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Everything posted by eggboxy1

  1. As I explained, the information is common knowledge and has been for several years. I also agree with your the "client is paying" stance. But your comment misses the real world fact that Solicitors have been point blank refusing to act on their clients wishes in this area. They simply refuse and state the creditor "has" to be repaid? Sparklyfairy (a contributor to this thread in 2011) is also a fellow contributor elsewhere; she (and dozens of other posters) have been searching for a Solicitor to act on their wishes since that time. In September of this year a firm of Solicitors agreed to act as she wanted for her sale and she sold successfully. All that is being offered to posters of CAG is the same opportunity to acquire the information of who Sparkly used? If the moderators of this thread feel that is a step too far then its your posters who lose out?
  2. Some of the 3.5 rules could be construed as "recommendation" if you were unable to understand what I explained about there being no mystery to how a sale is achieved and what the missing link to achieving that sale is? Its informing who can act as you want not recommending? Sadly, this point seems lost and quoting rules just seems to smack more of self protectionism than actually wanting to helping posters? Not sure I understand why this stance prevails (given other sites have not intervened) but its not difficult to circumvent?
  3. Honeybee Its been well documented on here (and other sites) for many years as to why there is no requirement to pay any proceeds of a sale to Form K Restriction holders upon sale. That's not the mystery? The stumbling block has been convincing Conveyancer's/Solicitors to follow these instructions instructions upon sale. This is because so many Solicitors are unaware of the difference between a Charging order made on jointly owned and solely owned property. But the difference now is that there are a couple of firms of Solicitors who have acted for sellers as they wish upon sale (one being Sparklyfairy who posted on this thread.) So the only way to explain how sellers are able to achieve this is to name the firms concerned willing to help. Its not a matter of recommendation, more factual informing who they are? There has, also, been no problem relating this information (by PM) on other sits so I'm unsure what the problem here?
  4. Ok, let's say anyone wanting to know how to sell without making payment PM me?
  5. Ignore it. For anybody in the same position you may well find Restons now sending these "threatograms" out as (on another site) we have now managed to locate Solicitors who are happy to follow the rules of a Form K Restriction upon the sale of property. That action is to make clear to all parties that only notification, to the Restriction holder, is required when a sale takes place. Explaining that there is no requirement (within the terms of the Restrictions) to settle the any debt when the sale takes place. Because of this, Restons (and other bottom feeders) are no longer getting paid as they used to be. Hence, they may be twitching a bit and starting to try and pull in repayments by other means before people actually cotton on in large numbers they can do this?
  6. Your Solicitor is correct. Under a Power of Sale all 2nd plus Charges and Restrictions on the register are removed to allow the First Charge holder to obtain a sale. As such, the 2nd Charge plus Restriction creditors lose their legal claim on the money from a "Charging Order" perspective even though they still have the CCJ in place that allowed them to obtain a CO. It's a tricky one as you do owe money under the CCJ, so I would be inclined to put pressure on the Mortgage company to explain why they passed on the proceeds to a third party, rather than yourself given the circumstances of the sale , and that you will have to consider legal action if the money isn't returned.
  7. Hi nickypicky1978 If it's a Standard Form K Restriction the only requirement to sell your house to a buyer is for the buyer to notify the creditor a sale is proceeding. What happens after that is not a matter for the Land Registry. These are the LR guides that explain how a Restrictions removal works; Practice Guide 76 Section 4 Paragraph 3 Practice Guide 19 Section 3.2.1 Final Paragraph
  8. Yes, but you will get resistance from mortgage lenders and conveyances who don't understand the difference when you sell. So you need to do some research on your Solicitor if you are selling with a Restriction.
  9. As Andyorch said, dealt with - a Frorm K only requires the buyer to provide the Land Registry with notification it has informed the Restriction holder the property is being sold to be removed, settled - you pay off the debt and use the appropriate Rx form to remove the Restriction or sold - if joint owners sell to a third party for "valuable consideration" the Restriction is automatically removed as it is then overreached. You must remember it's not that the Charging Order is Full or Final it's what it is made against that counts. For a sole owner or joint owners who both owe the debt, then the charging Order is made against the land and becomes Equitable. But where the property is owned jointly and only one of the owners owes the debt, then the CO is made against the debtors Beneficial Interest (equity). This is far different and and the CO cannot be registered as an Equitable Charge on the LR deeds. It's therefore far easier to get shot of.
