I owe legal costs- Judgement Creditor charging daily interest.

[Dookist]

Seems what they have done is turn the form K restriction back into a caution… as was before the LR rules were changed in 2003… (see following)

 

But you say the court can alter the rules set down by Land Registry?

 

Before April 2003

Once a charging order was obtained against a debtor over his interest in a property, whether he owned it solely or jointly, the charging order was registered as a caution at the Land Registry. This meant that the creditor or his solicitors would get 14 days’ notice from the Land Registry that the debtor and other

owner or owners were trying to get rid of the caution, probably with the aim of selling the property.

The fact that such notice had to be given meant that a debtor knew he could not sell the property before the creditor knew about it and took steps to prevent the sale. So the debtor would usually pay the creditor before selling the property.

Cautions which were registered prior to April 2003 still remain effective and the creditor will get 14 days’ notice of any attempt to get rid of the caution.

April 2003 and afterwards

The Land Registration Act 2002 (LRA) and Land Registration Rules 2003 (LRR) introduced significant changes to land registration procedures. Cautions were no longer to be used. Instead when a creditor obtained a charging order against a debtor:

If the property was solely owned by the debtor, or all owners of the property were debtors, for example husband and wife owning the property jointly and being joint debtors, then an ‘agreed

notice’ was to be filed at the Land Registry by the creditor. Effectively this was almost as good as

having a mortgageicon. The debtor could not realistically sell the property without repaying the debt to the creditor.

However, if the property was jointly owned by the debtor with other nondebtors, for example husband and wife owning the property and only one of them being the actual debtor, the creditor was not entitled to enter an agreed notice. Instead the creditor could only file a ‘restriction’ at the Land Registry in the

following terms: “No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to creditor...] being the person with the benefit of an interim/final charging order on the beneficial interest of [name of... debtor].”

This restriction was, and remains, practically useless.

[Dookist]

Hi Steampowered…

 

I will try and find a way of pasting it on here… what seems to have happened is that the original Judgement invoking a standard form K restriction has now been modified and the non standard wording amounts to a caution.

 

A restriction would allow me to sell the jointly owned property and notify the creditor once the sale has completed. A caution means I have to give 14 days notice before I sell.

 

I am not sure of the lawfulness of this as Land registry rules were changed in 2003 and cautions were no longer allowed and replaced by restrictions (due to one of the joint mortgagees being a non debtor).

 

Also whether the judgement creditor followed correct procedure in making an application to vary the original judgement, as I was told that it must be done through the appeals process to vary an order, unless certain conditions applied.

 

I would appreciate your opinion..

 

Thanks, Dookist.

[Dookist]

Well…. I have just had a letter from Land registry notifying me of the modification to the standard form K… strangely, they have backdated it to the original Judgement Order from a month before… what's that all about?!

[Dookist]

Apparently, the Judgement Creditor needs to request permission to vary the original Judgement (CPR pt 52) and that as he did not do so within the 4 week time limit, he would have lost that right to appeal as he would have been out of time.

 

So he would then have needed to make an appeal for relief of sanctions under CPR r. 3.9, and once granted that relief he must then apply under CPR r. 52.6 to vary the time limit to file his appeal notice.

 

None of these procedures were followed and my right to a fair hearing under art. 6 ECHR has been violated...

[DonkeyB]

Do you know if this application was heard by the same judge?

[Dookist]

Hello Donkey B… yes, I believe it was the same judge… Dookist

[Dookist]

Ok… I am starting to get my head around it at last…but I don't see why the court didn't pick up on any of this…

 

The Original Judgement Order was on 03-11-14. (Form K Restriction)

 

If creditor was unsatisfied with it he should have filed an appeal within 21 days of that order pursuant to CPR Pt 52 Appeals to seek permission from the Appeal Court to vary the terms of the original order.

 

Creditor made a (without notice) application to vary/modify on 04-12-14 but was out of time.

 

In spite of this, another Judgement Order was made on 08-12-14 but with a modifed, non standard text which appears to be a 14 day caution, even though Land registry no longer use cautions following changes to the rules in 2003.

 

Correct procedure was not followed.

 

As the creditor was out of time, he should have made an application pursuant to CPR r 3.8 for relief from sanctions under CPR r. 9. He must then be granted that relief and then must apply under CPR r 52.6 to vary the time limit to file his appeal notice and be granted an extension of that time limit to appeal.

 

Because none of these procedures was followed and because I was not notified, my right to a fair hearing under article 6 ECHR has been violated to put my case against the application dated 04-12-14.

 

What should I do now, though?

[Ganymede]

I'm don't think CPR 52 or appeals are relevant here.

 

The Claimant isn't appealing anything in the technical meaning they just applied to vary the wording of the Restriction.

[Dookist]

Hi Ganymede… perhaps, but even so, an application to vary an order would still need to be done within a certain timeframe once a Judgement has been made…. I think 21 days… the claimant's solicitor had plenty of time to vary the wording of the restriction prior to the final hearing… Form K is standard for restrictions and has a specific text, so why not bring it up at the previous hearing if they thought it did not offer enough security? It appears to be an afterthought… Dookist.

[Dookist]

Hello!

 

Does anyone know if I can apply to set aside or strike out a CCJ?

 

The judgement creditor did not follow correct CPR in making his application to the court.

 

He already had a CCJ against me by way of a standard form K restriction on my property,

however, more than 4 weeks after the JO he then went on to make another (without notice) application

asking the court to modify the restriction in order to provide more security.

 

In making a 2nd application he has challenged the original JO,

so should have gone through the appeals procedure,

but his without notice application denied me the opportunity of making my own representation at a hearing.

 

I wish to appeal against the decision to modify the original restriction as I think it is unlawful due to the above.

[honeybee13]

Hi Dookist.

 

I've started a new thread for you, as the one you posted on dates back to 2009.

 

Is this question related to your previous thread please?

 

HB

[Dookist]

…..

[Ganymede]

You can apply to set aside a judgment made after a without notice application, but you must do so promptly. The Order will say how long you have, usually 7 days.

[Dookist]

…..

[Ganymede]

What does the Order say about setting aside?

[Dookist]

…..

[Dookist]

…..

[Ganymede]

If you're going to apply it's better to do it sooner rather than later as I'm not sure "I didn't know what to write" is a good enough reason I'm afraid.

 

It's not going to be an easy application to draft. I'd advise you seek independent legal advice.

[Guest]

Hi HB…. Many thanks! Yes, this is related to an ongoing issue involving a charging order, whereby the creditor already has a JO for a standard form K restriction and has now made an application to modify the charge but has not followed CPR… I wish to appeal against the decision which allowed the modified charge as it is unlawful...

 

is it re this thread? http://www.consumeractiongroup.co.uk/forum/showthread.php?427904-Award-for-costs-disputed-now-Interim-Charging-Order-in-place

[Dookist]

…...

[Dookist]

…...

[AndyOrch]

Post unapproved...not sure why you are posting the Forums Rules ?

 

Regards

 

Andy

[Dookist]

*Tumble weed*

[caro]

Hi Dookist

 

Without reading the whole thread again, from the last few posts I'm not clear on what advice you're looking for and what you're aiming to achieve following more recent developments.

[Dookist]

HI CARO…

 

Haha… it's been so long I have forgotten what I'm aiming to achieve… I had hoped for some help in making an application to set aside a Judgment Order… perhaps I am in the wrong place...

 

Thanks anyway!