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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 185
    • eggbox
    • By eggbox 5th Jul 18, 10:27 AM
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    eggbox
    You will be the best judge of how likely it is you can persuade a Judge you never received any Court papers? Court papers are deemed as being served at the last known address the creditor has for you? If you weren't living at that address its easier than if it was the address you were residing in?

    I don't think there is much risk just the cost (255 Court fee) as if you did manage set aside, but the Judge still granted a CCJ, you have 30 days to pay before the CCJ is registered on your file? So it gives you the opportunity to "pre-arrange" paying off the debt if you are unsuccessful in Court leaving, therefore, no stain on your credit file?

    Unfortunately, its all down to the judge on the day if he feels set aside should be granted so there is little you can research to see how successful you will be? But you can research the contract you had to see if other people, with similar agreements, were successful in finding the contract was unenforceable as it didn't have the prescribed terms?

    If it was enforceable then it probably isn't worth applying for set aside? But if the reverse is true then its a 255 shot to nothing?
    • eggbox
    • By eggbox 5th Jul 18, 10:31 AM
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    eggbox
    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 .
    Originally posted by LisaJe
    6 Months from when? What would be the reason for selling?
    • mintminty59
    • By mintminty59 5th Jul 18, 1:25 PM
    • 17 Posts
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    mintminty59
    Well Mortimer Clarke solicitors seems a little rattled that I am going to apply to have the CCJ set aside.
    • eggbox
    • By eggbox 5th Jul 18, 1:32 PM
    • 1,329 Posts
    • 669 Thanks
    eggbox
    Good MC are part of Cabot so fairly low life?

    Some helpful info HERE

    Good luck!
    • Jenny1952
    • By Jenny1952 5th Jul 18, 1:55 PM
    • 1 Posts
    • 0 Thanks
    Jenny1952
    charging order advice need
    I got into trouble with my credit card 20 years ago and last year i had a letter from a debt collector (Cabot) who bought the debt from the bank saying i owed 6,000 which i dispute but cant prove anything. I replied that i am a pensioner on low income and sent them an income/outgoing letter. I then started receiving letters from Mortimer Clark solicitors and when i wrote to him and offered 5 a month which is all i could afford. This was refused so my son offered to give me 2,000 on the understanding that the debt company accepted this as a final settlement . I put this to them and they refused both offers. They then took it to court without my knowledge as i did not receive any letters telling me i could attend and ive now received a letter saying there is a charge on my house. Why would a judge do that when i was not given the opportunity to state my own case?
    Last edited by Jenny1952; 05-07-2018 at 2:05 PM. Reason: needed to put name of debt company and solicitor
    • mintminty59
    • By mintminty59 5th Jul 18, 1:59 PM
    • 17 Posts
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    mintminty59
    I got some information from the court , it was a judgement by default , very shortly afterwards they applied the the CO and it was refused , they then submitted it again 1 week later and it was an interim granted , then a final 2 weeks after that.

    So they moved with extreme speed, and there is no history of me every being or replied to any information.

    The CO is always 600 higher than what the CCJ was awarded to.

    I think I have very strong argument for a set aside here.
    • mintminty59
    • By mintminty59 5th Jul 18, 2:01 PM
    • 17 Posts
    • 0 Thanks
    mintminty59
    I got into trouble with my credit card 20 years ago and last year i had a letter from a debt collector who bought the debt from the bank saying i owed 6,000 which i dispute but cant prove anything. I replied that i am a pensioner on low income and sent them an income/outgoing letter. I offered 5 a month which is all i could afford. My son offered to give me 2,000 on the understanding that the debt company accepted this as a final settlement . I put this to them and they refused both offers. They then took it to court without my knowledge as i did not receive any letters telling me i could attend and ive now received a letter saying there is a charge on my house. Why would a judge do that when i was not given the opportunity to state my own case?
    Originally posted by Jenny1952
    It is my understanding, you can have this set aside, and also say the debt was statue barred if its that old. But I am sure eggbox can help he been amazing forme
    • eggbox
    • By eggbox 5th Jul 18, 2:13 PM
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    • 669 Thanks
    eggbox
    Jenny1952

    Mintminty is correct. Once a debt has defaulted it creates a "cause of action" meaning the creditor is allowed to take legal action to recover the debt. But the creditor only has six years in which to bring legal action after which time the debt becomes statute barred.

