A guide to Charging Orders & Orders for Sale

[diddydicky]

well now, hopefully sequenci will confirm that I might have Restons by the short and curlies

 

in brief- due to a last minute decision by my sols not to provide CFA and with the trial a few days away- and escalating costs- a settlement was agreed by my sols with restons (mbna) that i would agree to a ccj being recorded- on the basis that the claimant would accept monthly payments..which would be at a certain rate for 6 months and then reviewed (to give time to negotiate with other creditors)

 

the ccj was made on 21 Oct and i sent the first payment- well before it was due on 21 November . However on 19 nov - 2 days BEFORE the first payment was due, Restons applied for an interim charging order (which was granted on 26 Nov) with a full hearing due on 26 Jan

 

in their application Restons signed a statement of truth and gave evidence that the judgement made no provision for monthly repayments and was a forthwith order (i never received a copy of the ccj from Restons the court or my sols)

 

I am now waiting for a statement from my sols to confirm what the agreed arrangements were and then intend to apply not only for the interim order to be removed but to set aside the CCj as it was obtained under false pretences by the claimant deliberately misleading me into making a transactional decision i would not otherwise have made

 

i always regretted not pursuing the defence of the matter- having intiallly defeated a SJ application- but due to the lack of time left to take the defence back from my sols- i had no time to prepare and so made this agreement

 

I am hoping that i can now "fillet Restons donkey" for making a false declaration as to the agreed format of the CCJ

 

any comments on the legal aspects would be appreciated

[diddydicky]

the sols did not pull out- they just decided at the last minute that they could not operate CFA - they were also hung up on the fact that mbna "could" produce the original agreement out of the hat at the last minute

 

i just did not have time to take the caseload back and notify change from sols to LIp- but thats another matter

 

the fact of the matter is that Restons made an agreement with a bona fide firm of sols- and to then deny that such an agreement was entered into is frankly unbeleiveale- and i am sure that with a sworn statement from the sols and the fact that i was fully ready and armed to defend- that the judge would take the view that both i and my sols version of events is to be beleived over Restons version

[diddydicky]

Just trying to understand myself as I am still learning through trial n error.......if the other side state that there was a forthwith judgment then you would have received a copy of that order, no? Could you not contact the court and ask them for details of when this forthwith order was made and granted? and any other details.

 

Sorry, did go back and read that the CCJ was made on 21 Oct......what did that order say? looks like they have pulled a fast one as I know how it can and is done being a victim to something similar to you but on a much larger scale.

 

what i do not know at the moment- is if the sols received the ccj (which would be natural since they were named as acting)- the fact of whether they should have picked this up/sent a copy to me is another matter

 

i want to concentrate on Restons false statement of truth in their application that no repayment terms were agreed as part of the uncontested ccj

[diddydicky]

DD, How was the agreement made... was it under a tomlin/consent order?

 

S.

 

no- it was a friday and the case was to be heard on the monday and was done via faxes/e amails between myself sols and restons no tomlin order or consent order

 

what means of communications my sols used to agree or confirm the arrangement with restons i have yet to be advised- but i will be getting a sworn statement from them as to what was agreed with Restons

[diddydicky]

Just trying to understand myself as I am still learning through trial n error.......if the other side state that there was a forthwith judgment then you would have received a copy of that order, no? Could you not contact the court and ask them for details of when this forthwith order was made and granted? and any other details.

 

Sorry, did go back and read that the CCJ was made on 21 Oct......what did that order say? looks like they have pulled a fast one as I know how it can and is done being a victim to something similar to you but on a much larger scale.

 

there seems to be no doubt that the ccj was lodged as a forthwith order since the judge granting the interim order has referred to it in his ruling

 

the question is that Restons made an agreement with my sols then presented something completely different to the court- and/or my sols were remiss in not ensuring that what was agreed was in fact enacted

 

i dont think the latter impacts on the former- sols regularly make agreements and arrangements of this kind and if Restons are going to mislead or deceive courts in this manner i think it does not bode well for justice

[diddydicky]

Well that is a good place to start as it is vital you see the CCJ and what is written on there. Your solicitors should be able to confirm in writing to you what was agreed, terms, payments etc etc.........and if they do not then IMO that is a case for professional negligence as they also owed you a duty of care to give you the best advice.

