Charging order against my deceased father - help please ?!

[KraigO]

Hello everyone, sorry I have spent ages reading up on charging orders and looking at everyone`s probs but would really appreciate some help re: charging orders. This is my first post so sorry if it`s in the wrong place etc - this site is great but a bit vast for newbies.

 

My father passed away 6 months ago, largely as result of debts he could no longer manage.

He died with debts of around £ 110,000 which, thankfully, seem to be gradually getting written off. These debts were all unsecured loans on about 18 credit cards. He used them to pay off his mortgage but got way out of his depth. He worked right up to his death as a cleaner despite being 76 years old so that he could continue in a debt repayment scheme with Payplan, who were fairly helpful. I helped him as much as I could.

My father died in December 2009, leaving my mum (77 yrs old) with about £40,000 of debt on joint credit cards and a charging order. My only prob is now the charging order. My mum needs to downsize to a small flat but it`s going to be tight to afford something after she settles her joint-debts and if she has to pay the charging order (will it be 100 pc repayment ?).

 

The charging order was granted in 2006 by HFC and RESTONS for £14,000 approx.

He tried in vain to attend court and get the case moved to a more local court.

I have written to HFC and asked them nicely whether they would consider lifting the order.

So far, no reply. The order still stands with the Land Registry.

My mother was totally unaware of the financial mess my dad had got himself in - he handled all the finances (or mis-handled, bless him). He was in a repayment scheme with Payplan and I think he could have presented a good case against the order as it did " unfairly prejudice other creditors who have accepted pro-rata payments". I don`t know where to go from here. Any help would be very much appreciated. I can`t afford legal advice. I am disabled, on disablity living allowance, but will still make a donation to this great organisation out of principle. Hope this makes sense. I just want to get my mum moved to a small flat where she can make a fresh start and don`t want her to fall victim to the financial worry that killed my father. ( He got so tired/scared of endless phone calls/letters from creditors and died of a heart attack).

[miss muppet]

Hello KraigO and welcome. What a very sad story but your parents are/were lucky in having a son to be proud of, I don't know much about charging orders but am attaching a link below which I hope will be of assistance. You can also type in charging orders in the search part of the forum for more info, I am sure more members will also be along to help shortly:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/212396-trying-set-aside-judgement.html

[newstarter]

Hello Kraigo I have just read your thread and maybe i can be of some assistance.Right,a charging order is usually an unsecured debt which a creditor has applied through the courts to become a secured debt on a property.This has been going on for some years now but as more and more creditors have become aware of this option it is now widespread.The creditor registers a charge with the land registry and the only way it can be lifted is through discharge of the debt.Firstly the creditor will apply for an interim charging order {sort of provisional} to give the debtor chance to come to a payment arrangement,if no arrangement is made then the charging order becomes absoloute.For many people who are in debt,charging orders are not usually a problem as its rare that a court would order the sale of the property indeed i have known people with 6,or 7 charging orders on their property,it can give people the breathing space they need to get their finances back on track with the option of lifting the order through the courts after the debt is paid.

[newstarter]

As for your own particular case the charging order issued to H.F.C. Because they already have the order in place and i assume there is equity in your parents property i cannot see them doing any kind of deal or arrangement.You see they know at some point they are going to get 100 percent of their money back so they are not going to settle for a deal that gives them say fifty.Another,and more serious aspect to this is H.F.C may have been awarded on going intrest on the 14000 So if your not care full you may be in for a nasty shock,it depends on what the judge awarded H.F.C at the hearing.

[newstarter]

The first thing you need to do is find out which court issued the charging order,then apply for a duplicate so you can go over the details.The lender of your mortgage will have this information.You need to do this before you make a decision on which course of action you decide to take.Ring the lender or write to them requesting this information A.S.A.P you should recieve this information in about a week.Once you have this,then you can p.m me if you wish or just post a copy on line as a pdf document.

[banker_rhymes_with]

Hello KraigO!

