Charging Order? The myth

eggbox

Ganymede wrote: »

The Court have nothing to do with how the Charging Order is registered. They granted the CO against a Defendant and then it is up to the Claimant to register it with the Land Registry in the correct way. The first port of all would be with the LR as they should not have allowed the registration in the first place.

FBaby

There you go as all you have to do, now, is to contact the LR and provide them with the proof you have. It will certainly be interesting, though, to see what happens as I can't see how a Restriction can now be registered as the person it would be against has no BI in the property anymore??

eggbox

blueback wrote: »

Eggbox

There was no interaction between the conveyencer and NR as NR did not have any relationship with them.

On completion the restriction fell away and the debt that NR managed to get "secured" reverted back to a unsecured debt.

The debt was still there but with no assets NR sold it on to a DCA as it was not economical to chase.

The irony of all this is NR would have got back 50% under our DRP, but got greedy and lost it all.

blueback

That's really encouraging to hear given the "negative" voices we get on here (and CAG) from time to time saying it can't be done. And the irony you point out is not lost as my Ex's creditor with the Restriction on our property hasn't received anything at all since it was registered after refusing a decent repayment not to pursue.

Can I just ask one more question in how the purchaser was about the matter and how their conveyancer reacted to the Restriction and it's removal?

Sparklyfairy

Ganymede wrote: »

I thought a CO was already in place,unless I read it wrong? If that is right then I don't see anything wrong or "illegal" with stating that an OFS may be applied for...

Nope. You're incorrect. Refer back to post #686 - a charging order HASN'T been granted & these threats are ILLEGAL.

Sparklyfairy

Blueback, just wanted to say a personal HUGE thank you for this thread & info you supplied. Like a huge weight taken off my shoulders! x

Ganymede

Sparklyfairy wrote: »

Nope. You're incorrect. Refer back to post #686 - a charging order HASN'T been granted & these threats are ILLEGAL.

Ok thanks, didn't see that.

blueback

Eggbox

Their solicitor did question the restriction, but my solicitor just gave an undertaking that it would fall away on completion.

Apparently this undertaking is legally binding between solicitors

eggbox

blueback

Excellent info that will, I'm sure, make a lot of people reading this board very happy!

eggbox

s.may wrote: »

Eggbox

My brother wants to take over my dad's current outstanding mortgage & withdraw more funds, I'm not sure how we can proceed with a sale for value type transaction instead of a transfer?

If, as you said, the Mortgage company are happy for your brother to take over your Father's outstanding mortgage; the easy thing would be for your Brother to take out a Mortgage in his own name and purchase the house off your Father that way.

(The Inheritance Tax Ganymede mentions only comes into play if your fathers estate is likely to be over £325k)

FBaby

Me again! Well surprise to myself, I have another look at the deeds (last time was a year ago) and... noticed that it was indeed a restriction and NOT a charging order that is attached to it. I was certain that last time I'd looked at it, it was a CO, so either this was changed, or I am going mental, the fact is that it is definitely a restriction, stating that I owe the creditors for mr 'ex named' debt.

Now I've just come back from seeing a conveyance solicitor who was recommended to me, and his position was not positive. I questioned whether the restriction should have been removed when the transfer was made to me (ie, my solicitor at the time had contacted the creditors to inform them), but his position was that as it wasn't a sale, and there was no exchange of funds, the notification of the restriction didn't apply and it wasn't wrong that it had be transfered with the title. Kind of what you are hinting to eggbox abobe I believe.

His position was that indeed, would we decide to sell, the only requirement would be for the creditor to be informed, but that the solicitor of the buyer would have to agree to it and that most are not happy with it (so very interesting what you wrote blueback about the undertaking).

The thing is, I don't intend on selling the property and my concerns are that:
1- EGG does somehow decide to make a request for the sale of the property (they could find out very easily that I don't live in that property any longer). In that case, would I still be protected on the basis of the restriction rather than a CO?
2- I am worried that interests are accumulating and that if I don't win my case, it could cost me much more than the initial charge.

According to the solicitor, the creditors do not have to provide me with any details about the debt or accrued interest, that as long as it is on the LR, they are protected which I find incredible since in essence, it is now my debt...

It didn't seem optimistic at all that we could challenge the LR about removing the restriction on the basis of the transfer and the property being in my name only now. He said he would look more into it and let me know his recommendations. My position at this stage is that surely, there is nothing to lose to write to the LR and question why it wasn't removed upon transfer?

blueback

Hi,they can't make you sell, they can only rely on you selling and acting in time to grab your equity.