 

If your solicitors can back you up and what you agreed to then you should have no problem, and that will prove that Restons are lying. I also would have thought you would have had some notice of the interim hearing......did the court send you any notification of this?

 

Good luck I am sure you will get to the bottom of this.

 

no- first i heard of it was a month after it was granted

[diddydicky]

- i dont think there is a need for a hearing for the interim order- it is designed i think to prevent a debtor- on being alerted to the application - from disposing of the asset

 

that doesnt worry me unduly - it is the application itself and the false declaration of what was in the agreed ccj

[diddydicky]

yes- and i just found in my file a copy letter from restons to my sols referring to a draft consent order

 

and for which my sols negotiated the monthly payments

 

be interesting to see the actual consent order

[diddydicky]

the sols fees will come out of the proceeds

 

your creditors will only be able to take whats left

 

i presume you are going into rented accomodation?

 

THEN

 

the worm turns and as you will then have no assets- you will be able to take control of your remaining debts and you will be in the driving seat as the creditors cannot then take what aint there to take

[diddydicky]

well i dont know your personal circumstances but i probably would not sell if i did not have to

[diddydicky]

If the instalments have been made as part of the court order you will be able to challenge their ability to secure a charging order against your property. They should only be able to do this if you have defaulted on the instalment order, my guide in the very first post of this long thread explains a bit more. You should always challenge any potential applications.

 

you should see my new thread

 

Charging orders- a salutory lesson

 

- posted today

[diddydicky]

against the sols i think yes

[diddydicky]

orders for sale are VERY rare and the more equity there is in the property- in comparrison to the amount in the judgement- the LESS likely it is that a judge will grant an order for sale- even in these rare cases

 

i could not forsee a judge EVER granting an order for sale for a £2K debt on a house with say £20K or more equity in it!!

 

in any event- one would imagine that even with a poor credit record- if you have plenty of equity and you got stuck- your first mortage lender would assist you in clearing the debt- the more so if you are asking for a "bridging loan" for 6 months

[diddydicky]

if you intend to pay it off in 6 months i would be inclined to write and offer them XXX per month for 6 months and then a full payment of the balance then

 

tell them if they do not agree you will seek a determination from the court to this arrangment

 

it would take them well over 6 months to obtain an order for sale and sell the property in any event so their stance is total bullsh*t

 

the chances of getting an order for sale for a £2K debt with a £175K equity.................

 

about the same as me getting Pixie lot and katherine jenkins in bed at the same time!!

[diddydicky]

i'm with you on that one- although i do feel that its about time the bankruptcy level was drastically increased - £750 is a joke

 

i would like to see both limits raised to £25,000 at the same time

 

that would FORCE creditors to accept their share of responsibility for peoples situations and make them enter into reasonable repayment schedules

[diddydicky]

the costs in making someone bankrupt- especially if it involves selling properties etc including estate agents solicitors and the trustees fees will easily exceed £15,000 or more- therefore making someone bankrupt over a lesser figure than this is just plain barmy and often ends up with the creditors getting no more in the pound that the debtor was offering to pay- and many times nothing at all- resulting in the net effect being solely to disrupt the debtor and his families life for absolutely no justifiable reason

 

in this case the law is truly an Ass!

[diddydicky]

it is likely that the creditor WILL ( say annually) request a redetermination - and given that it would take you 833 years to repay the debt at £1 per month - that would seem entirely reasonable

 

however if your circumstances don't change then you can only pay what you can pay

 

however if the creditor ever found out that you were being less than truthful about your disposable income- i could well imagine that this would be one of those "rare" cases where an order for sale might be granted

Edited February 1, 2011 by diddydicky

[diddydicky]

i think you wll find that they will not make any application for sale - they are happy to sit on the CO

 

the average brit moves home every 7 years!!

[diddydicky]

take your income and expenditure sheets (4 copies) with you to the court and ask the judge to make an order for £XXX to be paid every month and that the creditor may take no further action so long as the payments are maintained

 

 

even if the judge makes no order you would then negotiate with the creditor and if you could not agree then you go back to court for a re determination

 

your house will not be force sold-

[diddydicky]

Hi guys, just a quick question. Is a charging order taken out on a house that I only half owned valid.