    However, if you make any payment towards the debt, or make contact with the creditor, anytime within that six year period; the statue barred clock for taking action is reset from the time of payment/contact?

    So if you are certain that you never paid anything or contacted the creditor within the following six years you defaulted on the debt (or any six year period since) then you have grounds to apply for a set aside of the judgement on the basis action should never have been brought as the debt was statute barred.

    The creditor will contest the set aside but they will have to provide relevant evidence that there was payment or contact, regarding the debt, that reset the SB period to allow them to take Court action?
    • JayN
    • By JayN 10th Jul 18, 5:23 PM
    • 4 Posts
    • 0 Thanks
    JayN
    Hi everyone,

    I have just stumbled on the thread and this has given me some hope! (MAYBE). I am going to seek legal advice too but wanted to know if anyone had the same experience as me and could offer some views.

    My parents are in their 60s now with an interest only mortgage which has come to an end. The amount to pay is 117 to Birmingham Midshires.

    There is a restriction on the property for another charge against my dad to an individual where my dad lost a court case 10 years ago. The original debt was 117k. My dad declared himself bankrupt and it was ordered by the court my mum should pay some money towards this. She paid 350 every month. They thought they were paying off the debt here but didnt account for the 8% charge on top.

    Given that mortgage has come to an end (November 2017) my sister and I have decided to purchase the property. So we got a mortgage application approved and started the conveyancing process. We were going to purchase the property for 285k (115k+117k and our parent will gift us the equity as deposit as we do not have savings)

    My parents conveyancing sols emailed both BM and the individual asking the amount thats owed in order to redeem the charge. BMs figure remained at 115k and theindividuals amount was 212k!! Turns out the 212k is 125k (actual original debt) plus interest and minus any payments my mum made.

    Obviously this has placed a spannner in the works. If this is the case, me and my sister will need to apply for a bigger mortgage.

    As I know, the second restriction/charge is against my dad only.

    Me and my sister was to buy the property undervalues (for obvious reasons) however if we can buy it with paying off BM and some money to the individual - is my dad okay in all this? He will be gifting his share of the equity to us. For example, we buy for 300k, 20k is the equity, leaving 240k. 100k goes to BM, leaving 140k. My dads share is 70k and he pays that. In total - my parents have paid off the original debt of 125k. Would that work?

    Does the second individual have a claim against my dad for selling the property undervalue?

    I will get legal advice but would really appreciate if someone has been in the same boat as me!

    This is what is stated in the title (redacted):

    Title absolute
    1 (Date of Purchase) PROPRIETOR: DAD and MUM
    of (ADDRESS).
    2 (Date of BM charge) RESTRICTION: No disposition of the registered estate by
    the proprietor of the registered estate is to be registered without a
    written consent signed by the proprietor for the time being of the
    Charge dated [DATE] in favour of Bank []
    referred to in the Charges Register.
    3 (COURT CASE DATE) 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 (INDIVIDUAL) at care of [NAME OF SOLICITOR] being the person
    with the benefit of an interim charging order on the beneficial
    interest of Dad made by the [] County
    Court on DATE OF COURT DATE (Court Ref. No: XXX)
    4 (SAME COURT DAYE) 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 [INDIVIDUAL] at care of [NAME OF SOLS] being the person
    with the benefit of a Final charging order on the beneficial interest
    of DAD made by the County Court on COURT DATE (Court Ref. No. XXX).

