Charging Order? The myth

Ganymede

eggbox wrote: »

Yes I'd be interested to see that as the "agent" in my Ex's case was a junior barrister and charged £250-00 for her costs for attending the FCO?

Well in that case the Claimant was ripped off! You don't need Counsel for a FCO hearing.

The fee to apply for a Charging Order is £100.00 as here:

www. legislation .gov .uk /uksi/2011/586/made



The costs the Claimant can recover are £110.00 as here:

www. justice.gov.uk /courst / procedure-rules /civil /rules /part 45


Sorry can't post links yet so you need to remove the spaces.



The Claimant can also request disbursements for Land Registry fees etc but they will probably be no more that £20.00.

So the total that can be added to the FCO debt is £230.00 (ish).

If the Claimant pays Counsel more than they can recover that is their tough luck and will take the hit.



Edit: Was the £250 just Counsel's costs or did that include Court fees and disbursements?

Ganymede

Sparklyfairy wrote: »

Gany, can I ask you what you do?

Top secret I'm afraid.

eggbox

Ganymede wrote: »

Was the £250 just Counsel's costs or did that include Court fees and disbursements?

When the DJ granted the CO he asked the Counsel what her costs were for the day to be added and she said £250-00. However, my ex has never been sent a total she owes or a statement of any kind from the Court or the creditor so I can't exactly itemise what it was for?

Another thing I found strange was when the DJ granted the CO I started to ask for conditions to be attached (ie they couldn't go for an OFS) but he stopped me in my tracks with a wave of the hand and said it wasn't something that needed to be addressed "at this hearing"?

Any idea why this would be?

Ganymede

eggbox wrote: »

When the DJ granted the CO he asked the Counsel what her costs were for the day to be added and she said £250-00. However, my ex has never been sent a total she owes or a statement of any kind from the Court or the creditor so I can't exactly itemise what it was for?

Another thing I found strange was when the DJ granted the CO I started to ask for conditions to be attached (ie they couldn't go for an OFS) but he stopped me in my tracks with a wave of the hand and said it wasn't something that needed to be addressed "at this hearing"?

Any idea why this would be?

Ah ok that makes sense. The £250.00 will be the total to add to the debt including Court fees and costs etc. Not just Counsel's fee. It's a fixed amount so no need for a breakdown.

Not sure why the DJ said that as in theory if you defaulted then the Claimant could apply for an Order for Sale. Did the Court set a monthly payment rate?

eggbox

I see on the £250-00.

No regarding installments and non was asked for in Court. My ex is still paying other creditors but hasn't paid this one anything because of what they did regarding interest rates prior to her defaulting. They did contact her twice after gaining a CO, threatening "further enforcement" if she didn't make payments, but she told them to get stuffed. She's heard nothing else for eighteen months?

As I've metioned previously on this thread (and on CAG), a quick read up of the facts regarding OFS's and it's fairly easy to see that a creditors attempt to gain an OFS wouldn't get off the ground if the debt was for CCA regulated spending and the property is a the sole residence. So their rush to gain "security" and priority leaves them neutured regarding further enforcement.

Creditors obviously know this as under 5 in a 1000 CO's progress to the OFS stage (and I'd bet that those that do are not for CCA debt)and I'm sure they aren't overly bothered as they feel they will get repaid in the end.

abby16_2

I am new to the forum so please bear with me.

To cut a long story short. Joint property was reposessed on 31.1.12 by NR as mortgage hadnt been paid up to date as i had to reduce my hours in work as my mum had cancer and was unable to look after my children and my dad is not in the best of health. Property was up for sale buy several buyers had let us down.

We finally moved out and now in rented house. We thought property would take ages to sell and possible not even receive enough to pay off NR. Received call and lettes from NR solicitor to say property sold and there is a surplus of £8000. But OH has 2 charging orders in his name only we had been adv that any equity would be used to pay off co so was surprised when solicitor told me i might be entitled to 50% of the surplus. If i receive anything it will be bonus but i was wondering from other posts if oh can claim 50% or will it go to the 2 co but it wont be enough to cover them.

Any adv would be apperciated

eggbox

abby16

First of all YOU are definitely entitled to 50% of any surplus and your Solicitor is an idiot for suggesting you only "might" be entitled to 50%!

Any CO's made against your OH could have only been made against HIS share of any equity in the house (or his Beneficial Interest") and not yours. Therefore the CO holders are not entitled to any money due belonging to you.

It's important you make sure your Solicitor understands this as many are still in the dark of these matters.

abby16_2

Thanks for your reply.

The solicitors are actual NR solicitor not are's they were the same one's who dealt with the reposession of the property.

When i spoke to them this week they said they would be contacting the two creditors to adv them of the surplus. And for their agreement that i could receive my 50% share they did say that in most cases they agree but had to make me aware that they could possible oppose the split and if they did i may have to go to court.

eggbox

abby16

You need to make it perfectly clear to NR that your OH's creditors have no legal right to share of the equity as the CO's were made against his Beneficial Interest ONLY. You need to also make them aware that because of that fact, they would be complicit in an act of Fraud if they handed it over to any third parties and you would have no choice but to contact the police if it happened.

Also, the fact that your OH's share wouldn't cover the CO's outstanding is totally irrelevant as you don't owe anything towards his debts.

Your OH's share would extremely difficult to recover now because NR are in possesion of the money outstanding. hat doesn't stop you pointing out that they are under no obligation to pass the money to the creditors, however, as if you don't ask you won't get.

eggbox

I have recently wrote to the SRA (Solicitors Regulation Authority) asking for their view on Solicitors who are insisting that Charging Orders attached to Restrictions in Form K are paid off, from their clients money, when a property is sold. They wrote back to say they can't give legal advice.

I wrote again stating that I didn't require any advice, I just wanted to know if there was any definite, legal resposibility placed on a solicitor to pay money from the proceeds of the sale to a third party who has registered a Form K Restriction with the Land Registry and in relation to a Charging Order granted on the Beneficial Interest of one of the joint owners?

SRA Response;

"We do not provide legal advice and cannot advise on the legal obligations with which a solicitor in practice must comply....

They do go on to say, however, that they would advise focus on the requirements contained in the SRA handbook in Chapter 1 relating to client care. Which basically states they must act in their client's best interest and have the skills to carry out the clients instructions.

My opinion is that if there is a, definite, legal obligation placed on a solicitor, in the above situation, it wouldn't make sense to avoid confirming that. If, however, there is no legal obligation placed on a solicitor in this situation it would help solicitors to carry on paying off these charges (despite not having to) by stating "we can't give legal advice".

The onus, therefore, is very much on people selling property with a Form K Restriction to ensure their solicitor understands his obligations, both contractually and legally, towards his clients to ensure the clients get what they want from the sale and not what the solicitor wants.