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Forced sale- Not enough to cover charging orders


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Hello again,

This post is similar to the one above by John56---

I have finally admitted defeat and will have to sell as i cannot afford the additional for the arrears which i had agreed( in haste & panick) after a possession order was granted on my property in May..

 

My question:

I have one mortgage( birmingham midshires)

one secured loan

and 3!! final charging orders...

 

The sale of the house will just about cover in full my primary mortgage and the 2nd secured loan BUT the final charging orders will NOT be cleraed...

Could these 3 smaller creditors( Approx £9,500) STOP the sale of my house???

Any advice would be really appreciated

Thanks

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It should state on your charging order info that charging orders do not effect your right to sell your home . Once you sell your home the charging orders become unsecured debt once again.

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Yes they can stop you selling your conveyancing solictor needs to do a deal in order that they remove the charge otherwise the solictor can not give free title do you have a purchaser

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I do apologise i must have been given the wrong information by the solicitors when i had 3 charges put against my home . they told me i still had the right to sell my home if i so wished and that my share of the procedes would go to pay the charges but if there wasnt enough equity the charges would become unsecured once again . My wife also has the right to sell her share of the property as per entitlement because the debts are in my name not hers and she pays half the mortgage .

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Although the charge holders could object to the sale you could apply to the courts for an order for sale yourself.

 

In the case of Halifax v Barratt the court allowed the house to be sold for 'the best possible price' even though Halifax refused permission for the house sale.

 

I hope this helps!

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I'm no conveyancer, but this is how I understand the position:

 

The usual application for registration of the charging order involves the following entry on the Charges Register:

 

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———).

 

In other words, a disposition, for example a transfer upon sale, may be registered provided the conveyancer acting for the buyer delivers a certificate with the application to register his client as the new owner saying written notice of the sale had been given to the judgment creditor.

 

Of course. delivery of the notice to the chargee may give rise to the chargee objecting. The power of the chargee to raise a noteworthy objection depends entirely on whether the net proceeds of sale are to be distributed in accordance with the priority in which the charges are registered (ie oldest first). If the sale proceeds become depleted after payment in accordance with priority, an objection will not be noteworthy and the Registrar will direct the cancellation of the restriction on the Charges Register even though a debt secured has not been discharged.

 

The reasoning is purely commercial. If the power to sell could be prevented by the lowest ranking judgment creditor (ie the most recent to appear on the register), the effect would have potentially serious commercial hazards for those with priority charges where, for example, a property has negative equity after taking into account all charges, but has sufficient realisable value to meet all but that lowest ranking. Those who have charges are of course creditors of the owner and the law aims to maximise all that which might be realisable, the better for debtor and creditor alike.

 

The potential difficulties which a buyer might face and which he and his mortgagee might wish to overcome are invariably covered by obtaining an enforceable undertaking from the selling conveyancer in which he undertakes to cause the removal of charges appearing on the register whic hhe achieves on receipt of the sale proceeds and the distribution of those proceeds in accordacne with the priority.

 

In any case, on breach of the mortgage terms the mortgagee could apply for a forced sale (and achieve less on sale than might be achieved by a sale at market value). In exercising the right of sale, the right would not be prohibited by lower ranking chargees. The mortgagee in possession would convey a good title to the purchaser and will merely be obliged to apply the sale proceeds in accordance with priority.

 

Any sale will have to be conducted by a conveyancer and you will need to check with any conveyancer you instruct that what I understand to be the law is what he understands it to be as well. I've got my fingers crossed he does.

 

x20

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As far as im a ware as long as the person who has the charge agrees or you get a court order the sale can go a head will check have a conveyancing exec in familly

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