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  • FIRST POST
    blueback
    Charging Order? The myth
    • #1
    • 26th Jul 09, 10:28 AM
    Charging Order? The myth 26th Jul 09 at 10:28 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 202
    • tricialash
    • By tricialash 11th Apr 19, 4:04 PM
    • 6 Posts
    • 0 Thanks
    tricialash
    Will let you know how we get on as i know its important to come back with the end results
    • Brynogwy
    • By Brynogwy 11th Apr 19, 5:21 PM
    • 5 Posts
    • 0 Thanks
    Brynogwy
    Eggbox & LR thanks for your reply.


    The case involves a problem between executors of a will. One executor has a in place a sealed caveat as the other two executors have removed around £125k from the estate without any authority. The caveat was sealed over 6 months ago and it has now reached stalemate. Thoughts were to place a restriction on their family home to ensure the funds are available before going to court.
    • eggbox
    • By eggbox 11th Apr 19, 5:25 PM
    • 1,465 Posts
    • 718 Thanks
    eggbox
    Brynogwy

    LRR may be able to advise better here as the restriction you are referring to isn't the type this thread deals with where a creditor has obtained a charging order.
  • Land Registry
    Eggbox & LR thanks for your reply.

    The case involves a problem between executors of a will. One executor has a in place a sealed caveat as the other two executors have removed around £125k from the estate without any authority. The caveat was sealed over 6 months ago and it has now reached stalemate. Thoughts were to place a restriction on their family home to ensure the funds are available before going to court.
    Originally posted by Brynogwy
    It's very much legal advice you need here to ascertain what the interest is and if it's protectable on the register. Our PG 24 may be of more relevance now you have provided the additional detail.

    Two things to note are that the interest appears to be in the beneficial ownership so that will limit your options re the legal ownership which we register. And secondly having a restriction on the title does not 'secure funds' in the way I think you are referring to. Settlement in court may secure those.
    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"
    • Brynogwy
    • By Brynogwy 12th Apr 19, 2:13 PM
    • 5 Posts
    • 0 Thanks
    Brynogwy
    Thanks LR, finding a solicitor who has this knowledge, as highlighted throughout the thread is a shot in the dark. Imo 999 out of a 1000 are egotistical money grabbers with no interest in justice.


    Thanks again
  • Land Registry
    Thanks LR, finding a solicitor who has this knowledge, as highlighted throughout the thread is a shot in the dark. Imo 999 out of a 1000 are egotistical money grabbers with no interest in justice.

    Thanks again
    Originally posted by Brynogwy
    The issues raised by eggbox and others in this thread are very specific to a restriction already registered on a title and which does not follow the norm. That's not to excuse a lack of understanding on anyone's part but could be used in mitigation.

    Your scenario is a very different one as whilst it relates to a beneficial interest it does not relate to a legal owner.

    A conveyancing solicitor familiar with wills, inheritance and the like should be more than capable of explaining the legal position although if there is a pending court action then I assume that has already been obtained/achieved.

    I hope you are able to find a solution
    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"
    • Routerman
    • By Routerman 14th Apr 19, 1:23 PM
    • 7 Posts
    • 0 Thanks
    Routerman
    Hi all,
    New on here, looking for guidance re the interest rate that can be attached to Charging Orders on property.

    TBI obtained a charging order for a credit card debt in April 2009 (£8,000 and therefore unregulated), at that time our creditors were being handled by Eurodebt, on receiving notice of the court case at Reading I rang their solicitor who advised me that going to the court probably wouldn't make much difference to the outcome, rather naively I accepted this and didn't attend.

    I accept that the charging order would have been made anyway but what I didn't know at the time was that post judgement interest would be added which has almost doubled the debt, had I attended I may have been able to argue against this.

    My question is has there been any change in the law regarding interest because at the judgement a rate of 12% was applied ie 8% plus current bank rate 4% ?

    Was this correct in 2009 and has anything changed because the latest statement from TBI now shows a rate of 8%?

