Charging Order? The myth

eggbox

macca59 said:

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!

Any creditor can sell one of its debts to another company or, more likely, to a debt collection agency. However, for any debt to be legally enforceable a CCJ (County Court Judgement) has to be obtained. So if a creditor sold a debt for which they didn't obtain a CCJ for, then the new owner of the debt would have to apply for a CCJ for the debt to be, legally,. enforceable. 

But if a CCJ was sought by the original creditor, then all the new owner of the debt would require is for a Court to "reassign" the CCJ to the new owner. If this hasn't happened, then the new owner of the debt cannot, legally, enforce the debt and the Charging Order obtained would still be owed to the original creditor.

So if any new creditor is using other enforcement (such as an AOE), then you are within your rights to get them to prove when and where the CCJ was assigned to them.

macca59

The CCJ has 100% not been signed over to anyone, so does that mean I can get the sneaky money grabbers removed from the charging order? 
If so what do I need to do?
Also if the original creditors are no longer trading, what happens if I sell my house? Who gets the money?

eggbox

You need to request the new company claiming ownership, provides proof of assignment of the CCJ. Just explain if they don't you will be reporting the matter to the Courts as fraudulent behaviour.

loyalroyal50

Good morning. Thanks to this site I am aware of the action that I need to take regarding two restrictions. However there is also a caution that was registered in 1996. The wording just says caution registered by xxxxxxxx. Will this be more difficult to deal with. 

We are having to consider whether or not to move as I am almost at the point of having dialysis and my husband has Alzheimer’s which is now progressing fast and with the cost of living etc running a house on just benefits is a challenge. I am not at state pension age yet and husband has reduced pension so money is tight. 

How do I deal with the caution. Would interest have been added too. I do remember that we raised some money o. Our mortgage and I thought we had paid creditor but no evidence of that exists now. 

Many thanks. 

eggbox

Hi I think Land Registry Rep will be able to advise better on this, but it would help if you can post up what the Caution actually states on the deeds?

Land_Registry

sourcrates said:

@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?

Check the register to confirm how registered. If COs against just one of joint owners then form K restrictions are the usual protection 
Our PG 76 and accompanying algorithms explain this in more detail albeit with the creditor in mind. PG 76 also explains how to cancel any entries 
https://www.gov.uk/government/publications/charging-orders

Land_Registry

eggbox said:

Hi I think Land Registry Rep will be able to advise better on this, but it would help if you can post up what the Caution actually states on the deeds?

Cautions are an ‘old’ form of protection. They won’t state anything more that who the caution is in favour of. They are old as in no longer something you can apply for but existing ones are still relevant. 

If it’s to be cancelled you can apply using a form CDD. No fee. And we then notify the cautioner as per the entry details. 
https://www.gov.uk/government/publications/caution-against-dealings-cancellation-ccd

loyalroyal50

Thank you for your reply Land-Registry. Can I apply for this to be cancelled  myself. I have had a look at the form but not sure what if any documents I would need to send and if I would have to give a reason. Or just simply ask for it to be cancelled. Don’t want to poke the bear unless absolutely necessary. 

Land_Registry

loyalroyal50 said:

Thank you for your reply Land-Registry. Can I apply for this to be cancelled  myself. I have had a look at the form but not sure what if any documents I would need to send and if I would have to give a reason. Or just simply ask for it to be cancelled. Don’t want to poke the bear unless absolutely necessary. 

You simply apply using the form. No additional documents required and we ‘poke the bear’ by serving Notice on the named party at the address as shown on the register. 

tiptopshrimp

Hello all

I have been dipping this thread into this thread for a number of years but have never had courage to post.  My husband got a CCJ / CO back in 2008 from Northern Rock, for an unsecured loan defaulted in 2006 (which was then under a DMP for 2 years, but following the collapse of NR, they applied for a CCJ based on us missing 2 payments).  

He has not made any payments towards the debt since the CO was made final (I have a lot of resentment, as we responded to the application following all the advice on this thread back then but we were away on the date set for the hearing, so I applied for an adjournment and provided evidence of our travel arrangements, which was refused and the hearing went ahead and final CO was granted.  The court order said our "application was misconceived"!!)

We got a notice of assignment to Marlin in 2013.  Mortimer Clarke were acting back then and sent numerous letters, which we ignored.  I am not sure when Cabot bought the debt, I think it was around 2011 but we never received a notice of assignment, just a letter stating they had all the NR debts assigned to them and to make payments to them.  I made an offer to Cabot on the phone for around 40% back in 2013 which was rejected - my parents sold their caravan and I thought it would be good to try and get the restriction removed in case we ever wanted to sell.   However, we then never heard anything from Cabot for years (literally).

Cabot suddenly started chasing with intent around a year ago (daily calls, letters, staff knocking on the door etc) but we have never responded or acknowledged them.  I can only assume that someone must have found the debt on a ledger somewhere and it triggered collection activity, as they had no contact from / to us for many years.

We have a jointly owned property and I know from reading this thread that the Form K restriction will be overreached on sale. We intend to buy a new property, so I am worried that Cabot will come after us at the new house.  I think my questions are:

1.  The judgement debt was £29046.25 (original loan of £25k, agreement was a CCA 1974, had paid around 12k towards original debt).  Should I make a full and final offer which will come out of the blue to them, as they have not had any response from us?  I have read that you have more chance of success with F&F offers if you have been regularly paying small amounts - is that true in your experience?

2.  We have a 5 year old - I understand that they cannot force an OFS as we have 2x children under 18 so the likelihood is that Cabot will apply for another CCJ / CO.  If Cabot come after us at the new house, is there any way I can legally respond asking the Court to reduce the total due on the debt, as we paid £12k towards it and they would only have paid around £2k for it?  Do I first need to ask Cabot to prove that the CO has been assigned to them?

3.  If anyone has any advice or can PM  the details of any solicitors who would assist with the sale and understand the Form K process, that would be great!

I will no doubt have more questions as this proceeds.  We have been living with this over our heads for 15 years so if anyone can offer any advice, that would be great.

Thank you