Order for sale application

[monkeymad]

Hi,

 

I am in need of urgent advice.

 

In April 2014 after losing a High Court case brought against myself and 8 others by our former employer, an interim charging order was made final.

 

During the hearing I offered to pay the judgement debt (£8,000 + costs and interest of £120,000.00) by affordable monthly instalments of £100.00 but this was refused by the claimant who stated to the court that they had "no intention of applying for an order for sale but merely wanted to protect their interests".

 

I subsequently made a number of instalment offers to the claimants but each offer was refused and indeed, my letters were often ignored by the claimant and their solicitor or they would take months to reply.

 

In December 2016 I received a copy of an order issued by the High Court granting leave to the claimants to apply for an order for sale.

 

The witness statement attached to the order was prepared by a solicitor who has subsequently been struck off for dishonesty and fraud!

 

The statement also contain a number of factual mistakes and exaggerated the value of my home describing a different property to the one that I actually own.

(using a Zoopla valuation as evidence of property value).

 

The claimants issued their application for leave in the QBD of the High Court and the application was subsequently transferred to the Chancery Division where the order for leave was granted.

 

the case was then transferred to the Central County court before being transferred again to Portsmouth County Court.

 

At the hearing,

the claimants failed to turn up and had written the day before to the court stating that they believed that they would not get a fair hearing

(as one of my codefendant's partner had worked at the court 10 years previously!!!).

 

The DJ was not impressed but would not dismissed the case as he believed that the claimants would only apply to reinstate proceedings.

 

He subsequently transferred the proceedings to another County Court where the application will now be heard on 26th May (for directions).

 

I am sorry that this preamble is so long winded!

 

I need advice about what to do next.

 

At the Portsmouth hearing the DJ alluded to the Human Rights Act

(I assume he meant Article 8) although I am not sure how to use this during the hearing.

 

My home is in joint names with my wife.

My 20 year old daughter also resides with us.

She is a full time university student and suffers with anxiety and dyslexsia.

 

My wife works part time on a modest income.

My income is also quite modest.

 

The correct zoopla valuation for my home is £146K approx and my current interest only mortgage is £138K.

 

After deduction of estate agents commission, solicitors and removal costs there is gross equity of about £2,000.00 (half of which presumably will have to be paid to my wife as she is not a party to the proceedings).

 

The High court have never determined what my financial interest in the property actually is

 

My interest only mortgage ends in about 6 years and, as I cannot afford to repay the loan, my family and I will have to move (possibly to a shared ownership property).

 

I would welcome any advice and assistance that any cagger's can give to me about how to deal with this upcoming hearing (assuming that the claimant's turn up this time).

 

In anticipation I appreciate any help that can be provided to me.

[dx100uk]

Surely they can't force sale

As its your debt

On a jointly owned property

So they can only get a restriction k

Which is not required to be paid even if you do sell

[monkeymad]

Thank you dx100uk,

After doing some research on the net I tend to agree with you however the I formation that I have found is conflicting and seems to be biased towards the complainant.

 

I have checked the office copy entries attached to the claimants witness statement and it appear as though a charge has been registered against me in the propreitorship register and NOT the charges register. I therefore cannot see how they can force a sale.

 

Do you think that this is just a way of intimidating me so that I agree to make regular payments on their terms for an amount that I cannot afford?

[dx100uk]

i must say this is 100% not my bag legal stuff.

[martin2006]

If your wife was not party to the proceedings then dx is correct in that only a restriction K will be registered and an order for sale should be defended as such. As you say it would be pretty pointless anyway given that there would only be 2k remaining after sale!

[Ganymede]

Surely they can't force sale

As its your debt

On a jointly owned property

So they can only get a restriction k

Which is not required to be paid even if you do sell

 

An Order For Sale can absolutely be made by enforcing the Charging Order registered as a Restriction. However, it is easier (not necessarily easy) to defend against.

 

I really can't see why the Claimant would bother though when the house has a fairly modest value and there is little equity.

 

Think the OP needs to get current mortgage statements and an consideration should be given to getting a full proper valuation (or even 2-3) to prove the lack of equity.

[AndyOrch]

If the mortgage is in joint names with your wife and she was not party to the judgment...then its only your share of the home that is in question with regards to their application...

