Please help me? Charging order - Am in panic & don't know what to do...

[VixyVix2008]

Hi,

 

This is my forst post and I to be honest have got myself into a bit of a state. I have a long and maybe complicated issue that I will attempt to explain. If anyone can offer advice I would be grateful.... so grateful.

 

My husband left me and my 2 young children about 18 months ago. We have been fighting since about agreeing terms of the divorce. There is about £35k equity in the property that has both names on the deeds and mortgage and large secured loan, and is where I live with the children. Solicitors have finally agreed that he is to take no equity due to its limited amount and the fact that to sell up and start again would disadvantage the children as I couldnt afford a decent deposit with that.

 

Anyway, I have recently found out that he had a credit card debt with Capital One which was sold to DLC collection agency who generated a CCJ. my ex claims he knew nothing about it, then lost his job and subsequently defaulted. There is now an interim restriction order on the property for £9700. This credit however was in his name only and both himself and I have recently signed the legal paperwork for the divorce (consent order) which states that he will not be taking any equity and is responsible for his debts.

 

I got into from national debtline who said if I wanted to appeal I should do so in writing to the collection agency and the court at least 7 days before. I have done this. The court case is this Thursday 16th Oct.

 

He has spoken to the collection agency who were very unhelpful. They said if he got a letter from the solicitor to prove he is taking no equity then they will remove the interim order. he did this. They then said that they needed a copy of the consent order. He sent them the draft copy as it is only just being lodged with the court. They now say that theu will still go to court on Thursday as, even though it is solely his debt then they are guaranteed this money even though I have no responsibility for it. He also offered them £1000 as a full and final out of court settlement but they refused it.

 

I need his name off the deeds in case any of his other creditors try for the same thing but I understand that this cannot be done with such an interim restriction. Therefore if I want his name off then I will have to pay his debt to action this as he doesnt have the funds to do so. is this right?

 

Also, would it be advisable for me to go direct and maybe offer £2k as my mum has genuinely lent me some money? Ive been warned however that they maybe unlikely to accept a part offer as they are guaranteed a full payment with a charging order. If I was to do an offer should this be before the court case or once I know the order has been made final? Does anyone know how likely it is that the interim order will be made absolute if the debt isnt in my name (apparently they diont care as he is at this point still on the deeds despite not having equity)?

 

I am going to attend court on Thursday but am scared! To have to pay off this debt in full and my secured loan and mortgage when I am a single mum will be so so difficult....

 

Please please please can someone help??? Dont know where to turn....

 

Thanks so much,

Victoria x

[AnimalMagic]

Don't panic

 

A charging order means the outstanding loan is secured on the property - it doesn't mean you have to pay any monthly amounts. I am not sure, but if you show the judge your husband has no equity, then he/she will not grant the order.

 

I've alerted the moderators to your post...

[VixyVix2008]

Thank you for your reply. I understand that I dont have to pay monthly amounts but I will have to clear the full amount before the property goes into my name only. This will be tricky as my mum cant lend me nearly £10k

 

I hope that the judge on Thurs will be compassionate but I've heard rumours that judges are cold hearted and can attach this debt even tho it isnt mine! I wish they would settle out of court but it seems they are going all the way...

 

I cant sleep at the mo as to me this is seriously unfair.... Thankyou for your reply though...

[palomino]

What have your solicitors said/done?

 

We would all love to help but in your circumstances one at a time is the most appropriate.

[AnimalMagic]

Thank you for your reply. I understand that I dont have to pay monthly amounts but I will have to clear the full amount before the property goes into my name only. This will be tricky as my mum cant lend me nearly £10k

 

 

Ah, I see.

 

Hopefully one of the experts will be along soon...

[VixyVix2008]

 

We would all love to help but in your circumstances one at a time is the most appropriate.

 

Hi Palomino, what do you mean, sorry?

[palomino]

Hi Palomino, what do you mean, sorry?

 

If your solicitors are on the case then they will not appreciate us barging in. There are certain sensitivities involved!

 

If you trust them and they are doing a good job then leave it to them. If you have concerns about what they are doing then discuss those concerns with them.

[slick132]

Hi Vixy,

 

I have to agree with Palomino here.

 

Clearly you're at a crutial stage in the separation/settlement process and your sol'r will know the finer details of what has been, or is about to be, agreed.

 

Also the timing or sequence of events will be important in determining what should be done about the Charging Order, the CCJ and the debt itself.

 

My only advice just now is that you don't even consider making ANY offer to pay this debt in part or in full. I don't believe this will help you in the long run.

