Charging Order? The myth

terryw

wend33 wrote: »

As for what I do I'm afraid I'm going to remain quiet on that front!

As for my point I will cheat and quote Wikipedia: 'A charging order, in English law, is an order obtained from a court or judge by a judgment creditor, by which the property of the judgment debtor in any stocks or funds or land stands charged with the payment of the amount for which judgment shall have been recovered, with interest and costs'
So the way I see it, although application can be made to Land Reg to protect the interest, it is all the property of the debtor that is charged, not just registered property. The restrictions to which you refer state the party with the order has the benefit of that order against 'the beneficial interest of' the debtor. I'm not claiming to be an expert, I just would be happier if people took proper legal advice as to how this may affect their lives and homes instead of saying everything will be all right (I'm forever the cautious one!).

Wiki is too brief and a little badly phrased on such a topic as this. Anything, stocks, land etc must be specified in the charging order - it is not a general restriction/charge on ALL the property and assets of the debtor.

The difficulty with the "proper legal advice" is that few solicitors are aware of the difference between a restriction and an order and insist on paying out of the proceeds of sale purely to protect themselves.

I agree absolutely that it would be great if we had the name of a firm who understand this. Perhaps some poster who has managed this will advise.

Sparklyfairy

Wendy - Firstly, as this is Christmas, the usual contributors to this thread will be notably absent.

Secondly, if you you say above is what you believe to be true, why, then have several people actually sold their property holding a restriction & held on to their profits? Are you suggesting it is unlawful? I would be very careful here. Also, have you read this entire thread? If so, you'll be familiar with this - warning creditors of the pitfalls of charging orders...Also, I'm unsure where you see us NOT telling people to seek their own legal advice, however, as proved by this thread - even the legal profession are failing people here..and we are meerly clarifying this important point. I see from your other threads you do know a bit about the runnings of the LR, however, this point, I'm not so sure.

As it is Christmas, I will bow out for now. The others no doubt will be along after their festivities to help clarify things...

Tkk73

Hi all,
I would like to just tell you all our story and see if anyone can offer us some help. We paid our builder over £30k to build an extension, to cut a long story short he walked off leaving my husband, myself and our 8 children with half a house. We have gone through the courts and been awarded £13k in a ccj against the builder. He hasn't paid a penny or even offered one. We know he has a property so have applied for a charging order. We have been granted an interim charging order and the final hearing is in January 2012. Having read this thread I am now so despondent, we have done nothing wrong, we are not a big bank using bullying tactics, we are a family trying to regain what we paid for. His property is in joint name with his wife, so what do we do now? He can sell and walk away with everything and we get nothing. We do not have the money to use solicitors and have done all the court proceedings ourselves. Can someone please advise as to how we proceed. Many thanks from a very, very despondent mother of 8.

fatbelly

Tkk73 wrote: »

Hi all,
I would like to just tell you all our story and see if anyone can offer us some help. We paid our builder over £30k to build an extension, to cut a long story short he walked off leaving my husband, myself and our 8 children with half a house. We have gone through the courts and been awarded £13k in a ccj against the builder. He hasn't paid a penny or even offered one. We know he has a property so have applied for a charging order. We have been granted an interim charging order and the final hearing is in January 2012. Having read this thread I am now so despondent, we have done nothing wrong, we are not a big bank using bullying tactics, we are a family trying to regain what we paid for. His property is in joint name with his wife, so what do we do now? He can sell and walk away with everything and we get nothing. We do not have the money to use solicitors and have done all the court proceedings ourselves. Can someone please advise as to how we proceed. Many thanks from a very, very despondent mother of 8.

You will have 'secured' the debt with a charging order. OK, it may not be as 'secured' as you would like (but if he isn't reading this thread he may not know that).

Hopefully he will now start to pay you but, if not, that doesn't stop you enforcing the judgement by other routes. I would suggest an order to obtain information to show you the best way forward. If he doesn't comply, he faces 14 days in jail.

Best of luck.

fb

Tkk73

hi fat belly, thank you for your quick response. I think personally that he does know about this 'loophole'. He already has 2 charging orders on the property so one more from us isn't really going to phase him. He has already been bankrupt several years ago so he knows the processes a lot better than we do. I was wondering if there was any way we could get a clause or notice added to the restriction so that he can't sell without paying us? also we really do not want to pay out for anymore trips to court which by the looks of it we will not get the money back for.

thechippy

I know a guy who was great at playing the system (like your builder) and always got away with paying sod all.

However, one guy he owed money to was very switched on and as Fatbelly says, used the order to obtain information. This made it difficult for him and my mate ended up getting paid.

If he's a sole trader and not Ltd, the threat of BR may work.

Tkk73

thechippy wrote: »

I know a guy who was great at playing the system (like your builder) and always got away with paying sod all.

However, one guy he owed money to was very switched on and as Fatbelly says, used the order to obtain information. This made it difficult for him and my mate ended up getting paid.

If he's a sole trader and not Ltd, the threat of BR may work.

He is very, very good at getting away with paying anything. Any other action we try to take is just going to cost us more and more money that we don't have and are unlikely to get back. He has also applied for an IVA so we are hoping that we do get the Charging Order before he manages to get that. How much does it cost to apply for a bankruptcy?

thechippy

you can send a statutory demand for nothing and see if you get a reaction. To actually BR him though is £920 plus any solicitors costs should you instruct one.

eggbox

TKK3

Sorry to hear about your situation.

But a word of caution before you consider BR on your builder given it will cost you nearly Grand to do;

Charging Orders take piority over and are excluded from BR proceedings meaning the other 2 CO's you say are registered would be paid off before any BR creditors.

So if you go that route make sure there is enough to chase.

Tkk73

eggbox wrote: »

TKK3

Sorry to hear about your situation.

But a word of caution before you consider BR on your builder given it will cost you nearly Grand to do;

Charging Orders take piority over and are excluded from BR proceedings meaning the other 2 CO's you say are registered would be paid off before any BR creditors.

So if you go that route make sure there is enough to chase.

I believe that they are not Charging Orders but restrictions, the same thing that we would be getting as the house was bought in 1997 in joint names. So they would be in the same position as us or would they? I have no idea how we would stand if we got this restriciton and then applied to make him bankrupt. Would we be third in line behind the other 2? or would it be fourth after the mortgage company? either way there probably won't be much left.