 

I can't help, yet, but am investigating these issues, i.e. handling Debt after Death.

 

I'll try to help as I find things out.

 

One thing that stands out, and that's the fact that HFC and Restons do not always have very strong cases. I suspect they won the Charging Order by stealth, so now is a damned good time to see if that can be put right.

 

I believe an Executor has quite powerful Rights when it comes to handling the Estate, one of which is making sure Debts are genuine and valid before allowing any funds to be paid out...charging order or no charging order.

 

Cheers,

BRW

[KraigO]

Thanks very much for all your advice folks. Very much appreciated. I have all the original court docs. One thing I have noticed. The judgement creditor kept mentioning as a creditor :

"Portman Building society of Portman House...etc"

My father had a mortgage with the above but had long since paid off his mortgage. Surely this was wrong ? I guess it`s probably too late to fight on this basis ?

 

The final charging order was granted at Watford County court on 24/01/07 and amended under the slip rule CPR 40.12 (1)

 

I note under the court orders that :

"1. the charge created by the order made on 5/12/06 shall continue.

2. the interest of the defendant in the asset described in the schedule below stand charged with payment of the sum of £13,497.74 the amount now owing under a judgment or order given on 13/11/06 by Northampton County court in claim no. *******, together with

any further interest becoming due and £213.00 the costs of the application.

3. the costs are to be added to the judgment debt.

4. Defendant`s application for a variation order dismissed".

 

Very much appreciate any help you guys can offer. For a 76 year old this was all so hard to defend. I know he tried to get a variation order - he wasn`t fit enough to attend court. It was too far to travel, and on the day of the hearing I remember the country was deluged with snow. There was no way he could make it from Haywards Heath to Watford but intended to.

 

I know we should have tried to get it discharged immediately but it wasn`t quite so simple.

[debbbbsy]

The debt should still be for £13,497.74 + court costs.

They can only add post judgment interest if his agreement contained a "PJI Clause" . If the account has increased, they will have to provide the agreement to substantiate there claim.

However under the new CCA 2006 amendments, if interest is 'legally' being applied. The have to provide statements. If they have witheld the statements, they don't get the interest.

 

Good Luck

Debs

[Docman]

KraigO

 

The fact that the original judgment was in the Northampton County Court indicates that it was an online claim and a default judgment was awarded, ie your dad didn't respond when he got the court papers and Restons went for judgment.

 

It might be worth having a look at the documents on the court file if you are the executor in order to establish whether any credit agreement was filed and if it could be challenged.

[KraigO]

Thanks Docman for yr help.

[KraigO]

Should say thanks to Debs, BRW,Newstarter and Miss Muppet as well (sounds like an Oscar speech - i wish) - your help is much appreciated. Ploughing through all the docs that I have and will see what I find. God bless u all.

[KraigO]

Hi, in a bit of a difficult situation now. Have told payplan (debt management company) that my mum is selling her house. The problem now is the charging order. If Restons / HFC find out the house is up for sale they will immediately refuse to negotiate and grab as much as they can (the full £30,000). Payplan have told me (off the record) to sell the house and approach them when I have the funds and make an offer then. Surely by this stage they`ll know about the house sale anyway ? Am I better off approaching them now? I`ve tried to contact them but get nowhere. Any ideas would be appreciated. I`m angry that Restons got the order in the first place using pretty underhand tactics. My mum needs every penny she can get when she sells the house so she can afford a 2 bed flat. She has £40,000 of debt that my dad left her with (on top of charging order) so it`s going to be very tight affording much more than a garden shed at this rate.

[banker_rhymes_with]

Hello KraigO!

 

I'd cancel the Sale for now, and negotiate with them. Try and pay them off and dump the Charge if at all possible, and then Sell.

 

Or find a way to fight the Charge and have it taken off.

 

They will sink their fangs into the largest sum they can get.

