Charging Order? The myth

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  • eggbox
    eggbox Posts: 1,764
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    omariqy

    You would be unrealistic to think the creditor would just drop the debt so, if that is you're intention; you need to ensure you limit the creditor being able to reclaim the money (which is what this thread is highlighting)
  • omariqy
    omariqy Posts: 138
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    eggbox wrote: »
    omariqy

    You would be unrealistic to think the creditor would just drop the debt so, if that is you're intention; you need to ensure you limit the creditor being able to reclaim the money (which is what this thread is highlighting)

    Thanks eggbox. Sorry I need to read through the thread properly. I have read the first page and from what I can gather we can sell the property and not pay any money to the creditor? Will that be a debt on my mother then?
  • eggbox
    eggbox Posts: 1,764
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    omariqy

    This thread highlights that a CO can only be notified on the deeds of a property, that the debtor jointly owns, by way of a Restriction. As such, if the joint owners then decide to sell the property; then its possible the property can be sold without having to pay the CO debt at the point of sale.

    If that is achieved the debt will not be on you Mother as its, legally, not her debt. If your Mother received your father's share of the equity then its possible the creditor could be able to make a claim for the money owed? But it would be a very difficult and long winded process and, as such, I'd say the chances of it happening would be nearly zero.

    Especially, if the proceeds from the sale have, shall we say, gone elsewhere?
  • omariqy
    omariqy Posts: 138
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    eggbox wrote: »
    omariqy

    This thread highlights that a CO can only be notified on the deeds of a property, that the debtor jointly owns, by way of a Restriction. As such, if the joint owners then decide to sell the property; then its possible the property can be sold without having to pay the CO debt at the point of sale.

    If that is achieved the debt will not be on you Mother as its, legally, not her debt. If your Mother received your father's share of the equity then its possible the creditor could be able to make a claim for the money owed? But it would be a very difficult and long winded process and, as such, I'd say the chances of it happening would be nearly zero.

    Especially, if the proceeds from the sale have, shall we say, gone elsewhere?

    How do I go about asking the solicitor to put the restriction in place?
  • Hi I am looking for some advice please.

    Me and my partner have been searching for help and we are coming across problems along the way.

    The situation is this;

    2005 - my partner bought a property with her ex
    2008 - They split up and agree to sell the property however the credit crunch then hit taking the property into negative equity. My partner agreed to move out and her ex agreed to pay the mortgage each month until the house came back into positive equity.
    2011 - My partner receives a call from her ex asking for help with the mortgage payments. It turns out he has been paying random small payments over the course of the two years (barely anything!) and the house was under a repossession order. My partner and I had 7 days to find money to pay off all the arrears to prevent this from happening. We agree with her ex that he would move out and would not stake a claim in the future when we came to sell.
    2018 - We now have a family and need a bigger home. When we have requested a copy of the land registry as my partner knew she had 1 debt in her sole name that became a charging restriction it turns out her ex also had x2 charging restrictions against the property we were unaware of in his sole name. We are very concerned about this as we are very much relying on the equity to be able to use it as a deposit for a bigger house. My partners ex will be cooperative in terms of signing away his equity (if there is any) however it!!!8217;s unlikely he will pay his debtors now or in the future.

    Firstly - does anyone know how we can find out how much they amount to? We need to know what we are working with here. The charging restrictions for him were registered in November 2007 & 2010.

    Secondly - based on what we have read on this forum, are we correct in thinking that we may be able to notify the debtors during the exchange and then not necessarily have to pay them (We plan to pay my partners - through negotiating a final settlement afterwards and are aware we need to be careful where the funds are placed).

    The land registry has the following wording;

    !!!8216;Restriction, no disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to (details of the creditor) being the person with benefit of an interim charging order on the beneficial interest of (persons name, court, date)

    &

    !!!8216;Restriction, no disposition of the registered estate other than a disposition by the proprietor of any registered charge, registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to (details of the creditor) being the person with benefit of an interim charging order on the beneficial interest of (persons name, court, date)

    We have tried to ring so many solicitors and we are being given the same stock response on that they are not sure but it!!!8217;s likely they have to be paid. Can anyone recommend any solicitors that understand the law and what can/cannot be done to help us? We are really struggling to find someone who knows about this to help us.

    We are becoming increasingly worried that the debts are going to take all equity and more so that at any point more can be added. We have tried the mortgage company to switch his name with my own however they no longer take on new business and cannot arrange to have any changes made to the current mortgage.

    Your advice is very much appreciated.
  • eggbox
    eggbox Posts: 1,764
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    Taylor.richards25

    Unless you are selling the property (whereby your solicitor can ask for a settlement figure) the only person who will be able to find out what is owed is the debtor?

    Switching your name for the debtor's also wouldn't affect (or remove) the validity of the Restriction which would still be registered on the deeds.

    You also won't be able to make any changes to your current mortgage without dealing with the Restrictions, either?

    But, as you have gathered there is an opportunity to sell the property without settling the debts at the time of completion as long as you have a Solicitor with the right knowledge?

    I hope to have the details of a Solicitor who understands the limitations to give out shortly but we need to see if they do help the current person they are acting for first?
  • Thank you for the reply eggbox! Yes if you can provide details of a solicitor who understands this in the future then that would be great as this seems to be the stumbling block for us at the moment.
  • simmian
    simmian Posts: 29 Forumite
    Hi,

    I recently found out that I have a charging order against my property. I have a letter from HSBC saying they have sold the order to a company called Cabot. Is this allowed? What will be the consequences? Are they able to raise another CCJ another charging order. This was from debt from around 8 years ago. How can I dispute the charging order because I didn't receive any papers as I was not living at the address and I closed my account with First Direct years ago. I can only assume that it was for overdraft fees as I cannot remember having a loan with them.

    Also is it possible that I can add my wife to property deeds with this in place?
  • eggbox
    eggbox Posts: 1,764
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    edited 26 March 2018 at 8:46PM
    simmian

    Yes it is possible to sell a debt to a third party. The CCJ is re-asigned by a Court so Cabot become the legal owner of the CCJ and therefore the beneficiary of the Charging Order. There are no other consequences you just owe the money to another creditor.

    It's not the CO you need to dispute it's the CCJ that was originally granted by the Court for the debt. A court has discretion to set aside a judgment if there is a good reason. This can include a situation where the defendant didn!!!8217;t receive the court papers, however, be aware the CCJ will be valid if sent to the last known address the claimaint had for you?

    The first step will be to make an application to have the judgment set aside. This is done on court form N244 (fee unless exempt is £255.) The application should also be supported by a witness statement.

    The court will need some explanation as to why the court papers were not received. They will also want some idea of whether or not you are likely to have a good defence to the claim? (It's no good, for example, if you have ignored letters from the creditor explaining you owe money that can easily be provided as evidence in court?)

    But if you closed the account and were unaware of any fees added after closing the account, then this should be included in the witness statement. You should also explain how the default judgment has affected you such as being unable to obtain a mortgage?

    A CO won't affect you adding your wife to the deeds.
  • simmian
    simmian Posts: 29 Forumite
    Eggbox your advice is much better than what I have got from my CAB. Do you know what actions they can take? i/e can they raise another CCJ ? Can they come to my property and recover goods?
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