that people only tend to use these sites when they have a problem, they forget or don't bother to keep the community updated when they have a positive result. The thing that has me confused the most is that I am being taken to by the dreaded NR (sole debt jointly owned home), if they have been unable to obtain their outstanding debts in the past by following the court/charging order route for solely owned debts which they always do, why do they keep doing it?

There are a number of reasons they still do it;

1- People who have been "reluctant" to pay may cough up to avoid a CO being registered

2- If a person can't pay then it is seen as future security when the house is sold (although this thread is opposing that view in certain cases)

3- It has precedence over bankruptcy. So if the person does enter bankruptcy (forced or voluntary) the CO is paid before any other non secured debts.

The essential thing to remember is that "certain" Solicitors are going to encourage creditors to go down this route in order to collect the associated fat fees they charge. My belief is that when enough people sell their houses without paying the Restriction this practice may stop as the creditor will see it as a waste of time (and money). They will then, hopefully, have to be more accommodating on a fairer repayment of the debts incurred.

eggbox

[QUOTE=

Also - the restriction - am I right in stating that I get my solicitor to only declare it to the new purchasers solicitor and to then tell the creditor once the sale is completed? The restriction will not remain on the property will it?

Thanks[/QUOTE]

The purchasers Solicitor has to notify the creditor and produce a "certificate" that they have done so to enable the Restriction to be lifted by the Land Registry.

The difficulty you will face is most Solicitors doubting (through a lack of knowledge) that this is the case and even, against their clients wishes, contacting the creditor to arrange repayment.

You must make it clear from the outset to your Solicitor that you have no intention of repaying the Restriction as you have no legal obligation to do so. If you are paying them they have a duty to act on your instructions (as long as legal) so don't take any bull off them.

The thing to remember, too, is that the debt doesn't disappear as it reverts back to the state it was in prior to the CO being granted. So you have to be "wise" in what you do after the sale of the house.

Sparklyfairy

eggbox wrote: »

The purchasers Solicitor has to notify the creditor and produce a "certificate" that they have done so to enable the Restriction to be lifted by the Land Registry.

The difficulty you will face is most Solicitors doubting (through a lack of knowledge) that this is the case and even, against their clients wishes, contacting the creditor to arrange repayment.

You must make it clear from the outset to your Solicitor that you have no intention of repaying the Restriction as you have no legal obligation to do so. If you are paying them they have a duty to act on your instructions (as long as legal) so don't take any bull off them.

The thing to remember, too, is that the debt doesn't disappear as it reverts back to the state it was in prior to the CO being granted. So you have to be "wise" in what you do after the sale of the house.

I was about to ask you what you thought about how to approach potential solicitors & this is succinct - many thanks!

harisumo

eggbox wrote: »

There are a number of reasons they still do it;

1- People who have been "reluctant" to pay may cough up to avoid a CO being registered

2- If a person can't pay then it is seen as future security when the house is sold (although this thread is opposing that view in certain cases)

3- It has precedence over bankruptcy. So if the person does enter bankruptcy (forced or voluntary) the CO is paid before any other non secured debts.

The essential thing to remember is that "certain" Solicitors are going to encourage creditors to go down this route in order to collect the associated fat fees they charge. My belief is that when enough people sell their houses without paying the Restriction this practice may stop as the creditor will see it as a waste of time (and money). They will then, hopefully, have to be more accommodating on a fairer repayment of the debts incurred.

Thank you you have summed it up so well, the Solicitors I have been dealing with really are a complete nightmare. This thread has ended over a year of sleepless nights for me, thanks again.

eggbox

harisumo wrote: »

Thank you you have summed it up so well, the Solicitors I have been dealing with really are a complete nightmare. This thread has ended over a year of sleepless nights for me, thanks again.

Hi Harisumo

In what way have the Solicitors been a nightmare for you?

jazyfamily

Thanks - we are making monthly payments to the debt as agreed with the bank. Before the bank went ahead with a CO, they tried to make my hubby bankrupt but the balance was disputed so it was denied by the court. I am sure the bank will want their cash on the sale but we will state ask for an instalment order to be made if they choose the court route again.
Thanks again, I feel so much better knowing this bit more....

harisumo

eggbox wrote: »

Hi Harisumo

In what way have the Solicitors been a nightmare for you?

Well apart from being arrogant and generally difficult to deal with, they have made numerous mistakes and anomalies and then are very underhand at finding ways to cover their tracks. The worst thing of all is that I always imagined they were totally 'professional' and ethical but how naive I've been. I am ignorant about the course of events throughout such court claims and have been caught out by them a few time, for example exchange of documents by a court ordered date, I send mine first class recorded a day or so before that date, they email me theirs on the cut-off date and put a copy in the post the same day so they have met the deadline but the point being that they have had a chance to 'tailor' theirs after they have seen my submission. They have however missed one deadline and are a few weeks late with their witness statements so I am having a go at applying for a strike out which the court says I am entitled to do. Anyway I don't want to go off the point of this excellent thread which I am so very glad I found. Thanks again.

eggbox

Harisumo

I understand your problems and the whole court process, and Solicitors behaviour in particular, come as a bit of a shock when you have to come into contact with them for a personal matter. But that's why sites like this are helping redress the balance a little.

Sadly, Solicitors are no different to a lot of other professions in that you get one's who know what they are doing, ones's who think they know what they are doing and one's that shouldn't be in the job.

Which is especially important to remember when selecting one to help address the topic of this thread!

jeremypryke

I went to Chelmsford County Court to first attempt to have a CCJ set aside, as LINK Financial No1 Ltd had acted in a totally underhand manner in obtaing the CCJ. Having claimed to have written and sent demands to me at an old address, they went to Court without my knowledge and procured a CCJ for £6000. The case was adjourned yesterday as LINK had not yet provided me with information to which I am entitled in law.
Link have also applied for a charging order against my property.
The property is owned jointly with my wife. The alleged debt is mine alone

I made representation to the Court that a Finance Company cannot secure a charging order against the propertyy as it is jointly owned. THE JUDGE DISMISSED THIS OUT OF HAND

Has anyone had any actual success in defending a charging order or is the Judge Correct ???

fatbelly

This is a long thread but I did post this some time ago:

fatbelly wrote: »

The court grants a charging order.

If it's a sole debt on a joint property...

It is recorded by the Land Registry as a restriction

And orders for sale are just about never granted

If it's a defaulted ccj then the judge will grant a charging order. It's very hard to persuade a judge to do otherwise. But it's how that is recorded at the Land Registry that this thread is all about.