Charging Order - pushing for sale of house

[focus594]

A friend of mine got a final charging order for £3000 in 2008. Nothing has been paid off the debt since then (lots of debts, small income) and she heard nothing from the company in the meantime so it was forgotten. Company solicitors have now sent a letter saying they are looking to force a sale since nothing has been paid.

 

Two concerns: The debt was allegedly legally assigned from a well known finance company to an offshore debt collector. I remember at the time asking my friend to get proof of the debt and legal assignment as the first she knew about it was when the new company issued a court order in 2008. I asked my friend at the time to get proof of the debt and whether it has been legally assigned, which apparently they did, but my friend never informed me so it went to court and the charging order was put in place.

 

I have now seen that legal assignment but it is just a letter from the solicitors of the new company saying the debt has been legally assigned to them. There is nothing to confirm this from the original creditor. Call me a cynic but I don't believe them.

 

I'm considering asking my friend tyo send off for a SAR, would that contain paperwork confirming that a legal assignment has taken place, or otherwise as the case may be. (from the original creditor)?

The credit agreement was taken out in 2004

 

Secondly, if they were to push for a final sale, how likely is it that it would happen. There is, at most, 5k equity in the house, her youngest child is 18. The amount owed is approx 7% of the value of the house. Her situation is such that she is unable to repay the debt in an acceptable timescale.

[Seminole]

Does she own the house by herself or with someone else?

[focus594]

Does she own the house by herself or with someone else?

 

Both herself and her partner are on the deeds and the mortgage. He died a few years ago (after this debt) but she has never done anything about taking his name off because, due to his age, couldn't be insured, so there was no question of the mortgage being cleared following his death. The mortgage is up to date from what she says, it has another 17 years to run.

[sequenci]

She should apply to vary the judgment to set up an arrangement where she pays a small instalment each month with a further condition that no order for sale should be allowed whilst the instalment is up-to-date.

 

They'll struggle to convince the court to allow the order for sale onm a £3k debt but it still might be worth the variation application.

[filrobbo]

Has this been to court and did they get the paper work for the ccj

[filrobbo]

To get a charging order it as to go to court

[sequenci]

To get a charging order it as to go to court

 

We can assume that's happened based upon the information kindly provided by the OP in their opening post.

[filrobbo]

Sorry yes I dident read it properly.

[focus594]

She should apply to vary the judgment to set up an arrangement where she pays a small instalment each month with a further condition that no order for sale should be allowed whilst the instalment is up-to-date.

 

They'll struggle to convince the court to allow the order for sale onm a £3k debt but it still might be worth the variation application.

 

You may remember I said upthread that I was dubious that this was a legally assigned debt? Heres the reasons for my suspicions

 

My friend received a county court summons in 2008 from the solicitors for the new creditor. There was no mention of the original creditor and my friend wrote to the solicitor requesting info, which they supplied. It contained a letter dated 2007 from the solicitor saying the new creditor had now taken over the debt as agreed with he original creditor and it was now legally assigned to them, and a fax of the original agreement. Also on the same fax was a breakdown of payments and fees charged (late payments etc) and the final note says 2007 Transferred to Solicitors. This I strongly suspect has come from the original creditor. That fax was dated at the same time my friend requested the info in 2008.

 

Would it be worth sending a SAR to get the proof that it has been legally assigned and, if so, is it best to send it to the original creditor or to the solicitor of the new creditor.

[filrobbo]

Who is the OC.

[steampowered]

Unfortunately I think it might be a bit late to challenge this on the basis of non-assignment. That really needed to be done at the time of the original court claim. They no longer need to rely on the assignment because they have a court judgment ... the CCJ by itself is enough. You could apply to set aside the judgment on the basis of non-assignment but this would be almost impossible after such a long time.

 

She may be best off with a variation order, as sequenci said I can't imagine they would have much success getting an order for sale for a fairly small debt.

[filrobbo]

They need to start to look at what charges have been added on ,they may find the debt dramaticly reduced.Then if it goes back to court for them to use the charging order, they can tell the judge that the amount owed is in dispute .