 

Cheers,

BRW

[debbbbsy]

I can't see how the house can be sold without there knowledge. If there is a mortgage on the property, the mortgage company would be aware of the charging order. Also any searches made by a prospective buyers solicitor, would also show that there is a charge registered. And would halt any prospective sale, and probably annoy the buyer.

 

What needs clarifying is, if the CCJ was only made aginst your father, the charging order only covers his share of the property. It all depends on how much equity is in the property.

 

I would recommend tackling this head on.

 

When you say your mum has been left with debts, are all of these accounts in joint names.

 

debs

[KraigO]

thanks for all yr comments. The house is valued at £295,000(sounds like a lot but property prices here are thru the roof). There is no mortgage - despite

Restons mentioning there was a mortgage during the charging process when there wasn`t. My dad got into all this debt using credit cards to pay off the mortgage so I can`t be greedy. The debts that are left (£30,000) and are in joint names with my mum/dad, one is in her sole name - she actually knew nothing about them till he died - it makes me wonder how my father could take out credit without her signature or something ? He had well over 20 credit cards, some with the same bank, and it amazes me how he did this ! He was in his 70`s !

Anyway, Payplan have told me they will settle my mum`s outstanding debts when house is sold. I know most will settle for a ballpark figure especially the ones bought by debt collectors who have got the debt for a small amount.

I`m more concerned with the charging order. Luckily the solicitor handling the sale of my mums house is a good family friend. I can ask him to speak to HFC because I`m getting nowhere.

The charging order is in my fathers name - I read somewhere that when there`s a surviving spouse and the debt was in the deceased name that the charging order is split in half. I`m probably wrong on that one. As I mentioned before, my dad was in a repayment scheme with Payplan and I think the charging order gives HFC preference over his other creditors. Bit too late now. I`ll see if I can get hold of HFC again. I`ve written many letters - would I be better speaking to Restons (a last resort for me).

Thanks again for all yr help. When this is resolved I`ll be making a contribution to the forum - it`s fantastic. I`ll follow your advice folks, thanks for yr recent comments.

[Docman]

KraigO

 

Why are you bothering with payplan? They are just another financial services company who sell financial products including debt managment plans. You will get better legal advice from the solicitor handling the sale or, dare I say, from this site.

 

The advice 'off the record' to sell and then negotiate is typical. If Restons have a Charging order, as has been pointed out above, they will know about the sale and your buyer will require them to be paid off IN FULL when the sales completes. If you want to avoid the payment of £30k PLUS their charges (and boy will these mount up when the sale is about to go through) you need to get the charging order sorted out pronto. Otherwise if you sell for 295k, you could end up paying 50k to HFC/Restons!

[KraigO]

take your point. Payplan are only involved because:

 

1) they`re free ( still funded by banks though, I know) but don`t charge commission etc.

2) when my dad went to CAB owing £100,000 + they referred him to Payplan. He was in such a state that he`d have robbed a bank so payplan seemed lesser of 2 evils.

3) Payplan are keeping the other debtors happy ie. the £30,000-40,000 my mum owes to her other creditors till the sale can go thru.

 

Take note of your comments though. I`m doing my best to help but on disability benefit so hard to help more than already do.

[debbbbsy]

http://www.consumeractiongroup.co.uk/forum/autolinker/images/link3.gif[/img] or something ? He had well over 20 credit cards, some with the same bank, and it amazes me how he did this ! He was in his 70`s !

]

 

Even though her name is on these accounts, they also need to have her signature for them to be "Joint & Several " accounts. If they are unable to produce an agreement with her signature, she is not liable for any money outstanding on these accounts.

 

I would go and buy a big file. Send a CCA request to all of these creditors.(Postal order for £1), under no circumstances allow your mum to sign anything. Send each one off recorded delivery.

If they do produce an agreement, if it only has your fathers signature. Inform them that he has died, you could enclose a copy of the death certificate, and the account should be closed. You will have to do a bit of research on what happens to these debts. but without your mums signature, they cannot enforce a claim against her in court.

