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  • FIRST POST
    blueback
    Charging Order? The myth
    • #1
    • 26th Jul 09, 11:28 AM
    Charging Order? The myth 26th Jul 09 at 11:28 AM
    I feel that this is so important that I thought a new thread should be made to highlight the importance of understanding the law on Charging Orders and how many people are stuck with their property in the false believe that they have had a Charging Order put on their property.

    In particular the thousands of Northern Rock customers that have had unsecured debt turned into secured debt by their tactics.

    If your property is jointly owned a creditor will not be able to obtain a CO against you, they can only get what is called a restriction.

    The laws on Restrictions are totally different to Orders, the most important being there is NO OBLIGATION for you to pay any of the proceeds of the sale to the creditor.

    However, during the whole court process you go through the reference from all parties (especially the creditor) will be to charging order and NOT to restriction. This is done in order to decieve you believing you are stuck with a CO.

    However, not all solicitors are aware of the law in this regard and it is important that you raise this point with them in the first instance before proceeding with them

    Quote:

    Restriction


    The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-
    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 [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.).
    You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

    If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.


    So I hope I have provided benefit to everyone who has had a restriction entered against them (especially NORTHERN ROCK CUSTOMERS) who believe wrongly that they are Charging Orders.

    You now have the freedom to go and sell your houses with the knowledge that the vultures can do nothing

    I also think this VERY IMPORTANT point needs highlighting by the moderators as many many people are stuck with houses that they believe they cannot sell
Page 184
    • eggbox
    • By eggbox 27th Jun 18, 9:16 AM
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    • 693 Thanks
    eggbox
    Overreaching has not been mentioned although on the flip side the final sentence "will enable registration of the change of ownership to be completed and the restriction removed." was a possible clue due to the order mentioned.
    Originally posted by Land Registry
    Thanks for the update LRR and it does appear, as suspected, that the LRR has given an answer to "pre-removal" of the restriction prior to sale?

    And whilst this certainly doesn't apply to yourself; the above quote does indicate what I have been saying about certain organisations not being as helpful as they could as it wouldn't have breached the "we can't give advice" rule to confirm overreaching?
  • Land Registry
    Thanks for the update LRR and it does appear, as suspected, that the LRR has given an answer to "pre-removal" of the restriction prior to sale?

    And whilst this certainly doesn't apply to yourself; the above quote does indicate what I have been saying about certain organisations not being as helpful as they could as it wouldn't have breached the "we can't give advice" rule to confirm overreaching?
    Originally posted by eggbox
    Can't be certain on the first point until I see the title number and what record we have
    And I'm unsure what the second Q is asking - sorry. Does it relate to your previous comments re the SRA responses perhaps?
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • Rangers123
    • By Rangers123 27th Jun 18, 4:10 PM
    • 24 Posts
    • 12 Thanks
    Rangers123
    I appreciate your help and advice LRR and eggbox. I'm a little reluctant to share the title number on a public forum as it's a family buying buying the property. I have now appointed a solicitor recommended by eggbox to handle the sale for me, someone who clearly knows what they are doing with regard these restrictions. Unfortunately the buyer's solicitor, who I was dealing with myself previously, knows even less about these restrictions than I do.
    • eggbox
    • By eggbox 27th Jun 18, 5:29 PM
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    • 693 Thanks
    eggbox
    Can't be certain on the first point until I see the title number and what record we have
    And I'm unsure what the second Q is asking - sorry. Does it relate to your previous comments re the SRA responses perhaps?
    Originally posted by Land Registry
    It relates to organisations like the SRA (and to be fair the LR) who "hide", in my opinion behind the "we can't give legal advice" stance when questioned by members of the public.

    YOU are a clear exception that demonstrates many of these bodies could be more helpful, without giving legal advice, as the example Rangers123 gave, whereby, it was clear what the question the solicitor was referring to and which could have easily been explained for clarity.
  • Land Registry
    It relates to organisations like the SRA (and to be fair the LR) who "hide", in my opinion behind the "we can't give legal advice" stance when questioned by members of the public.

