Charging Order? The myth

Land_Registry

eggbox wrote: »

I think that indicates its been a while

Out of interest and in your experience how long does a court normally keep it's records for?

eggbox

I only seem to deal with issues where its been several years (5 at least) where the debtor is requesting information from a Court; so I can't really give any sort of accurate answer?

Certainly after 5+ years the chances of you getting the information is low? But whether that is because of a Court record keeping issue or a lack of help from Court staff issue; I'm not sure?

faye242

Hi LR and Eggbox,


The deeds state that the charge restriction (I believe a K due to the wording) was placed on the house in 2006, I have tried contacting both Hitachi and Addlestone Keane several times, no-one seems to know anything. Hence my thought that as a last ditch attempt maybe the L registry would know.


How would I go about applying for the records? although I doubt the court would have them.


LR - I totally appreciate you cant give advice, but can you answer how this could possibly affect his ex-wifes sale? Will it hold it up? Is there a time frame or something?


Surely we cant hang around indefinitely for them to find some paperwork?


Any knowledge gratefully received!!


Thanks


Faye

Land_Registry

faye242 wrote: »

Hi LR and Eggbox,

The deeds state that the charge restriction (I believe a K due to the wording) was placed on the house in 2006, I have tried contacting both Hitachi and Addlestone Keane several times, no-one seems to know anything. Hence my thought that as a last ditch attempt maybe the L registry would know.

How would I go about applying for the records? although I doubt the court would have them.

LR - I totally appreciate you cant give advice, but can you answer how this could possibly affect his ex-wifes sale? Will it hold it up? Is there a time frame or something?

Surely we cant hang around indefinitely for them to find some paperwork?

Any knowledge gratefully received!!
Thanks
Faye

Your OP said that she was buying him out and remortgaging and eggbox explained how the form K restrictions would need to be resolved as there would be no overreaching. However you now mention 'his ex-wife's sale'?

The restrictions will hold things up but there's no knowing the timescale involved re restriction three as at this stage as we know it exists but nobody seems to know what has happened next.

The key here I suspect is how the court would treat a charging order in such cases - eggbox may be able to assist as presumably the CO legislation covers the scenario whereby the creditor can't close out the payments and the court can consider dismissing the order for example? THe CO legislation is not our area so we could not advise on how it works

The form K restriction protects the creditor's interest, namely the CO, on the register. It's not for us to decide whether the debt still exists. We know it existed as it was registered on 2006 so it reads as if in the absence of any evidence to dismiss it, then it is a matter for the court. If that is the case then a court order dismissing the order can be obtained and used as evidence along with the form RX3.

Land_Registry

faye242 one thing to add here is that IF it is a RX3 scenario to get the third restriction removed then the supporting evidence you are able to submit is likely to be crucial if the back to court route is a non-starter

For example if Hitachi have replied to state that they have no record of the debt and have not sold it on to another creditor then that might be sufficient for us to consider writing to them ourselves

As eggbox can confirm we are not going to be able to say Yes/No until an actual application is made and we have seen the actual evidence and form RX3. So it's crucial for you to double check what Hitachi and others have said as well as confirm what you actually asked.

faye242

Sorry...my apologies for the wrong word...Yes, she is remortgaging in her name only...not a sale as such.


Eggbox said that the new mortgage company would require all restrictions dealt with, what I was trying to ask was..... if they don't reply about this debt (all evidence suggests they don't know what it is either), how would it affect this, most mortgages are time offered, If they are notified about the sale and offered payment but they cant find their paperwork etc, could it upset the whole apple cart?


I know this is not totally a LR question and appreciate the information you have given,


Basically, (If I read this right) we can do nothing but wait and hope they find the information in time for the new mortgage application, or apply via court to have the charge dismissed if we can provide proof it is no longer required (which we cant as no-one knows about it) and use that document as our supporting evidence?


Its all very frustrating.....but thank you for the help...sometimes just typing it out makes it a bit clearer!!

Land_Registry

faye242 wrote: »

Sorry...my apologies for the wrong word...Yes, she is remortgaging in her name only...not a sale as such.

Eggbox said that the new mortgage company would require all restrictions dealt with, what I was trying to ask was..... if they don't reply about this debt (all evidence suggests they don't know what it is either), how would it affect this, most mortgages are time offered, If they are notified about the sale and offered payment but they cant find their paperwork etc, could it upset the whole apple cart?

I know this is not totally a LR question and appreciate the information you have given,

Basically, (If I read this right) we can do nothing but wait and hope they find the information in time for the new mortgage application, or apply via court to have the charge dismissed if we can provide proof it is no longer required (which we cant as no-one knows about it) and use that document as our supporting evidence?

Its all very frustrating.....but thank you for the help...sometimes just typing it out makes it a bit clearer!!

That's correct as 'not knowing anything about it' is very different from 'not replying' so for emphasis the details really do matter here. And your latest post implies that they are looking into it rather than a categoric we know nothing about it?

The burden of proof is on the applicant to support their application to cancel a restriction. I'm sure you will appreciate that anyone could say X, Y and Z have happened but they also need to back that up with evidence from the creditor or other parties as appropriate.

The starting position is that there was a debt in 2006 and the creditor applied for a restriction to be registered. And it was. Normally the registered owners would be informed by us so what happened next for example? What evidence did he have in 2006 re the debt and what happened in the next 12 years as he didn't challenge or query the debt at the time so that infers it was genuine and did exist....so what's happened to it?

I appreciate there can be a host of reasons why nothing happens at the time and since. And often it's only a sale or remortgage that triggers a need to investigate. But these are all Qs a court and indeed us, if we had to, would ask. And the answers assist a court in reaching a judgement whilst for us it can trigger next steps such as writing to the creditor to see if they object the the restriction's cancellation.

As you state typing it can make it a lot clearer to I would suggest your partner does the same and writes down what has happened and the key aspects involved. That may help

CL9282

This is my first post on here so any advice would be greatly appreciated

My wife signed a form for my business many years ago which we later found out (when the business closed down) was a PG form.

Anyway the creditor has raised a 'restriction' on a B136 (CO)

After reading this thread (which has been very informative) I can see that as our Mortgage is in joint names and the debt is against her name, they can only get a interim CO, which at present is just a restriction.

My main question is:

Are we able to remortgage with our existing provider when it comes up for renewal next year or will this restriction be an issue?

Many Thanks for any information

eggbox

CL9282

The Restriction will be an issue unfortunately. This is because the mortgage lender will insist on being the first charge on the property deeds to have the Power of Sale should the property ever have to be repossessed?

Any remortgage without dealing with the Restrictions would put any new lending behind the Restrictions (through date order) and the lender won't agree to that.

Another option, however (and providing there is plenty of equity in the property), can be a secured loan as lenders for those know they won't be the first charge on the deeds.

jpirate

Long time lurker! Interesting thread and I think I understand that if a house is owned jointly as joint tenants as opposed to tenants in common the charging order is a restriction not a charging order as such, so it means that as a restriction the only obligation is to notify the creditor of a sale and NOT to pay them anything.

However, from what I have read, as soon as creditor applies for a charging order on a joint tenants house the ownership then changes to tenants in common so why doesnt that make the charging order a usual one rather than a restriction?

Or have I got that wrong and/or being a bit dim?