 

As for the charging order, you need to find out exactly what the debt is for. Has the account been frozen. Exactly how much does he owe. You need to sort this out before she sells.

 

Good luck

 

Debs

[KraigO]

Debs, thanks v much. quick question. Can i ask Restons AND HFC for all the info they hold ?

I presume so. Will this have to be a subject access request or just a CCA request ?

Really appreciate ALL your help folks. God bless.

[Docman]

KraigO

 

I doubt very much a SAR on either HFC or Restons will result in anything other than a polite refusal. A SAR is an application under the Data Protection Act for an individual to obtain details of information held by the data controller. You are not the individual on whom HFC or Restons hold data. That was your Dad and any rights to ask for data using a SAR died with him.

 

Equally, asking HFC or Restons for a copy of the credit agreement will not get you anything. You are not your Dad and Restons will take the view that they have a judgement secured by a charging order that will pay out eventually so they don't have to give you anything.

 

The best course to get the documents is to see what Restons filed with the Court. Then you can decide what to do next.

[debbbbsy]

Ok

 

The CCA request will be made by her mum. If the agreement has her name on it, & they are expecting her to make payments as per the agreement, even though her husband has died, they have an obligation to provide the agreement with her signature, to support any claim that the agreement is "Joint & several". If they refuse to comply, because the agreement does not have her name or signature. They will have to right off the debt, having admitted they cannot make a claim against her.

 

Equally, asking HFC or Restons for a copy of the credit agreement will not get you anything. You are not your Dad and Restons will take the view that they have a judgement secured by a charging order that will pay out eventually so they don't have to give you anything.

I totally disagree. Any claim on the property, from any party will have to be substantiated with or without a court judgment. I would suggest, that any request for documents be done through the solicitor handling the estate.

 

Debs

[Docman]

Ok

 

The CCA request will be made by her mum. If the agreement has her name on it, & they are expecting her to make payments as per the agreement, even though her husband has died, they have an obligation to provide the agreement with her signature, to support any claim that the agreement is "Joint & several". If they refuse to comply, because the agreement does not have her name or signature. They will have to right off the debt, having admitted they cannot make a claim against her.

 

I totally disagree. Any claim on the property, from any party will have to be substantiated with or without a court judgment. I would suggest, that any request for documents be done through the solicitor handling the estate.

 

Debs

 

 

The only substantiation needed is the charging order. KraigO's solicitor is the correct route but all HFC/Restons need to show is the court's order. Until that is set aside and the resriction with the Land Registry removed, Restons can (and will) insist on being paid in full with all their costs and other charges.

 

The charging order needs to be challenged in court on the grounds of an invalid CCA, if it is the case that the CCA is invalid or more likely not produced.

 

Checking the court will show if a CCA has been filed. If it has not been filed, and a default judgement obtained, it is for the executor of the esate to apply to have the judgement set aside and the charging order removed. Checking with the court also means that Restons are not tipped off that there is the possibility of a settlement until KraigO is ready.

[KraigO]

good news. My solicitor who is a family friend has put the house in my mums sole name. He has contacted HFC and they will not be pursuing the charging order once the house is sold. Now I just need to send the postal orders to the remaining creditors and try and get a copy of the original credit agreements. Can i ask what a CCA request is exactly ? ie. what does CCA stand for. I presume, even though some of debts have been handed to debt collectors, I send the postal order to the original bank to request the credit agreement ? really appreciate yr help

[RobinWayRobinme]

Couple points at this late stage worth mentioning. Post judgment interest cannot be added to judgement debt, it can only be climed from debtor AFTER judgment debt repaid. You can SAR original creditors and they must comply under data protection act. Id always suggest if

ts a good move. Although good news about CO. Take what they say with caution. To say they wil not pursue debt after property is sold is correct and factual as at that time there is no property to have the caution against. What you want them to agree to is thst they wil remove the caution before the sale. See my point.

R

[RobinWayRobinme]

Mad moment, dupicated repy

R