Charging Order? The myth

Sparklyfairy

Tkk, so sorry to hear about this judgement. Odd that he's going for an IVA imo...he'll have to sell up at the end, I'm presuming. Will you be able to attend the creditor's mtg on the 23rd & state your case & (hopefully) get a better share? x

Edited to add that I looked into an IVA & I was told that after the 5 yrs, we'd HAVE to sell our house to release our equity & finish paying off our creditors...perhaps you'll get his final payments then? Also, creditors DO NOT have to agree to his IVA..IVA's tend to fail on a lot of occasions & the person with the IVA ends up bankrupt - which is why I'm surprised he isn't going down that route in the first place!

Tkk73

Sparklyfairy wrote: »

Tkk, so sorry to hear about this judgement. Odd that he's going for an IVA imo...he'll have to sell up at the end, I'm presuming. Will you be able to attend the creditor's mtg on the 23rd & state your case & (hopefully) get a better share? x

Edited to add that I looked into an IVA & I was told that after the 5 yrs, we'd HAVE to sell our house to release our equity & finish paying off our creditors...perhaps you'll get his final payments then? Also, creditors DO NOT have to agree to his IVA..IVA's tend to fail on a lot of occasions & the person with the IVA ends up bankrupt - which is why I'm surprised he isn't going down that route in the first place!

We have been told that in the fourth year there will be another valuation of the property and if the valuation has gone up then he will have to try and remortgaged to release the equity but if he can't get a remortgaged then it will not be seen as a failure to comply and he won't have to. We can't attend the iva practioner is 100s of miles away, I don't think we will get a bigger share as he owes the tax man £33000. He was made bankrupt before about 18 years ago so he knows what's what.

Broken_Stumps

eggbox wrote: »

Yes you are right in your understanding.

If your CO has been registered as a "Restriction" (because the property is jointly owned) then the Restriction only has the power of notification to the creditor when the property is sold.

This is because, as a joint owner, the CO has been made against your Beneficial Interest in the property (your share of the equity) and not the property itself. The "Restriction" is made as you have a CO on the debt owed and it's notification powers (supposedly) then allows the creditor the option of action (through the notification) that there may be money he can lay claim to. The wording on the Standard Form K Restriction, however, gives no time limit on that notification. So if the sale has been completed etc before the creditor is notified then, legally, you have done nothing wrong and the creditor is stuffed.

So then legally I am not obliged to tell them before the sale, which is how I understood it to be. So on day of sale we could send them a letter explaining the situation. In the meantime money has cleared, Land Registry has changed and they can claim nothing other than the £20 per month I have agreed in court? This looks like being a very good year!!

eggbox wrote: »

Yes you are right in your understanding.

I corresponded with a Solicitor from the Land Registry on this subject and she seemed to indicate that an exchange of money was required from a third party for the Restriction to be, as they call, "over reached" and therefore be removed with no problem.

However, I can't see why that would make any difference in what you suggest because, in both cases, it's removing your "Beneficial Interest" from the property and the "Restriction", therefore, is still going to be "over reached" as there will then be no BI upon which the CO was made?

The only thing I can't say for certain, though, is if this would be viewed as iffy (for want of a better legal phrase!) and challenged by a creditor in court again as your partner is involved?

Think I'll steer clear of this for now then and concentrate on selling!!

Thanks eggbox

Sparklyfairy

BS, are you hoping to sell soon? If so, any chance you can let us know how you get on? xx

eggbox

Broken_Stumps wrote: »

So then legally I am not obliged to tell them before the sale, which is how I understood it to be. So on day of sale we could send them a letter explaining the situation. In the meantime money has cleared, Land Registry has changed and they can claim nothing other than the £20 per month I have agreed in court?

As I understand the rules it's the purchaser (or their agent) who has to notify the Land Registry. But other than that, yes, that's how the law stands now since the LR changes in 2003.

The debt then will then revert back to the status it was after the CCJ was granted. So you need to make sure you are "sensible" what you do after selling up.

Sparklyfairy

BUMP - it's been a while....:p

asparagus18

What a fantastic thread, thank you so much! I will make absolutely sure I'm well prepared once things start to heat up - which I suspect they will. A couple of questions in that context:

I'm sure to be given a default CCJ for a personal loan (£7K) in a few weeks' time - claim received 10 days ago but no point defending as I will be leaving the country permanently next month, and won't ever return. It has nothing directly to do with the claim, just a weird coincidence - I've been looking to leave for a number of months and have now found a brilliant job abroad; I'm not a UK national, and will be returning to my EU home country - not ROI in case people wonder - for good.

Therefore, my "action" of choice is to not respond to the claim at all but let things take its natural/legal/inevitable course. Needless to say, all "dubious" post addressed to me will be sent back "Not at this Address" from March, and I won't disclose my new address to any untrusted party.

Sole debt, jointly owned property (partner will be staying in the UK for the time being but with a view to join me once circumstances permit to do so), so I'm expecting the creditor to go for a CO as the next step of enforcement after the CCJ, which, having read the whole thread, doesn't scare me (anymore). However, despite what's been mentioned on here as regards OFS, I'm still concerned that they might try this after the CO (Restriction) will have been granted. He will be the sole occupant of the property, he's neither ill nor disabled, and there are no dependant children involved.

What do people think? Could the creditor possibly try and force a sale in these circumstances? How would they know (find out) whether the scenario of occupation is as described? We have no immediate plans to sell the house in the current market but would obviously have to reconsider if there was a real danger of an OFS, leading to a silly sale price - current equity approx. £30K.

Thank you in advance for any input, and apologies for the long post.


asparagus

eira

applied for a Nationwide Select card-just for overseas use and cashback. At the end of the phone application they said they reserved the right to put a charge on my property in the event of an unpaid debt. I was taken aback by this as I was unclear of the implications. I have no intention of borrowing anything I can't pay back-but was a bit thrown

Sorry if this has come up on the thread before and been answered. None of my other cards have brought this up

fatbelly

eira wrote: »

applied for a Nationwide Select card-just for overseas use and cashback. At the end of the phone application they said they reserved the right to put a charge on my property in the event of an unpaid debt. I was taken aback by this as I was unclear of the implications. I have no intention of borrowing anything I can't pay back-but was a bit thrown

Sorry if this has come up on the thread before and been answered. None of my other cards have brought this up

Somewhere you must have access to the terms and conditions. I can't imagine that they have invented a short-cut route to a charge but you should check.

They should have to go through the default - court claim - court judgement - default - interim CO - final CO route, the same as every other unsecured non-priority creditor.

eira

Thanks -that was my conclusion.Man on the phone said it would happen if I owed money that wasn't being repaid. Didn't say more than that but I said I wanted clarity re this-especially given what I've read on this thread. Just thought it sounded sinister somehow- haven't come accross this before and will be interested to see what the details are.