Final Charge Order help

MrsJT_2

Hi all

I have posted about this previously but things have changed since back then. Cut down version of events as follows.

My mom agreed to be a guarantor for her brother to rent a shop back in 2004/5, company got in touch to say he hadn't paid a quarter's rent amounting to £5500 in 2006. The company asked that mom get in touch with him to pay, she did so, he said he would sort it our she told the company this and heard nothing more for 12-18 months.
12-18 months later the company are asking for over £9000 because he didn't pay the funds as he said he would. Yes maybe my mom should have chased him and the company to make sure this had happened but they never got in touch to say otherwise for this long period of time.

Anyway,  mom did not have the monies to pay this amount so was taken to court where her friend attended and offered to pay the original £5500 that she was made aware of, the company refused stating they wanted the £9000+. A judgement was made for £10,900+ and interim charge order was placed on the property in June 2008  followed by a final charge order 2 months later August 2008 even though it was disputed. 

In 2009 the solicitors had an email to say that the company requires the £10,900+ as well as £13,000 to cover rent 2009-2013, insurance to be covered of over £400 and their court costs of nearly £3000. The solicitors went back and advised this was unrealistic as they had already stated in previous communications that they would cease the tenancy and take my mom to court. No further communication has ever been made since this date.

During all of this my mom was battling terminal cancer and passed away in 2013, a year later my dad was diagnosed with terminal cancer and he passed away in 2020. They owned the house jointly with the charge against my mom only.

I have a couple of questions if anyone could please help -

1. Is there anyway that paying the £10,900+ stated on the judgement will enable the land registry order to be removed or can they push for in excess of £25,000 plus interest from 2008 which would make interest on that amount in excess of £50k or if it's only applicable against the judgement amount is still in excess of 11k meaning over 20k coming from my mom's share of the property in there is enough equity.

2. If more than the accepted judgement amount of £10,900+ is wanted to remove the charge, can I claim against my uncle for drastically reducing leaving very little if any  inheritance available to their grand children? My mom was pressured into being his guarantor and not in the right frame of mind with her illness, my dad never wanted her to do it and now my uncle gets away without paying a penny and leaving my children without the inheritance my parents worked for, for them when he owns his own house and has a good job and income. I know my mom agreed to be guarantor but he has the collateral for his debt which he didn't pay causing this stressful situation for my parents when there last wish was for their grandchildren to have inheritance for their future.

Please no negativity I want to know what I can do to reclaim these monies if possible for my mom and dad's wishes and memory and whether there is anyway to keep the amount at the judgement amount. I'm so angry and upset that this amount is able to come out of my parents estate for nothing but kindness.

Many thanks and sorry for the long post.

davidmcn

I think this is probably more for the probate board - certainly mum's estate is entitled to reclaim from her brother whatever she's had to pay out under the guarantee - though if uncle didn't have any cash then, does he have any now?

MrsJT_2

I will move over to Probate, thank you.
He didn't own his own home at the time but he does now.

MrsJT_2

I've moved to probate - https://forums.moneysavingexpert.com/discussion/6237471/final-charge-order-help-please/p1?new=1
Could and admin please close this thread?

Thank you

AdrianC

MrsJT_2 said:

I have posted about this previously but things have changed since back then. Cut down version of events as follows.

My mom agreed to be a guarantor for her brother to rent a shop back in 2004/5, company got in touch to say he hadn't paid a quarter's rent amounting to £5500 in 2006. The company asked that mom get in touch with him to pay, she did so, he said he would sort it our she told the company this and heard nothing more for 12-18 months.
12-18 months later the company are asking for over £9000 because he didn't pay the funds as he said he would. Yes maybe my mom should have chased him and the company to make sure this had happened but they never got in touch to say otherwise for this long period of time.

Anyway,  mom did not have the monies to pay this amount so was taken to court where her friend attended and offered to pay the original £5500 that she was made aware of, the company refused stating they wanted the £9000+. A judgement was made for £10,900+ and interim charge order was placed on the property in June 2008  followed by a final charge order 2 months later August 2008 even though it was disputed. 

In 2009 the solicitors had an email to say that the company requires the £10,900+ as well as £13,000 to cover rent 2009-2013, insurance to be covered of over £400 and their court costs of nearly £3000. The solicitors went back and advised this was unrealistic as they had already stated in previous communications that they would cease the tenancy and take my mom to court. No further communication has ever been made since this date.

During all of this my mom was battling terminal cancer and passed away in 2013, a year later my dad was diagnosed with terminal cancer and he passed away in 2020. They owned the house jointly with the charge against my mom only.

