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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 188
    • eggbox
    • By eggbox 28th Aug 18, 12:28 PM
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    • 680 Thanks
    eggbox
    The first question has to be why Mortimer Clarke (not the brightest bunch I agree) are refusing to remove the restriction given you have indicated you are willing to settle the charge?

    You can also explain overreaching to your numbskull conveyancer to demonstrate why Mortimer Clarke's stance is irrelevant.
    • faye242
    • By faye242 6th Sep 18, 9:59 PM
    • 5 Posts
    • 0 Thanks
    faye242
    Hi, I am hoping for a bit of advice...


    My partner's ex wife is buying him out of their house (remortgaging in sole name).


    He has 3 restrictions in his name on it, looking into them, they are form K restrictions. I have asked her to make sure her conveyancer knows how to deal with this but she isnt keen on me so prob isnt going to be helpful.


    Can we 'notify' them ourselves to ensure it was done? how is it supposed to be worded? I can only find info on APPLYING them online!


    I am fighting to get statementys of what is owed and to who, is there anywhere I can get the original value etc from?



    If I email the land regisrty for help, would they explain restrictions and requirements so I can pass it to her conveyancer?



    I am tempted to offer full and final payments before, would this remove the need to notify them? Is it legal to offer full and final before a sale? (I dont want to end up foul of the law, but want to help the best I can)


    Im sorry if that seems a lot of dumb questions...but I am going in circles online now and need some plain English,


    Thanks in advance xxx
    • eggbox
    • By eggbox 7th Sep 18, 8:27 AM
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    • 680 Thanks
    eggbox
    Hi Faye242

    You ex's partner won't be able to re-mortgage unless the Form K Restrictions are removed. This is because the mortgage lender will insist on being the first charge on the property deeds. Any remortgage without dealing with the Restrictions would put any new lending behind the Restrictions (through date order) and the lender won't agree to that.

    So it's not the same situation as if both your partner and his ex were selling the property to a third party when notificaton to the Restriction holders would be required.

    So its the lender who has to be satisfied in this scenario not the creditors. But if your partner contacts his creditors and can agree a F&F settlement with them; then this information can be given to the lender to explain the Restrictions on the property are being removed with the re-mortgage funds settling the debts and that should ease the path to get things sorted.

    And to put your mind at rest (regarding the Law); the debts are your ex's so he can request a F&F settlement of the debts anytime he likes.
    • Rangers123
    • By Rangers123 7th Sep 18, 5:04 PM
    • 22 Posts
    • 12 Thanks
    Rangers123
    We have now emailed both conveyancers to advise that providing the form K restriction is complied with and the named (on the register) creditor is notified of the sale by two or more registered owners for value then it will be overreached and automatically cancelled when the purchase is registered.

    The buyer's conveyancer contacted us initially to query whether the above was still true in light of the fact that the creditor, a company, had been dissolved. Our response sign-posted them to our guidance on corporate insolvency. As a result, and perhaps quite naturally, I assume they contacted your conveyancer to assist.

    Although the creditor's insolvency is relevant as to the debt/the CO it is not relevant with regards the overreaching of the form K restriction in the circumstances mentioned above.
    I have highlighted in the thread a few times how the devil is always in the detail re the Qs asked of us but in this case whilst I believe the reference to the creditor's insolvency caused us to answer as we did, we should have explained the above and how it did not impact on the requirements for the sale overreaching the form K restriction.

    Your conveyancer raised their own enquiry with us in an effort to remove the form K restriction. Removal in this case was not required as explained but doubtless our reply to the buyer's conveyancer caused them to then refer.
    Our response then sought to explain how the insolvency affected the debt and how the Treasury Solicitor, for the Channel islands in this case, might be involved. Those details are in the original response and today's additional reply.

    Your conveyancer has been provided with an explanation of the specifics involved and additional information re how the creditor's insolvency may affect the debt. However as already stated that is after the sale/purchase has completed and does not impact on how we would treat the purchaser's application/automatic cancellation of the form K restriction.

    Provided the restriction is complied with as per the registered details and the application is to register a transfer as described I do not envisage any further issues.

    eggbox from a wider perspective this example does not alter the position already shared and explained in your thread. The corporate insolvency is not significant to how a form K restriction might be overreached and automatically cancelled.

