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Everything posted by eggboxy1

  1. Gaston Wrote: "If no one has "discovered" this anomaly for the past 85 years it's unlikely to happen now. I know from experience, having seen literally thousands of restrictions, that hardly any conveyancer is willing to bypass a restriction, even when they know very well they can. And, actually, what's the point when you will still owe the money afterwards anyway? " It depends on what your point view is; If you take out a mortgage you pay a low rate of interest because its stamped on your forehead when you sign up that if you don't pay you lose your house. I have no problem with that. However, the reason Charging Orders have attracted so much attention on discussion boards in recent years is simply because certain Creditors with "unsecured loans" and who have been charging interest rates as high as 34.5%pa (at a time of unprecedented low bank base rates) have been allowed to take the CO route to try and secure their debt when the risk that involved such high interest went sour (so the past 80 of those 85 years are fairly irrelevant) I, and an awful lot of other people, find this an absolute scandal given the amount of interest the Creditor will have received under the "unsecured" banner. Where was this warning on the loan agreement? In a lot of cases, they are also trying to take a chunk of all that some families have left to their name. In my particular case, my ex wife was being charged 29%pa because she was deemed a risk because of only being able to repay minimum after losing her job. This was despite no missed payments with anyone. When she contacted the company involved to ask for a reduced rate of interest during her unemployment they REFUSED saying they were "contractually obliged" to charge that rate of interest. So if your point of view is that these shysters are due their money after, probably, refusing small repayments to hold off on this type of action (and where a lot of other creditors are being helpful) then it gives a huge hint as to why you are desperately trying to persuade people reading this thread that selling your house with a Restriction and not paying the Restriction holder is a waste of time and will never happen any way However, the real gem in your quote is that "hardly any Conveyancer is willing to bypass a Restriction!" Which means there are some who will and that's all we need to succeed.
  2. "The fact remains that usual conveyancing practice is to insist on restrictions being removed by discharging the underlying charging order" Nobody is disputing this, but the more people are made aware of the actual rules the more this "usual" practice will be challenged. "There are only a handful of solicitors either knowledgeable enough or willing to convey a property without paying off a charge protected by a restriction" How do you know this is true? The "knowledgeable" part is silly given it's outlined in the Form K Restriction what's needed to comply. The willing bit hasn't really been tested (and that's my point) "There are also fraudulent ways of getting rid of charging orders, whether protected by a restriction or a substantive charge, which are very effective" Why would anyone want to commit fraud when they can do it perfectly legally? Payingonlyencouragesthem has outlined a way its very easy to complete this process and that's what needs to be highlighted as it's perfectly legal to do so.
  3. payingonlyencouragesthem From what I have managed to glean from trawling the discussion boards (and also corresponding with a Solicitor from the Land Registry) is a general ignorance, both on the part of debtors and Solicitors alike, of the changes made in the Land Registry rules since 2003. It took me three attempts to gain the explanation I have put on here from the Land Registry as the Solicitor said she couldn't be seen to be giving legal advice. But, with a little better phrasing of my question, she had no choice but to explain that a Restriction cannot prevent a sale to a third party for a cash value exchange. It would seem the "vast majority" of Solicitors aren't making the distinction between "Restrictions" and "Notices" and don't seem to understand or care (take your pick) that there is no legal obligation to pay a Restriction holder out of the funds of a completed sale in order for the sale to proceed. I take Garmston's point it won't be plain sailing but that shouldn't deter you from making the effort to get what YOU want out of the sale.
  4. Ganymede wrote; The problem is that solicitors usually act for the lender as well as so owe a duty to them too. Lenders will want an undertaking from the solicitors that all previous charges etc are discharged on completion. It's not as simple as the solicitors "knowing the difference". Your comment falls into the trap that most people are taken in by on this issue. The Land Registry rules now state that a "Notice" for a Charging Order can no longer be registered on the title deeds for a property where there are joint owners but the debt is only against one of the joint owners. Hence, the fact ONLY a "Restriction" can be placed on the register. Therefore, there is no Charge to remove as there isn't the legal power to place one on a property under these circumstances. All that can be placed is a Form K "Restriction" which merely has the power of notification to the person with the Restriction to"flag" that there might be some money floating about they can lay claim to. That's it! So it IS a simple as knowing the difference as all that is required now to satisfy the Land Registry to allow the transfer to proceed is the providing of the Certificate of Notification that the Restriction Holder has been informed. A Lender or their Solicitor has no right to demand anything else from the seller and the quicker people understand this the more people won't be duped into losing thousand of pounds through misinformation.