 

Regards

 

Andy

[monkeymad]

Hi fellow Caggers,

 

The directions hearing is due to be heard tomorrow at 10.30am.

 

 

I had not received any correspondence from the claimants solicitors until today when I received a letter advising me that I will be responsible for paying their costs of £1,000.00 for their attendance!!!

Do they honestly believe that this will intimidate me???

 

The claimants solicitors failed to attend the previous hearing and sent a letter to the court which said that neither they nor the claimants would attend as they believed that they will not receive a fair hearing!

 

 

The DJ, despite my requests to dismiss the proceedings, transferred the proceedings to another county court and hence the hearing tomorrow.

 

There are 2 claimants (both owned by the same directors) although the 2nd claimant stated on the court notice was not a party to the original proceedings

(it was not incorporated at Companies house until a year after judgment).

 

 

The original claimant was a "partnership" with a similar name and I produced to the court a copy of a letter that i had previously received from the claimants solicitors confirming this fact.

 

 

I asked that the 2nd claimant be removed from the proceedings however the DJ was not prepared to do this and made an order that the claimants clarify the situation and provide a copy of the High Court transfer authorising the change of the 2nd claimants name and status within 14 days. Needless to say this has not been received.

 

can anyone tell me who,

assuming that the claimants and their solicitors attend,

who will be responsible for the costs of the direction hearing?

 

 

As the claimants only have the leave of the high court to issue Order for sale proceedings and have not yet issued any particulars of claim, will the costs be "reserved"?

 

 

Hi Andyorch,

 

I am so sorry for the delay in replying to your post.

 

As I mentioned in my 1st post,

the net equity is just over £2k,

at least half of which is my wife's share of the equity.

 

 

As the amount of the judgment debt is in excess of £128K I cannot see why the court would allow an order for sale to be made as this will not achieve a reduction in the debt (assuming that the claimants will pay more than this amount in application and legal fees).

 

Thanks Ganymede,

 

The 2nd claimants are a firm of estate agents and they sold the property to my wife and I.

 

 

The 1st claimants are a firm of mortgage brokers (who I worked for until being sacked for not producing enough sales) related to the 2nd claimants and who completed the mortgage application for the purchase.

 

 

The 2nd claimant has an office less than 1/2 mile from my home and have sold a number of properties in my road. The claimants are therefore fully aware of both the type of property that I own and also its current value.

 

However, in the witness statement that they submitted to the High Court they lied by stating that the property was much larger and worth a lot more than it actually is.

 

 

They attached a zoopla valuation showing the average price for this type of property in my post code area claiming gross equity of at least £64K.

The court granted leave on this basis.

 

 

I was not made aware that an application had been made until I received a copy of the order in the post.

 

 

I have therefore used zoopla to prepare a valuation based upon the correct type of property using my postcode.

 

I have discovered that shortly after submitting the application to the High court,

the solicitor used by the claimants was fined by the SRA the sum of £40K plus costs following a tribunal where he was found to be guilty of using client funds for the sale and promotion of high risk investments and, as a result, resigned from the firm.

- Is there such a thing as an honest solicitor???

 

Do you think that i should use this information in my defence?

 

Monkeymad

[Ganymede]

 

- Is there such a thing as an honest solicitor???

 

I'll refrain from answering that.

 

Do you think that i should use this information in my defence?

No the thing about the SRA is totally irrelevant.

[monkeymad]

I'll refrain from answering that.

 

No the thing about the SRA is totally irrelevant.

 

Thanks Ganymede,

 

I will just have to see what happens tomorrow

[monkeymad]

Update;

 

The directions hearing took place last Friday and, unfortunately, the claimants solicitor turned up at the 11th hour!

 

The hearing was listed for 15 minutes, the hearing actually lasted for 1 hour and 20 minutes!

 

Although a directions hearing,

the DJ started by saying that the making an order for sale where a property is in joint names and where only only one of the beneficial owners owes the debt was very "draconian" and unless the claimants can persuade him to the contrary it would be highly unlikely that he would make a future order for sale.

 

 

The DJ also referred to Article 8 of the Human Rights Act 1998 and to a Barclays Bank case (the name of which I cannot remember) and said that where a defendants share of the net equity was greater that 20% of the judgment debt an order can be made.

 

The claimants solicitor argued that I should not be allowed to defend the application (as apparently they applied under Part 8). However, the DJ said that this was unreasonable and made a direction allowing me to defend the proceedings.