    Many thanks in advance peeps.
    Last edited by JayN; 10-07-2018 at 5:27 PM.
    • sablelady
    • By sablelady 10th Jul 18, 7:55 PM
    • 32 Posts
    • 24 Thanks
    sablelady
    Reston's billing me for their client's fees
    Hi,

    I have just finished paying off a final charging order lodged by Reston's solicitors on behalf of their 'client' MBNA and have received a final bill of 565 in order for them to remove the restriction. They have simply itemized some phone calls and correspondence that I have had with them since 2013. I don't recall receiving any advice that I would be charged a fee every time we had any contact. Do I have any legs to stand on? The fee includes 100 for discharge. Can anybody help with this? Thanks in advance.

    Sablelady
    • mintminty59
    • By mintminty59 11th Jul 18, 12:20 PM
    • 17 Posts
    • 0 Thanks
    mintminty59
    It was my understanding once you have settled the charge , you should have proof of this. You can then send that to land registry yourself using a DS1 form. I am going through something similar myself.
    • mintminty59
    • By mintminty59 11th Jul 18, 12:23 PM
    • 17 Posts
    • 0 Thanks
    mintminty59
    Eggbox - I have contacted the court with my issue, the amount cabot are asking me to pay is well above what the charge was original registered which is on the claim forms and the judge comments. I am about to try and scare them into taking a lower offer just to get this out of the way. Are you aware of any language I can use that might make them think twice about pushing this. So far I have tried the set aside argument and they did not budge.
    • eggbox
    • By eggbox 12th Jul 18, 10:54 AM
    • 1,329 Posts
    • 669 Thanks
    eggbox
    JayN

    The individual debt concerned must have obtained a Charging order for their debt before your Dad declared bankruptcy, therefore, that debt won't have been included in the bankruptcy through being a "secured" debt? And any amount ordered to be paid by the Court, due to the bankruptcy, will only have gone to the "unsecured" creditors. So the individual's debt won't have been reduced from the 350.00 repayment?

    However, if you read the relevant parts of this thread you will understand the BM charge is registered against the property and the individuals charges notified by restrictions aren't. Therefore, given the right conveyancing help, your parents are able to sell the property without settling charges only notified by a restriction?

    This won't wipe the individual's debt but it puts your parents in control of how it is repaid.
    • eggbox
    • By eggbox 12th Jul 18, 11:02 AM
    • 1,329 Posts
    • 669 Thanks
    eggbox
    Hi,
    I have just finished paying off a final charging order lodged by Reston's solicitors on behalf of their 'client' MBNA and have received a final bill of 565 in order for them to remove the restriction. They have simply itemized some phone calls and correspondence that I have had with them since 2013. I don't recall receiving any advice that I would be charged a fee every time we had any contact. Do I have any legs to stand on? The fee includes 100 for discharge. Can anybody help with this? Thanks in advance.
    Sablelady
    Originally posted by sablelady
    Reston's are a particularly vile bunch of characters who will try anything to extract money from debtors. Unless you have entered any agreement for the charges they are trying it on as they can't be included in the Charging Order debt amount?

    I'd, therefore, ring the Law Society to request clarification on the validity of any charges when settling a charging order.
    • eggbox
    • By eggbox 12th Jul 18, 11:47 AM
    • 1,329 Posts
    • 669 Thanks
    eggbox
    Eggbox - I have contacted the court with my issue, the amount cabot are asking me to pay is well above what the charge was original registered which is on the claim forms and the judge comments. I am about to try and scare them into taking a lower offer just to get this out of the way. Are you aware of any language I can use that might make them think twice about pushing this. So far I have tried the set aside argument and they did not budge.
    Originally posted by mintminty59
    There isn't any language that will make them budge as they don't need to? You, also, won't "scare" them into any action and set aside won't mean anything to them unless you can actually apply for such?

