A guide to Charging Orders & Orders for Sale

[Undercover-Elsa]

It sounds as if this is a complex situation which needs to be exposed to anyone and everyone who will listen. I would write to your MP, Don't Get Done Get Dom, Rip Off Britain and any other consumer champions you can think of. Scandalous!

 

Elsa x

[fedupconsumer]

does anyone have an example of a declaration of trust document?

[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

[frettful38]

Hi DD, did your solicitors give you a reason for pulling out why they pulled out a few days before the trial? IMO sounds to me they had already been in negotiations with the other side and had come to arrangement between themselves then your sols put this negotiation to you? am I right?

 

The reason I say that is in my experience and I only can speak from my own personal experience is that even your own solicitors will quite happily string you along for as long as it takes and right at the end pull out and tell you some story why they have.

 

I would want answers as to why your solicitors if they were going to enter in negotiations then why did they not advise you earlier? does that make them a party to what has gone on behind your back? I think it does. I believe you have a right to get to the bottom of this and you need to know as they owed you a duty of care.......did they act in your best interests? What they advised and you agreed to was it in writing? if not then I would be asking your solicitors why they did not put what was agreed in writing if everything was 100% Kosher?

 

Maybe the trial should have been adjourned as you had a valid excuse that your solicitors pulled out.......but they had already pre planned what they were going to do beforehand.

 

Can I ask whose idea was it initially about you accepting this CCJ against your name in return for the other side accepting monthly payments? You have a lot of questions that need answering and which you have a right to know, especially after the dirty underhanded trick they have played.

[frettful38]

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.

[the_shadow]

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

 

S.

[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

[frettful38]

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

 

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.

[frettful38]

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

 

 

If that is the case then if it were me then my first point of call would be my own solicitors as they are the ones who arranged this payment plan between you & Restons and were involved. If they can confirm in writing that what you say and what was agreed that would be the more better for you and they would be a party and a witness of what the true terms were agreed on and to.

 

If they do not co-operate and do not agree to what you say is true then IMO both sides legal reps have concocted between themselves in to making you consent instead of going to trial. My theory is that Restons knew they would have lost that is why this agreement was arranged, but I am very cinical these days especially when consent orders are made.

[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

[frettful38]

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

 

Bottom line is then DD, an agreement was made between two parties. Both sides legal reps were involved. At that time this agreement was made according to you all agreed to what the terms & conditions etc etc would be. Then somewhere along the line someone one party has pulled a fast one, meaning gone back on what was agreed and you need to know which party that was.

 

I would be contacting my solicitors and be writing to Restons before this hearing date and be asking some very heavy questions. It would be great if you could get both sides stories in front of you before you go to the hearing that way you will have some idea who is telling porkies and who has double crossed you.

[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

[frettful38]

- 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

 

 

There may be no need for you to attend the hearing nevertheless,

How is an application made?

 

The application for a charging order always has two stages:

STAGE ONE – THE INTERIM ORDERThe creditor makes an application for a charging order and the court will make what is called an interim charging order if it is satisfied that you own, or have a part share (an interest), in the property in question. This is NOT the final order. An interim charging order is usually made automatically without a hearing and a date for a full hearing is set. A copy of the interim order will be sent to you.

This should be done at least 21 days before the hearing date set by the District Judge. The hearing is for the court to decide whether or not to make the charging order permanent ('Final'). This hearing is likely to be held in the District Judge's private rooms.

The creditor will also register the interim charging order as a "caution" on your property with the Land Registry who should inform you of this in writing. This means you cannot sell the property before the hearing

 

You should at least receive a copy or some sort of notification I would have thought. The false declaration should be easily resolved provided both sides legal reps state the truth and what was agreed. I would imagine that Restons will not but your solicitors should be able to clear this up for you IF they have nothing to hide.

[frettful38]

Did the Land Registry also inform you about the interim charging order?

 

Interim Order-Charging Order

 

A Charging Order is another approach that a creditor can take in order to make the debtor repay a debt. Generally this is done when a creditor has issued a CCJ and it is a way to enforce the CCJ should it not be paid in full or if any of the agreed instalments are missed. A Charging Order gives the creditor security of the debt. Once the Charging Order has been granted the debt becomes “secured” on the debtors’ house / land in the same way a mortgage or secured loan is.