    If TBI have been applying the wrong rate all this time is there any way of getting the money back?

    I've Googled the question but nothing much came up.

    Incidentally this seems to be TBI's modus operandi since the law changed allowing creditors to find out who had debts but substantial equity, one of their employees was even bragging about it on a tv prog a couple of years ago.


    Have posted this on another thread also but perhaps this one may be more appropriate?


    Thanks in anticipation.
    • Vegan64
    • By Vegan64 16th Apr 19, 12:38 PM
    • 13 Posts
    • 0 Thanks
    Vegan64
    Back again :-(
    So, I attempted to remove the Form A restriction by submitting an RX3. Unfortunately, this was returned unactioned by Land Registry, as: 'insufficient evidence has been lodged to cancel the Form A Restriction. Also there are other trust restrictions on the register, (ie restrictions protecting charging orders) that how the equitable share has been encumbered'.

    I also came across an ST5 which I guess needs to be submitted with evidence to remove the Form A Restriction? I've been in contact with a Conveyancer to help who advised the only way for me to proceed to re-mortgage would be to obtain a court order. I'm at my wits end as the current mortgage matures on 01.06.2019. I have little money available to get solicitors involved and two other conveyancers I contacted said I need family litigation when all I want to do is re-mortgage my home, which has interim charges in my ex-husbands name.
    Eggbox/Land Registry if you are there are you able to shed any light to the end of a very dark tunnel please?
  • Land Registry
    So, I attempted to remove the Form A restriction by submitting an RX3. Unfortunately, this was returned unactioned by Land Registry, as: 'insufficient evidence has been lodged to cancel the Form A Restriction. Also there are other trust restrictions on the register, (ie restrictions protecting charging orders) that how the equitable share has been encumbered'.

    I also came across an ST5 which I guess needs to be submitted with evidence to remove the Form A Restriction? I've been in contact with a Conveyancer to help who advised the only way for me to proceed to re-mortgage would be to obtain a court order. I'm at my wits end as the current mortgage matures on 01.06.2019. I have little money available to get solicitors involved and two other conveyancers I contacted said I need family litigation when all I want to do is re-mortgage my home, which has interim charges in my ex-husbands name.
    Eggbox/Land Registry if you are there are you able to shed any light to the end of a very dark tunnel please?
    Originally posted by Vegan64
    I'm sorry to read of the issues you are facing but a form RX3 on it's own will never remove a form A restriction.
    As a bare minimum, and as you now appreciate, a form ST5 is often the supporting evidence you need to accompany the form RX3 and which sets out how and why the form A is no longer required.

    Unfortunately if the charging orders still exist against your ex-husband and you are still joint owners then the form A still applies. The COs in his name effectively charge his beneficial ownership, which in turn severs the joint tenancy making the form A still valid.

    Eggbox will have a better idea of what impact the COs have and how to deal with these

    From a purely registration perspective, and to some extent the lender's, the form A restriction prevents a sole registered owner from charging (mortgaging) the property. If it's registered in your joint names still then you could get a mortgage provided the lender is willing to secure the loan with the COs/form K restrictions having priority.

    I am guessing, but can you confirm, that you are trying to mortgage the property in your sole name as maybe it's been registered that way after your husband became your ex and it was transferred to just you. And the form A and form K restrictions remain in place?

    That is presumably why the legal advice you have been given is to go back to court to seek an order of some type.
    Last edited by Land Registry; 16-04-2019 at 1:01 PM.
    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"
    • Vegan64
    • By Vegan64 16th Apr 19, 1:32 PM
    • 13 Posts
    • 0 Thanks
    Vegan64
    Thank you LR. The property & the mortgage currently remain in joint names. I need to re-mortgage in my sole name as the current mortgage MATURES on 01.06.19 and I have no means to pay off what is owed.
    When ex left earlier this year it was only then I discovered the COs attached. I then applied for the form A restriction myself to stop anything further happening without my knowledge. However, it is this Form A restriction (imposed by me) that is now stopping the new lender from proceeding in my sole name. (hope this makes sense)
  • Land Registry
    Thank you LR. The property & the mortgage currently remain in joint names. I need to re-mortgage in my sole name as the current mortgage MATURES on 01.06.19 and I have no means to pay off what is owed.
    When ex left earlier this year it was only then I discovered the COs attached. I then applied for the form A restriction myself to stop anything further happening without my knowledge. However, it is this Form A restriction (imposed by me) that is now stopping the new lender from proceeding in my sole name. (hope this makes sense)
    Originally posted by Vegan64
    It does but IF the property is still in your joint names you won't be able to mortgage it so that is something else you need to resolve as well.

