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A guide to Charging Orders & Orders for Sale

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lindyhop

 

Can I ask if you have had a CCJ registered against you for the debt? And are you assuming a no "protection of restriction (K)" as you are the sole owner of the property? A bit more info would help. thanks.

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Hi, thanks for your reply.

 

i have a hearing that is pending, im on state benefits, and a sole owner.

 

its Lloyds and SMC that are taking the action. i am waiting for a response to my CPR, SARs etc. i have read on hear that lloyds CC had the terms on the back, so i assume if they have something with a signature even if it was an application form its transferable to an agreement as it will be deemed to have mets prescribed terms(?)

 

i am fretful and wondering if LTSB had a reputation for charging orders or if they were more reasonable, or were

 

how long is a period of time that the courts consider for a debt (of just under £5,000) to be paid off?

 

its a bit of a mess

 

thanks

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lindypop

 

Is the "hearing that is pending" for a Final Charging Order or is it Lloyds trying to gain a CCJ?

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Hi Eggboxy1

 

its lloyds trying to get a CCJ, which i understand from here is the first stage, followed on very much by the mood of the DJ on the day.

 

having acknowledged the claim, i assume that i will automatically given the extra days to prepare my defence, for which i still need the missing info from Lloyds.

 

Thanks

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OK, well its at this stage you need to use any evidence you have to prevent the CCJ being registered as without that they can't proceed to a Charging Order. Was the loan taken out prior to 2006 and, if so, have you made a CCA request to Lloyds?

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HI Eggboxy1

 

their action is in connection with a credit card from the 1990's,

 

i have made a CCA request and am currently waiting for a response. SARs and CPR done and response awaited.

 

any idea how Northampton are working at the moment? and do you know what kind of rep Lloyds have for applying for charging orders

 

Thanks again

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lindyhop

 

If a hearing date has been set you need to write to the court to get it rescheduled explaining evidence you require to defend yourself has not been forthcoming. Make sure you notify the court what this evidence is, when you sent for it and that you don't want to waste the courts valuable time by turning up at the hearing and having to explain that Lloyd's have not complied with their legal commitments. (How long have you been waiting by the way?)

 

My personal experiences would tell me that it's unusual for Lloyd's to chase a debt under £5k but you can't rely on these statistics as my experiences also tell me they usually farm these amounts out to debt collection agencies too? But the whole process is far to random to call so hope for the best but plan for the worst. Which, in this case, is to make sure Lloyd's provide you with a correctly executed CCA agreement which gives them the right to pursue the debt through legal channels. If they can't then the CO is never going to happen so post back here what they provide you with.

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This may have already been answered but can a 2nd charge on a home become unenforceable if one of the parties having an interest in it didn't obtain independent legal advise before signing a postponement document (and also have evidence to prove it) ?

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This may have already been answered but can a 2nd charge on a home become unenforceable if one of the parties having an interest in it didn't obtain independent legal advise before signing a postponement document (and also have evidence to prove it) ?

 

Potentially. Look up RBS v Etridge.

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The Land Registry have just produced a new Practice Guide 76 regarding Charging Orders HERE

 

Of particular interest is Section 5 which at paragraph 3 reads,

 

"Entry of a restriction does not protect the priority of the interest to which it relates for the purpose of s.29, LRA 2002. A charging order affecting only the beneficial interests under a trust is liable to be overreached along with those interests by the operation of ss.2 and 27, Law of Property Act 1925. Accordingly, a Form K restriction will be usually be cancelled automatically, without application, when a transfer which appears to overreach the beneficial interests is registered."

 

Which information will, hopefully, a) be of use to sellers when conveyancers are telling them that the CO related to the Restriction has to be paid off prior to any sale being completed and b) eventually deter creditors from going down the CO route (if it can only be made against Beneficial Interest) as it will come to be seen as an ineffective debt collection method with poor security.

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The Land Registry have just produced a new Practice Guide 76 regarding Charging Orders HERE

 

 

 

Of particular interest is Section 5 which at paragraph 3 reads,

 

 

 

"Entry of a restriction does not protect the priority of the interest to which it relates for the purpose of s.29, LRA 2002. A charging order affecting only the beneficial interests under a trust is liable to be overreached along with those interests by the operation of ss.2 and 27, Law of Property Act 1925. Accordingly, a Form K restriction will be usually be cancelled automatically, without application, when a transfer which appears to overreach the beneficial interests is registered."

 

 

 

Which information will, hopefully, a) be of use to sellers when conveyancers are telling them that the CO related to the Restriction has to be paid off prior to any sale being completed and b) eventually deter creditors from going down the CO route (if it can only be made against Beneficial Interest) as it will come to be seen as an ineffective debt collection method with poor security.

 

 

 

Hi,

This is very interesting. It is a bit complicated and I am a bit thick. So I hope that I have this right; if not please ignore me and I shall keep taking the medication!

 

I have a situation where I have 6 charging orders against my property. These were all forced by banks etc and 2 have statutory interest clocking up each month. After the mortgage, there is very little equity and the likely hood is that there would be little available in the event of a forced sale.

 

The house is in my name only; my wife shares it with me and has done since I bought it. Funds were used from our previous house, to purchase the property.