My Father died in 2005.

He left his property to myself and my brother.

In2006 they got a charging order on the property[by default] against me,

In 2007 I bought my brothers half share.

The CO was not register with land registry until 2010 and now they are after an gder of sale.

Any help would be gratefully recieved. Thanks,

 

it is highly unusual for a creditor to make an application for an order for sale

 

have you not been making payments to them?

 

did you make an arrangement with them at the time to make payments either monthly or at some agreed time?

 

if you agreed payments- have you kept to them?

 

how much is the order for and how much is the house worth

 

to answer your first question last- it does not matter how many people are co owners of a property - the co is a charge against YOUR SHARE in that property.

[diddydicky]

well with respect- it is hardly surprising that they now wish to force a sale

 

i think(without reading the thread) that you ought to start doing some serious negotiating with the creditor about what you can afford to be paying

 

orders for sale are very very rare................but are reserved for just such situations.............where the debtor is taking the P*ss(or will be accused by the creditor of doing so )

[diddydicky]

Thanks diddy I get your point but I think you should read the thread.

Still not really any wiser.

CO taken out in 2006 when the property was joint owned but I think the opposition did not take this into consideration when they applied so would this render it invalid.

I have no documents to check this, and after numerous SAR's the solicitors refuse to send me any relevent documention they hold on me.Mind you I have one letter were they calaim they have.

Been reading a lot about restrictions but I cant get my head round it, Need it explained simply.

 

no, as i said before- the CO that was taken out would have been against YOUR interest in the property- it does not matter how many other co owners there are so it would not be invalid

 

what the charging order (restriction) means is simple- it is a second mortgage which means that when you sell the property- your solicitor has to repay all the secured lending (which includes this charge) from the proceeds of the sale BEFORE he can give you any change

 

had your brother still been a co owner- the solicitor would have taken this only from YOUR HALF of the profit- but as you have bought him out and now own the property in toto- then the sols will deduct this amount (after any mortages before it) from the proceeds of the sale

 

as i said before- it is rare for a creditor to force a sale- but where there has been no payment or offer of payments from several years- the creditor will have a good case to make such an application

 

if the creditor advised you at the time- you will not be able to use the failure of the creditor to send docs to you as an excuse- once you are aware of the charging order it is your responsibility to ensure that you take the necessary steps to prevent any further action by the creditor

 

which is why i suggested that if you have paid nothing for 5 years you need to negotiate something

 

you can find out easily from the land registry who holds the charging order on your property

[diddydicky]

yes im afraid you accidentally made things worse there!!

 

however, if after the existing mortgages (dont forget several thousand in selling fees) there is little or nothing left- it would be unlikely that the court would grant an order for sale...........there would be no point

 

the reason that a creditor obtains an "interim charging order" without the debtors knowledge............is to prevent them from trying to alter the balance of ownership before the final charging order hearing is heard

 

so whatever the arrangements were as at the time of the interim order- you will not be able to alter it!!

[diddydicky]

i would suggest you cut and paste your queery onto a new thread- that way you will get maximum response that tacking it onto an existing thread

 

in the meantime RELAX

 

you are 101% safe from the prospect of an order for sale

 

orders for sale are as rare as rocking horse poo and even if you had equity in your house- given your medical circumstances it would never occurr.

 

further whether you were average joe soap with no money- or richard branson- a judge would not order the sale of your house when there is little or no equity

 

the forced sale of a propery is NOT a punishment- it is a device for a creditor to recover a debt from a recalcitrant debtor

 

forcing the sale of a property when there would be nothing to give to the creditor would be of no benefit to anyone- hence a judge would not order it

 

finally, the creditor would not make the application - since if it were to happen- he would lose his security

 

what the creditor COULD do- is forgo his charging order and then apply for bamkruptcy- but given your circumstances he would not do that either since again he would get diddly squat and it would cost him a lot more money for nothing

 

so go make a cup of tea- and enjoy the rest if your life

Edited February 15, 2011 by diddydicky

[diddydicky]

Can the Interim CO be placed before the judgement, or is it straight after?

 

BF

 

no- a creditor cannot apply for a charging order without first obtaining a judgement which the debtor has failed to comply with