  10. That's an opinion and nothing to do with a creditor having the ability to "block" a sale if not repaid in full which they don't. Mortgage company's mat not lend and cash buyers may be deterred, but that if for them to decide not the creditor. A lot of cash buyers are also builders looking to renovate. If they purchased the property at a reduced rate as the owner was in financial difficulties, a small charge not attracting interest would be seen as an expense of the purchase so wouldn't be a problem.
  11. I agree regarding if a mortgage was involved with a new buyer; but a cash buyer holds no such obstacle, therefore, a creditor couldn't prevent the cash buyer wanting to (for whatever reason) proceed with a purchase. And I would agree that if there is sufficient equity in the property, upon sale, then a creditor would not remove the charge prior to payment. But if there is not sufficient equity then "in the real world" the creditor would agree to the removal and be repaid what it could get. The reason for this is if they don't, then the owner can simply hand the keys back for a voluntary repossession. If that happens, under the power of sale of the mortgage holder (as first charge holder), then all other charges become overreached and removed to allow the first charge holder to sell the property. When the property is then, subsequently, sold; the remaining proceeds go to the owner as no creditor charges remain on the register.
  12. From the Land Registry in response to if a creditor can "block a sale" as you state above "As you mentioned in your earlier post a seller would normally undertake to 'clear' any existing charges, whether registered or simply noted as in the case of an equitable charge. If we received an application to register the sale (Transfer) then we would cancel the noted equitable charge providing we received an application to do so (form CN1). If no application to cancel it was submitted we would simply complete the Transfer and leave the noted charge on the register. So in essence the creditor is not able to object to the sale/transfer being registered. "
  13. OFS's are being threatened now as the OC's (usually high street banks) have sold these debts en masse to bottomfeeders like Marlin, Capquest and Lowell. Therefore the reputational issues surrounding a company trying to evict a family from it's home have now gone as these herberts couldn't care less what their reputation's are as they have no other product sales to worry about. They actually sent my ex a valuation of the house with the usual "we have no choice but to recommend" rubbish but still accepted £1 a month. A Judge would have to have taken leave of his senses given the protections against an OFS on primary and family homes to a company that has chosen to buy the debts and for a fraction of the original debt. But these lowlife are sending them out regardless as they know that they threat will cause the debtor huge stress. If people do get one of these through the post it's essential you let the creditor know what protections are in place to prevent an OFS happening.
  14. There should be very little they can attempt in any circumstances (given TOLATA and the Case Law against) but it doesn't stop this verminous lot worrying customers into thinking they are going to lose their home! What would the view, in your opinion, be if there was no repayment plan arranged at the time of granting the CO (as I have seen in several cases)?
  15. To back up the advice already given on here, you should also make Restons aware that you understand that no Judge is going to find it proportionate to evict a family with children for it's home for a debt their client, ME III optionally decided to purchase. And a debt it will have, also, only paid a fraction of the actual debt being claimed (in your case around £450-00 or less.) There is a good article here http://www.lawgazette.co.uk/law/proportionate-orders-for-sale/60832.article written by a District Judge and the last few paragraphs emphasise how a court will consider this action. It was written, interestingly, before the £1000 threshold limit was introduced and shows that the "thinking" by courts was that anything under £25,000 wouldn't get anywhere (which shows just how much the MOJ caved in to the lending industry!) It also suggests that Article 8 of the Human Rights Act should be a factor preventing eviction due to the cases it mentions.
