Help needed re: Charge on Property

[BerkshireWhizz]

Dear All

 

I have noticed some really useful advice being doled out by the kind people on here, so i have registered in the hope that someone can help me too.

A swift answer to my problem would be much appreciated, as i have a court hearing tomorrow at 10!

 

I'll try to be as brief as possible, but get all the facts down.

 

My partner and i have been told of a charge being placed on our property. We are joint tenants.

This arises from a judgement made in June against her and her ex by a brewery, for failure to pay back an advance that was made to them. She had previously had her ex sign an indemnity agreement to say that he would be responsible for all debts on the sale of their pub, for which she would relinquish all claim to proceeds from the sale.

That gave her reasonable excuse not to tell Marstons where she had moved to, and so was unaware of any court action against them. We have a hearing to set aside the judgement on that basis (and that the amount is also in dispute) tomorrow. We hope we would be successful, and that the charge on the property will be invalid due to there being no judgement in place.

OK, here is my problem. As i said, she and i are joint tenants in a property we bought last December, with £50K of my own money, and the rest a mortgage. It is being suggested by her solicitor that i make a statement to the court tomorrow to the effect that i have no involvement in the debt, and that it would be unfair to put a charge on the property, thus affecting MY credit rating. Although we are joint tenants, would it be useful to mention my contribution to the purchase?

 

WHAT SHOULD I WRITE IN MY STATEMENT TO THE COURT???

 

Thanks in advance for any help you can offer.

 

PS Can they force us to sell our house to recoup the charge???

 

 

 

PS

[BerkshireWhizz]

Another PS. I apologise if this is not the correct forum for this question. If not, could someone advise me where else to go??

Ta

 

BW

[surfaceagentx20]

That you have no involvement in the debt is plain on the court record. you are not a party to the proceedings right?

 

What evidence is there that a charge upon your partner's beneficial interest in the property will affect your credit rating?

 

When the property was purchased did you and your partner sign a Declaration of Trust stating the property was held in unequal proportions? If so, what are the unequal proportions?

 

Le me guess who's idea it was that in return for your partner relinquishing all her rights to a share in the net sale proceeds of the pub, she should receive a piece of paper with her ex's autograph on it? What became of the pub? Has it been sold and if so what became of the net sale proceeds?

 

What steps has your partner taken to enforce the indemnity given by her ex? How are things coming along in that regard? Have any difficulties been encountered and if so, what difficulties?

 

x20

[BerkshireWhizz]

Hi, and first may i say thanks for responding.

 

OK, i'll answer things in order.

 

No, i have no involvement in the debt.

 

Is it not true that a CCJ against someone with whom i share a mortgage and a charge on my property would affect my credit rating?

 

We signed to say we would be Joint Tenants, NOT Tenants in Common (i.e., no unequal divisions apply).

 

The "indemnity agreement" was suggested by her former solicitor, and means that should she lose this case, we would be able to recoup our losses. We are now aware that this will not be accepted by the court as a reason to strike the judgement re: her involvement. There were other circumstances regarding the sale of the pub (which was going ahead at the time this agreement was signed), which meant that had she insisted on her half of the proceeds, her ex would not have been able to afford the place he now owns. Before you say "aaaahhhhh", the relevance is that he bought the pub that HIS buyer owned, and had he not done so, the sale of the pub would have fallen through, and he would have gone bust.

 

We have not yet tried to enforce the indemnity, but her ex is aware that we will do so, maybe via a charge on his pub!

 

 

Do you think my actions would have a chance of holding off the charge being applied

 

Thanks again

[surfaceagentx20]

It seems to me that the judgment against your partner is most likely valid as to liability although there may be room to argue it was entered for too much. If that is so, a set aside is unlikely and a downwards variation is the best which could be hoped for.

 

A charge is pretty much like a mortgage. Taking out a mortgage does not or ought not to affect a person's credit rating, though defaulting on it may. The charge against your partner's interest ought not in my opinion to affect your credit rating. Besides, even if it were to, I would not regard that unhappy consequence to constitute good reason to deprive the creditor of the facility to secure its judgment. If you do intend to oppose the grant of a charging order on grounds the making of the charge will affect your credit rating you will need to provide evidence that this will be the case. In my opinion a bare assertion would not be sufficient.

