A guide to Charging Orders & Orders for Sale

[Ganymede]

Thanks Ganymede, so you're saying that the information in that link is incorrect? As I say, I've had yes and no answers from different people so I'm no better off lol.....

Have you heard of this happening to anyone?

 

BF

 

 

Yeah I know of many occasions where it has happened. If I remember rightly the joint owner is brought into proceedings at the OFS stage.

[bilious]

Yeah I know of many occasions where it has happened. If I remember rightly the joint owner is brought into proceedings at the OFS stage.

 

Just when you thought it was safe.to stop worrying...lol

[Walli01]

Hi - just had a read through of the charging order article and I notice that you say that if an "instalment order" is in place a "charging order" cannot be applied for - I've got a ccj with an "instalment order" which has not been defaulted on at all and have just been told they are now going for a "charging order" plus charging me interest which is more than the instalment! Have you any advice for me??

[diddydicky]

I've asked this question quite a few times before, but never received a definite answer.

If you're a joint house owner with all debts in one person's name, and then CO is applied to that person's beneficial interest only, can an order for sale be made?

 

Most people say yes, but today I found this document on the internet, and if you look under the heading ''Will the creditor take possession of a borrower’s home?'' it states: The sale of a property cannot be forced if the joint

owner is not also subject to the Order.

 

http://www.fla.org.uk/filegrab/FLAFactsheet-ChargingOrders.pdf?ref=32

 

 

Is this the definitive answer?

 

BF

any one part owner of property can force its sale (usually the other co owners may then buy out the share if they dont want the property sold)

 

a creditor who takes a charge on the interest of a co owner of property therefore assumes ownership of that part of that persons interest in the property as stated in the charging order

 

he therefore effectively becomes a part owner- insomuch as he can force a sale of the propery in order to realise his "asset"

 

however in reality forced sale orders are VERY RARE- children dependents valuations etc all play a part and a court will be very reluctant to order a forced sale and when they do - it is often because the debtor is being deliberatley obstructive in making payments to the creditor

[diddydicky]

Hi - just had a read through of the charging order article and I notice that you say that if an "instalment order" is in place a "charging order" cannot be applied for - I've got a ccj with an "instalment order" which has not been defaulted on at all and have just been told they are now going for a "charging order" plus charging me interest which is more than the instalment! Have you any advice for me??

 

what is the value of the debt- what are you repaying and how long have you been paying it for?

[Walli01]

9,900 - intalment order was agreed by CCJ in Sept 2010 and am paying £50 per month - no payments missed - standing order in place monthly

[sequenci]

9,900 - intalment order was agreed by CCJ in Sept 2010 and am paying £50 per month - no payments missed - standing order in place monthly

 

Hi there, please can you start your own thread - you'll get a lot of help there.

 

If an application is made then you'll be able to argue that a final charging order should not be made.

When was the original CCJ entered against you? What was the original debt?

[diddydicky]

9,900 - intalment order was agreed by CCJ in Sept 2010 and am paying £50 per month - no payments missed - standing order in place monthly

 

then i would imagine that the reason the creditor wants a charging order is because at the rate you are paying it will take 16 years to repay

 

it is accepted fact that on average - Brits move home every 7 years (ok it may go up a bit due to the recession)

 

 

personally i would forestall any court action by agreeing with the creditor to registering a charge- with a provision that provide you maintain payments he will take no further enforcement action- thus saving the court costs being added

the creditors fear and argument is that at any time you could sell your house- pocket the change and leave him high and dry

 

IMO the court will be only too willing to grant the security of a charging order

because of the size of the debt and the amount of the repayments

 

this is usually all the creditor wants- not to force a sale

[sequenci]

IMO the court will be only too willing to grant the security of a charging order

because of the size of the debt and the amount of the repayments

 

They won't be able to due to the Mercantile Credit rules UNLESS they make an application to vary the original judgment. This itself can be challenged if there has been no changes in the personal circumstances of the judgment debtor.

[diddydicky]

They won't be able to due to the Mercantile Credit rules UNLESS they make an application to vary the original judgment. This itself can be challenged if there has been no changes in the personal circumstances of the judgment debtor.

 

i have personal experience of this very thing- however i dont know when the ruling you are referring to was established.