    The creditor's insolvency has, from a registration perspective, the same impact as say the debt being sold on as unless the register reflects such a change of circumstances a purchaser/their conveyancer need only comply with what is actually registered and not 'chase the debt' so to speak. The debt is the seller's concern after all in such cases and not the purchaser's

    The relevance of the Treasury Solicitor, there is also a Channel Islands 'version, is not significant re the overreaching. They would be involved re the actual debt hence reference to them in Rangers 123's posts previously
    Originally posted by Land Registry
    Just as an update following Land Registry's intervention, the sale went ahead last week. The buyer's solicitor was still reluctant even with a letter from the Land Registry that they'd satisfy the conditions of the restriction. So I agreed to let my solicitor hold back £2000 from the sale to cover the debt and interest should it be determined who now owns it (never did hear back from the Treasury Solicitor), until the title is transferred to the new owners, then they'd release the final amount to me.

    Out of interest, how long does it usually take to transfer the title?
  • Land Registry
    Just as an update following Land Registry's intervention, the sale went ahead last week. The buyer's solicitor was still reluctant even with a letter from the Land Registry that they'd satisfy the conditions of the restriction. So I agreed to let my solicitor hold back £2000 from the sale to cover the debt and interest should it be determined who now owns it (never did hear back from the Treasury Solicitor), until the title is transferred to the new owners, then they'd release the final amount to me.

    Out of interest, how long does it usually take to transfer the title?
    Originally posted by Rangers123
    Average timescale is currently around 9 working days
    “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"
    • faye242
    • By faye242 15th Sep 18, 12:37 PM
    • 5 Posts
    • 0 Thanks
    faye242
    Hi Eggbox, I wanted to drop by and say thank you!! I have made arrangements for 2 of these charges now,


    I am struggling with the third...Just hoping the LR person here may be able to may be able to advise me...We have contacted the solicitor of the third charge...they cant find much of anything and are going back to Hitachi....We have contacted Hitachi numerous times...they cannot help us...we have given the reference number we have, we have emailed with the full details of the charge (copied and pasted rom Tiitle deeds), no-one can tell me how much this charge is for or who I need to contact. I am tempted to fill in an RX3 and see if that puts a fire up someone!! Do you have any advice on this you could offer? We have the potential of enough from the sale to offer full and finals to help us...but the risk is that this charge could take it all as I dont know how much its for?? Or even if it is still valid!! What should we do??


    Faye xx
    • eggbox
    • By eggbox 15th Sep 18, 1:00 PM
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    • 680 Thanks
    eggbox
    Hi Faye

    I'm glad you're managing to get things sorted. LR may be able to impart some information but he's not able to offer "advice" as there could be legal implications if he does? But I would say that applying to have the Restriction removed (RX form) is the right way to go given what you have related?

    If you decide to do that then I'm sure LR will then be able to help explain what the procedure is once they have received the application?
  • Land Registry
    Hi Eggbox, I wanted to drop by and say thank you!! I have made arrangements for 2 of these charges now,

    I am struggling with the third...Just hoping the LR person here may be able to may be able to advise me...We have contacted the solicitor of the third charge...they cant find much of anything and are going back to Hitachi....We have contacted Hitachi numerous times...they cannot help us...we have given the reference number we have, we have emailed with the full details of the charge (copied and pasted rom Tiitle deeds), no-one can tell me how much this charge is for or who I need to contact. I am tempted to fill in an RX3 and see if that puts a fire up someone!! Do you have any advice on this you could offer? We have the potential of enough from the sale to offer full and finals to help us...but the risk is that this charge could take it all as I dont know how much its for?? Or even if it is still valid!! What should we do??
    Faye xx
    Originally posted by faye242
    Whilst you can make an application to cancel a restriction at any time using form RX3 as I am sure you will appreciate the key aspect is the evidence provided along with the form to confirm that it can be cancelled. We will cancel the restriction if we are satisfied that the restriction is no longer required. The application must be accompanied by evidence to show that this is the case.

    We don't simply contact the beneficiary because someone has applied to cancel their restriction. We need more than that I'm afraid so an RX3 with no evidence won't put the fire up anyone I'm afraid

    On the face of your post it seems you have no evidence to demonstrate that it is no longer required.