    YOU are a clear exception that demonstrates many of these bodies could be more helpful, without giving legal advice, as the example Rangers123 gave, whereby, it was clear what the question the solicitor was referring to and which could have easily been explained for clarity.
    Originally posted by eggbox
    Understood and appreciated although I'd argue that the clarity a conveyancer needs is provided in our PG as far as overreaching is concerned.

    Overreaching is not covered by the LR Acts & Rules so to advise beyond the PG would be explaining how other legislation works - legal advice - and if we did then we would be culpable.

    Citizens pay for legal advice and assistance as a result because the cinveyancer is covering any legislation involved and not say just LR Acts & Rules. And those fees help to insure the conveyancer against the risk of getting it wrong, advice or otherwise.

    On the issue if clarity I feel that is very subjective. My reading if the issue was based in the post here which naturally altered how I read it.
    My colleague, who dealt with the conveyancer's Enquiry did not have that advantage.

    What they had was an enquiry that in the face if it focussed on removal of the restriction. 99/100 that's done through application by the owner or restrictioner plus evidence to support its removal e.g release, consent, court order etc. Not by overreaching

    The real question the cinveyancer should have been asking, in my view, is does the fact that the company has been dissolved affect that overreaching.

    As they didn't and they git the answer they did it woukd be interesting to know if Ranger123 pursues the matter with the cinveyancer who asked the Q and with us re the reply given.

    In my view that's the best way to affect change on both fronts. As the latter helps our people improve awareness/understanding. And in the latter case if the conveyancer's own firm back up their advice then the SRA can be contacted to see if they take a different view and can do anything more.

    We have the same situation in that if a complaint is upheld the next step is an independent complaints reviewer (ICR) and that adds the 'extra kick' a complainant may crave when looking for improvement

    I hope that helps add some more clarity re our own position on this and a smidgen of insight into how in my view a cinveyancer and/or SRA might view it also
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • eggbox
    • By eggbox 28th Jun 18, 9:15 AM
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    • 693 Thanks
    eggbox
    LRR

    Unfortunately, the help and guidance you have given on this thread negates a lot of your argument above? The point I'm making is that many organisations take the default position of "we can't give legal advice" even when they are only being asked to provide a simple explanation of the rules? This makes those organisations, unfairly, impenetrable to members of the public who often don't know where next to turn to?

    This is, especially, in light of this site being littered with "citizens" reporting they have paid for the legal advice required only to encounter that the "professionals" hired don't understand the rules, either?
  • Land Registry
    LRR

    Unfortunately, the help and guidance you have given on this thread negates a lot of your argument above? The point I'm making is that many organisations take the default position of "we can't give legal advice" even when they are only being asked to provide a simple explanation of the rules? This makes those organisations, unfairly, impenetrable to members of the public who often don't know where next to turn to?

    This is, especially, in light of this site being littered with "citizens" reporting they have paid for the legal advice required only to encounter that the "professionals" hired don't understand the rules, either?
    Originally posted by eggbox
    eggbox it's an understanding of the law and what view you have as to how that law works.
    It's not a rule in my view that's being applied here in the context of this thread.

    And as you will appreciate the law itself can be subjective so you can get differing views, that's why you then have a judge as the arbiter.

    For example the issue of overreaching is our interpretation of the law hence 'A charging order affecting only the beneficial interests under a trust is liable to be overreached along with those interests by the operation of sections 2 and 27 of the Law of Property Act 1925' - so our interpretation of the LPA 1925

    And whilst I am not suggesting this is the case re the legal advice being given by the solicitor's referred to in the the thread a different view of the law may be taken. That may for example be a view that focuses on the Charging Orders Act and/or any legislation dealing with such debts and how they are satisfied and when.

    I suspect the real difficulty for some solicitors is how COs are dealt with differently and how those differences impact on jointly and solely owned properties. But it still comes back to the impact of the CO itself and how the law enables the creditor to realise the debt or the debtor to manage it where they own a property.

