Remove a Charging Order

[GardenBench]

Good evening Caggers, could I please run a thought past you and get some opinions.

I have a charging order (restriction really) on my property and it has come to light that the party named on the restriction sold the ccj and restriction within weeks of getting it (January 2012).

 

I have checked with the land registry and county court and they have not substituted themselves as claimants with the court and therefore the restriction has the wrong company's name on it.

 

Would it be worth a go at having the restriction removed via the court as the company named on it no longer owns the debt and the company that do own it have not legally (via the county court) changed themselves to the claimants? All thoughts welcome.

[ken100464]

Interested to hear any advice on this as this is happeneing time and again now.

 

But there does seem to be some lack of clarity on what they can and cant do. A few threads about but no one seems to stick their neck out to say yes you can do x y z or no you cant do anything.

 

I am in same boat as you and it just seems wrong a DCA can buy the CCJ but not pay to have themselves substituted. And by that on the CO either. So like you we have a company we owe no debt to having a charge on our house. Yes we did once owe them but we dont now. And the new owners have done nothing to register that debt to themselves contenting themselves to use the original solicitors the OC used.

[spamheed]

In my mind (and I stand to be corrected)

 

This is a judgement ordered and potentially enforced by the HM courts, governed by UK statute and as such it cannot be changed, varied or otherwise altered without the permission of said courts. The claimant and assignee should have sought the permission of the courts prior to "selling" it, I doubt if the act of "selling" a CCJ in such a manner is even lawful at all.

 

Surely the correct process would be to apply to the courts to change the name of the claimant creating a two part scenario where the actual "sale" would not be of interest to the courts as it would be a commercial or business related transaction ie selling the interest in the CCJ rather than selling the CCJ itself.

 

If they are stating that they have sold the debt, I would suggest complaining as it could be seen as contempt

[BRIGADIER2JCS]

The CCJ and CO have not been sold the account has!

The Judgement and the CO are most probably still in

the original claimants name and the new owner of the

account will have to apply to the court to get the judgement

altered to their name.

[spamheed]

If at some time a 3rd party have purchased the account and associated judgement and then requested that the debtor pay them instead of the claimant named on the CCJ

- As the judgement was obtained under certain terms and conditions, and in changing any element of the judgement, ie amount, frequency of payment, payee, surely they are effectively varying an agreement without the courts permission.

 

obviously if they continue to use the OC solicitor or agent to obtain the payment then there would be no material change to the T&C of the judgement

[GardenBench]

The new owners have not subsituted themselves as claimants with the courts and I am now paying the new owners the court agreed instalment every month even though I have no legal document to say they are entitled to collect it.

 

If I went back to court now with a set a side defence of

- The company who got the original judgement sold the debt to another company who obtained a charging order who then sold it to another company who after 12 months have not substituted themselves with the courts and therefore the charging order is invalid as I do not owe the company have it anything as they have sold the debt

- would I be likely to succeed? 

 

Thanks in advance

[ken100464]

Gardenbench.

 

Very nearly same position as you.

 

Spamhead the original payee is the same the claimant is not. Doesnt matter in that effect. What is galling is the OC remains in place on the CO at the LR but we have no debt to them.

 

So to a layman this does seem an abuse but no one seems to be able to point anyone to anything.

 

For me the debt is sold I understand that. But unless the new owner pays the court (and there is the rub I believe as I think the industry is conning us to save a few pennies) then it CCJ is still in the OC's name. The payee might remain the same but the court document is wrongly worded now.

 

Its almost as if the debt and the CCJ have become dislocated/seperate. The CCJ is then used to get the CO to secure the debt onto the house but on the LR files its the OC who has benificial charge on our house not the new owner. And we owe the OC nothing now as the debt belongs to someone else.

 

And I think thats what we are bleating about. Someone we owe no money to has a charge on our house and no one on here seems to think there is a problem with that. Yes the debt exists and yes the new owner could go to court to substitute themselves as the new claimant on the CCJ and yes presumably they with the CCJ in their name could then get the charge on the house made over to them. But they dont.

 

And thats what we are asking the great and good on here. Why? What risks to us of challenging this in the court? How much does it cost this process for them?. Is it just an admin thing or would it reopen a can of worms via a court where a redetermination could happen to our detriment. Would the court be happy something they have granted is then sold willy nilly without due regard of the court. Do they realise its just a debt collection tool for some.