  16. I'm awaiting a response from the Ministry of Justice on this matter (as my ex had a similar experience) as when the last Charging Order Assesment paper came out (which decided on the £1000 threshold limit made) part of the reasoning for the decision included at Section 3.1, 3.1 Compliance with a charging order would continue to be the responsibility of judgment debtor. As long as the judgment debtor meets the instalment payments agreed no penalty should arise. Should the judgment debtor default, the creditor may apply to the court for an order for sale (but case law exists to protect family or primary residences so this is only likely in cases concerning shares, unit trusts or secondary properties or land). In response, Michael Anima-Shaun (who was point man for questions on the paper) and in response to what Case Law they used replied; "Hi, we spoke earlier on today. You wanted to know about the case law in existence that provided added protections to defendants facing Order for Sale. I have attached our 2010 consultation which was published under the previous Government. Page 10-11 provides the case law referred to. In summary - " Caselaw - 'Mesher' type orders – provides protection as long as a minor is resident at the property concerned. The use of such orders was confirmed by a ruling in the case of Harman vs. Glencross 1986. Further powers are provided in the Trusts of Land and Appointment of Trustees Act 1996. Caselaw - Royal Bank of Scotland vs. Etridge 2001 - This case established the precedent that, where a joint loan has been taken out by, with a jointly owned property as collateral, such as the matrimonial home, it is incumbent on the lender to explain to all lendees at the time of signing the potential consequences of default. In this case it was ruled that one party had signed the forms without being informed by the lender of the possible consequences and that the Royal Bank of Scotland did not have the legal right to enforce by way of charging order. Caselaw - Bank of Ireland Home Mortgages vs. Bell 2001 - This case established the circumstances in which an order for sale would be granted, even if it concerns a family home. The equity available on the property must be sufficient to pay off the judgment creditor and all other interested parties and still leave enough money to adequately rehouse the debtor and dependants. Sequenci is well versed on these matters and he is right, they haven't got a prayer of obtaining an Order For Sale given there are children (who will be protected under TOLATA 1996) but this behaviour has to be nipped in the bud, though, as the Banks, who wouldn't have threatened an OFS due to reputational issues, have now offloaded debts wholesale to bottomfeeders such as Marlin (ME111), Capquest and Lowell (who are trying the bankruptcy route) and have no such concerns. Hopefully, if the MOJ have factored in to their decision that OFS can't be gained on primary and family residencies then they should have some persuasion in getting this practice stopped.
  17. If you could prove the above it would be reason to set aside. However, if you DO owe the money then there wouldn't much point?
  18. i think it's stranger you let them take you to court for a debt your wife owed?
  19. If the house is in your name only, then the CO will be deducted from your sale proceeds if and when you sell. But (and I'm not diminishing your problems) it does seem a "manageable" amount? Many people on this site have CO's against them for amounts far in excess of your order amount which they have no way of discharging without selling up. But as Sequenci has stated, OFS are a rarity and there is strong caselaw opposing such if the house is your primary residence. But I would look to see if there is interest accruing on the debt as it's usually 8% and will stack up if you don't discharge the debt in a reasonable time.
  20. I agree and it does make you wonder why there is virtually no resistance from Judges in granting CO's given the above??
  21. The juxstaposition of Charging Orders and Orders For Sale is the prior is extremely easy to obtain, whereas, the latter is extremely difficult to obtain. Judges have virtually no discretion in granting CO's but they have absolute discretion in granting Orders For Sale. If your house is your family or sole residence then, no, you won't get an OFS made against you for the amount owed.
  22. Quite right Sequenci! The trouble is a lot of "official" information regarding CO's fail to highlight the rarity of OFS, especially for consumer debt. Hence, the tabloid scare headlines when the £1000 threshold was introduced.
  23. It's badly worded (and I think wrong, too!), but my understanding was that the £1000 limit was only for CCA debts? With all other debts still not having any minimum threshold to pursue. And if you look here http://www.northampton.gov.uk/info/200028/council-tax/96/council-tax-recovery-of-non-payment/8 this council is laying out it's case to the contrary.
  24. The new Regulations relate only to regulated debts defined within the Consumer Credit Act 1974. According to the Government, the reason for introducing a financial threshold only to these types of debt and not all debt is because the lender has priced the recovery risk into their premium interest rates. Creditors not covered by the Consumer Credit Act 1974 (such as individual creditors, utility companies, government and local authority) are unable to take this measure and have limited means to recover monies owed to them.6 I think this may be the passage you are referring to? It is confusing as I think the paper is referring to the £1000 threshold only applying to Charging Orders on CCA debt? Certainly any individual owed money can apply for a CO and OFS so it is a liitle confusing?
  25. As far as I am aware any creditor with a CO can attempt to obtain an Order for Sale? I don't think any reason for the debt prevents an OFS being attaempted? And whilst they are extremely difficult to obtain (as there is case law and TOLATA that stacks up against them being granted as well as the difficulty in persuading a Judge they are proportionate?) I'm fairly sure Councils have a legal duty to follow to the max attempts to recoup debts owed? Would be interesting to know where your info came from, though?
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