  5. No there isn't anything to stop a Restriction holder applying for an "Order for Sale" but the reality is they don't go for them as they know they won't get one (try Googling for case examples and see how many you find). As, I've expounded on another thread; my belief is Creditors who use this tactic are mainly trying to queue jump other creditors as a CO is not included in Bankruptcy either. It has, also, emerged on quite a few discussion boards that an awful lot of these "vast majority" of Solicitors seem unaware of the changes in the Land Registry rules since 2003 and also the distinction between a Charging Order where a "Notice" is placed and one where a "Restriction" is placed. So too is the fact people (with a Restriction) are becoming more and more aware of the reality of this distinction and are now selling there houses and moving on without paying the Creditor with the Restriction (even the Inland Revenue website now confirms there is no legal obligation to pay a creditor with a Restriction) Of, course, nobody can force people to use a Solicitor that knows the rules when they sell their house (with a Restriction) but it needs, in my opinion, to be highlighted that people in this position have a choice. Solicitors, also, do conveyancing work for money (and I'm talking as the Father of a Solicitor); as soon as they realise they are losing out on a particular market it won't take long for them to change their "usual" stance on the matter. It's business pure and simple. Also, a re-mortgage won't remove a Restriction. You have to move out selling to a Third Party with an exchange of cash (courtesy of the Land Registry Solicitor)
  6. Garmston Grimsdyke wrote: "There is nothing to stop a creditor proceeding with other enforcement when they have a charging order. It is not an alternative to payment. The charging order means that the creditor will have to be paid when the property is sold or remortgaged (assuming there is sufficient equity), but a creditor can issue separate proceedings seeking an order for the sale of the property." Be careful with this information as this is NOT the case if a Charging Order is made against only one person in a jointly owned property.In this situation the CO can only be registered as a "Form K Restriction" which has no power of obligation placed on automatic repayment to the Restriction holder when a property is sold to a third party with an exchange of money. Received today from LR Solicitor; LAND REGISTRY RESPONSE "The provision of the Certificate mentioned in the Form K restriction means that the registrar is not prevented from proceeding with the application to register a disposition (for example, a transfer or charge) and the registration can proceed. The certificate does not affect the restriction entry. A restriction in Form K may be removed from the register in the following circumstances. Automatic cancellation When a transfer of property is registered (following receipt of the required certificate) the restriction may or may not be automatically cancelled, depending on the circumstances of the transfer. If, for example, the application is to register a transfer by two or more proprietors to a third party for value, the trust interests will be overreached and the form K restriction will usually be cancelled" This doesn't mean the debt goes away but a Creditor cannot automatically collect and there is no legal obligation placed on the debtor to pay.
  7. I've been posting up this info on "CO the Myth2 on MSE, and what really comes across is the frightening lack of understanding of Form K restrictions, it would seem, by conveyancing solicitors. Many solicitors, from contributors experiences, are still regarding the Restrictions as having the same legal weight as a "Notice". They are telling their clients that the creditor has to be paid or the sale cannot proceed (which the Land Registry has now conformed is not correct) It begs the question about what legal redress you might possibly have, against your solicitor, if you have sold your joint property, with a Form K Restriction, and proceeds have automatically been paid to a Creditor on your solicitors instruction? Given a solicitor has a legal duty to act in their clients best interests, I can see a few claims arising here when this information gets a little more widespread?
  8. Just to update anyone reading this thread; I corresponded with a Solicitor from the Land Registry and she sent me this reply regarding whether a Restriction can prevent the sale of a property;Received today from LR Solicitor; LAND REGISTRY RESPONSE "The provision of the Certificate mentioned in the Form K restriction means that the registrar is not prevented from proceeding with the application to register a disposition (for example, a transfer or charge) and the registration can proceed. The certificate does not affect the restriction entry. A restriction in Form K may be removed from the register in the following circumstances. Automatic cancellation When a transfer of property is registered (following receipt of the required certificate) the restriction may or may not be automatically cancelled, depending on the circumstances of the transfer. If, for example, the application is to register a transfer by two or more proprietors to a third party for value, the trust interests will be overreached and the form K restriction will usually be cancelled" I know DD gives a lot of good advice but on this occasion he is not correct. The Solicitor even went as far to explain that the Inland Revenue website information which states that the Land Registry contacts the Creditor when a sale is going through is also incorrect. All that is required under a Form K Restriction is for the buyers solicitors to notify the Creditor that a transfer has been made. Form K does not even have time limit for this to happen, either, now. A Restriction only has the power to "flag" that a sale has occurred, there is no legal obligation to pay a Creditor when you make a sale (which is explained on the same Inland Revenue website dealing with Charging Orders). Do not, therefore, follow the advice of Solicitors who advise there is a legal obligation to pay the Restriction holder or that it can prevent a sale.