[focus594]

OR is Lombard Tricity, and to filrobbo about £150 in charges.

 

Shame about querying the legal assignment because she has just received a couple of lowell letters for two credit card debts that were CCJ'd by them in 2011.

 

I know for a fact they wont have been legally assigned.

 

Unfortunately she didn't contest them (has stuck her head in the sand big style over the last few years) and when I found out about them they had already been ccj'd, and she didn't have the £150 needed to set them aside.

 

I guess they will also go down the charging order route.

 

I was going to suggest to her waiting for them to go back to court then contesting the original ccj's.

[filrobbo]

Does she have any health issues, such has depression.

[focus594]

Does she have any health issues, such has depression.

 

No, I can't say she has. At the time of the Lowell CCJ's she went through a very stressful time at work, and took 2-3 weeks off sick through stress not long after. I think that was the reason Lowell got completely ignored.

[Guest]

presme you have read the sticky thread eg # 523 http://www.consumeractiongroup.co.uk/forum/showthread.php?203298-A-guide-to-Charging-Orders-amp-Orders-for-Sale/page27 and the related discussion thread

if you do decide to apply for a set aside, when doing so also request that any enforcement is put on hold in the meantime.

[filrobbo]

Well after reading that ford I think they can sleep easy,I don't think a court would let them use the charging order.

[focus594]

presme you have read the sticky thread eg # 523 consumeractiongroup.co.uk/ forum/showthread.php?203298-A-guide-to-Charging-Orders-amp-Orders-for-Sale/page27 and the related discussion thread

if you do decide to apply for a set aside, when doing so also request that any enforcement is put on hold in the meantime.

 

Judging by steampowered comments in post 11 getting the judgement set aside after 4 or 5 years would be highly unlikely, mores the pity. I was aware of the charging order myth having looked into it a few years ago on behalf of one of my mates after he was hit for a 67k co (sole debt joint mortgage) and I showed him that thread at the time.

 

Much as I would personally call their bluff, it isn't my house at stake. Her deceased partner is still on the mortgage/deeds so would she be still only be liable for her interest in the property or the whole now she has inherited his share? I think theres a small argument that it wouldn't leave enough money left over to rehouse herself if they were to take their share.

 

Personally I would simply call their bluff but it isn't my house at stake. A variation order is looking the best option.

[Guest]

and, if apply for an instalment order note that the Charging Order act (as amended by the TCE act s93, 3, 4C ) 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. this section should apply to an inst order made now as per s93, 6 as wouldn't it be an 'order'? or would it not be applicable? was there an inst order prior? please clarify anyone?

in other words, if s93 would be applicable re any 'order' given now in your case, get an app'n in asap for added statutory security.

Edited July 14, 2013 by Ford

[focus594]

This in relation to another thread I have but just running an idea through my head.

 

Say someone is issued a judgement and later a charging order.

 

5 years later they discover that the claimant had no right to issue the summons because the debt wasn't legally assigned to them.

 

Obviously the judgement can't be set aside but in theory could the defendant point this out to the claimant with a demand for payment equal to the judgement, which if not satisfied ie by clearing the debt/charging order, the defendant then issues a new summons for the same, on the grounds of fraud by the claimant (letter issued saying debt had been legally assigned when it hadn't been)

 

Am I right in believing that the OC must notify the debtor in writing for a legal assignment to be valid?

Also would the original CCA have been passed on to the buyer of the debt at the same time?

[focus594]

There was an agreement to pay £30 a month with the solicitors but not through the court. It is unlikely that many payments were made.

[Guest]

maybe then if you do go for an inst order now it would be subject to s93?

double check with sequenci/steampowered etc.

[sequenci]

If there isn't an instalment order on a charging order I would certainly suggest getting one. Not only would it grant added protection as per s93 you can add further coonditions too. We used to ensure people made it a condition to request no further execution/enforcement whilst an instalment was being adhered to - s93 as made this a statutory term now. Which is nice.