 

Its a genuine question and one which just seems wrong.

 

Just think about it someone you owe no money to has a charge against your house? Who honestly would be happy with that?

[spamheed]

I think they could - and would be allowed to substitute themselves as the claimant and you would possibly carry the burden of wasted costs when they circumvent your claim.

 

I believe (and it may be a little late in the day for this) but I believe that when you were initially approached by the "new owner" you should have issued a "prove it" letter, forcing them to approach the courts with a view to substitution, whilst you would need to maintain payments to the OC irrespective of the demands of the"new owner"

 

I think your first step should be a complaint to the court who issued the judgement

[ken100464]

Must admit this was what I came to conclusion of.

 

Our personal claim is not worth tugging the owners nose for and certainly not in the market to increase our debt just because the admin hasnt been tied up correctly.

 

But if we had a substantial CO and were thinking about moving knowing the debt is secured but the DCA has paid buttons for the debt then wouldnt it seem like there is some cosy arrangement going on.

 

The DCA is creaming in on a secured debt, the bank has written it off and claimed tax relief but still holds a charge. You sell up the charge gets satisfied but in the mean time the DCA has been taking the payments very probably getting into profit on the account they paid buttons for.

 

Bank gets paid fully plus tax relief on the full amount plus the buttons from the DCA. The DCA gets a secured debt you can do feck all about or fight and if they want can take you all the way to full payment.

 

The only thing that could possibly be against them is if at sale you proved the debt to the bank was satisfied so the charge falls away.

 

But its a most unsatisfactory place to be. And with more and more charging orders being granted then more and more people will find themselves in this position.

[spamheed]

There have ben a number of conversations over the year about the immorality of selling a debt which has been written off against a tax liability.

 

Meaning that the bank has lost nothing because at the end of the day they just pay a smaller tax bill,

The DCA buy nothing for peanuts and then enforces the nothing with the blessing of the courts and parliament.

 

immoral but as of yet not unlawful

[ken100464]

Well that doesnt surprise me an immoral act conducted by an immoral industry with the support of immoral politicians who get wined and dined by the immoral industry.

 

Meanwhile the public get stiffed over and over again.

 

But thanks for the insight. Most helpful

[GardenBench]

Thanks for the input.

The reason I am looking to get the restriction removed is that the debt is for a shortfall mortgage from before I met my husband.

He bought the house we currently live in and my name was only put on (after a lot of discussion, I didn't really want it to happen) following a health scare he had.

 

You can imagine now that every time we have a row he starts having a go about my debt being secured on his house!

To tell the truth I completely agree with him.

 

What I am thinking is if I apply to the court to have the charge removed they will in turn inform the creditor who will not turn up as they no longer own the debt.

 

I would then go with the argument that a DCA that has a restriction on my property for a debt that they no longer own and therefore the restriction should be removed and when (if) the new DCA apply to be substituted they can reapply for a charging order.

 

I would then (very quickly) get a solicitor to draw up a legally binding agreement showing my interest in the property as a very low percentage as my husband put down a 50% deposit and has always paid the mortgage.

 

Does anyone have any comment?

Thanks

[the tinkerman]

Hi

 

I had CCJ still in OC name but was sold twice to a DCA and never substituted for 9 years & never even received NOA & was still paying OC solicitor,

 

went to court explained all of this to judge who was not in the least bit interested as to how long it had taken them to be substituted or the lack of a NOA,

was told it is a CCJ and I owe it regardless,

PLUS ENDED UP WITH FOUR FIGURE COST'S AGAINST ME THEN GOT A CO FOR MY TROUBLES,

 

so IMO I would think it would be exactly the same senario for a CO substitution you never know with these people rock the boat and you may end up with a OFS, just my own experience but at least been their and done it rather than people just saying what these people can and cannot do.

 

Once you get to court what the Law states and what the Judge's interpretation of the Law is are two different animals, hence the saying the Law is an Ass (no truer words said)

 

A few people on CAG just said I got a bad Judge (who did not know the Law) but when I asked the question has anyone on CAG actually successfully defended any of the points I had raised in court and won or had any case laws to verify such but all went quite,whilst I think CAG is a absolutely fabulous site for consumer info IMOO we need more proof that the Law's actually works in a court of law before jumping in with both feet as I did.

 

Plus don't fancy my chances of challenging a judges decision without any solid evidence, for starters the costs would be horrendous! and if you lost it would be a canal job.