 

i would have thought that what the creditor will do is apply for a redetermination of the payments and if the debtor still can only afford £50 then they will apply for a charging order as security in view of the amount of time repayment will take

 

that is what happened to me ( albeit many years ago)

[sequenci]

i would have thought that what the creditor will do is apply for a redetermination of the payments

 

This is the variation I mentioned. If a creditor has been accepting instalments for a while and then make such an application it can be challenged if the debtor has not had a change to their circumstances. Of course we all know that judges often flout the cpr. Not good really.

[diddydicky]

This is the variation I mentioned. If a creditor has been accepting instalments for a while and then make such an application it can be challenged if the debtor has not had a change to their circumstances. Of course we all know that judges often flout the cpr. Not good really.

 

 

tell me about it!!

 

however on the bright side i have to say that apart from the argument that the creditors should not allowed to get away with "converting" unsecured loans into secured ones.........and hoping that the recomendations as to a lower limit of £25,000 are adopted

 

i have to say that folk should not otherwise be too fearful of charging orders

(in support of judgements made against them)

 

they are much more preferable that AEO's baliffs and the possibility of garnishee orders ( which can have much more far reaching consequences than the initial attempt to grab the debtors bank funds)

[sequenci]

100% with you. If CO's were not possible we would see lots more bankruptcies being made against debtors instead.

[diddydicky]

100% with you. If CO's were not possible we would see lots more bankruptcies being made against debtors instead.

 

exactly, and if the UK adopts the 3 year european SB rules then we will also see lots more court actions there's a price to pay for everything

[Undercover-Elsa]

Seems very unfair that they should consider raising the CO level to above £25000 whilst retaining the ridiculously low threshhold for bankruptcy.

[sequenci]

They are not going to do anything with CO's

[paulwlton]

does the court and tribunal enforcement Act 2007 allow a judgment creditor to obtain a CO even though there's been no default on the installment order?

[Ganymede]

does the court and tribunal enforcement Act 2007 allow a judgment creditor to obtain a CO even though there's been no default on the installment order?

 

 

No but if the claimant applies to vary the judgment to forthwith it is then possible to apply for a CO.

[paulwlton]

does the court and tribunal enforcement Act 2007 allow a judgment creditor to obtain a CO even though there's been no default on the installment order?

 

 

No but if the claimant applies to vary the judgment to forthwith it is then possible to apply for a CO.

 

If the judgment creditor accepts an installment order at a certain level it's my understanding that he cannot then attempt to vary to forthwith if there's been no default. However, he may apply for an increase in the installment payment if there's a change in the debtor's circumstances.

[Ganymede]

 

If the judgment creditor accepts an installment order at a certain level it's my understanding that he cannot then attempt to vary to forthwith if there's been no default. However, he may apply for an increase in the installment payment if there's a change in the debtor's circumstances.

 

 

But if they don't accept the installments...

[sequenci]

A creditor should only be looking to apply for a variation if they can demonstrate that the judgment debtor has had a change in their circumstances.

[cymruambyth]

But what 'should' happen if the creditor accepts installments but states in the same letter that they will go for further enforcement. (The court subsequently makes an order for these installments)

[sequenci]

But what 'should' happen if the creditor accepts installments but states in the same letter that they will go for further enforcement. (The court subsequently makes an order for these installments)

 

Any further action should be argued against as per the fact that the debtor is up-to-date with the court order. For sure a creditor might apply for further enforcement, it *has* to be challenged.

[cymruambyth]

Hi sequenci

I'm just preparing my defence, can you please clarify this:

'Section 86(1) The County Courts Act 1984:

 

Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.

 

"This was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987. It was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment. It should be noted, however, that in the case of Ropaigealach V Allied Irish Bank CA Nov 2001 where an instalment order is made AFTER an interim charging order has been made, a court has the jurisdiction to make a Charging Order final.'

 

My instalment order was made before the interim CO was made. Their application was going through at the same time but was not granted until several days afterwards."

 

As the 2 orders overlapped, but mine was made first should the Mercantile v Ellis argument be watertight; I assume that they will counter with Ropaigealach!

 

Thank you

[sequenci]

As the 2 orders overlapped, but mine was made first should the Mercantile v Ellis argument be watertight; I assume that they will counter with Ropaigealach!

 

Thank you

 

You've got it. You just need to prove that your instalments were in place prior to the interim application.