Charging order and beneficial interest after death

[Jake68]

Don't know if this is the correct forum for this but I have noticed that a number of people have asked questions relating to Charging Orders so perhaps someone out there can offer some advice.

In February this year I was granted a final charging order on the beneficial interest in property of an individual who owed me over £20K. I have a CCJ in my favour but enforcing the judgment has been a problem. The only realistic option for recovering this money seemed to be to apply for an Order for Sale. The week before the hearing was due I was informed that the individual had died. The hearing could not proceed as the claims were no longer relevant. The property with the charge was jointly owned with his surviving wife.

Due to financial difficulties I cannot afford a solicitor to represent me and I am trying to manage all my own legal work on this matter, but I am now unsure what options are left open to me to recover my money. Is it gone or is there some claim I can make against his estate?

Any advice would be gratefully appreciated. - Jake68

[johnhowell]

Jake,

 

You would have a claim on the decease's estate, which would include half of the property. If it was in joint names the assumption is 50/50 split.

 

Contact the Executor of the estate, lodging your claim. If he did not have a will then the Probate Office would issue a Letter of Administration to assign an exectutor. Formally, a notice should be in the local paper calling for debtors and creditors to the estate to make themselves known within a certain period. If you do not know who the excecutor is, I would write c/o the marital home.

 

If the estate is worth, in total (including the property), less than your £20k then you will not receive all that you are owed.

 

Please note that some people think that, just because the Mortgage has been transferred to the surviving spouse that the property is wholly theirs - this is incorrect.

 

There are lots of other issues that may pop up with this situation, a probate solicitor would be able to help greatly.

 

Good luck,

John

[Jake68]

Hi John

 

Thanks for taking the time to reply and for the advice. Is the Executor legally obliged to satisfy this debt from the deceased's estate even if this means selling the property? Or do I need to force the issue?

 

Jake

[rippedoffagain]

Don't know if this is the correct forum for this but I have noticed that a number of people have asked questions relating to Charging Orders so perhaps someone out there can offer some advice.

In February this year I was granted a final charging order on the beneficial interest in property of an individual who owed me over £20K. I have a CCJ in my favour but enforcing the judgment has been a problem. The only realistic option for recovering this money seemed to be to apply for an Order for Sale. The week before the hearing was due I was informed that the individual had died. The hearing could not proceed as the claims were no longer relevant. The property with the charge was jointly owned with his surviving wife.

Due to financial difficulties I cannot afford a solicitor to represent me and I am trying to manage all my own legal work on this matter, but I am now unsure what options are left open to me to recover my money. Is it gone or is there some claim I can make against his estate?

Any advice would be gratefully appreciated. - Jake68

 

So this person very inconveniently died, and you want to sell the house out while the widow/er is still grieving.

 

I wont be judgemental here because I don't know the circumstances, but I can't see you getting too much advice on this forum.

 

No offence.

[Jake68]

rippedoffagain

 

As you said, don't be too judgemental without knowing the circumstances. All I can say is there is more than one victim in all of this. My family stands to loose our house if I can't get this money back. We are the innocent party in all of this!! Would you not try all legal means to prevent this happening?

 

Jake

[johnhowell]

Jake,

 

Regardless of rippedoffagain comments. However sad the circumstances, debts do not die with the debtor if monies are available. Some debts do disappear because the lender has other insurances for this situation.

 

The executor is legally bound to satisfy any debts on the estate, if funds are available. The estate's worth would have been calculated and presented to the Probate Office to determine if Inheritence Tax was due. This worth would include the share of the market value of the property at the time of death. If the estate was worth more than £7000 then the Probate Office would have been involved. The executor becomes the Trustee for the estate and is liable for the execution of the estate. Accounts should be maintained and could be audited by the Probate Office if you feel that it has not been enact correctly.

 

The debt would have to be paid out of the estate, if the executor (spouse) does not want to sell the property then monies would have to be found from else where. Sometimes the next of kin (spouse) recieves a lump sum from the deceased's company -"death-in-service" (3-4 x salary) - which is not part of the estate - but could be used to remove any charge on the property.

 

This is now getting beyond my experience, again professional advice may be worthwile.

 

John

[rippedoffagain]

Precisely why I will not judge. This forum is open to everybody, but again I suspect there will be few prepared to assist you in forcing a widow/er to sell their house.

[Jake68]

John,

 

It is indeed a complicated matter and not a situation that anyone involved is happy to find themselves. Thanks for your advice.

 

Jake

[Jake68]

rippedoffagain

 

Perhaps you are right, I wouldn't claim to know how people would react to my situation. After all it's not the typical David v Goliath that this forum specialises in. If only life were as black and white as that. I hope there are people out there that are more sympathetic to our problems.

 

Jake

[rippedoffagain]

Jake68

 

The problem is, we don't know what the problem is, all you have told us is that;

 

Post 1 You want to force a sale on a recent widow/er's house.

 

Post 5 You may lose your house if you are unable to recover the debt.

