Charging Order? The myth

DAKOTA45

Excellent info, Eggbox… many thanks!!

D45

eggbox

eggbox wrote: »

Hootin-Heck

please see post #3141

Just a further update to the information given in the above post, I have contacted the conveyancer concerned, twice, for a further explanation of why his firm has taken the stance it has and, particularly, to request details of the "caselaw" he mentioned on the matter concerned?

To date I have had no response from the conveyancer concerned (and receiving a response was never a problem when I was, previously, forwarding clients to use his services) so I can only assume the decision has been taken in the "fear" of possible comebacks, rather than "knowing" their will be actual comebacks if they follow the clients instructions, and he is embarrassed to confirm this?

So the search goes on for a conveyancer willing to act as required, but I would like to remind people that there is no legal obligation to use a conveyancer for the sale of there property and there are DIY Conveyancing packs available to run you through the tasks required?

Choochybaby69

Hi Eggbox,
my restriction is from a joint hire purchase agreement in 2008. It was a partnership in which I had to force dissolution of the partnership. My ex business partner didn't pay suppliers, rents or anything else! He also put the business account nearly £500. in the red with no over draft facility in place. He then shut up shop and left town, leaving his wife and 2 daughters.
the hp agreement was for shop counters costing approx. £9.5000 and has been increasing by 2% per month. I apparently am jointly and separately liable for the debt and his deliberate negligence is irrelevant. I would like to ask is there any way his behaviour makes him more liable than me? Or is there anything I can do because of what he did?

eggbox

DAKOTA45 wrote: »

Excellent info, Eggbox… many thanks!!

D45

I think its worth reminding people that the CCA 1974 was legislation brought in to protect consumers (particularly vulnerable one's) from the unfair terms and conditions that had been prevailing from many lenders beforehand. The Act was, specifically, designed to require lenders to set out their terms and conditions in a, fairly, simple and prescribed manner in order for the consumer to easily understand what they would be signing up to? There would also be offered cancellation rights, too.

The Act (up until its amendment in 2006 after, surprise, surprise, pressure from the credit industry) made it clear that the lender wouldn't be able to enforce the debt if they didn't take the simple steps to include these prescribed terms in their contracts. In what can only be seen as contempt towards consumers, a huge amount of lenders simply didn't bother to comply with the Law.

Once the recession hit and lenders simply thought it was okay to raise interest rates (often from around 12% to 30%+) for people already struggling to repay debts simply because they could (Britain is virtually the only country in Europe without a legal cap. Germany, France, Italy and Switzerland peg at rates between 15%-22%); people who would have been unlikely to have been in debt prior to the recession (especially in so called "middle class" professions) began to look at ways to fight back?

Hence, a study of the CCA 1974 legislation uncovered the lack of enforcement available, to the lender, should they have not complied with the Law? So the game was afoot, so to speak, and various Court battles ensued which saw many rulings on the subject evolve.

I'm only on this thread as my other half had her credit card rate raised from 12.9% gradually up to 34.5% with Virgin (or to be more accurate MBNA who underwrote it) purely because she had reduced her repayments to the minimum due to the loss of her job, when her firm folded, during the recession.

On working out she would be adding huge amounts of compound interest at the new rates she was forced to endure, she requested Virgin to reduce the rate as it was unsustainable. Their response was (falsely) that they "were contractually obliged to do so". She therefore defaulted to get the debt amount stopped at that point.

MBNA subsequently went for a CCJ which is the first (but last) time I have been to Court and lost (on someone else's behalf) due to not knowing enough about why contracts were not enforceable under the CCA 1974. So as a CO soon followed, if you are in the same position now don't leave it to chance as I did!

eggbox

Choochybaby

Unfortunately, the only person you can take action against is your ex business partner based on the "negligent" actions he took against you.

Choochybaby69

Thanks, what could I do please?
PB.

eggbox

Choochybaby69 wrote: »

Thanks, what could I do please?
PB.

You would have to make a claim against them for the amount you feel their actions have cost you through, either, negligent or fraudulent behaviour if you feel that is what happened?

Unfortunately, the difficulty will always be in YOU having to provide the proof of any wrong doing as well as having to fund the Court costs required?

Miss_Eck

I have read quite a few posts on this thread, however I'm looking for advice on how I should proceed with my case.

I moved overseas on 2005. A CCJ was registered against me in 2009. Eventually a charge was placed on my property in 2009. My tenant never forwarded any mail to me and even signed registered post for this. When I eventually found out about it in 2012 I agreed to pay £25 per month. This debt was with CL Finance. Payments were set up for The Lewis Group. The debt has now been sold to Robinson Way / Hoist. I have asked them to provide me with a copy of the original agreement. They have confirmed via email that they do not have this. My standing order is still in place for The Lewis Group .Robinson Way have confirmed they are now getting these payments.

Where do I stand with this? As CL Finance have sold the debt can I have the CO removed by the Land Registry?

The property is in my sole name and the mortgage nearing an end (1 year remaining).

If the land registry cannot remove the CO, can I transfer the title deeds in to my husbands name? Would this remove the CO?

Robinson Way have advised that a Final Charge Order was granted, however the title deeds still show this as an Interim CO.

The current debt remaining is around £7,000.

Another consideration...can I go back to the courts to have it set aside as I never received any papers for the CCJ etc or is it far too late for that?

Appreciate any advice...thanks!

eggbox

Miss_Eck wrote: »

Where do I stand with this? As CL Finance have sold the debt can I have the CO removed by the Land Registry?

You can apply to the Land Registry to remove the Charging Order but they have to contact the company with the benefit of the CO for any objection. If they haven't been paid they will, obviously, object.

Miss_Eck wrote: »

The property is in my sole name and the mortgage nearing an end (1 year remaining). If the land registry cannot remove the CO, can I transfer the title deeds in to my husbands name? Would this remove the CO?

Transferring the deeds wouldn't remove the Charging Order.

Miss_Eck wrote: »

Robinson Way have advised that a Final Charge Order was granted, however the title deeds still show this as an Interim CO.

This can often be the case as the Land Registry will confirm. But you should have been sent paperwork to notify you of the FCO allowing you the opportunity to object?

Miss_Eck wrote: »

The current debt remaining is around £7,000. Another consideration...can I go back to the courts to have it set aside as I never received any papers for the CCJ etc or is it far too late for that?

You can apply to set aside the original CCJ, on the basis you weren't informed of the action against you, but it will very much depend on how the Judge on the day views the situation? They may take your word that you weren't forwarded the post and feel you haven't had the opportunity to defend?

But they could also take the view that the creditor has sent the Court papers to your last known address and had fulfilled their obligation on correctly serving the papers? Taking the view it was your responsibility to ensure you received any mail sent to the address from your tenant?

So it will depend on how plausible your mitigating circumstances sound to the Judge? Needless to say having a witness statement from your tenant, admitting they hadn't bothered to forward your mail, would be a very good thing to be able to produce as evidence to back up your set aside application?

It should be noted, however, that the CCJ supersedes the loan contract you took out. This means the owner of the debt no longer has an obligation to forward a copy of the agreement taken out under the CCA 1974. If you are able to set aside the Judgement, however, then the obligation to do so would be re-instated.

And whilst you are a sole owner (and this thread is largely dealing with CO's made against joint owner/sole debtor scenario's where only a Form K Restriction is able to be registered on the property deeds); its worth seeing if your CO has also only been notified by a Form K Restriction (rather than by Notice) as some creditors have made this mistake? If it has then what is being discussed on this thread regarding the selling process also applies to yourself?

Miss_Eck

Hi eggbox

Thanks for the detailed response. Plenty for me to consider!