Charging Order? The myth

eggbox

LisaJe wrote: »

However the advice from a solicitor is that we would only have 6 months to sell and complete or they could force us to give it to them to sell via auction for a quick and probably vastly reduced price .

6 Months from when? What would be the reason for selling?

mintminty59

Well Mortimer Clarke solicitors seems a little rattled that I am going to apply to have the CCJ set aside.

eggbox

Good MC are part of Cabot so fairly low life?

Some helpful info HERE

Good luck!

Jenny1952

I got into trouble with my credit card 20 years ago and last year i had a letter from a debt collector (Cabot) who bought the debt from the bank saying i owed £6,000 which i dispute but cant prove anything. I replied that i am a pensioner on low income and sent them an income/outgoing letter. I then started receiving letters from Mortimer Clark solicitors and when i wrote to him and offered £5 a month which is all i could afford. This was refused so my son offered to give me £2,000 on the understanding that the debt company accepted this as a final settlement . I put this to them and they refused both offers. They then took it to court without my knowledge as i did not receive any letters telling me i could attend and ive now received a letter saying there is a charge on my house. Why would a judge do that when i was not given the opportunity to state my own case?

mintminty59

I got some information from the court , it was a judgement by default , very shortly afterwards they applied the the CO and it was refused , they then submitted it again 1 week later and it was an interim granted , then a final 2 weeks after that.

So they moved with extreme speed, and there is no history of me every being or replied to any information.

The CO is always £600 higher than what the CCJ was awarded to.

I think I have very strong argument for a set aside here.

mintminty59

Jenny1952 wrote: »

I got into trouble with my credit card 20 years ago and last year i had a letter from a debt collector who bought the debt from the bank saying i owed £6,000 which i dispute but cant prove anything. I replied that i am a pensioner on low income and sent them an income/outgoing letter. I offered £5 a month which is all i could afford. My son offered to give me £2,000 on the understanding that the debt company accepted this as a final settlement . I put this to them and they refused both offers. They then took it to court without my knowledge as i did not receive any letters telling me i could attend and ive now received a letter saying there is a charge on my house. Why would a judge do that when i was not given the opportunity to state my own case?

It is my understanding, you can have this set aside, and also say the debt was statue barred if its that old. But I am sure eggbox can help he been amazing forme

eggbox

Jenny1952

Mintminty is correct. Once a debt has defaulted it creates a "cause of action" meaning the creditor is allowed to take legal action to recover the debt. But the creditor only has six years in which to bring legal action after which time the debt becomes statute barred.

However, if you make any payment towards the debt, or make contact with the creditor, anytime within that six year period; the statue barred clock for taking action is reset from the time of payment/contact?

So if you are certain that you never paid anything or contacted the creditor within the following six years you defaulted on the debt (or any six year period since) then you have grounds to apply for a set aside of the judgement on the basis action should never have been brought as the debt was statute barred.

The creditor will contest the set aside but they will have to provide relevant evidence that there was payment or contact, regarding the debt, that reset the SB period to allow them to take Court action?

JayN

Hi everyone,

I have just stumbled on the thread and this has given me some hope! (MAYBE). I am going to seek legal advice too but wanted to know if anyone had the same experience as me and could offer some views.

My parents are in their 60s now with an interest only mortgage which has come to an end. The amount to pay is £117 to Birmingham Midshires.

There is a restriction on the property for another charge against my dad to an individual where my dad lost a court case 10 years ago. The original debt was £117k. My dad declared himself bankrupt and it was ordered by the court my mum should pay some money towards this. She paid £350 every month. They thought they were paying off the debt here but didnt account for the 8% charge on top.

Given that mortgage has come to an end (November 2017) my sister and I have decided to purchase the property. So we got a mortgage application approved and started the conveyancing process. We were going to purchase the property for £285k (£115k+£117k and our parent will gift us the equity as deposit as we do not have savings)

My parents conveyancing sols emailed both BM and the individual asking the amount thats owed in order to redeem the charge. BMs figure remained at £115k and theindividuals amount was £212k!! Turns out the £212k is £125k (actual original debt) plus interest and minus any payments my mum made.

Obviously this has placed a spannner in the works. If this is the case, me and my sister will need to apply for a bigger mortgage.

As I know, the second restriction/charge is against my dad only.

Me and my sister was to buy the property undervalues (for obvious reasons) however if we can buy it with paying off BM and some money to the individual - is my dad okay in all this? He will be gifting his share of the equity to us. For example, we buy for £300k, 20k is the equity, leaving £240k. 100k goes to BM, leaving £140k. My dads share is £70k and he pays that. In total - my parents have paid off the original debt of £125k. Would that work?

Does the second individual have a claim against my dad for selling the property undervalue?

I will get legal advice but would really appreciate if someone has been in the same boat as me!

This is what is stated in the title (redacted):

Title absolute
1 (Date of Purchase) PROPRIETOR: DAD and MUM
of (ADDRESS).
2 (Date of BM charge) RESTRICTION: No disposition of the registered estate by
the proprietor of the registered estate is to be registered without a
written consent signed by the proprietor for the time being of the
Charge dated [DATE] in favour of Bank []
referred to in the Charges Register.
3 (COURT CASE DATE) RESTRICTION: No disposition of the registered estate is to
be registered without a certificate signed by the applicant for
registration or his conveyancer that written notice of the disposition
was given to (INDIVIDUAL) at care of [NAME OF SOLICITOR] being the person
with the benefit of an interim charging order on the beneficial
interest of Dad made by the [] County
Court on DATE OF COURT DATE (Court Ref. No: XXX)
4 (SAME COURT DAYE) RESTRICTION: No disposition of the registered estate is to
be registered without a certificate signed by the applicant for
registration or his conveyancer that written notice of the disposition
was given to [INDIVIDUAL] at care of [NAME OF SOLS] being the person
with the benefit of a Final charging order on the beneficial interest
of DAD made by the County Court on COURT DATE (Court Ref. No. XXX).

Many thanks in advance peeps.

sablelady

Hi,

I have just finished paying off a final charging order lodged by Reston's solicitors on behalf of their 'client' MBNA and have received a final bill of £565 in order for them to remove the restriction. They have simply itemized some phone calls and correspondence that I have had with them since 2013. I don't recall receiving any advice that I would be charged a fee every time we had any contact. Do I have any legs to stand on? The fee includes £100 for discharge. Can anybody help with this? Thanks in advance.

Sablelady

mintminty59

It was my understanding once you have settled the charge , you should have proof of this. You can then send that to land registry yourself using a DS1 form. I am going through something similar myself.