 

The DJ then expressed a concern that the claimants were relying upon a zoopla valuation in support of their application rather than a valuation carried out by a chartered surveyor and, following a heated argument between myself and the claimants solicitor, ordered that an independent Chartered Surveyor carry out a detailed valuation of my home within the next 8 weeks.

 

The claimants then argued that I should pay for the full cost of the survey and the surveyors fees but this was dismissed by the DJ who said that, after looking at evidence of my earnings, I did not have the ability to pay the fee. He therefore directed that the claimants pay the full cost but that the surveyor would have to be instructed jointly.

 

As the claimants are a chain of estate agents with a number of offices based in south east Hampshire I successfully argued that the chartered surveyor instructed should be based in the west of Hampshire to avoid any bias or influence by the claimants and this was also agreed by the DJ. I have today written to the claimants solicitors with a couple of firms for them to consider.

 

As I have only recently had my home valued by a local firm of estate agents, I anticipate that the valuation will probably be greater than my zoopla valuation but somewhat less that the amount claimed by the Claimants. I also anticipate that my share of the net equity will also be less than 20% of the judgment debt and so the court may not agree to an order for sale on this basis (if only I could remember the name of the Barclay's case).

 

Needless to say both my wife and I are extremely distressed and worried about the situation as there is the real risk that we can lose our home however, my wife is adamant that the claimants should not receive a penny as a result of these proceeding.

 

Even if the claimants decide not to proceed with , or lose, their current application the restriction will remain against me with regard to my interest in my home and who is to say that they won't try again in the future?

 

 

Also, the claimants may try other enforcement action by way of an attachment of earnings application and, if they chose to do this, I would lose my job.

 

My wife and I have discussed me making a voluntary application for bankruptcy although, without advice, I am not sure if this is the best course of action.

 

 

Any further observations and/or advice would be greatly appreciated.

 

 

Alternatively, as there is no charge but only a restriction registered against me at the Land Registry what is there to stop me selling my home?

 

 

The restriction only states that the claimants must be notified of any sale.

 

Monkeymad

[dx100uk]

yes read that last bit again and understand EXACTLY what it means.

 

it means you don't tell them ANYTHING until after IT IS SOLD!!

 

all and Bugger they can do to you now

stop worrying.

 

well done!!

 

dx

[AndyOrch]

And your first paragraph...

 

" Although a directions hearing, the DJ started by saying that the making an order for sale where a property is in joint names and where only only one of the beneficial owners owes the debt was very "draconian" and unless the claimants can persuade him to the contrary it would be highly unlikely that he would make a future order for sale. "

 

Andy

[monkeymad]

Thank you dx,

 

your comments are very much appreciated.

 

 

Unfortunately,

I doubt that the property can be sold before the case goes back to court for the Order for Sale hearing.

 

 

I can only hope that the jointly instructed chartered surveyor (once agreed) will come up with a valuation that will be in my favour.

 

 

If a low valuation and my share of the net equity is less that 20% of the judgment debt then, as the DJ previously alluded to, the court will not make the order and the restriction will remain.

Once I find the case precedent I will provide details on this thread.

 

Other options I have considered are:

 

1. Contact the claimants solicitors to see if they will be prepared to agree to a monthly payment from me but only on condition that they withdraw the proceedings.

(In April 2016 the claimants sent a letter to me advising me that they will take no further action if I agreed to pay £100 pm).

 

 

This will give me a breathing space to sell and use the equity towards the purchase of a new property in my wife's sole name.

 

 

Unfortunately, if the claimants believe that the valuation will be in their favour, they will probable not agree. After all, they are a chain of estate agents (parasites!) and will also gain financially from selling the property.

 

2. Go bankrupt. This will stop the proceedings but I am not sure whether this will be the best course of action as my share of the equity will pass to the OR and I am concerned that he may require that the property is sold in any event!

 

I really do not know what to do.

 

Monkeymad

[monkeymad]

Hi Andy,

 

Thank you for your comments on my post.

 

Unfortunately,

the claimants having sacked me from their employment 9 years ago have been pursuing me in the courts ever since.

 

There have been at least 2 different sets of proceedings in the county court and 3 in the high court over the years since my dismissal.

 

In the past they even issued proceedings against me to recover payment of the salary that they paid to me for the 11 months that I worked for them!!!