 

The first step of a Charging Order is an Interim Order, this can be issued to the debtor without a hearing, normally it outlines the date for the Charging Order hearing (21 days notice must be given) which will be heard in front of a District Judge. As a precaution a copy of the Interim Order will also be sent Land Registry and this will be noted – this makes it impossible for the property to be sold. The Land Registry will also inform the debtor in writing that an Interim Order has been made.

 

If the debtor objects to the Interim / Charging Order then it is imperative that they send their written objections along with any evidence to the petitioning creditor at least seven days prior to the hearing. It is also good practice for a copy of this to be sent to the court and the petitioning creditor’s solicitor (all should be sent by registered post).

 

At the Charging Order hearing the District Judge will decide whether to make a permanent charge on the property – he will take into account evidence / objections from both sides. It is imperative that the debtor attends the hearing as if they do not it is more likely that the Charging Order will be granted. If the hearing is not at a local court then the debtor can apply for it to be transferred to a local court – the form to complete is N244 and there is a fee.

 

The District Judge must consider whether it is reasonable to make a charging order. Under the Charging Orders Act 1979 they have to consider all of the circumstances of the case such as the personal circumstances of the debtor and whether if the Charging Order was granted it would be “unduly prejudiced” – this means that if the Charging Order was granted there would be a disadvantage to other creditors that the debtor may have.

 

If the property is in joint names but the debt is in a sole name – the other owner of the property has the opportunity to explain why they do not feel that the Charging Order should be granted. Some of these objections could include: who has paid for the deposit or who has made the mortgage payments. All of these are valid points but must be sent to the court, petitioning creditor and petitioning creditor’s solicitor at least 7 days prior to the hearing.

 

If the Charging Order is granted it is very rare for a court to allow a creditor to sell the property. The majority of creditors are happy to wait for the home to be sold at some point in the future. If the creditor requests that the property is sold there must be another hearing, again the District Judge would decide using objections / arguments from both sides whether to grant this.

[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

[frettful38]

Well that's a good start

[meursault22]

It sounds as if this is a complex situation which needs to be exposed to anyone and everyone who will listen. I would write to your MP, Don't Get Done Get Dom, Rip Off Britain and any other consumer champions you can think of. Scandalous!

 

Elsa x

 

Hi Elsa,

thanks for the advice, unfortunately, I have done all this but the water companies are very good at getting court orders of all kinds, including censorship orders! There are so many stories of consumers being done down thesedays, that no consumer champion will think of challenging a court order against them and will instead move on to something else. They have even applied for a restraining order against me, which has allsorts of implications about attending court and the rights of seeing legal files against me. The reason they gave for wanting a restraining order was they claimed it was costing extra legal expenses dealing with my "overcomplicated and vexatious defence litigation." Luckily, the deputy district judge who has reserved the case to himself cannot grant a restraining order, and he can't risk letting the case go to a higher judge who may see the blatant bias and stupidity that has been going on!

[cymong2011]

Arrow Global applied for charging order last year and the court agreed it (the less said about that procedure the better ). However I informed them at the court hearing that the house was sold STC, and that the equity would probably not cover there debt, and was told by their solictor and the judge that they would simply take any "profit" from the sale of the house, after fees.

 

Now I am due to complete on the house in the next few days and my solicitor has said that I will have to pay out 5k to sell the house, due to the order:

 

Sale: 157.5k

 

Mortgage: 147k

Sale Fees: 4k

Debt: 11.5k

 

Is this correct? Is there anything I could do? I haven't got 5k to pay out, hence why I owe the bloody money!

[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

[cymong2011]

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

 

The creditor is saying they would rather hang on to the CO, I have told them I have no job, mortgage in arrears, and that would just end up in a repossession. Solicitor suggesting i pay them off at the min (9200) and dont pay estate agents and come up with an agreement with them to pay off the estate agents fees??

 

Not even rented will live with someone for a while. So no I wont have any assets ( I have my car atm but that is being sold asap)

[diddydicky]

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

[meursault22]

The creditor is saying they would rather hang on to the CO, I have told them I have no job, mortgage in arrears, and that would just end up in a repossession. Solicitor suggesting i pay them off at the min (9200) and dont pay estate agents and come up with an agreement with them to pay off the estate agents fees??

 

Not even rented will live with someone for a while. So no I wont have any assets ( I have my car atm but that is being sold asap)

 

For a start I'd get a different solicitor. From my experience, solicitors are never on your side when there are other solicitors involved. They're not above doing deals behind your back to make a little extra money. If they can get five grand out of you... Apart from that, if it were me, I'd rather give the house buyers a discount than have the money taken up by the charging order.