Charging Order? The myth

taxigeoff

If a creditor puts a restriction on a property and you contact them say 12 years later for a settlement figure and they say we no longer have an interest in the debt can you not insist they remove the restriction as it is in there name?

Land_Registry

taxigeoff said:

If a creditor puts a restriction on a property and you contact them say 12 years later for a settlement figure and they say we no longer have an interest in the debt can you not insist they remove the restriction as it is in there name?

You can but insisting doesn’t make them do anything and their disinterest on it’s own does nothing either I suspect 
eggbox will know far better re such things but remember a court has issued an order. Such things don’t simply disappear into the ether of disinterest so invariably you have to go back to court to get it dismissed as the weight of evidence convinces them to do just that.
From a registration perspective there’s a court order first and a property owned by the debtor second. So to reverse that you need the order dismissed or released. 

eggbox

taxigeoff said:

If a creditor puts a restriction on a property and you contact them say 12 years later for a settlement figure and they say we no longer have an interest in the debt can you not insist they remove the restriction as it is in there name?

You can try insisting but they are under no obligationto do so. However, I'm sure a little politeness would see they filed the requiste RX3 form to remove the Restriction to help you if this was the case? But, if they still refused you would have to go back to Court to request the order be lifted due to the circumstances of the debt no longer existing.

taxigeoff

Thanks eggbox and LR. I think i am now a bit more clued up on what to do next if there are problems with the overeaching method. Will let you know of the outcome.

sammyjammy

Rather than start a new thread I though best to ask here first.  Charging orders isn't something I'm not v knowledgeable on.

• Friend recently, like so many others, is under notice of redundancy.  
• Currently in a DMP (approx £30k at a rate of £300pm)
• Small emergency fund plus redundancy payment will total around £5k
• Has approx £50k mortgage on property and can pay mortgage payments from this fund.

The DMP is not top of her list at the moment and depending on how long before she can regain any employment income will be approx £350 a month JSA so the savings/redundancy will need to come into play.
If she starts token payments for a length of time are creditors (most sold on) likely to want to obtain a charging order on her house?
Thanks for any advice.

eggbox

Charging Orders are extremely arbitrary and depends purely on, whether or not, the creditor decides to pursue? There is no simple formula on who, or why, they decide to pursure? I recently dealt with a couple who, between them, had run up nearly £167k on credit cards and loans in the run up to the 2008 crash. By 2012 only one creditor had applied for a Charging Order on the wife's debt (which was the lowest of the pair) and non had applied on the husband's debt? Yet the very next person I dealt with had just £22k debt but all four creditors had pursued Charging orders?

A few factors to consider is, firstly, that CO's have been used in the past as a pay up or pay more "or else" tool and when its had no effect the creditor follows through with the CO anyway? Secondly, I've seen debtors promise huge repayments to the creditor and the creditor still proceeds with a CO? But, thirdly, I've also dealt with a debtor on the verge of a nervous breakdown after being sued by the creditor (who wanted to obtain a County Court Judgement in order to pursue a CO) only to discover the loan was taken out prior to May 2007*. The debt was, subsequently, found to be unenforceable (which bars Court action) due to the contract not containing the requirements of the Consumer Credit Act 1974 (CCA1974). As the customer already had a default on their credit file they stopped paying as the creditor is then nullified as they can't pursue legal action. So the Creditor lost out on over £10k the debtor would have continued to pay had they not decided to pursue a CCJ?

Its, currently, difficult to get records on the past year from Courts on how many CO's have been applied for? However, if my experience in debt help is representative then its very few. This may well be influneced by factors affecting pursuing a CO such as delayed Court proceedings or lenders taking a more lenient approach because of covid difficulties? What is certain, however, is that debt collection is a business and as soon as things getting back to more normal then it will be business as usual and you should do anything you can to protect yourself in case its you they decide to pursure?

* Section 127 of the CCA 1974 was repealed in the CCA 2006 so as to give courts a discretion as to whether agreements should be deemed unenforceable. The CCA 1974 automatically renders agreements unenforceable where, for example, certain prescribed information has not been included in the agreement. This discretion will certainly be helpful to lenders in light of the increased prescribed information to be provided under the CCA 2006.

sammyjammy

Thank you @eggbox for such a full and informative reply.  Bit of a lottery by the sounds of it but am I right in reading from your reply that they have to get a CCJ against you first?  She currently just has a series of defaults.

eggbox

Yes that's right. A CCJ is the judgement you owe the debt and a CO is an enforcement method of the judgement. So no CCJ no CO

Jonathano

Hi Land Registry Guru, are you still there? I have read lots of this thread but not found the answer. My partner has restrictions on her title, that say no disposition can occurs without informing a company, or paying their debt.  Her husband had the debts put against the property, by the county court. He previously shared the title, but gave the house to my partner in their divorce, and his name was removed.  My question is, can we put my name on the title, with my partner, without removing ( paying off )  the the restrictions

Land_Registry

Jonathano said:

Hi Land Registry Guru, are you still there? I have read lots of this thread but not found the answer. My partner has restrictions on her title, that say no disposition can occurs without informing a company, or paying their debt.  Her husband had the debts put against the property, by the county court. He previously shared the title, but gave the house to my partner in their divorce, and his name was removed.  My question is, can we put my name on the title, with my partner, without removing ( paying off )  the the restrictions

She can transfer the legal ownership/title from her sole name to the two of you without removing the restrictions 
They would still have to be complied with, so the named creditors notified, to enable us to update the register