Thank god for the Statute of Limitations!

 

Believe me they are a typical ****** firm of estate agents using a "no win, no fee" firm of solicitors

(a director of which recently resigned following disciplinary action taken by the Solicitor's Regulatory Authority for using their client account money for high risk investments without their clients knowlege) and they will try every underhand trick that they can think of to win their case

 

Monkeymad

[inabind]

hi monkeymad,

 

do you have the name of the Barclays Bank case that you mention in your thread?

 

I have found this one Caselaw - Bank of Ireland Home mortgagesicon 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.

[mercyblue]

Inabind I think perhaps the judge would be referring to barclays bank plc vs Hendricks. That case mentions the 20% in that the bank stood to recover 20% of its debt. But in that case the wife owned a second home in any case.

The OP might want to read this http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf if they are thinking of bankruptcy it is heavy going but you may find it relevant to the situation.

[maroondevo52]

The OP might want to read this http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf if they are thinking of bankruptcy it is heavy going but you may find it relevant to the situation.

 

mercyblue, I get a 404 File not Found message when clicking on your link.

[mercyblue]

http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf

 

For some reason it seems the PDF is capitals on the post when it should be pdf. The link works in the email sent from cag but it doesn't show it as capitals. If I click on the link I posted it uses capitals a university will be using unix which is case sensitive.

[mercyblue]

The link works now with the pdf in the right case sorry about that.

[AndyOrch]

It doesn't MB

[BazzaS]

It doesn't work "as is"

 

Sometimes the CAG site seems to break links.

I've had this happen to url's I've posted ; they look fine to me but don't work directly from the post.

 

When you hit "reply to post" you get to see the (unbroken) URL.

So, I've put the poster's unbroken URL into tinyurl, and created the link

http://tinyurl.com/y8jux4s6

for it, which hopefully will work ......

[mercyblue]

Thanks BazzaS I do remember having that problem before, the link was getting mangled. Cag changes pdf to capitals it must see pdf and change it because I know I used pdf (in lower case) on my last link and it now shows as a PDF hoverlink.

 

http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf

 

Does the link above work for people please? That's using insert link off here rather than just pasting the link in

 

[martin2006]

Link ok

[monkeymad]

Thank you Inabind, Mercyblue, MarrondevoS2, BazzaS and martin2006.

 

I have found all of your comments extremely helpful and I will look at the case law and bankruptcy information referred to so that I can prepare the defence that I have ordered by the court to file before the order for sale hearing on 09 August.

 

On 23 June at approximately 11.30pm the claimants solicitors hand delivered a letter to me advising me that they will no longer pursue their application for an order for sale provided that I agree to a consent order in the following terms:

 

1. I pay £1,000.00 within 7 days and then a further £1,000.00 on every 12 month anniversary.

2. I also pay £100.00 per month until I have made arrangements to repay the judgment debt in full.

3. I pay to the claimants a reduced sum of £46,000.00 within 12 months in full and final settlement of the debt following the sale or remortgage of my home.

4. offer available for 7 days only.

 

The claimants have advised me that they will still continue to pursue me for the full amount of the judgment debt (£125,000 approx) if I do not pay the requested amount of £46K within 12 months.

 

Unfortunately, the family income is such that i am unable to remortgage for a sufficient amount to repay my existing interest only mortgage and raise the additional capital to pay the claimants. Reluctantly, my wife and I have therefore decided to sell our home and although the property was placed with estate agents about a month ago, interest has been slow. After repaying the mortgage and paying solicitors costs and estate agent fees etc, my 50% share of the equity will be about £40,000.00 My wife's share of the equity will be used as a deposit for a shared ownership property (we have been accepted by the Help to Buy scheme but cannot proceed with an application until we have a sales memorandum for our home confirming sale).

 

So, my dilema is this, do I accept the claimant's offer (even though the offered has expired) and ultimately end up paying them more than my 50% equity but have the security of not facing a possible eviction from my home or do I refuse the offer and see what the judge says at the hearing? If my wife and I have to leave our home and go into rented accomodation then the rent that we will have to pay will be somewhat greater that the amount that I will have to pay for my mortgage (£485.00 per month) and the £100.00 requested by the claimants.

 

Any advice that will help me to reach a decision will be gratefully received.

 

Monkeymad