A question about a charging order!

[kirsun10]

It was stated in the court papers (1980's) my dad/mum took a loan from a friend for £25000.00. The thing is I was young at the time of this and had no knowledge if this is true or not.

 

The person who was alledged to have given the loan got a charging order on the property which was half mine and my mum's. I recently looked at the court documentation of the time, and there was no agreement or letters to prove this loan. The whole case was made by affidavitt's of the claimant's solicitors and the plaintiff, and I suspect it being fraud, as my Dad lent him money in the 70's that he could not repay fully and on time. I have letters to prove this.

 

My Dad did not go to court at that time as he was under some mental strain and could not cope with this.

 

I remortaged the house recently and had to pay the claimant's estate the sum of £110000.00, to the claiment's estate as he is now dead, get the house solely on my name.

 

I tried to negotiate, but that did not work, then I SAR'd them and they stated they did not have to comply. They purely state they rely on the High Court Judgement that was issued.

 

Can anyone help me as I am, well totally out of pocket for something that did not concern me.

 

Please

 

Kirsun

[spamheed]

What they are saying is in part correct, once a judgement has been obtained it to all intent supercedes the agreement, one would be required to have the judgement set aside to effectively turn back the clock.

 

Before following such a route you would need to be 100% certain of the facts, otherwise this could cost a lot of money.

Before going down the litigation route, it would be wise to exhaust the more civil approach by simply writing a letter requesting copy/proof of the documentation underpinning their claim and subsequent High Court judgement, of course they will likely be reticent or even unabvle to provide this due to the amount of time elapsed and of course since they have already "won" once and had this matter settled in court.

 

if they refuse to enter into discussions then you would need to look into the technicalities and the obvious costs associated with the raising of such a claim, I would suggest availing yourself of as much legal advice as you can obtain before going anywhere near this as I feel the time elapsed might be an overriding factor

[cerberusalert]

Moved to the Legal Forum.

[IdaInFife]

2 threads merged

 

is this the same query as you had last year?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?281824-Old-Caution-Charge-on-Scottish-property&highlight=

[diddydicky]

how was the loana to be repaid?

 

was it a secured loan?

 

when was the last payment of any kind made to the lender?

 

has anyone admitted the loan in writing over the last 6 or 12 years

 

the law of limitaitons may apply (6 yrs for unsecured - 12 years for a secured loan)

[debbbbsy]

It was stated in the court papers (1980's) my dad/mum took a loan from a friend for £25000.00

 

I remortaged the house recently and had to pay the claimant's estate the sum of £110000.00, to the claiment's estate as he is now dead, get the house solely on my name.

 

If the original claim was for £25k. Why did you pay £110k.

 

For them to apply Post Judgement Interest, an agreement would have to exist that contains a PJI clause.

They should have been sending statements.

 

In order to challenge such an old judgement, the only route I can think of is applying to the courts for a declaration of enforceability. You seek the courts permission to counterclaim for a declaration as to the enforceability of the original loan.

 

But this may prove difficult.

Because of the age of the judgement.

But also because you have paid them.

 

Debs

[debbbbsy]

the law of limitaitons may apply (6 yrs for unsecured - 12 years for a secured loan)

 

Unfortunately the limitations act does not apply to the charging order. But this was gained in 1980. And the claimant died. It all seems desperately unfair.

[diddydicky]

i dont suppose it seems unfair to the person who lent the money!

[debbbbsy]

i dont suppose it seems unfair to the person who lent the money!

 

Both claimant & plaintiff have died, and at some point were helping each other financially. It is a shame that this was not resolved sooner. One has to question why, having got a charging order, the claimant NEVER in his lifetime chose to further enforce the claim.

 

I don't think there are any winners in this case.

[diddydicky]

probably because

 

a/ most who obtain charging orders are happy to sit on them until the borrower sells the house

 

and/or

 

b/ he was doing the borrower a favour by being prepared to wait until such an event