    Have you tried your local CAB to see if they have a list of solicitors who are willing to offer a 30/60 mins appointment for a minimal fee for example? It may help to focus in on the specifics involved here and establish a way forward.

    As it stands if your ex has left then you need to resolve the COs/form K restrictions, the legal ownership from joint to sole names and then look at what options you have.

    And I am uncertain how a lender has made a mortgage offer to just you in the circumstances you describe. It seems that there are simply too many obstacles in the way.
    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"
    • Vegan64
    • By Vegan64 16th Apr 19, 3:57 PM
    • 13 Posts
    • 0 Thanks
    Vegan64
    Thank you for the suggestion of CAB. That makes perfect sense! The new lender made the offer prior to my application for a Form A Restriction. It would seem that had I not obtained this restriction everything would have gone through smoothly (until it became time to sell of course).
    • eggbox
    • By eggbox 16th Apr 19, 4:11 PM
    • 1,465 Posts
    • 718 Thanks
    eggbox
    TBI obtained a charging order for a credit card debt in April 2009 (£8,000 and therefore unregulated)
    Originally posted by Routerman
    A credit card debt of £8000 would be regulated under the Consumer Credit Act. When first introduced, the CCA 1974 covered most credit agreements up to a financial limit of £5,000, this was increased to £15,000 in 1985, and increased again in 1998 to its present limit of £25,000 – each increase was to reflect inflation - The CCA 2006 also removed any upper limit completely.

    Charging orders and their effect are determined by the Charging Order Act 1979 and the below will explain why interest can't be added. You should, therefore, take the matter back to Court to have it removed.

    Section 1 COA says that a Charging Order is made ‘for the purposes of enforcing that judgment or order’ and that the charge is for ‘securing the payment of any money due or to become due under a judgment or order’. Although enforcement of a Charging Order is not execution of a judgment, s1 means that the order and the judgment must be coextensive. Therefore no money can be recovered in excess of what is due or to become due under the judgment.

    - Section 3(4) opens with the words ‘Subject to the provisions of this ACT…’ and so unless the interest is due under the judgment or order under the Interest on County Court Judgments Order, it cannot be included in the Charging Order

    - The amount of interest depends on the amount of interest due on the judgment.

    - Some CCA regulated agreement judgments do not have an interest post-judgment clause.

    - Even if there is an interest post-judgement clause on a CCA regulated agreement the lender still cannot enforce these rights by levying contractual interest – unless that rate forms part of the judgment, the lender would have to bring separated action for the interest. (Supreme Court Practice 1999 Ed. Para 42/1/24 and Re European Central Railway 1877 4 Ch.D.33

    - The claimant may try to use s3(4) COA to claim that an equitable charge attracts interest on the principle sum. However, the rate of interest payable under an equitable charge depends on its terms. In the case of a CO, the judgment debt would be in essence the principle sum. The rate payable on this sum is prescribed by statute or set out in the judgment. S3(4) wouldn’t justify applying a different rate.
    • eggbox
    • By eggbox 16th Apr 19, 4:33 PM
    • 1,465 Posts
    • 718 Thanks
    eggbox
    I'm sorry to read of the issues you are facing but a form RX3 on it's own will never remove a form A restriction.
    Originally posted by Land Registry
    Is this still the case even if you are the person who registered the restriction?
    • eggbox
    • By eggbox 16th Apr 19, 4:39 PM
    • 1,465 Posts
    • 718 Thanks
    eggbox
    Thank you for the suggestion of CAB. That makes perfect sense! The new lender made the offer prior to my application for a Form A Restriction. It would seem that had I not obtained this restriction everything would have gone through smoothly (until it became time to sell of course).
    Originally posted by Vegan64
    I don't want to pour cold water on LRR's suggestion of contacting CAB (which you still should) but they are notoriously "general advice" based and its unlikely (but not impossible) they would know the answer to this?

