Charging Order? The myth

littleivy

My husband has a restriction on the house from 2008,It is for a credit card of around 5k might be less I don't know as we don't get any yearly statements from DrysdenFairfax , the house is in both our names but that credit card is in his name only . Long story short , I got cancer in 2022 and he was self employed so was unable to run the business properly as was looking after me , the income dropped to £400 a month and we got in arrears of £15k and now the mortgage is £116,400, the mortgage account was passed to Mars Capital, we are looking to get away from Mars Capital and MacMillan gave us some contacts , we have one provider that will consider us but I fear this charge will stop that happening , we don't want any equity releasing we just want to get away from Mars Capital , the mortgage is interest only with 12 years left from September this year . I noticed this charging order /restriction does not appear on any of the credit files .On the credit file we have no defaults, no bankruptcy , no CCJ,only the mortgage and a water bill which is being paid with an arrangement .
Are we doomed ? 
Thanks 

eggbox

The answer, unfortunately, is almost certainly yes, sorry. This is because any mortgage lender will want to be the first charge on the deeds, to have "power of sale" in the event you default. 

Power of sale means you don't have to consider any of the charges on the register in order to sell the property to recoup your money. As it stands the entry from DF would take priority by virtue of date entered.

It's technically possible you could contact DF and request that they agree to move their charge back into second place after your re-mortgage. But I wouldn't pin any hopes on that as companies like DF don't tend to be very helpful.

littleivy

eggbox said:

The answer, unfortunately, is almost certainly yes, sorry. This is because any mortgage lender will want to be the first charge on the deeds, to have "power of sale" in the event you default. 

Power of sale means you don't have to consider any of the charges on the register in order to sell the property to recoup your money. As it stands the entry from DF would take priority by virtue of date entered.

It's technically possible you could contact DF and request that they agree to move their charge back into second place after your re-mortgage. But I wouldn't pin any hopes on that as companies like DF don't tend to be very helpful.

Hello, thank you , I have written to DF asking if they would accept a full and final payment as when they took over the debt they told us that they would consider it if were in a position to do so . Still waiting for their reply .
Does it mean we won't be able to remortgage with the charge or does it mean we can remortgage but to ask DF to put their charge in second place ?

eggbox

Mortgage companies usually won't proceed with any mortgage or remortgage unless the pole position for their charge is guaranteed. So unless DF agree to the F&F settlement or agree to 2nd position, then remortgage is probably unlikely.

macca59

I hope Land-Registry is available to help me, I have 2 restrictions on my property for my debts, Joint owned Mortgage.
1 is with SCM, now managed by a DCA who have not yet proved ownership of the debt, the other is with another DCA who also are yet to provide proof of ownership, but have had the land registry document amended to their name.
my question is if they cannot provide the information requested and I don’t recognise these as valid debts what can I do with the  charging orders? 

Land_Registry

macca59 said:

I hope Land-Registry is available to help me, I have 2 restrictions on my property for my debts, Joint owned Mortgage.
1 is with SCM, now managed by a DCA who have not yet proved ownership of the debt, the other is with another DCA who also are yet to provide proof of ownership, but have had the land registry document amended to their name.
my question is if they cannot provide the information requested and I don’t recognise these as valid debts what can I do with the  charging orders? 

Go to court to have them dismissed and once achieved you can apply to cancel the restrictions (form RX3) along with a copy of the order(s)
The alternative is that the creditors apply to withdraw them, form RX4. 

eggbox

macca59 said:

I hope Land-Registry is available to help me, I have 2 restrictions on my property for my debts, Joint owned Mortgage.
1 is with SCM, now managed by a DCA who have not yet proved ownership of the debt, the other is with another DCA who also are yet to provide proof of ownership, but have had the land registry document amended to their name.
my question is if they cannot provide the information requested and I don’t recognise these as valid debts what can I do with the  charging orders? 

For a change of ownership of a Charging Order to occur, the original CCJ needs to be re-asigned to the new owner by a Court. You should have had notification of this but this often doesn't happen (or, more likely, people ignore the letter thinking its something to do with the old debt and which they bin as they don't want to deal with it.) 

Whatever, the reason; its doubtful the Land Registry records could be updated without this process having been verified? But , hopefully, Land Registry Rep can clarify this. 

Land_Registry

eggbox said:

macca59 said:

I hope Land-Registry is available to help me, I have 2 restrictions on my property for my debts, Joint owned Mortgage.
1 is with SCM, now managed by a DCA who have not yet proved ownership of the debt, the other is with another DCA who also are yet to provide proof of ownership, but have had the land registry document amended to their name.
my question is if they cannot provide the information requested and I don’t recognise these as valid debts what can I do with the  charging orders? 

For a change of ownership of a Charging Order to occur, the original CCJ needs to be re-asigned to the new owner by a Court. You should have had notification of this but this often doesn't happen (or, more likely, people ignore the letter thinking its something to do with the old debt and which they bin as they don't want to deal with it.) 

Whatever, the reason; its doubtful the Land Registry records could be updated without this process having been verified? But , hopefully, Land Registry Rep can clarify this. 

It’s very rare for the register to be updated when for example a creditor changes with regards such a debt. The ‘interest’, namely the charging order, doesn’t change when it’s sold on for example. It’s still a charging order with regards the stated debt and against the named debtor. That never changes so there’s no point/need to update the register. 

If someone sought to update the register they’d need to apply to register a new restriction and there’s nothing to be gained by them in doing so 

sourcrates

@Land_Registry

The OP`s situation, as described to me, is that two creditors obtained charging orders on the OP`s property, in both their, and their partners names, despite the debts being in the OP`s name alone.

One judgement is being paid, the other was granted in 2016, and no arrangement has been made, so became unenforceable under sec 24 limitation act 1980, in 2022.

They want to know if the CO`s will in effect just be restrictions, if so how can they be dealt with, and can they be removed other than by payment?

macca59

Sorry I am not quite following you, the original charging order was instigated by Turnbull Rutherford, I contested the CCJ but lost, they gained an attachment to earnings at a ridiculous rate I could not afford, i contested this and won in the courts. The Attachment was reduced to an affordable amount, they were not happy and the next week I received the Charging order after some nasty phone calls to me and my wife. The AOE was being taken but after a while CAPs contacted us to say that they no longer had the details to forward the money onto. I went back to court and had the AOE cancelled and all monies held by CAPs returned. Approximately 2 years later the DCA sent me a letter saying they owned the debt and soon after the amended B136 arrived with their name on it.
Are you saying they are not able to do this without returning to court?
Please excuse my ignorance of legal matters, I am gradually getting clued up though!