Order for Sale - Restons Solicitors

[jacquismith1980]

Hi

 

Can anybody offer me some advice please

 

Situation : house is in joint names although now divorced and

 

I currently live in property with my daughter who is 9 and I pay all the bills

 

There is a charging order on the property in favour of ME III Limited as I understand it

- I have today received a claim form from stating they are applying for Order of Sale.

 

I did offer back in October 2013 to pay £10 per month and asked they provided me with bank details to set this up,

they never did this although amazing a letter has appeared in the witness bundle which I never received.

 

What is my next course of action

 

I called them today and s

 

aid I am happy to pay £15 a month

( I thought that because of the charging order they would get there money back when the house is eventually

sold but obviously this is not the case)

 

I am not sure how to proceed

 

Any advice would be great

 

From a worried Mum

[sequenci]

Hello,

 

How much is the debt for?

[jacquismith1980]

£4,500 - property is valued at £200,000 with £100,000 mortgage

[sequenci]

They haven't got a chance in getting their order for sale. My gut feeling is that this is simply a scare tactic. If they do make the application it's unlikely to succeed.

[dx100uk]

what the org debt all about?

 

dx

[jacquismith1980]

I have a hearing date for the 24th June 2014 - What is the next process ? Obviously I want to advise that judge that 1) the information in their statement is incorrect - they have advised Court that me and my ex husband live there only when in fact they are aware that it is only me and my 9 year old daughter and 2) that I have offered to make a monthly payment ( I know it is only £15.00 but that is all I can afford)

 

How can they make a claim against my Ex Husband when he is not party to the debt although he is a joint owner of the house

 

I am confused as to which way I should proceed

[citizenB]

Is the debt in single or joint names ?

 

I think you will be given the opportunity to provide a written witness statement to the court before the hearing. However id does seem as though the Solicitors are not providing an accurate account of the situation.

 

I will alert site team for some more advice for you.

[jacquismith1980]

The debt is in single name, property is in joint name - thank you for your help, it is much appreciated

[sequenci]

Hi there. Have a read of https://www.nationaldebtline.org/EW/factsheets/Pages/15%20EW%20County%20court%20-%20charging%20orders/Page-06.aspx#quicklink1

 

and https://www.nationaldebtline.org/EW/factsheets/Pages/15%20EW%20County%20court%20-%20charging%20orders/Page-07.aspx

 

*really helpful*

[AndyOrch]

Hi jacquismith

 

Once a charge is in place, a creditor may consider the use of an order for sale to recover the sums secured. Here, a practical problem may arise in that a charging order may not be enforced unless, at the time of the application, the whole or part of any instalment remains unpaid. It therefore follows that if the debtor brings instalments up to date at any stage, the Judge will be bound to dismiss the application. This could lead to last minute applications for relief by debtors facing eviction which in turn could lead to increased costs for creditors.

 

Regards

 

Andy

[eggboxy1]

I'm awaiting a response from the Ministry of Justice on this matter (as my ex had a similar experience) as when the last Charging Order Assesment paper came out (which decided on the £1000 threshold limit made) part of the reasoning for the decision included at Section 3.1,

 

3.1 Compliance with a charging order would continue to be the responsibility of judgment debtor. As long as the judgment debtor meets the instalment payments agreed no penalty should arise. Should the judgment debtor default, the creditor may apply to the court for an order for sale (but case law exists to protect family or primary residences so this is only likely in cases concerning shares, unit trusts or secondary properties or land).

In response, Michael Anima-Shaun (who was point man for questions on the paper) and in response to what Case Law they used replied;

"Hi, we spoke earlier on today. You wanted to know about the case law in existence that provided added protections to defendants facing Order for Sale. I have attached our 2010 consultation which was published under the previous Government. Page 10-11 provides the case law referred to. In summary - "

 

• Caselaw - 'Mesher' type orders – provides protection as long as a minor is resident at the property concerned. The use of such orders was confirmed by a ruling in the case of Harman vs. Glencross 1986. Further powers are provided in the Trusts of Land and Appointment of Trustees Act 1996.
  
• Caselaw - Royal Bank of Scotland vs. Etridge 2001 - This case established the precedent that, where a joint loan has been taken out by, with a jointly owned property as collateral, such as the matrimonial home, it is incumbent on the lender to explain to all lendees at the time of signing the potential consequences of default. In this case it was ruled that one party had signed the forms without being informed by the lender of the possible consequences and that the Royal Bank of Scotland did not have the legal right to enforce by way of charging order.
  
• Caselaw - Bank of Ireland Home Mortgages vs. Bell 2001 - This case established the circumstances in which an order for sale would be granted, even if it concerns a family home. The equity available on the property must be sufficient to pay off the judgment creditor and all other interested parties and still leave enough money to adequately rehouse the debtor and dependants.
  

Sequenci is well versed on these matters and he is right, they haven't got a prayer of obtaining an Order For Sale given there are children (who will be protected under TOLATA 1996) but this behaviour has to be nipped in the bud, though, as the Banks, who wouldn't have threatened an OFS due to reputational issues, have now offloaded debts wholesale to bottomfeeders such as Marlin (ME111), Capquest and Lowell (who are trying the bankruptcy route) and have no such concerns. Hopefully, if the MOJ have factored in to their decision that OFS can't be gained on primary and family residencies then they should have some persuasion in getting this practice stopped.

