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Solomon Gold

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  1. Hello Broadly, there are three kinds of charging order: a charging order on land (the most common); a charging order on securities; and a charge over the debtor's interest in partnership property. A charging order on land provides the judgment creditor with security equivalent to a mortgage over the land specified in the order. It is, of course, subject to any prior mortgages and charges. The charging order does not affect the accrual of judgment interest on High Court or County Court judgments (Judgments Act 1838: County Courts (Interest on Judgment Debts) Order 1991 (SI 1991/1184)). Subsequently, the judgment creditor can apply for an order for sale so that, subject to prior encumbrances, they can be paid their judgment debt (and accrued interest) out of the proceeds of sale. (source: The White Book Vol. 1) Rule 73.10 Enforcement of charging order by sale 73.10 (1) Subject to the provisions of any enactment, the court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order. (2) A claim for an order for sale under this rule should be made to the court which made the charging order, unless that court does not have jurisdiction to make an order for sale. (A claim under this rule is a proceeding for the enforcement of a charge, and section 23© of the County Courts Act 1984 provides the extent of the county court's jurisdiction to hear and determine such proceedings.) (3) The claimant must use the Part 8 procedure. (4) A copy of the charging order must be filed with the claim form. (5) The claimant's written evidence must include the information required by Practice Direction 73. Section 23—County Courts Act 1984 73.10.2 This Section—in Vol.2, para.9A–448—limits the equity jurisdiction of the County Court. The limit, which is still £30,000 applies to "proceedings for enforcing any charge where the amount owing in respect of the ... charge ... does not exceed the County Court limit". Thus where the charged judgment debt exceeds £30,000 proceedings for an order for sale must be in the High Court. In all cases, the Pt 8 procedure must be used. See further, PD 73, para.4. However, if it is appropriate to do so, the High Court has the power to transfer the proceedings to a county court under s.40(2) of the County Courts Act 1984 (CPR r.30.3 sets out the matters to which the High Court must have regard when considering a transfer). (The White Book Vol. 1) So….Wendyboats, in respect of the above and the up-coming hearing for enforcement of charging order by sale, you have a right to object to the order for sale and I would suggest that you request the court to adjourn the hearing pending the outcome of your appeal against the Bankruptcy order which you believe to have real and significant prospects of succeeding in and any order for sale of your property cannot be reversed in the event of your appeal being successful. Also, you can argue against the order for sale by way of a cross-claim in equity (referred to as a legal set-off) against the same on the grounds that the Bankruptcy order has been obtained against you for a debt that you are not liable for (the mobile phone debt) and it would be manifestly unjust for the court to allow the enforcement action without taking your equitable set-off claim into account, which, by all accounts, based on the material posted here by you, extinguishes the claim made against you. It may be the case that the court directs a trial of this issue or transfer the matter to a higher court which has the requisite authority to deal with the same. In any event, such issues must be determined and settled before the court grants an order for sale. Your husband has a right to object to the order for sale also and he should do so, further, your health condition is another relevant factor that must be taken into account on this matter. I hope this post will help you in some way to deal with the wrong done to you. Best wishes, God bless you and be with you. Solomon Gold
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