  9. Hi DD, It was something I just came across in my search for an answer and hoped was correct. But noted for the future
  10. Thanks gh2008, I had subsequently managed to read the Rankine v MBNA appeal and the ruling of LJ Gage. It's very clear that Peterbard's comments are not correct (sadly!) Thanks for the info!
  11. Sorry to hijack this thread but I need and urgent question answering and Peterbard's message box if full! I have a court hearing on Wednesday with Restons/MBNA similar to DizzieDiva (and quite a few other people on here!) I have just come across a thread on CAG where Peterbard makes comments on Cancellable agreements (below) which I need urgent info on. The section he wrote was; This section of the Act forbids the court from enforcing any, “cancellable agreement” if the debtor has not received the required information to be able to cancel the agreement if they wished. A cancellable agreement is one that gives the debtor the extra right (For a short time) to stop the agreement from continuing even after it has been executed (signed by both parties). This section 127(4) will not apply to all agreements because not all agreements are cancellable so the first question is; IS MY AGREEMENT CANCELLABLE This depends not only on the type of agreement you have but on the way the agreement was discussed (The Antecedent Negotiations) before the agreement was executed. These are set down in section 67 of the ACT. The Following are agreements that are not cancellable on a conventional Regulated Agreement: A. Agreements that are secured on land. B. Agreements that are signed at or within the creditors premise or place of work. C. Agreements that have been signed by the detor without any prior face to face discussion with the creditor.* So any agreement executed under any of the above conditions is immediately binding on both parties. *In the case of condition C. many credit providers, particularity credit card companies voluntarily give cancellation periods and if this is the case it will be mentioned on the agreement. Usually in a box just next to the signature box, if this is the case they are to be treated in exactly the same way as if they were conventional cancellable agreements. Restons are saying in their Skeleton that the included Cancellation rights in my agreement are only "contractual" and not "statutory" and, therefore, what they need to provide in Court only relates to a "Non Cancellable" agreement as their was no preceeding discussions? Having read the passage above can I just ask if anybody knows if Peterbard's comments are based on any law/ruling/OFT guidance I could use in court to back up what he has said? Apologies again for the hijack but any info (or pointers to the right thread) would be greatly appreciated!! Eggboxy1
  12. To my reading the relevant part of s67 is section (b) - it basically means the agreement wasnt cancellable if I had signed on the business premises which I didnt. I have to deal with these regulation in my business and whilst this is no longer the case anymore, it used to mean that if a customer comes into see you and signs up they can't cancel. If a customer however signs off business premises (which an internet application obviously is) then you have to be given the right to cancel. So I am unsure about why they feel they can mantain this was not a cancellable agreement? 67 Cancellable agreements A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless— (a) the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or (b) the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)— (i) the creditor or owner; (ii) any party to a linked transaction (other than the debtor or hirer or a relative of his); (iii) the negotiator in any antecedent negotiations.
  13. Thanks for your help, Notasniceasjoe, I shall give it a read right now
  14. Hi Frank and thanks for the pointers to help my case. I fully understand your frustration and although my DJ was fair, the whole system in my case shocked me to the core! What saw me through to fight another day was 90% my skills as a salesman (in keeping the Judge interested) and 10% facts of the CCA 1974 law. This was all due to us walking in and him saying he hadnt had time to read witness statements so we had to make our cases orally. Luckily (for me) I was a bit better in this than the Restons Solicitor but it shouldnt have been like this and I was lucky on the day! If you look over on my thread (Help Please, Summary Judgement - Skeleton Argument) you will see I also have to deal with a Dianne Powell witness statement. Fortunately for me she has dropped a clanger in stating certain things didnt need to be complied with as the agreement was not cancellable. As MBNA's own evidence shows it to be a cancellable agreement I'm hoping I shouldnt have too much trouble heading this SJ off at the pass. I have no idea how much it is to appeal but I think unless someone does then these decisions are going to continue
