Court order to force house sale query

mjm3346

ivebeenknocked wrote: »

So that's why I was wondering if my debtor just let the property get repossesed, would I get my money.

You mentioned in a previous post about them not selling to "spite you", if that is the case then they could hang on as long as possible before they are repossesed to maximise the amount outstanding on the mortgage, combine that with a lot of "accidental" damage to the property and there would be nothing left for you.

debtinfo

hi ivebeenknocked,

did the judge know about the bankruptcy and make reference to it in the hearing, if so did he say why specificly he made the charging order final inspite of a valid bankruptcy order

ivebeenknocked

Yes, the judge knew all about the bankruptcy. In fact, at the first hearing, he specifically asked the debtor if they objected to me having a charge placed on their property, to which the debtor replied that they did object. So in essence, by objecting to me having a charge, they effectly told the judge that they didn't want to pay me back because if they hadn't objected to the request, then the judge would have put the judge on anyway.
The judge was very thorough at the second hearing and made absolutely sure that everything was in order before he gave the final charge. He was satisfied that the debt was owed and that there was no attempt by the debtor to pay me back.
Just to shed some light, I lent this money to a family member so of course I didn't feel I'd need to make any contracts, because in my eyes, the fact we are(were) family, I shouldn't need one.
I'm interested to know where and how the offcial receiver fits into all this. They had already registered their bankruptcy on the title deeds before the court hearing so I'm not sure who gets seniority, because if my charge is not included in any bankruptcy, then surely I will rank above any offcial receiver, even if they had registered their intent before mine...

debtinfo

the reason i ask is that normally the making of a bankruptcy order would be sufficient for a charging order not to be made final.

There are exceptions such as the following case

"
The case of Tagore Investments SA v Official Receiver (Tagore) examined the position where a final charging order was granted after the making of a bankruptcy order against an individual . The charging order was made when both the court and the applicant were unaware of the presentation of the petition and the making of the bankruptcy order. In Tagore the Appellant was entitled to retain the benefit of the charging order that it had obtained following an application pursuant to s.346(6) IA86 for relief from s.346(1) IA86 which would have denied the Appellant the benefit of the execution they had obtained as that execution had not been completed before the commencement of the bankruptcy.
It should be noted that the facts in the Tagore case were somewhat exceptional as it would appear that the presentation of the petition by the debtor and the subsequent bankruptcy were a deliberate attempt, to disadvantage the applicant. The court applied the principle, amongst others, that the jurisdiction provided under s.346(6) IA86 had to be exercised with great caution and only in an exceptional case."

Therefore if the judge had decided that this was an exceptional case i would have expected that they would have made some reference to that in his judgement.

If the judge has just made a mistake or was not in full posession of all the facts then you may see a challenge from the official receiver (who has a duty to act in the fairness of all creditors not just one) who will likely be much more legaly savvy than the debtor

ivebeenknocked

Yes, the judge made his decision based on the 346(6) of the insolvency act. In fact it was I that brought this to the judges attention as at first, he didn't seem too aware of the 346(6) rule etc. I had read all about the 'Tagore' case and it was seen that the creditor had only made themselves bankrupt in order to frustrate the charge. In my case, the judge made specific reference to the fact that in his opinion, other creditors/official receiver would not be unfairly treated if he made the order final. In fact, he stressed that it was I that would be unfairly treated if the order wasn't made final. He also made reference to the fact that this was a 'family' debt and perhaps he lent great weight to this fact.
You must remember that this debtor never made any attempt to settle, the only 'offer' I received from them was £1.50 a month which I think is an absolute insult considering that the debtor has told the official receiver a pack of lies, ie: making a statement that he is unemployed and has no income etc. Well, I have cast iron proof to the contrary but I'll save that for a rainy day.

debtinfo

well it seems that you have all your ducks in a row, just wanted to mention it in case there was a challange by the OR so that you were not to dissapointed, but it seems that the judge has made a fully informed decision so that is less likely.

BTW although i am generally supportive of bankrupts as you will see from my normal posts on the bankruptcy board, i do believe in the bankruptcy process being available to those in need and not being abused, so i really think that if you have evidence that the bankrupt has been lying to the Official Receiver then you really should send that to the Official Receiver, they always do investigate any credible information even if they dont report back to you directly

ivebeenknocked

Yes, it might seem that I have all my ducks in a row (expression I've not heard b4) but I shalln't celebrate until I see the cash back in my account. I telephoned some insolvency practitioner for some advice and they told me that my C/O was totally worthless as the rights of the official receiver would come first, they told me that all I had was a hollow victory. I can't see how this can be because if this is the case, then why would any judge even bother to make ANY charge final if indeed the charge were to be useless.
I received a letter from the official receiver stating that they were not going to get involved in the court process and they were happy to let the debtor take care of the court hearing himself. So why then should I inform the O/R of anything so they can suddenly jump to the front of the queue. I feel that the O/R has not done enough investigation into the debtors dealings etc, as I stated before, I am closely related to the debtor and so I know pretty much everything about their dealings etc. I know that they are running a business and they have two websites to promote their business. These websites are still registered at the debtors home address, and I even hired a friend to call up this business, and to pretend that they were a customer. I recorderd the conversation plus I took screenshots of both the debtors websites, just in case they removed them.
So I don't think its fair that I should do all this investigatative work just so the O/R can benefit from it.

debtinfo

no if you have a valid final charge based on an interim charge obtained prior to the bankruptcy order then you will get what ever is left after the mortgage before the OR/Trustee, Probably the IP's you have asked have responded that way as most often these final C/O's get awarded almost by default as no one challanges them initially so they are made in error and so mostly get overturned. It is quite unusual to get one awarded seemingly fairly as you have (but obviously not unheard off a shown by the case above) so they may just have assumed that like most it would det overturned.

You have to understand that the OR deals with Many Many cases each year and as such cannot fully investigate every single one in infinite detail. Like many rules and regulations, much is done on faith and a determined person intent on playing the system can get away with things perhaps permenantly perhaps only for a while, What generally holds people back from doing so is that the penalties for lying can be severe. Bankruptcy in general is only a civil matter, but if you sumbit false informationin your forms to the court and lie in interviews with the Ofiicial Receiver this can constitute a criminal matter which can be prosecuted with unlimited fines and prison sentences.

Therefore it is vital that if people that know of wrongdoing that they report it, it may be that the OR already knows what has been happening (investigations can take up to 12 months and they dont tell creditors that they are investigating until there is a solid outcome) but if they dont then they need to be pointed in the right direction.

Finally is the point that if they feel free to lie to the courts and the OR and courts and even though it may not help you it may stop them for doing similar to future creditors if they are running a business

ivebeenknocked

ok thanks,

As I don't expect to be paid anytime soon, I will be sending the debtor a letter informing them that I intend to start an order for sale proceedings, and see what response I get. I'll keep you all posted.

ivebeenknocked

Hello

just a quick question, if a borrower stops paying their mortgage, how much time will a lender normally give before they try and repossess the house.