    Where you may, perhaps, have an angle is if the debt isn't attracting interest then Cabot may be acting fraudulently by trying to get you to repay above the CO amount? Have they explained where the extra amount has come from?
    • JayN
    • By JayN 12th Jul 18, 9:42 PM
    • 4 Posts
    • 0 Thanks
    JayN
    JayN

    The individual debt concerned must have obtained a Charging order for their debt before your Dad declared bankruptcy, therefore, that debt won't have been included in the bankruptcy through being a "secured" debt? And any amount ordered to be paid by the Court, due to the bankruptcy, will only have gone to the "unsecured" creditors. So the individual's debt won't have been reduced from the 350.00 repayment?

    However, if you read the relevant parts of this thread you will understand the BM charge is registered against the property and the individuals charges notified by restrictions aren't. Therefore, given the right conveyancing help, your parents are able to sell the property without settling charges only notified by a restriction?

    This won't wipe the individual's debt but it puts your parents in control of how it is repaid.
    Originally posted by eggbox

    Thanks eggbox. Could the individual claim that parents property (which will need to be sold asap) was sold undervalue if i was to purchase it slightly below market price?

    I am not sure if I should get a few valuations on the property done, take the average and say it is being sold for X price and offer to settle it that way?
    • eggbox
    • By eggbox 13th Jul 18, 10:17 AM
    • 1,329 Posts
    • 669 Thanks
    eggbox
    Thanks eggbox. Could the individual claim that parents property (which will need to be sold asap) was sold undervalue if i was to purchase it slightly below market price?

    I am not sure if I should get a few valuations on the property done, take the average and say it is being sold for X price and offer to settle it that way?
    Originally posted by JayN
    They can claim what they like but to have anything happen they would need to take the matter to Court using a "freezing order" (which is risky for them as it is expensive and can incur high costs) if they want to prevent the sale?

    A homeowner can also sell their property for whatever value they like as they can a motor car they own. "Market Value" is also hugely subjective as there are so many factors that determine a property's price?

    If the property, however, is sold under what would be perceived as, "below market value", to a sibling then there may be considerations regarding inheritance and capital gains tax if the parent (from memory so check) dies within seven years? This will be because any under market value amount will be seen as being "gifted".

    But the charging order granted to the person concerned was only attached to the "beneficial interest" (equity) in the property concerned. There is no guarantee the debt will be covered when the property is sold which is why a freezing order is a huge risk for the creditor?

    As such; as long as the property is sold for value then the restrictions will become overreached, and therefore removed, when your details are registered on the deeds regardless of how much beneficial interest the creditor has received.

    The real problem, however, will be the mortgage lender agreeing to go along with the sale?
    • mintminty59
    • By mintminty59 13th Jul 18, 8:07 PM
    • 17 Posts
    • 0 Thanks
    mintminty59
    Nope no explanation, they keep repeating you need to pay X before we will remove the charging order. Am I able to have the mortgage company pay the court directly the amount to have it discharged?
    • eggbox
    • By eggbox 13th Jul 18, 8:33 PM
    • 1,329 Posts
    • 669 Thanks
    eggbox
    You need to get a settlement figure with a break down of the charges. If they won't provide that you are entitled to take the matter back to Court to have them justify why the amount they are claiming is higher than the judgement figure?
    • BedTerrier
    • By BedTerrier 16th Jul 18, 3:36 PM
    • 1 Posts
    • 0 Thanks
    BedTerrier
    There is a restriction (interim charging order) registered 2012. I did not realise this, as knew we had ccj but was not aware a restriction applied. This has come to light when we are transferring house over to family (son) not selling but transferring deeds I have tried resolving this only to be told by Black Horse debt been sold on I have spent the whole morning being transferred to different debt agencies. Now to be told by Cabot they cannot speak with me as claim in my husbands name.

    Can transfer still take place with restriction on. Solicicitor said we need letter of consent from charge holder.
    Please advise, help......
    Last edited by BedTerrier; 16-07-2018 at 7:49 PM.
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