 

Further that you are joint tenants as you say demonstrates the property is held equally and accordingly the unequal way in which the property was in fact acquired is of no consequence.

 

OK, there was some commercial reasoning going on as to how it was your partner ended up with the indemnity. I think your partner needs to get on with a claim against her ex. I assume her ex was made a Defendant to the claim in which case and ideally she would have brought those proceedings against him under CPR 20.6. If she now wishes to do this she will need to ask for the court's permission and since the case has culminated in a judgment, it is probably too late to go down the CPR 20.6 route unless of course the judgment is set aside tommorow. If it is not set aside tomorrow and frankly I would not expect it to be if what you have told me here is all that is relied upon, then the better course will be to begin fresh proceedings against the ex.

 

Hope this is of some help and good luck tomorow.

 

x20

[BerkshireWhizz]

OK, thanks for that info.

 

Maybe the DJ will be unhappy with the way the original claim was constructed, and allow a set-aside, but i'm not getting my hopes up! He may also be interested to learn why the Claimant refused an offer by my partner's ex to pay them back in substantial instalments, and why they have not chased putting a charge on HIS property as well/instead.

Would the mention that he is currently awaiting set-up of an IVA to include this creditor be any reason to set the case aside, i wonder?

 

Anyway, that is probably by-the-by now. We'll take advice as to the best course of action from our barrister tomorrow, but i may come and bother you as to how best to initiate proceedings against him in due course.

 

Meanwhile, MANY thanks for your help, and i will keep you posted with the outcome.

 

Cheers

 

 

Ian

[BerkshireWhizz]

Hi x20, and anyone else who may be interested and able to help.

 

Yesterday we were in Court, and didn't go too well, but could have been worse. It all centred on whether we (when i say we, i mean my partner, but we are in this together!) had a reasonable prospect of success in defending the original judgment.

As i mentioned before, there was an element (£20K) which she acknowledges she is liable for, and an element (£13K) which is in dispute. The DJ refused to set aside the entire judgment, but agreed to adjourn proceedings so that we could formulate a defence in respect of the disputed £13K, thereby implying, we assume, that he believed we may have a case. We had only received knowledge of what this alleged £13K consisted of a short time prior to the hearing, and thus had not had time to submit a defence in this matter.

In view of the above decision by the judge, he decreed that a charge be finalised on our property in the sum of £20K, but that the remaining £13K would remain as an interim charge, subject to the outcome of the adjourned proceedings. We did not oppose this.

 

OK, so we now need to prove that my partner and her ex did not sign any agreement regarding the terms under which the brewery would install new cellar equipment. They allege unlawful retention of goods. However, we assert that (a) no agreement was signed outlining what would happen to the equipment in the event of a sale of the pub, or simply choosing to switch supplier, and (b) it is the industry standard that cellar refits are carried out when a new supplier is selected, and the equipment is regarded as a donation as a gesture of goodwill in return for selling their products.

 

A couple of questions for anyone still awake:

 

1. Is there a listing (ideally online) of County Court proceedings issued in England, that can be searched by Claimant's name, and which would outline the particulars of each claim? We want to know if the brewery has tried this thing before, or whether we are a test case.

 

2. The original judgment was against my partner (defendant 2) and her ex (defendant 1). Are we correct in assuming that IF the £13K in dispute is struck from the original judgment at our future hearing, that it will also no longer apply to Defendant 1? (i.e. he will now only be liable for £20K).

 

Many thanks in advance for your help.

[surfaceagentx20]

You said earlier you would take your barrister's advice at the hearing and this leads me to conclude you have a solicitor and counsel assisting in this case.

 

If so, you should take your advice from them. They have access to you, your papers and are heaps better placed to give advice than anyone on this site could ever hope to be.

 

x20

[BerkshireWhizz]

Thanks for that comment. We are just trying to keep our legal bills down by doing as much evidence gathering as we can. So can you tell me if there is a public record of County Court actions taken by a particular party?

 

Thanks again

[surfaceagentx20]

I'm unaware of a tailormade system for accessing that kind of data. CPR Part 5 and its Practice Direction covers the rights of the public to access documents in cases in which they are not involved but unless you know of a particular case I can't see how CPR 5 is going to help you.

 

x20