Charging Order? The myth

Jameslossy

I've been trying to understand the legal jargon related to the expiry of CO and restrictions after !2 years, is this true?

Regards,
J

eggbox

Jameslossy wrote: »

I've been trying to understand the legal jargon related to the expiry of CO and restrictions after !2 years, is this true?

Regards,
J

CCJ's don't expire but they have the below conditions attached. If a Charging order is made within the first 6 years of the CCJ being granted it won't expire as its not subject to the Statute of Limitations.

Regardng County Court Judgements.

Limitation
Enforcement action can be instructed for up to 6 years from the date a judgment became enforceable. Delay in enforcing affects any award of interest as recoverable interest is limited to 6 years on a judgment that is executed after the expiry of the 6 year period.

You are able to continue trying to enforce for longer than the 6 years from date of judgment but you cannot start the first enforcement action past this date. Court permission is required to enforce a judgment debt that is more than 6 years old. Warrants of Execution must be renewed after 12 months if they have not been enforced.

Regarding Charging Orders

Ezekiel v Orakpo [1997] considered the application of the 1980 Act to charging orders. The court stated:
‘… the main ground of the appeal was that the claim to enforce the charging order was barred by s24(1) of the Limitation Act 1980, which provides that no action shall be brought upon any judgment after the expiration of six years from the date on which the judgment becomes enforceable. Leave to appeal was refused on the ground that the application was not to enforce the judgment, but to enforce the charging order, which, as Staughton LJ commented, “had a life of its own”

This case, therefore, excluded CO's as not being subject to s24(1) as there was no time limit attached to when a creditor could choose when to enforce their CO.

Vegan64

I really don't know where I would be without this thread, as there's very little other information out there regarding this.

I need to urgently re-mortgage my current jointly mortgaged property as an individual. The mortgage is due to MATURE (01.06.2019) with no means of paying off what is owed as it's on interest only. My husband has left me and I've subsequently discovered Restrictions on Land Registry in his name, I knew nothing of :-(. I (with his agreement) successfully registered severance of Joint Tenancy with Land Registry but think I've shot myself in the foot? The mortgage offer I had in principal cannot proceed unless this is removed.
Is there anyone who can help me please??

eggbox

Vegan64

If the mortgage offer is with a new lender then you are stuck as they will insist everything is removed off the register to enable them to be the first charge holder on the deeds. Mortgage companies insist on this to protect themselves in the event the house ever has to be repossesed to enable them to sell the property unhindered.

Your only real option, for a remortgage, is to approach your current lender as their charge is already registered first on the deeds so their is no need to remove any other items off the register?

Is that possible?

Vegan64

Current provider has refused me initially, due to a ccj which was settled in November 2018, due to being a guarantor for my son, and no papers being served on me! I didn't get chance to get it set aside as claimant said they had tried to contact me (they definitely didn't). The only way I knew the ccj had come about was because I received a notification something had changed on my credit score :-(. I will try current lender again or I'm definitely screwed. Thank you again eggbox

Vegan64

The new restriction states:
"No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."
Do you know if this restriction relates to the SEV form submitted to Land Registry?

eggbox

Vegan64 wrote: »

Current provider has refused me initially, due to a ccj which was settled in November 2018, due to being a guarantor for my son, and no papers being served on me!

I have a huge amount of sympathy with you on this as the rules high street lenders apply to existing borrowers who have never defaulted defies logic!.But I'd certainly try to appeal this decision by requesting an appointment with a Manager at the bank to ensure you get a human decision and not a "computer says no" one?

Vegan64 wrote: »

I didn't get chance to get it set aside as claimant said they had tried to contact me (they definitely didn't)

The only person who can deny you the opportunity to apply for a set aside is a Court Judge - is that what happened? If not you apply on the basis you weren't notified and the claimant will be required to prove he did contact you, when that was and by what method? NEVER make a decison on what a claimant or creditor tells you!

And yes, the restriction registered is a Form A which will relate to your request to the Land Registry

mitch123

Please help regarding an equitable charge on my home that was made on the 13/03/1993.

At this time the property was joint owned, it was my partners debt to a Roofing Suppliers, his business was struggling at this time and a few months later he went into bankruptcy.

In 2007 i remortgaged and instructed a firm Solicitors to act for me, one of the criterion of my new lender was that was would br sole owner and so my partner signed over his share to me through an independent solicitors.

Then came the bomb shell we put our house on the market to sell and
found out that the charge was still on the house.

I started investigating and learnt that Asphaltic Roofing Supplies who secured the charging order were taken over by another company, so no longer exist. The preceding company have refused to help.