[VixyVix2008]

Thank you so much for your advice had thought we would be settling out of court so my divorce solicitor is at the moment unaware that we still have to attend. Would you advise asking if she can attend with me or do you think this would make little difference to the judge and their cold heartedness? If she cant attend for whatever reason, do you think maybe a letter from her would help?

 

Thankyou again....

[palomino]

Judges are people. Some are good and some are bad. Some are friendly and some are cold-hearted.

I think that, on the whole, judges prefer to have a solicitor attend - it means that there is someone there who speaks their 'language'. Having a solicitor also means there is someone working for you who isn't emotionally involved. The down side is that the solicitor will charge you.

[slick132]

I think it would be worth your sol'r or her junior legal rep attending the Hearing to protect your interests. This will probably end up cheaper than offering to pay the debt.

 

I think that timing may well be an important issue in determining whether the Charging Order affects you or not.

 

Speak to the sol'r on Monday.

[VixyVix2008]

Hi again guys....

 

I spoke to my solicitor today who said that it would be a waste of money taking her in my defence as it is unlikely the interim charging order would be lifted as 'Judges look at the debt, not the story behind it'.

The crux of it is, Ive kinda gathered now that I will have to foot the £9700 debt.

 

Does anyone know whether you can make a Full and Final Settlement once a charging order has been placed?

 

What figure would you suggest?

 

What tactics can I use to settle the account if the charge is made absolute as I think being gits they are they will want to hold out for the full amount no matter how long they have to wait (I have no plans to sell!)

 

When exactly should I make any offers? at court? afterwards?

 

Any advice would be so so welcome! I dont know what to expect in court and how to handle them.... if it was my debt it'd be a different matter!

 

Vix x

[slick132]

Hi Vixy,

 

Did your sol'r not offer any advice as to how this could be resolved, perhaps by taking it into a/c in the divorce settlement.

 

If it were your debt, there are various ways the CCJ could be challenged. However, as it's your ex's, there's nothing that YOU can do to get it set aside.

 

Would your ex be interested in challenging the CCJ with a view to getting it set-aside, with help from you (and CAG) ?

[pauli]

Hello Vix

 

As I understand it this is a credit card agreement in your ex husbands name but the property on which DLC seek to attach the charge is jointly owned?

 

There may as your sols suggest, be little prospect of preventing the charge from being made absolute. However it is worth outlining your objections to the court, particularly as the consent order has already been filed with them. (make sure it has!) It is also worth contacting your local Land Registry Office and stating your objections to the charge being registered.

 

Because the property is jointly owned and the debt is in your husbands sole name any charge is against his equitable interest in the property and can only be entered as a "restriction" by the Land Registry.

 

If he has relinquished his interest there won't be any - either now or in the future.

 

It is important to get the creditor to agree both to suspend interest on the debt and not seek any future order for sale. They should be willing to accept this in advance of the hearing if your ex offers token monthly payments(according to what he can sensibly afford). You should seek to have the court make any order conditional on these two provisions. Under no circumstances should you personally consent to the charge or enter into any voluntary agreement with the creditor.

 

Please check with your sols as I do not have info on the settlement or its possible legal implications. At the moment he is a joint owner and it is not clear whether the title is to be transferred into your name. It is also likely there will be issues with both your mortgage company and the secured loan co.

 

Hope this helps..

 

Pauli

[VixyVix2008]

Thanks Pauli and Slick...

 

My solicitor and I have been at the divorce issues since April 2007! We have agreed the other terms. My ex is willing to help, I think, so how would he challenge the CCJ and get it set aside, and on what grounds? would this mean the charging order restriction would be lifted? would it be too late to do anything now as the court date is Thursday?

 

The problem with not making offer of payment to Hillsden/DLC is that I cant transfer the property into my name I believe if there is a restriction in his name. I NEED it in sole name to prevent further restrictions that his other creditors may try and put on in the future. Hope that makes sense.

 

Vix

[AnimalMagic]

Your husband should start with a CCA request to the creditor(s). Also a S.A.R - (Subject Access Request) request to the original creditor. I can't find an electronic copy just now, but I think samples are in the templates library.

 

CCA Request

 

As for setting aside the CCJ, did your husband respond to the original claim? If not, then a set aside should not be too difficult. If he did respond, then you need a valid reason, which could be that the agreement is unenforcable, or that there were unlawful charges on the account, hence why the CCA and SAR requests.

 

It also comes to mind that if he has other creditors, you might argue that the other creditors would be disadvantaged by granting the charging order. I unsure on this one though...

Edited October 14, 2008 by AnimalMagic
Added reference to CCA request

[pauli]

Its a bit late to get the Judgement set aside but it might just be possible to get the charging order hearing adjourned. But only if you have solid grounds for disputing the original order. If your ex admitted the debt or did not submit a defence at the time it is frankly unlikely to succeed.