I have a couple of questions if anyone could please help -

1. Is there anyway that paying the £10,900+ stated on the judgement will enable the land registry order to be removed or can they push for in excess of £25,000 plus interest from 2008 which would make interest on that amount in excess of £50k or if it's only applicable against the judgement amount is still in excess of 11k meaning over 20k coming from my mom's share of the property in there is enough equity.

2. If more than the accepted judgement amount of £10,900+ is wanted to remove the charge, can I claim against my uncle for drastically reducing leaving very little if any  inheritance available to their grand children? My mom was pressured into being his guarantor and not in the right frame of mind with her illness, my dad never wanted her to do it and now my uncle gets away without paying a penny and leaving my children without the inheritance my parents worked for, for them when he owns his own house and has a good job and income. I know my mom agreed to be guarantor but he has the collateral for his debt which he didn't pay causing this stressful situation for my parents when there last wish was for their grandchildren to have inheritance for their future.

Please no negativity I want to know what I can do to reclaim these monies if possible for my mom and dad's wishes and memory and whether there is anyway to keep the amount at the judgement amount. I'm so angry and upset that this amount is able to come out of my parents estate for nothing but kindness.

Your mother agreed to guarantee her brother's debts in relation to that commercial tenancy, including any legal costs arising from pursuing the debts.
Her brother did indeed get into debt.
Your mother became liable for the debt under the guarantee.
Her liability for ongoing debts ends at the end of the tenancy - or on her death. Your post is not clear on when the tenancy ceased...?

She had sufficient assets to pay the debt - but they were tied up in the house. So a charging order was placed against the house.

We don't know the wording of the charging order, but it wouldn't surprise me if interest was allowed. For a charging order to be placed, the court must have been satisfied as to the legitimacy of both the guarantee and the size of the debt arising under it.

No, you have no claim against your uncle - your mother voluntarily guaranteed his debts, and whether there was familial pressure for her to do so is an argument for the past.

"Inheritance" is simply what is left of somebody's assets after their death. Your mother left her assets to your father, he is now leaving you his assets, once his debts are covered. Those debts include paying off the charge.

Yes, your uncle may well be perceived as having a moral duty to cover his debts - but if he paid much attention to that, he'd have done so in the intervening years.

MrsJT_2

As far as I’m aware the tenancy ended in 2007 when they advised they would take my mom to court and change the locks and terminate the tenancy. What I haven’t mentioned is the shop was sublet which was totally unknown to my mom, the lady the company was subletting to wouldn’t attend court so couldn’t be proved but the company held the other ladies passport. 

I’m of the understanding that they can only claim from my moms proportion of any available funds? The mortgage company were made aware my mom passed away in 2013 but the mortgage has remained in both of their names and the land registry is in both names. 

So I can’t make a claim against my uncle even though he has caused upset and stress to the family by making false promises and the company sublet. Just all seems very wrong that he can carry on living life without paying a penny for his debt even though he has the funds available himself now 😢

AdrianC

MrsJT_2 said:

As far as I’m aware the tenancy ended in 2007 when they advised they would take my mom to court and change the locks and terminate the tenancy.

There's a difference between "they will terminate it" and "it has been terminated". Not least of that difference is any costs arising from the eventual termination...

Yet in 2009, they were wanting £13,000 in rent to 2013 up front? And that's part of the charging order? That would suggest the tenancy continued. If the tenancy continued, your mother may well have been liable - but I can't see that being included on a charging order in 2009. If it did not, she should not have been.

What I haven’t mentioned is the shop was sublet which was totally unknown to my mom

Doesn't matter.

Landlord <-> Uncle <-> Sublet tenant
Your mother guaranteed the first of those relationships.

The mortgage company were made aware my mom passed away in 2013 but the mortgage has remained in both of their names and the land registry is in both names.

Because the charge would have to be settled to allow that to change.

So I can’t make a claim against my uncle even though he has caused upset and stress to the family by making false promises and the company sublet. Just all seems very wrong that he can carry on living life without paying a penny for his debt even though he has the funds available himself now 😢

If he chooses to put the money ahead of his ongoing relationship with the family, that's entirely his choice...

MrsJT_2

The final charge order went against the property in August 2008, the company sent an email to the solicitors in 2009 stating they wanted the judgement amount plus rent for 2009 - 2013. This email was sent to the solicitors in 2009 it was not included in the original judgement amount.

Am I right in saying that they can only take the funds out of any remaining funds from my moms share only?

Thank you

macman

How was the property owned? Joint tenants or tenants in common?

MrsJT_2

Joint tenants, however I believe this would have changed to tenants in common when my mom passed away? The charge order is against my mom only. My dad passed after my mom. 

macman

So the (assumed 50%) shares were indivisible: upon your mother's death, her share passed to your father. Who then wholly owned it, but with the charging order intact.
At least that's my interpretation of it, others may differ.