Barnett Solicitors who acted for me when I remortgaged went into administration in 2014. I do have a statement from them that list my total amount of the remortgage loan showing deductions of £1660 to pay the Asphaltic’s CO and what was still owned to the Halifax building Society who were my original lenders.

I have been trying to negotiate with Asphaltic’s successors a large corporation who state that as I have no proof of payment and they have no document/details of my partners account due to the time spam they cannot help.

My points the solicitors took money from my loan to pay the charge as is the normal practice when remortgaging a property, to pay off the charge.

If the the account documents have been destroyed as no longer needed
then it is likely the the account was cleared, if not why destroy that account.

Watford County Court have told me that no longer have any records going back that far and Land registry will do nothing unless instructed by the company who has the charge in place .

What do I do , I need to sell my home, my partner has MS and this house is becoming more difficult for him to navigate around. I have taken early retirement from the NHS as he need me at home a lot more, we need to move and every which way I go the door is closed .

HELP PLEASE
Im losing my mind

eggbox

mitch123

I'll try to help but can you clarify the following please as I'm a little confused? You say you have a statement from Barnett Solicitors that lists "my total amount of the remortgage loan showing deductions of £1660 to pay the Asphaltic’s CO" yet in the next paragraph you comment that Asphaltics have stated they can't help "as I have no proof of payment"? So have you provided them with a copy of your statement off Barnett's and, if so, what was their response?

You should also bring this to the attention of the lender who did your re-mortgage as its doubtful they would have granted the mortgage unless they were satisfied the CO was to be removed beforehand. As has been explained many times; mortgage lenders will insist on being the first charge holder on the deeds to protect their loan in the event of a motgage default. The first charge holder has power of sale which allows them to remove all other charges in the event of a default to allow them to sell the property unhindered.

If the CO hasn't been removed it would mean the the power of sale would be with Asphaltic and which the mortgage company would be extremely nervous about? So it may pay you to explain to the mortgage lender the above details and they will investigate on their own behalf why the CO wasn't (as it should have been) removed? A copy of your deeds will help identify the order of charges on your deeds and if you haven't got one you can obtain one from the Land Registy website for around £3.50?

And, whilst it would mean paying the CO amount again, the CO doesn't prevent you from selling your property in case you are under that impression and are urgent to move? You can then carry on investigations, after your move, to try and get the amount refunded if its proven you have paid the CO twice? Not ideal, I know, but if a move is urgent its worth considering?

mitch123

Thanks Eggbox

The Asphaltic Roofing Suppliers no longer exists they were taken over by SIG Plc a large multi million pound company, I have been communicating with them as the successors, basically I have had me running around with no intention of helping. They say that the issues is so old, I have no concrete proof that payment was made and that ‘the business was a different entity back then, They cannot trace records of my partners account.

Going back to the statement I have from Barnett Solicitors this document outlines my total loan and deductions made before the balance was transferred into my bank account, an amount was deducted to pay the Asphaltic.

As you say, at the point of remortgaging charges are usually paid, the statement above suggests they were, but I have no other proof as the solicitors dealt with this and they have ceased trading.

I called my current lenders and they were not really very helpful, in fact every company government department that I hVe spoken to just don’t want to known, I’m in no mans land.

I am angry �� as far as I’m concerned the solicitors took money from my loan to pay the charge , where did they get the final figure from ? There must have been some communications.

SIG Plc took over the Aspaltic why would an account that still holds a debt be destroyed surely they would have kept it on file.

I don’t think I should be the only part of this puzzle that has to take all the responsibility to solve this mess .

Here is a clip from tile records,
: Charges Register
This register contains any charges and other matters
that affect the land.
1 A Conveyance of the land in this title and other land dated 10 June
1907 made between (1) Watford Manufacturing Company Limited (Vendors)
and (2) Stanley Ruff (Purchaser) contains covenants details of which
are set out in the schedule of restrictive covenants hereto.
2 (26.03.1993) Equitable charge created by an order absolute of the
Watford County Court dated 12 March 1993 in favour of Asphaltic Roofing
Supplies Ltd.
¬NOTE: Copy filed.
3 (07.02.2007) REGISTERED CHARGE dated 2 February 2007.
4 (18.05.2007) Proprietor: OAKWOOD HOMELOANS LIMITED (Co. Regn. No.
5092310) of 1 Providence Place, Skipton, N Yorkshire BD23 2HL.

Oakwood homeloans are my current lenders, I don’t under no3
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