 

If your secured creditors are happy for the property to be transferred into your name that will at least avoid this situation arising again in the future.

 

I would contest the order but if it doesn't work out would'nt worry too much about it being made absolute. Remember its a restriction not a charge. the joint owners acting together, in any future sale for example, can override the interest of a creditor in these circumstances simply by giving notice of the sale. The Land Registry would lift the restriction to enable title to be passed to the prospective buyer. I guess this may apply to any transfer of ownership in principle but you would need to check that out with your sols and the Land Registry.

 

Pauli

[AnimalMagic]

Its a bit late to get the Judgement set aside but it might just be possible to get the charging order hearing adjourned.

 

 

I'm assuming your talking about the charging order judgement. I was talking about the original CCJ...

 

I had a CCJ set aside when I had a charging order on my home.

[VixyVix2008]

Brilliant, Animal! Does that mean they automatically lift the cahrging order or does that stay? As I mentioned, I understand that they wont force me to sell but I thought the land registry wouldnt take his name off the property if a charging order in his name is in place. I have just spoken to him and told him how ace you guys all are with the advice and he is looking into having the CCJ set aside as he has no knowledge of having received anything from the DCA at all re a CCJ.... will keep you posted!

 

What grounds did you have yours set aside, animal? if you dont mind me asking!? I think he's planning on tackling this at the actual hearing although I have no idea what the hearing format will take and what court ettiquet is!

[VixyVix2008]

Oh, Pauli, thanks for your message - I didnt see it there! The charging order hearing has also been adjourned once as I wasnt notified (they had written to me at one of my ex's addresses! typical! and I only found out through the divorce solicitor)

[pauli]

I would not leave it until the hearing.You need to make a formal Application order for the judgement to be set aside. It will need to outline your reasons.

 

The form is available on line and you must pay a fee when submitting it. There may be enough time but I would get your ex to call the Court and explain what you intend to do.

 

You then need some urgent help in arguing your case

 

Pauli

[slick132]

Hi Vixy,

 

If your sol'r thinks it's not worth her attending on Thurs, thats her decision.

 

However, this matter concerns a lot of money and should be taken into a/c in the settl't.

 

I really don't think it should be left to you to try and get this sorted for your ex. If he can't get the CCJ set aside (and this isn't going to happen quickly) and the CO is confirmed, how is this to be d/w in the long term.

 

Your sol'r should be doing more to protect your interests IMHO.

[AnimalMagic]

In my case First Direct got a CCJ by default while the account was in dispute over bank charges. I did not receive the court papers and first I heard was when I got the judgement. I had other things going on so wasn't able to do anything about it at the time, so FD went on to obtain a charging order, again without my knowledge. 18 months later I applied for a set aside on the basis that I hadn't received the court papers and there was a dispute over bank charges. I got 400+ in charges back and both the CCJ and the charging order removed.

 

I'm inclined to agree with Slick, but I would suggest the solictor doesn't know much about CCAs and assumes that Hubby owes the money and there is no defence or dispute. You may need to educate her

 

I should say up front that I limited experience regarding charging orders. I have been through 4 claims, only one of which is bank charges. (2 * IR CCJs and 1 claim from our flat management company).

 

If hubby has made an offer to pay the debt off, make sure you have the letters showing this. This will show the judge he is willing to pay the debt. You would then go on to show he has (or will have) no equity in the property and given the divorce settlement you will be prejudiced by this charging order.

 

They said if he got a letter from the solicitor to prove he is taking no equity then they will remove the interim order.

Is this in writing? Then take it along...

 

If there are other creditors you need to ask if they have been informed. If they have not, then the charging order should not be made final as it would prejudice those other creditors.

 

If there is any defence to the original CCJ then also present a skeletin argument for set aside showing the judge that there is doubt over the actual amount owed. Try and make the judge understand that you have no liability. your ex has no equity, and there is doubt as to how much is actually owed, if indeed the agreement is enforcable at all...

 

Get any info that Hubby has, e.g. original agreement, default notice, statements and check if there is any defence. e.g. if there are charges on the statement and the default notice includes these, then maybe you have an argument for unlawful rescission of contract which would prevent the court enforcing any alleged debt...

 

If you can get this info together and present the argument at the charging order hearing, then it may be set aside or maybe stayed pending an appeal of the CCJ.

 

Can't think of anything else just now...

[AnimalMagic]

You could also argue that an attachment to hubby's earnings would be more appropriate given he has no equity and you have no liability...

[VixyVix2008]

Thank you two for all your help and advice. I am forwarding this link to my ex hubby for him to read through prior to Thursday. I will let you know how we get on!

 

Thanks so much!