    The only way you will change a solicitor's view, in my opinion, is by challenging their interpretation of the law and convincing them to accept your interpretation - that's not a rule to be enforced but a matter of discussion/education and encouragement all of which this thread can help with, complaints to solicitor's and their firms when poster's views differ, and the SRA thereafter as appropriate.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • eggbox
    • By eggbox 28th Jun 18, 10:21 AM
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    eggbox
    eggbox
    The only way you will change a solicitor's view, in my opinion, is by challenging their interpretation of the law and convincing them to accept your interpretation - that's not a rule to be enforced but a matter of discussion/education and encouragement all of which this thread can help with, complaints to solicitor's and their firms when poster's views differ, and the SRA thereafter as appropriate.
    Originally posted by Land Registry
    Unfortunately, as many posters have found; you have more chance of convincing a solicitor the earth is flat than you have of altering their interpretation of the Law even when presenting them with the "evidence" as explained in the LR PG's?

    The difficulty for this, as many posters have recounted, is the arrogance of solicitors in not wanting to be educated by a member of the public? So persuasion is often a non starter as they aren't going to defer to a client's opinion?

    Whilst I would stop short of using arrogance as the reason many organisations, like the SRA etc, aren't more helpful to the general public; from my experiences it's definitely motivated by professional "protectionism" in not wanting to give any information away they don't have to?
    • mintminty59
    • By mintminty59 4th Jul 18, 1:48 PM
    • 20 Posts
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    mintminty59
    I have a bit of a nightmare scenario. I have recently tried to remortgage my house to get a better rate and do some repairs. The solicitor working on behalf of the bank, have detected a Interim charging order that was placed on my house and myself back in 2006. I am the sole owner and mortgage payer on this house.

    I have no memory of a court summons, or a CCJ being registered however I do have a claim number provided to me by the Land Registry. Obviously this has placed a block on my being able to proceed with the remortgage. I have traced the debt which is no owned by Caboot and the original debt was with HSBC for a retail account.

    I tried to contact Caboot to make an offer for full and final setlment but they refused point blank and only want the full amount, and they refused to remove the CO so I could proceed with the mortgage and potentially pay them off. I am not completly stuck as to what to do! , is there any fight I can give to force this to be resolved, as I currently dont have any means to pay this off without taking a remortgage.
    • eggbox
    • By eggbox 4th Jul 18, 2:11 PM
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    eggbox
    mintyminty59

    If the bank are happy to remortgage you in the knowledge part of the loan will be to settle the Charging Order, then you don't need Cabot to remove the charge? (The reason they won't remove the charge themselves is that there is no guarantee they will be paid if they do so?)

    The charge will be removed from the register by the bank settling the charge (from the proceeds of the re-mortgage) so allowing their remortgage to be the first charge on the register which is what they require to allow the re-mortgage to proceed?

    But you DO need the Bank's agreement that they are happy to remortgage on the basis of settling the CO or they won't budge, either?
    • mintminty59
    • By mintminty59 4th Jul 18, 2:30 PM
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    mintminty59
    The solicitor wont proceed and the bank require full payment so its a chicken and egg scenario.

    I dont even know how they got the CO in 1st place so looks like I am stuck.
    • eggbox
    • By eggbox 4th Jul 18, 3:03 PM
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    eggbox
    Don't give up just yet. If your bank is acting like an idiot then the best solution maybe a "secured" loan?

    These are loans that are secured against your property (similar to a mortgage) but which rates are a lot lower than the, comically, named "unsecured" loans that attract much higher interest rates. Lenders, also don't require their charge on the deeds to be the first one (as the amount they are lending is much lower than a mortgage) as would be the case with a remortgage? Lending criteria is also a lot lower than mortgages so they tend to be easier to obtain?

    So you could do this to pay off the CO and then approach the bank for a remortgage for the extra lending required and to settle the secured loan at the same time? Or, it may be a lot easier to just forget the CO is there and obtain the loan you require through the "secured" loan and cut out the remortgage altogether?

    If the CO isn't attracting interest then that may be the best option as it will only decrease in value the longer it remains unpaid?
    • mintminty59
    • By mintminty59 4th Jul 18, 3:08 PM
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    mintminty59
    The re mortgage was to satisfy everything I owe out currently , which are all green and fully up to date, and to raise a deposit to move onto a new place.