    To try and help can I ask what the sums involved in this matter are, please, for the below;

    * House Value
    * Mortgage Owed
    * CO debts owed
    • Nothing on tv
    • By Nothing on tv 16th Apr 19, 8:31 PM
    • 3 Posts
    • 0 Thanks
    Nothing on tv
    Please help me understand it all
    Hi all,

    I am hoping that someone may be able to help me understand the complete mess I find myself in.

    I will try and be brief. Joint mortgage for 12 years, ex husband walked out 4 years ago (whilst I was pregnant) and I am now stuck on an interest only mortgage. I will have to sell the house and downsize so I can maybe try and start again on a repayment mortgage

    However, there are three restrictions on the register. Two are interim charging orders and one final charging order. They both add up to £60000. All in the name of ex husband to be. I am also filing for divorce.

    I have spoken to four different solicitors who all say I will need to pay off the debt when I sell. However, this will leave me with only half the equity which won’t be enough to buy anywhere. Especially as my wages are not great and I can only get an £80,000 mortgage.

    The restriction wording is exactly the same as in the front page of this forum.

    It feels that no one is listening to me considering I have also found wording on debt solicitors website that the creditors only have to be notified of a sale on a co on a joint mortgage.

    Can anyone help me try and make someone listen to me????? Or should I just accept that I will loose half the equity?

    Lastly, the creditor with the final co didn’t take out a ccj. Does this make any difference?

    Thank you for your time
    • eggbox
    • By eggbox 16th Apr 19, 8:42 PM
    • 1,465 Posts
    • 718 Thanks
    eggbox
    Nothing on TV

    Firstly, ignore the Solicitors you saw as 99% are unhelpful on this matter. Check your PM's (personal messages inbox) as I've sent you a name of a solicitor that has just become available who may be able to help?

    Secondly, you can't obtain a Charging Order without obtaining a Court Judgement for the debt owed? So can you explain why you don't think the last creditor didn't "take out" a CCJ?
    Last edited by eggbox; 16-04-2019 at 8:45 PM.
    • Nothing on tv
    • By Nothing on tv 16th Apr 19, 9:19 PM
    • 3 Posts
    • 0 Thanks
    Nothing on tv
    Hi,
    I’ve checked my messages. Thank you.

    I have asked the ex to check his credit file. There is only one ccj on there which is from the first interim order. Nothing for the second and final CO
    • eggbox
    • By eggbox 16th Apr 19, 9:28 PM
    • 1,465 Posts
    • 718 Thanks
    eggbox
    Hi,
    I’ve checked my messages. Thank you.

    I have asked the ex to check his credit file. There is only one ccj on there which is from the first interim order. Nothing for the second and final CO
    Originally posted by Nothing on tv
    Credit files aren't always accurate and it could be the CCJ's were obtained over 6 years ago whereby they would now be removed from the file?

    But your ex should also have received papers for any CCJ Court action and also when the following CO's were being sought (this has to be done by Law) so its worth checking if he is, shall we say, being accurate with you?
    • Nothing on tv
    • By Nothing on tv 17th Apr 19, 5:23 AM
    • 3 Posts
    • 0 Thanks
    Nothing on tv
    Thank you egg box, he is telling me the truth. He sent me a screenshot of his credit file and only one ccj is there.

    The company fined him very quickly and did the interim order in August 2014 and the final order in March 2015.

    Maybe I’m just clutching at straws here?
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