  15. Hi all just a quick update, I have had a WS statement from a Dianne Powell of MBNA (emailed me tonight from Restons it was due at the court by 4pm yesterday so I'm guessing they are saving on postage now) but it is a really odd affair that seems to fly in the face of the CCA 1974? The relevant bits I would like advice/comments on are the following, 1. They have produced a copy of a computer generated print out of my application details with someone's signature scrawled on the top left of the page for the 3rd of March. They are claiming this provides proof of execution of the agreement being signed by the claimant. There is no reference to whose signature at MBNA it was and it does not have my signature on the print out at all or any spaces for anyone to sign. It is also prior to the date of the agreement I signed (which I claimed was not executed as it only had my signature) three weeks later? Does the creditor not have to sign after the debtor and on the same agreement to be executed? 2. They justify this by stating that "at the date of the agreement the relevant regulations were the Consumer Credit Act (Agreements) Regulations 1983, and the same do not require there to be a seperate signature box for signing by or on behalf of the debtor" This is March 2003? 3. They further state, "it can be noted under regulation 3 of the Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 there may be omitted from a copy of an executed agreement any signature, unless the agreement is a "cancellable" agreement, which this agreement was not" As they have already sent me a reconstructed copy of the credit card agreementt stating the agreement was cancellable am I missing something here or is this just point just too easy to defend? As ever, thanks in advance to any advice! Eggboxy
  16. Thanks Nicklea I argued this in Court and it did sway teh DJ enough not to grant a decision there and then and als make MBNA cough up an executed agreement. They have until next Minday so thats when we'll see what they have (or haven't got)
  17. I have had the DJ's order from the last hearing come through today it reads (I've left out exact dates) Upon hearing the Defendant in person IT IS ORDERED THAT 1. Claimant to file and serve witness statement of clarification as to the issue of the existence of the credit agreement made between the Claimant and the Defendant (in next two weeks) 2. Defendant to file and serve (if so advised) witness statement in reply (approx 2 weeks later) 3. Matter to be listed for hearing on the first open date afte 28 days, time estimate 1 hour (a hearing notice will follow in due course) 4. Parties to file skeleton arguments no later than 7 days prior to the adjourned hearing 5. Resrved to DJ XXXXXXXXXX 6. Costs in application If they turn up a correct document I obviously have to deal with that. However, as I dont believe they can my concern is they will try to convince the DJ (again) they don't need one due to Carey again? Any help on that particular area for my WS & SA would be most appreciated, thanks.
  18. Thanks again DD, I am in the process of compiling my Skeleton Argument which I will post up here later. If you have any knowledge of them or suggestions please feel free to chip in! Eggboxy
  19. Hi DD I understand what you say but I argued no executed agreement was ever sent out (as I dont remember receiving one) but Restons said (admittedly probably bluffing) they had one on the Microfiche signed by both of us? As I say I have a letter from MBNA stating they cant produce one but the Solicitor said that just meant they hadnt located yet. As they were trying to use Carey to prove execution with recon docs I think its a safe bet they dont have one. How will this go down with the DJ if nothing turns up? Does he give them more time/ strike/ or let them argue again for Carey?? People on here have been extremely forceful Carey doesnt apply here but is that proven 100% anywhere? Thanks Eggboxy
  20. Hi DD, The agreement was identical to the one BENBOY posted on here (I havent got enough posts yet to put up a link) but was partially blocked out at the top and, in my opinion, illegible. It was on two seperate sheets and (if you can locate BENBOY's copy) you will see its like they have only copied part of the page which makes me suspicious its been cobbled together? The DJ wouldnt accept it was an application form as it stated "sign only......etc CCA1974) but he did accept it wasn't executed either as it didnt have the creditor signature. It did have terms on but I maintained they were hard to read whereby the DJ put on his glasses and said they werent. I did think the game was up here but, to his credit, when Carey had been swotted away and when the Reston Solicitor stated MBNA definitely would have a copy of the agreement they had referred to in the evidence (dated two days later) he did then reserve judgement pending them showing him a copy. As I have stated earlier, as this is a SJ I really just want to neutralise Carey as I think its a safe bet they wont turn up a copy of this "other" agreement but could use Carey again as a reason to say the missing agreement is not required? Do you happen to know if they dont turn up the "other" agreement and did lose the SJ whether or not they can still take it to trial?
  21. DD, Its my hope that this is what the DJ has decided and has asked for now (if I have understood the DJ correctly) as whilst he wouldnt accept that the agreement Restons had produced (which was dated two days before the one they were citing in their evidence) was an application form he did accept there was another form that should be produced showing prescribed terms and two signatures. If anyone reading this can point me to how a Skeleton Argument is best set out I would be grateful. Thanks to everyone concerned
  22. Thanks Docman Is there any definitive information or ruling anywhere I can add to my Skeleton that proves without doubt Carey v HSBC does not apply when creditors are seeking to enforce?
  23. Thanks Nicklea, this is what I argued in court and seemed to be accepted by the DJ (as he wasnt sure) and the Restons Solicitor didnt try and argue against it other than asking the DJ to read the whole judgement. Which, as he seemed anxious to get away he wouldnt do. As he is perhaps unsure of CCA I just want to give a Skeleton that definitely proves this so thanks for your help
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