Charging Order (????)

getti

BIG thanks to everyone for all your kind words and advice.

After sitting down with parents last night we have agreed on the best way to get it sorted

So today a letter is going in the post offering 3 Installments of £1,400 to clear the whole lot. Then my dad will be paying me back in installments of £150 until its cleared saving him some money too.

That way i make my money back and no charging order will be needed

thedebtprofessor

hi getti,

the charging order is a funny thing, its not technically an enforcement of the court rather a device generally used for the security of a debt.

firstly it is highly unlikely the court will accept an 'order for sale' which is an extremely draconian action for a creditor to take.

i fear however the result of your letter may not be enough for the district judge who will more than likely order that the matter be referred to the charging order hearing.

what you will probably need to do is treat the judgment and the charging order application as if it were 2 seperate issues.

firstly, i am assuming the creditor has a forthwith judgment (ie pay in full immediately) that has allowed it to apply for the charging order. if so the best course of action if you want to follow the 3 installments route is to phone the creditor and offer them 3 instalments on the basis that the charging order hearing does not go ahead. All the creditor will need to do is write to the court to withdraw the charging order application. If you are offering £1400 there and then it may be likely they will accept it. Make any offers on a 'without prejudice basis' which means the creditor will not be able to use your offer as ammunition in any legal dispute.

secondly if you do not wish to take the course of action you mentioned - paying in 3 instalments, then you will need to either request the court transfers the charging order hearing to your local county court, or write explaining your non-attendance.

thirdly if you dispute the need for a charging order, it is likely the creditor will argue the charging order is required for the security of the debt while payments are made at the rate your parents can reasonably afford. So in a sense if the creditor has no intention to push for an order for sale (phone them and find out, they can only say yes or no!) it is often the best course of action for both parties.

This may seem strange, but creditors are looking to the long term security of debts and in doing this they apply for the charging order as a means to an amicable arrangement between both parties - they get the security - you get to pay by instalments at a rate you can afford.

now looking at the judgment....

ideally this should have been done prior to the charging order application but, your parents could have made an application to vary the judgment order. ie pay by instalments at a rate they can afford. if that was successful there are some district judges who will look at this and assuming payments are being made in line with the new varied judgment, refuse the charging order application.

if the creditor is after security only as mentioned above, they will always refuse an offer of payment to get a forthwith judgment thus allowing a charging order application to be sent. Again this isnt something to necessarily worry about as long as you find out the intentions of the creditor.

so.......

find out if the creditor intends to apply for an order for sale

make a 'without prejudice' offer to the creditor based on the amounts you are suggesting.

if the creditor accepts, MAKE SURE they do apply to withdraw the charging order application.

BTW if your parents property is in joint names, but the debt is in a sole name, a charging order is next to worthless. i can explain but would be quite in-depth!

Best wishes,

thedebtprofessor

getti

THanks for the info.

A FAX to both the court and the company has been sent today with a copy sent via post also with the offer.

The hearing is on Wednesday 5th, what are the chances of us finding out if the offer has been accepted before that date? Could we phone them o Monday and ask and would that be enough if they say yes to stop the order process?

1st payment could be made TOMORROW over the phone if this would be security so show payments are going to be made so by May the whole amount it paid in full

thedebtprofessor

absolutely phone them up. post departments tend to have a delay depending on the time of the year, so your fax/letter may not even be dealt with before it gets to the right department!

phone them, make the offer, see what they say! like i said make it on the proviso that 1st payment will only be made IF they withdraw the charging order application - which they should be able to do right up to the last hour before the hearing.

if they agree ALWAYS get a letter sent in post AND faxed (if you have access to fax machine) confirming they will accept the payment arrangement and withdraw their application.

Let us know what happens tomorrow,

good luck!!!

thedebtprofessor

getti

ok they have been called and the soliitors called the company to ask them about the offer.

They are declining the 3x £1400 installments and want to continue with the charging order.

I asked what will happen now and they say the charging order will be put on tomorrow and the original company (Cabots) will contact me dad with the installment offer they will accept.

Im guessing this means there is no sale order going to be placed if they are going to be writing to ask for installmants.

IF and this is a big IF, they did ask for a sale order and it did happen, as long as the FULL amount is paid to them in 1 go we dont have to sell i would imagine as they have their money. Surely though on a £100k house with £56k mortage left and only owing £4k they could never force this anyway

thedebtprofessor

getti wrote: »

ok they have been called and the soliitors called the company to ask them about the offer.

They are declining the 3x £1400 installments and want to continue with the charging order.

I asked what will happen now and they say the charging order will be put on tomorrow and the original company (Cabots) will contact me dad with the installment offer they will accept.

Im guessing this means there is no sale order going to be placed if they are going to be writing to ask for installmants.

IF and this is a big IF, they did ask for a sale order and it did happen, as long as the FULL amount is paid to them in 1 go we dont have to sell i would imagine as they have their money. Surely though on a £100k house with £56k mortage left and only owing £4k they could never force this anyway

i find it highly unlikely they will go for an order for sale. 1. it would be pointless as the debt would be paid off in 3 months and the district judge should see common sense and dismiss the application. if you disputed order for sale it should be set down for a hearing which would probably not be heard until the debt is paid off anyway. in any case you are always able to make an application to appeal the dj's decision which again could take some time to resolve. the dj would have to review the appeal before they could grant an application for a sale order.

if your parents property is in joint names and in the extremely unlikely event the dca goes for an order for sale, the charging order would have to be registered on the title by way of a form k restriction which would read on the title something along the lines of 'no disposition can be registered without the beneficiary of the restriction being notified of the disposition'

this means under the land registration rules that your parents could apply to the district land registry (DLR) for the proprietorship to go into your name 'the disposition' and all you would have to do is supply to the DLR and creditor with notice of the disposition. this is a loophole for getting out of the charging order where there is a joint proprietorship and might be worth exploring with your solicitor if they do decide to go for an order for sale.

the only other thing i can think of is if the hearing is not in your local county court, you could ask that the hearing be adjourned and the matter transferred to your local county court to enable your parents attendance. this is something that the dca should have considered when making the application - ie the charging order hearing is made in your local county court. if it is not in your local cc the dj may adjourn and transfer the matter to you locally.

best wishes,

getti

THanks.

Problem is im going to be panicing now until the letter comes with what is going to happen.

I keep expecting the worse and even though on the 25th of this month i could clear the full amount IF needed its the fact of the force sale that scares the hell out of me.

Surely a Judge would see the debt amount, see the offer in place and say that is a more than fair offer to get it cleared asap

thedebtprofessor

getti wrote: »

THanks.

Problem is im going to be panicing now until the letter comes with what is going to happen.

I keep expecting the worse and even though on the 25th of this month i could clear the full amount IF needed its the fact of the force sale that scares the hell out of me.

Surely a Judge would see the debt amount, see the offer in place and say that is a more than fair offer to get it cleared asap

heres hoping they will see sense and not apply for order for sale. any news on the hearing at all?

best wishes,

chimp_choker

thedebtprofessor wrote: »

heres hoping they will see sense and not apply for order for sale. any news on the hearing at all?

best wishes,

bump, doing the bump

getti

Ok guys an update.

My dad just spoke to the original company owed the money (Cabots) who have not seen the copy of the letter we sent making an offer (Strange when the solicitors have and so did the court?)

Anyway they talked for a bit and my dad has to fax them tomorrow the copy of the offer made and they can then work out an installment offer to clear it.

This has totally put my mind to rest as they are looking for an installment offer which was what we were offering anyway so NOT looking for a force of sale.

Many thanks to everyone on here for your help and advise