    You say you do not know how much it is (was) for? Have you applied for a copy of the application form and evidence (if any) submitted at the time? Is it a form K restriction or something else and if so have you contact the court (if involved) to clarify the details?
    “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 17th Sep 18, 9:37 AM
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    • 680 Thanks
    eggbox
    Have you applied for a copy of the application form and evidence (if any) submitted at the time? Is it a form K restriction or something else and if so have you contact the court (if involved) to clarify the details?
    Originally posted by Land Registry
    LRR, as has been highlighted many times on this thread; the Courts often state they have no records of the application or the order made as it is too long ago?
  • Land Registry
    LRR, as has been highlighted many times on this thread; the Courts often state they have no records of the application or the order made as it is too long ago?
    Originally posted by eggbox
    Understood although OP makes no mention of age of the entry/debt so just covering the bases re possibilities
    “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 17th Sep 18, 10:42 AM
    • 1,353 Posts
    • 680 Thanks
    eggbox
    We have contacted Hitachi numerous times...they cannot help us...we have given the reference number we have, we have emailed with the full details of the charge (copied and pasted rom Tiitle deeds), no-one can tell me how much this charge is for or who I need to contact.
    Originally posted by faye242
    I think that indicates its been a while
  • Land Registry
    I think that indicates its been a while
    Originally posted by eggbox
    Out of interest and in your experience how long does a court normally keep it's records for?
    “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 17th Sep 18, 11:10 AM
    • 1,353 Posts
    • 680 Thanks
    eggbox
    I only seem to deal with issues where its been several years (5 at least) where the debtor is requesting information from a Court; so I can't really give any sort of accurate answer?

    Certainly after 5+ years the chances of you getting the information is low? But whether that is because of a Court record keeping issue or a lack of help from Court staff issue; I'm not sure?
    • faye242
    • By faye242 17th Sep 18, 12:50 PM
    • 5 Posts
    • 0 Thanks
    faye242
    Hi LR and Eggbox,


    The deeds state that the charge restriction (I believe a K due to the wording) was placed on the house in 2006, I have tried contacting both Hitachi and Addlestone Keane several times, no-one seems to know anything. Hence my thought that as a last ditch attempt maybe the L registry would know.


    How would I go about applying for the records? although I doubt the court would have them.


    LR - I totally appreciate you cant give advice, but can you answer how this could possibly affect his ex-wifes sale? Will it hold it up? Is there a time frame or something?


    Surely we cant hang around indefinitely for them to find some paperwork?


    Any knowledge gratefully received!!


    Thanks


    Faye
  • Land Registry
    Hi LR and Eggbox,

    The deeds state that the charge restriction (I believe a K due to the wording) was placed on the house in 2006, I have tried contacting both Hitachi and Addlestone Keane several times, no-one seems to know anything. Hence my thought that as a last ditch attempt maybe the L registry would know.

    How would I go about applying for the records? although I doubt the court would have them.

    LR - I totally appreciate you cant give advice, but can you answer how this could possibly affect his ex-wifes sale? Will it hold it up? Is there a time frame or something?

    Surely we cant hang around indefinitely for them to find some paperwork?

    Any knowledge gratefully received!!
    Thanks
    Faye
    Originally posted by faye242
    Your OP said that she was buying him out and remortgaging and eggbox explained how the form K restrictions would need to be resolved as there would be no overreaching. However you now mention 'his ex-wife's sale'?

    The restrictions will hold things up but there's no knowing the timescale involved re restriction three as at this stage as we know it exists but nobody seems to know what has happened next.

    The key here I suspect is how the court would treat a charging order in such cases - eggbox may be able to assist as presumably the CO legislation covers the scenario whereby the creditor can't close out the payments and the court can consider dismissing the order for example? THe CO legislation is not our area so we could not advise on how it works

    The form K restriction protects the creditor's interest, namely the CO, on the register. It's not for us to decide whether the debt still exists. We know it existed as it was registered on 2006 so it reads as if in the absence of any evidence to dismiss it, then it is a matter for the court. If that is the case then a court order dismissing the order can be obtained and used as evidence along with the form RX3.
    “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"
  • Land Registry
    faye242 one thing to add here is that IF it is a RX3 scenario to get the third restriction removed then the supporting evidence you are able to submit is likely to be crucial if the back to court route is a non-starter

    For example if Hitachi have replied to state that they have no record of the debt and have not sold it on to another creditor then that might be sufficient for us to consider writing to them ourselves

    As eggbox can confirm we are not going to be able to say Yes/No until an actual application is made and we have seen the actual evidence and form RX3. So it's crucial for you to double check what Hitachi and others have said as well as confirm what you actually asked.
    “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"
    • faye242
    • By faye242 17th Sep 18, 3:32 PM
    • 5 Posts
    • 0 Thanks
    faye242
    Sorry...my apologies for the wrong word...Yes, she is remortgaging in her name only...not a sale as such.