 

I suspect that it will now take quite some time to sort out the estate, I further suspect, but I could be wrong, that there is little you can do, while this is in the hands of the executor.

 

Please don't think I am overly inquisitive here, but if you were to very briefly outline, how the debt came about, you may find that more help is forthcoming.

[tinkerbell20]

The widow will have to pay the charge amount if she should want to sell the house.

 

I would guess you could go for a sale order but it would depend on how much loan is in relation to the equity in the house and also the individual circumatances of each party because ultimately it will be up to the judge to decide.

[Jake68]

rippedoffagain

 

Point taken, but I was looking for direction and didn't want to labour how I found myself in this situation.

For the record I wasn't trying to force a sale on a recent widow. The Order of Sale hearing was directed towards her husband and was set in motion before he died. I'm just trying to understand what my legal options are subsequently.

OK for clarity - sequence of events.

1) Borrowed money from bank to pay deposit to builder (too trusting and naive on that one)

2) Builder gives personal guarantee against deposit (otherwise wouldn't have given it to them)

3) 6 months later builder still hasn't started the job. Ask for our money back. No reply. Solicitor's letter. No reply. Legal action starts.

4) Go to court. CCJ in our favour. No show from other party. No contact. No reply. No money returned. Big solicitor's bill.

5) Decide to try and do some of the building work myself. Borrow more money. Credit crunch happens. Can't afford to finish the building work no money left. Can't afford a solicitor.

6) Do my own legal work - Get a charge on the builder's house. Apply for order of sale. Builder dies before the hearing.

7) What now? Can't borrow any more to finish house, can't sell house as it's a building site. Marginal on repayments unless I get the original deposit back.

 

That's about the sum of it.

[rippedoffagain]

Thank you. So you were intentionally ripped off by the builder, I presume he knew full well as he took your money that he had no intention to begin any work.

 

I sympathise with your situation, and would be doing the same in your shoes. In your second point you say given it to them was that a slip of the pen?

Edited August 7, 2008 by rippedoffagain

[Jake68]

tinkerbell20

 

I would really like to avoid that route but I'm getting backed into a corner more and more.

[Jake68]

rippedoffagain

 

I've had this discussion with the police as far as "intent" is concerned. Difficult to prove they told me. I think the facts speak for themselves. Used "them" as a collective term for the building firm that he was a director of. CCJ was individually and against the firm. Company since wound up by other creditors.

[rippedoffagain]

You may want to have a look at this, it may be of some help.

 

You might also have a look on the Land Registry, for a very small fee, you can find out if there are any other charges on the house, for example his bank etc, might have security for loans, which may push you to the back of the que, or anyway make you one of many.

[Jake68]

rippedoffagain

 

Thanks again. Seems that there is some redress for negligent behaviour perhaps it will benefit someone else who finds themselves in a similar situation. My problem was never about obtaining a judgment, as it was all fairly clear cut. All our problems have been about enforcement. Seems that the courts are pretty toothless in this regard. Turns out that this individual had a number of unsatisfied CCJ's.

Further internet searching has highlighted the possibility of applying for an Insolvency Administration Order, however I wouldn't know if I would be wasting time and money going down this route at least at present I have some security on the debt with the Charging Order although it isn't helping my current financial position.

The cheapest and easiest option may be to reapply for an Order of Sale to release the beneficial interest in the property. This, however, does seem on the face of it an unfeeling act towards the widow (and the court may take this view also) - but what other option do I have, considering our predicament. I'd much rather the executor of the estate take the responsible route and settle this issue without further need of the court. My faith in people to do the right thing is not strong at present.

[rippedoffagain]

Did you check the Land Registry. If this chap had secured business loans, or personal guarantees to the bank, secured on the house, then it is likely they will try to force the sale anyway.

[Jake68]

Surprisingly it is only the mortgage company and myself that have any charge on the property. Why the other creditors failed to apply for a charge is a mystery to me. If memory serves me right there are about seven other unsatisfied CCJ's on file, although for smaller amounts of money.

[JonCris]

Before responding was the wife a director/shareholder of the firm against which you obtained the CCJ.

 

If so was the subsequent charge levied on the whole of the property & not just his share

 

Also just to round things off have you had sight of a death certificate & not wishing to be too flippant but did the guy own a canoe!!

[Jake68]

According to Companies House the wife was a director of the firm but had resigned her directorship before I contracted them to do the work. So the charge was just on his share.

 

You wouldn't be the first person to make the 'canoe' comment. But I have to take it on face value.

[Jake68]

JoinCris

 

Forgot to add, she was still a shareholder in the business after she resigned the directorship.

[Jake68]

Sorry JonCris

[rippedoffagain]

Before responding was the wife a director/shareholder of the firm against which you obtained the CCJ.

 

If so was the subsequent charge levied on the whole of the property & not just his share

 

Also just to round things off have you had sight of a death certificate & not wishing to be too flippant but did the guy own a canoe!!

 

That thought came to my mind as well:):)

[JonCris]

Again have you seen a bona fidi death certificate?? Do you know the circumstances of his death & was it witnessed by others, car crash whatever