 

What I should have done was to register my wife's interest in the property at an early date; I did not and the charges went on before I realised that I should have done that! Solicitors have advised me (12 months ago) that my wife would probably not be able to jump in font of the charges to grab a slice of any equity when, eventually the property is sold.

 

I wonder if this new directive will help to strengthen any claim that she has.

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Gramtrad2

 

Unfortunately, the above only refers to a Restriction which is registered where a Charging Order has been made against one of the JOINT owners of a property. Under these circumstances the Charge can only be made against the financial interest in the property of the debtor.

 

In the case of Sole owners Charging Orders are made against the property itself and so attaches to the legal estate. These, therefore, have to be paid when the property is sold to allow a transfer of a property to proceed.

 

Whether that prevents your partner from making a claim (given her interest preceded the Charges) would probably depend on what she can provide as evidence to support the claim?

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Hi

just so that i am clear on the issue of sole owners. if selling, any outstanding CO debt has to be paid off prior to the sale being completed or does the CO debt come out of the sale proceeds after any remaining mortgage is paid?

 

sorry to butt in

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Yes that's right, mortgage first then CO,s in order or date registered. But if nothing left to pay after mortgage not a lot they can do.

 

Hi

just so that i am clear on the issue of sole owners. if selling, any outstanding CO debt has to be paid off prior to the sale being completed or does the CO debt come out of the sale proceeds after any remaining mortgage is paid?

 

sorry to butt in

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so sorry eggboxy1

 

im even more slow than normal today. does the CO come out of the sale proceeds then?

 

Thanks

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so sorry eggboxy1

 

im even more slow than normal today. does the CO come out of the sale proceeds then?

 

Thanks

 

Yes, that is my understanding. So if the mortgage takes all the sale proceeds the charging order would be left empty handed.. which seems to be a bit of an issue !


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It's my understanding, too. Although I'm unclear if the CO holder is able to block a sale in these circumstances if, either, the property is being sold at under market value (eg: to a relative) or they want the sale to happen in the future when property prices may increase and allow them to be repaid? However, if the property is sold the underlying CCJ will still be in place which still allows other enforcement methods to try to recover the debt.

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It's my understanding, too. Although I'm unclear if the CO holder is able to block a sale in these circumstances if, either, the property is being sold at under market value (eg: to a relative) or they want the sale to happen in the future when property prices may increase and allow them to be repaid? However, if the property is sold the underlying CCJ will still be in place which still allows other enforcement methods to try to recover the debt.

 

As the CO owner has a legal interest in the property they can block the sale, it would then down to the courts to decide whether or not allowing the sale is 'just and reasonable' - well that's how I understand it :)

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For anyone interested, there is now detailed confirmation on the MSE "Charging Order The Myth" site of a property being able to be sold without the creditor with the CO on Beneficial Interest being paid from the proceeds of the sale. If you look for the posts.of Brightonian you will see what was required to enable this to happen. It wasn't all plain sailing as there was initial Solicitor resistance. But through persistence he has managed to achieve what has long been understood in that there is no legal or automatic right of payment to the creditor upon a sale as there is only a Restriction of notification to deal with on Jointly Owned Property where only one of the owners is the debtor.

Edited by eggboxy1

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just to note re matters after the coming into force of s93 Tribunals Courts and Enforcement act, re where there is an instalment order in place, where s93, 3, 4C (amending the Charging Order Act) states that 'The charge may not be enforced unless there has been default in payment of an instalment under the instalments order.' subject to 4D

Edited by Ford

IMO

:-):rant:

 

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My ex partners solicitor has made a charging order on my property as he is still registered on the mortgage. He unfortunately was unable to pay the outstanding solicitors fees, therefore his solicitor has made a charge on my property. His solicitor is also threatening to force a sale of my property in order for them to recuperate fees. Initially my ex partner was entitled to a settlement on sale of the property, however, he has agreed to forfeit this settlement and we have made a Deed of Trust. Please advise if my ex's solicitor can have this charge made absolute in court? What will happen when I come to sell my property?

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My ex partners solicitor has made a charging order on my property as he is still registered on the mortgage. He unfortunately was unable to pay the outstanding solicitors fees, therefore his solicitor has made a charge on my property. His solicitor is also threatening to force a sale of my property in order for them to recuperate fees. Initially my ex partner was entitled to a settlement on sale of the property, however, he has agreed to forfeit this settlement and we have made a Deed of Trust. Please advise if my ex's solicitor can have this charge made absolute in court? What will happen when I come to sell my property?

 

I am not sure they can do this. Although I have asked for others on the Site team if they know.


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Is your ex-partner named on the title deeds as a co-owner?

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A charging order will change a property owned as a joint tenancy to a tenancy in common. His creditors can put a charging order on his share of the property, which would normally be paid on sale from his share of the sale proceeds.

 

What does the Deed of Trust say?

 

Not sure they would be able to get an order for sale, especially if the debt is not that large and if he no longer has a financial interest in the property.


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Hi thanks for your reply. The deed of trust states that he does not have any interest in the property and all proceeds go to me .My ex partner is registered with the land registry as a proprietor as he remains on the mortgage. His solicitor registered a restriction with the land registry on the benficial interest of my ex without informing me.

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style="text-align:center;"> Please note that this topic has not had any new posts for the last 1281 days.

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