    Eggbox said that the new mortgage company would require all restrictions dealt with, what I was trying to ask was..... if they don't reply about this debt (all evidence suggests they don't know what it is either), how would it affect this, most mortgages are time offered, If they are notified about the sale and offered payment but they cant find their paperwork etc, could it upset the whole apple cart?


    I know this is not totally a LR question and appreciate the information you have given,


    Basically, (If I read this right) we can do nothing but wait and hope they find the information in time for the new mortgage application, or apply via court to have the charge dismissed if we can provide proof it is no longer required (which we cant as no-one knows about it) and use that document as our supporting evidence?


    Its all very frustrating.....but thank you for the help...sometimes just typing it out makes it a bit clearer!!
  • Land Registry
    Sorry...my apologies for the wrong word...Yes, she is remortgaging in her name only...not a sale as such.

    Eggbox said that the new mortgage company would require all restrictions dealt with, what I was trying to ask was..... if they don't reply about this debt (all evidence suggests they don't know what it is either), how would it affect this, most mortgages are time offered, If they are notified about the sale and offered payment but they cant find their paperwork etc, could it upset the whole apple cart?

    I know this is not totally a LR question and appreciate the information you have given,

    Basically, (If I read this right) we can do nothing but wait and hope they find the information in time for the new mortgage application, or apply via court to have the charge dismissed if we can provide proof it is no longer required (which we cant as no-one knows about it) and use that document as our supporting evidence?

    Its all very frustrating.....but thank you for the help...sometimes just typing it out makes it a bit clearer!!
    Originally posted by faye242
    That's correct as 'not knowing anything about it' is very different from 'not replying' so for emphasis the details really do matter here. And your latest post implies that they are looking into it rather than a categoric we know nothing about it?

    The burden of proof is on the applicant to support their application to cancel a restriction. I'm sure you will appreciate that anyone could say X, Y and Z have happened but they also need to back that up with evidence from the creditor or other parties as appropriate.

    The starting position is that there was a debt in 2006 and the creditor applied for a restriction to be registered. And it was. Normally the registered owners would be informed by us so what happened next for example? What evidence did he have in 2006 re the debt and what happened in the next 12 years as he didn't challenge or query the debt at the time so that infers it was genuine and did exist....so what's happened to it?

    I appreciate there can be a host of reasons why nothing happens at the time and since. And often it's only a sale or remortgage that triggers a need to investigate. But these are all Qs a court and indeed us, if we had to, would ask. And the answers assist a court in reaching a judgement whilst for us it can trigger next steps such as writing to the creditor to see if they object the the restriction's cancellation.

    As you state typing it can make it a lot clearer to I would suggest your partner does the same and writes down what has happened and the key aspects involved. That may help
    “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"
    • CL9282
    • By CL9282 18th Sep 18, 12:51 PM
    • 1 Posts
    • 0 Thanks
    CL9282
    Restriction B136 (CO)
    This is my first post on here so any advice would be greatly appreciated

    My wife signed a form for my business many years ago which we later found out (when the business closed down) was a PG form.

    Anyway the creditor has raised a 'restriction' on a B136 (CO)

    After reading this thread (which has been very informative) I can see that as our Mortgage is in joint names and the debt is against her name, they can only get a interim CO, which at present is just a restriction.

    My main question is:

    Are we able to remortgage with our existing provider when it comes up for renewal next year or will this restriction be an issue?

    Many Thanks for any information
    • eggbox
    • By eggbox 18th Sep 18, 1:11 PM
    • 1,353 Posts
    • 680 Thanks
    eggbox
    CL9282

    The Restriction will be an issue unfortunately. This is because the mortgage lender will insist on being the first charge on the property deeds to have the Power of Sale should the property ever have to be repossessed?

    Any remortgage without dealing with the Restrictions would put any new lending behind the Restrictions (through date order) and the lender won't agree to that.

    Another option, however (and providing there is plenty of equity in the property), can be a secured loan as lenders for those know they won't be the first charge on the deeds.
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