Charging Order? The myth

Vegan64

Thank you for the suggestion of CAB. That makes perfect sense! The new lender made the offer prior to my application for a Form A Restriction. It would seem that had I not obtained this restriction everything would have gone through smoothly (until it became time to sell of course).

eggbox

Routerman wrote: »

TBI obtained a charging order for a credit card debt in April 2009 (£8,000 and therefore unregulated)

A credit card debt of £8000 would be regulated under the Consumer Credit Act. When first introduced, the CCA 1974 covered most credit agreements up to a financial limit of £5,000, this was increased to £15,000 in 1985, and increased again in 1998 to its present limit of £25,000 – each increase was to reflect inflation - The CCA 2006 also removed any upper limit completely.

Charging orders and their effect are determined by the Charging Order Act 1979 and the below will explain why interest can't be added. You should, therefore, take the matter back to Court to have it removed.

Section 1 COA says that a Charging Order is made ‘for the purposes of enforcing that judgment or order’ and that the charge is for ‘securing the payment of any money due or to become due under a judgment or order’. Although enforcement of a Charging Order is not execution of a judgment, s1 means that the order and the judgment must be coextensive. Therefore no money can be recovered in excess of what is due or to become due under the judgment.

- Section 3(4) opens with the words ‘Subject to the provisions of this ACT…’ and so unless the interest is due under the judgment or order under the Interest on County Court Judgments Order, it cannot be included in the Charging Order

- The amount of interest depends on the amount of interest due on the judgment.

- Some CCA regulated agreement judgments do not have an interest post-judgment clause.

- Even if there is an interest post-judgement clause on a CCA regulated agreement the lender still cannot enforce these rights by levying contractual interest – unless that rate forms part of the judgment, the lender would have to bring separated action for the interest. (Supreme Court Practice 1999 Ed. Para 42/1/24 and Re European Central Railway 1877 4 Ch.D.33

- The claimant may try to use s3(4) COA to claim that an equitable charge attracts interest on the principle sum. However, the rate of interest payable under an equitable charge depends on its terms. In the case of a CO, the judgment debt would be in essence the principle sum. The rate payable on this sum is prescribed by statute or set out in the judgment. S3(4) wouldn’t justify applying a different rate.

eggbox

Land_Registry wrote: »

I'm sorry to read of the issues you are facing but a form RX3 on it's own will never remove a form A restriction.

Is this still the case even if you are the person who registered the restriction?

eggbox

Vegan64 wrote: »

Thank you for the suggestion of CAB. That makes perfect sense! The new lender made the offer prior to my application for a Form A Restriction. It would seem that had I not obtained this restriction everything would have gone through smoothly (until it became time to sell of course).

I don't want to pour cold water on LRR's suggestion of contacting CAB (which you still should) but they are notoriously "general advice" based and its unlikely (but not impossible) they would know the answer to this?

To try and help can I ask what the sums involved in this matter are, please, for the below;

* House Value
* Mortgage Owed
* CO debts owed

Nothing_on_tv

Hi all,

I am hoping that someone may be able to help me understand the complete mess I find myself in.

I will try and be brief. Joint mortgage for 12 years, ex husband walked out 4 years ago (whilst I was pregnant) and I am now stuck on an interest only mortgage. I will have to sell the house and downsize so I can maybe try and start again on a repayment mortgage

However, there are three restrictions on the register. Two are interim charging orders and one final charging order. They both add up to £60000. All in the name of ex husband to be. I am also filing for divorce.

I have spoken to four different solicitors who all say I will need to pay off the debt when I sell. However, this will leave me with only half the equity which won’t be enough to buy anywhere. Especially as my wages are not great and I can only get an £80,000 mortgage.

The restriction wording is exactly the same as in the front page of this forum.

It feels that no one is listening to me considering I have also found wording on debt solicitors website that the creditors only have to be notified of a sale on a co on a joint mortgage.

Can anyone help me try and make someone listen to me????? Or should I just accept that I will loose half the equity?

Lastly, the creditor with the final co didn’t take out a ccj. Does this make any difference?

Thank you for your time

eggbox

Nothing on TV

Firstly, ignore the Solicitors you saw as 99% are unhelpful on this matter. Check your PM's (personal messages inbox) as I've sent you a name of a solicitor that has just become available who may be able to help?

Secondly, you can't obtain a Charging Order without obtaining a Court Judgement for the debt owed? So can you explain why you don't think the last creditor didn't "take out" a CCJ?

Nothing_on_tv

Hi,
I’ve checked my messages. Thank you.

I have asked the ex to check his credit file. There is only one ccj on there which is from the first interim order. Nothing for the second and final CO

eggbox

Nothing_on_tv wrote: »

Hi,
I’ve checked my messages. Thank you.

I have asked the ex to check his credit file. There is only one ccj on there which is from the first interim order. Nothing for the second and final CO

Credit files aren't always accurate and it could be the CCJ's were obtained over 6 years ago whereby they would now be removed from the file?

But your ex should also have received papers for any CCJ Court action and also when the following CO's were being sought (this has to be done by Law) so its worth checking if he is, shall we say, being accurate with you?

Nothing_on_tv

Thank you egg box, he is telling me the truth. He sent me a screenshot of his credit file and only one ccj is there.

The company fined him very quickly and did the interim order in August 2014 and the final order in March 2015.

Maybe I’m just clutching at straws here?

Land_Registry

eggbox wrote: »

Is this still the case even if you are the person who registered the restriction?

Yes - it's important to remember the distinction between the legal and beneficial ownerships and how a number of things can affect the latter but not the former.

The legal ownership changes through a legal deed, a Transfer. Very black & white as you always deal with the whole legal ownership as it can't be split in the same way as the beneficial one.

The beneficial ownership can change in a myriad of ways such as a CO (as you know all too well), wills, deeds of trust, bankruptcy etc some of which may or may not lead to a form A being registered. But they can still sever the beneficial ownerships

So even if you applied for a form A for one reason anything may have happened since as there are two registered proprietors whose beneficial ownerships have to both be considered.

A form A, much like a form K, is a very different restriction to say a consent one where the restrictioner can just 'give it up'. So if you want to cancel a form A you have to show that the interest it protected no longer exists and that nothing else has happened that would merit it remaining, hence the ST5 is needed