 

Just a quick word on selling a debt as regards the OC claiming I think it is known as VAT on Bad debt Tax Relief, I have asked this question before on CAG, as I believe on the HMCR website its states somewhere that a debt cannot be sold if the claimant claims Bad debt Tax Relief yet quite how you would prove this or again anyone who has successfully challenged this point and won then I would like to here from them.

 

Off the HMRC website:

 

When you can reclaim VAT on bad debts

You can reclaim VAT that you paid to HMRC and which you have not received from the customer. The conditions are that:

the debt is more than six months old and less than four years and six months old

you have written off the debt in your VAT accounts and transferred it to a separate bad debt account

the debt has not been sold or handed to a factoring company

you did not charge more than the normal selling price for the items

 

 

 

Tinks

[ken100464]

Thanks Tinkerman.

 

A real experience and somewhat confirms not tweaking something is probably the best advice even though it sucks that someone who you owe nothing to has a charge against your house.

 

Just confirms that everyone is against the little guy and for the few that escape the majority of us end up having to pay off inflated debts to powerful corporations one way or the other.

[BRIGADIER2JCS]

Hmmm. there is no VAT on a consumer credit debt to be reclaimed this section applies to businesses that have instance been a victim when a customer fails to pay invoices to insolvency for example, so BDR has no relevance in the sale/purchase of these debts.

[Old Cogger]

Can stop scratching my head now - ouch splinter!!!!

[BRIGADIER2JCS]

DCAs carry insurances I believe to cover a proportion of losses not covered when debts are written off,

tax relief (NOT VAT) is allowed on debt written off.

[Old Cogger]

DCAs carry insurances I believe to cover a proportion of losses not covered when debts are written off,

tax relief (NOT VAT) is allowed on debt written off.

 

 

sounds more logcial!

[the tinkerman]

Hi Brig

 

Just found the thread I was referring to back in 2011 http://www.consumeractiongroup.co.uk/forum/showthread.php?306400-Oc-tax-write-off-debts-query you yourself actually had some input into this thread with the quote: (It's an interesting proposition, but how can it be proved?.)

 

This was the actual paragraph from the HMCR website I was looking for and not the one I referred to on this thread.

 

 

Do not know if this helps but saved this on one of the threads I picked up on this site.

 

If they have wrote off the account and claimed VAT Tax relief, then they cannot sell the debt - the issue is proving they have claimed the tax relief.

 

In section 2.2 of the HMRC Reference: Notice 700/18 (December 2002) it states that a creditor who has met the condition of placing a debt in a “written off” account cannot sell the debt or assign the debt having claimed “bad debt relief

 

I knew I had discussed this topic once before just took a bit of time to find the thread.

 

Tinks

Edited April 11, 2013 by the tinkerman

[GardenBench]

Thanks for all the reply s but it seems the post has gone a bit off track. From Tinkermans response I take it that it is a bad idea for me to take the DCA back to court but this seems very unfair. Surely if you follow the letter of the law you cannot have a charging order on someone's property for a debt that you no longer own! Why would a judge not allow this if at the time of completing the form the incorrect DCA name was registered with the land registry?

[ken100464]

GB.

 

Understand where you are coming from and it dont seem at all right. An entity who you owe nothing to has a charge against your home.

 

The debt still exists thats not the argument just its become disconected from the legal document enforcing it and by default the charge against your property. I am sure this is a cost saving by the new owners. By blagging it they save the court fees. What is a variation fee nowadays?

 

I like to think it along this way. What if you sold your house now? An entity you owe no money has a charge against your home. Do they get paid? And if they do what happens to the money? Does the OC retain it or do they pass it over to the second party? If they dont what happens to the sold debt? Is there an agreement between the two parties? to pass this money over. Do they share it? or if there is no money owing to the OC does the charge fall away.

 

Its a mess.

 

But as Tinkerman seems to be the only person to try and resolve this and by his own admission lost heavily I tend to think I will heed his experience.

 

Perhaps the only way forward on this would as Spamhead intimated be to write to the court and pose the question not as a confrontation with the court more as advice from them. Either that or ask your MP to ask the question of the MOJ??????

 

We know what they should be doing but they aint so why aint they doing it.

[maroondevo52]

Thanks for all the reply s but it seems the post has gone a bit off track.

 

Off track posts removed to another thread.