    I dont think any interest is being charged because I didnt think there was a right to do so, as I have not seen any claim forms from the court. I did call them and they said its going to be hard to find them due to the age of the claim "although not impossible"

    I will try the bank again, and I guess I have to suck up this CO and get it out the way.
    • eggbox
    • By eggbox 4th Jul 18, 3:13 PM
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    eggbox
    The re mortgage was to satisfy everything I owe out currently , which are all green and fully up to date, and to raise a deposit to move onto a new place.
    Originally posted by mintminty59
    Sorry, I've got to be missing something here?? Why would you be trying to raise a deposit for a new property from a re-mortgage on your existing property?
    • mintminty59
    • By mintminty59 4th Jul 18, 5:05 PM
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    mintminty59
    It is do consolidate all my existing borrowings, my current property is being converted to a buy to let mortgage as I have a lot of equity in it which I am trying to release. I am wondering if its worth me finding a solicitor to argue this case with it being since 2006 with no attempts and getting a payment from myself.
    • eggbox
    • By eggbox 4th Jul 18, 6:16 PM
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    eggbox
    Unfortunately, using the "no payments" argument is a non starter as they've "secured" repayment for the debt by attaching a CO to an asset you own? Having done that; the Law views that the creditor has the right to decide if, and when, it takes any further action to collect on that debt?

    As the CCJ behind the debt also isn't subject to becoming statute barred; you won't have any legal argument that could remove the CO on a time basis?

    Your only chance of removing the CO is to try and get the original CCJ set aside if you believe it's been granted unfairly? This could be because you can DEFINITELY PROVE you, either, don't owe the debt or that you were never notified of the Court action and were, therefore, unable to defend the legal action against you?

    If you can prove the first reason then you have no problem? If you can prove the second (but do owe the debt) then you should still apply for set aside of the CCJ for the following reason.

    The account concerned will be subject to the Consumer Credit Act 1974 (CCA1974) as being before April 2007 after when it was updated. As such, the contract will be subject to having to include certain terms and conditions to be enforceable? If those conditions weren't included in the contract then the debt is barred from being recovered through Court action?

    So, if you are able to get the CCJ set aside; then you are entitled to request a copy of the contract concerned under s.78/79 of the CCA 1974. If the creditor cannot provide this (which is highly likely after such a long period of time) then they are unable to proceed with any Court action until it is supplied or a "true copy" is provided? Even if they can still provide; the contract stands a high chance of being unenforceable if the T&C's required aren't in the prescribed form?

    Some people will tell you that after such a long time you won't get the CCJ set aside but ignore them if you have the proof required?
    Last edited by eggbox; 04-07-2018 at 6:19 PM.
    • mintminty59
    • By mintminty59 4th Jul 18, 6:51 PM
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    mintminty59
    What an excellent post , so I should request a copy of the signed original credit agreement with the terms and conditions "from that year" if they are unable to supply me that, then I have grounds to have the CCJ set aside?

    I am not sure I can prove I was never informed to attend court as that evidence would not exist in either direction
    • eggbox
    • By eggbox 5th Jul 18, 8:25 AM
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    eggbox
    No, once a CCJ is granted it supercedes any contract. So you need to show grounds that the CCJ shouldn't have been granted (for either of the reasons above) and apply to get the judgement set aside?

    Once that is achieved it resets the dispute so the creditor can still apply for the CCJ but you will be able to defend the action brought against you.
    • mintminty59
    • By mintminty59 5th Jul 18, 9:53 AM
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    mintminty59
    Aha I see that makes perfect sense, I am not sure how easy that is going to be to prove either way. If they re apply for a CCJ and it does get granted again is that another entry on my credit file for 6 years? I am just trying to asses the chances of success and the risks
    • LisaJe
    • By LisaJe 5th Jul 18, 10:19 AM
    • 1 Posts
    • 0 Thanks
    LisaJe
    Is this the same as Equity release? My parents borrowed money 10 years ago (ish) and repayment is 5x the original amount borrowed once the property is sold. We are unsure of what the details are as it was done some years ago and my parents can't remember much about it. However the advice from a solicitor is that we would only have 6 months to sell and complete or they could force us to give it to them to sell via auction for a quick and probably vastly reduced price . It was done without our knowledge or involvement and are worried what they signed up for without realising it. Anyone have any advice?
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