[Marley123]

Hi Jacquismith, I'm in almost the exact same situation with Restons currently. I want you to fight them by writing a firm letter stating you'll fight this based on TOLATA (google it) & case law plus your ex will defend his share as well as you have a child living with you. Do what Sequenci & Andy & the others have stated above - fight your corner! You're NOT alone in this! Please update us on your situation when you know more, ok? Hugs, Marley123 xxx

 

 

PS- Just wanted to ask the others couldn't jacquismith supply her Restriction details from the Land Registry to the courts stating that it's a Restriction & her ex husband's interest in the property must be heard?

Edited April 5, 2014 by Marley123
more info

[dx100uk]

http://www.legislation.gov.uk/ukpga/1996/47/contents

[eggboxy1]

To back up the advice already given on here, you should also make Restons aware that you understand that no Judge is going to find it proportionate to evict a family with children for it's home for a debt their client, ME III optionally decided to purchase. And a debt it will have, also, only paid a fraction of the actual

debt being claimed (in your case around £450-00 or less.)

 

 

There is a good article here http://www.lawgazette.co.uk/law/proportionate-orders-for-sale/60832.article written by a District Judge and the last few paragraphs emphasise how a court will consider this action. It was written, interestingly, before the £1000 threshold limit was introduced and shows that the "thinking" by courts was that anything under £25,000 wouldn't get anywhere (which shows just how much the MOJ caved in to the lending industry!)

 

 

It also suggests that Article 8 of the Human Rights Act should be a factor preventing eviction due to the cases it mentions.

[Marley123]

Just wanted to update you all on *MY* situation.

 

..I had all the threatening letters from Restons,

demanding an updated I & E ( they secured a Restriction for MBNA, now switched to Marlin)

otherwise court action was imminent.

 

I stopped paying for a few months since I received nothing official stating Marlin were the actual owners.

 

After several months of requesting this & official court docs stating they are the new owners,

I still HAVE NOT received anything oddly.

 

Their letters were threatening, explained court process, house will be valued, etc etc.

 

I stated we have a family with small children,

Marlin paid PENNIES to purchase this debt & this demand is not going to hold up in court.

 

Stated I would quote TOLATA & case law should we go to court.

 

I also stated that I paid up all arrears

(I was clear that that payment was strictly for arrears only, thanks all for that tip)

upped my monthly payment a little bit (I probably shouldn't have..) & sent my I & e

 

..tbh they can see the important stuff like how much is owed on mortgage

& other debt on my credit report anyway..so I wasn't bothered.

 

They are sharks.

 

These letters STOPPED them flat.

 

They now know I will fight them should this reoccur.

 

Totally worth it imo

- I just hope the OP is able to update us as I feel this is really important

& Restons (& other sols) are getting antsy.

 

Knowledge is power,

 

peeps!

 

Good luck all XX

[AndyOrch]

Excellent Marley...very little they can attempt if there are no arrears.

 

Regards

 

Andy

[eggboxy1]

Excellent Marley...very little they can attempt if there are no arrears.

 

Regards

 

Andy

 

 

There should be very little they can attempt in any circumstances (given TOLATA and the Case Law against) but it doesn't stop this verminous lot worrying customers into thinking they are going to lose their home!

 

What would the view, in your opinion, be if there was no repayment plan arranged at the time of granting the CO (as I have seen in several cases)?

[Marley123]

Thanks to both you Andy & Egg I was able to do this!

 

 

Good question, Egg..I could also fit in that category as during my hearing the judge never mentioned any repayments until I asked her & nothing was stated in the Final CO paperwork from the courts. Does the CO over rule the CCJ or do they run concurrently I wonder?

[AndyOrch]

There should be very little they can attempt in any circumstances (given TOLATA and the Case Law against) but it doesn't stop this verminous lot worrying customers into thinking they are going to lose their home!

 

What would the view, in your opinion, be if there was no repayment plan arranged at the time of granting the CO (as I have seen in several cases)?

 

We don't actually get many (if any) threads re Order for Sale so from judgment to charging order to OFS are far and few between.One would hope that the debtor had already taken steps to vary the judgment to monthly anyway.(not many in a position to pay forthwiths.)And if they have not and done nothing then that's when we do get to these type of threats.

 

Marley Charging Orders are nothing to do with payment arrangements they are merely to secure the CCJ.The CCJ determines the payment method and amount.

 

Regards

 

Andy

[eggboxy1]

OFS's are being threatened now as the OC's (usually high street banks) have sold these debts en masse to bottomfeeders like Marlin, Capquest and Lowell. Therefore the reputational issues surrounding a company trying to evict a family from it's home have now gone as these herberts couldn't care less what their reputation's are as they have no other product sales to worry about. They actually sent my ex a valuation of the house with the usual "we have no choice but to recommend" rubbish but still accepted £1 a month.

 

 

A Judge would have to have taken leave of his senses given the protections against an OFS on primary and family homes to a company that has chosen to buy the debts and for a fraction of the original debt. But these lowlife are sending them out regardless as they know that they threat will cause the debtor huge stress. If people do get one of these through the post it's essential you let the creditor know what protections are in place to prevent an OFS happening.

[AndyOrch]

Absolutely Egg we can only hope that further protections are put in place to stop this infestation and that the courts do use their judgment with common sense in this totally unfair practice that has crept into the debt industry and being used as an oppressive threat to gain profit.

 

Until we get the threshold of say 25K for charging orders it will be an up hill struggle to contain these parasites.

 

Regards

 

Andy