HBOS Reading Fraud victim - They have CCJ/CO, now order for sale...

[scarydays]

Hi there,

 

I have a CCJ obtained in April 2011 for a business debt which the bank pursued me for personally under a personal guarantee and successfully obtained a CCJ.

It was a 'pay now' order at the time.

 

I have entered into various arrangements with the bank to pay instalments

(they discouraged me going back to the courts to make this formal).

 

I realise now that this was a mistake as I had very little income

(in fact I borrowed the money from family etc to meet the payments as they regularly threatened to make be bankrupt),

it is likely the courts would have been a bit less harsh than the bank.

It's a very large debt.

 

In 2016 the bank obtained a charging order against my property

- I jointly own it with my husband.

 

They have now written to me to say if I do not put the property up for sale for an amount they have suggested

(which is well below the market value for the property)

they will seek an order for sale without any further notice.

 

My question is,

is it too late to ask the courts to vary the order to accept an instalment plan.

 

Is it worth trying to reason with the bank (or their lawyers) that putting the property up for sale for below market value is really not a great idea.

Or have you any other suggestions.

 

I do know that should I successfully sell the property,

as it's jointly held property,

they have only managed to register a restriction,

so are not automatically entitled to by paid out of the proceeds.

 

Does this restriction as opposed to a full charging order have any bearing on an order for sale?

 

And finally are there any lawyers who are up to speed on this kind of thing as I don't mind paying for legal advice if I need to.

 

Many thanks.

[dx100uk]

Didn't think a restriction could be turned into a sale?

 

Who's the bank?

[scarydays]

Bank of Scotland.

 

It would be great if it couldn't be - would love to know that for certain.

[AndyOrch]

You can submit an N245 at anytime to put your instalment payments on a legal footing and take control away from the Judgment claimant.Are you up to date on your payments or in arrears ?

 

Regards

 

Andy

[scarydays]

There is currently no payment plan in place

- I have always kept up to date with every payment plan they have agreed.

 

When they placed the charging order on,

at the same time they put another 6 month plan in place, and I fulfilled that one.

 

Applying for the charging order is their latest move.

They are not agreeable to putting another plan in place.

 

The property they are seeking the order of sale on,

although I do own this with my husband,

I have never paid any mortgage payments on this.

 

They have all been paid by my husband.

I don't know whether this will have a bearing on any potential order for sale.

[AndyOrch]

Okay well as stated I would get an application in now to vary the forthwith to a monthly payment plan set by the court (The N245 can be found in our Legal Library)

 

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.

 

The court can order a sale where:

 

• the debt is in your sole name and you are the sole owner; or

• the debt is in both names of the joint owners of the house;

• if the debt is in your sole name and the house is in joint names, the Judgment Claimant gets an ‘interest’ in the house once the charging order is made final. This means the Claimant can apply to the court for an order for sale to realise their ‘interest’ in your house. All joint owners (or a married person who is not a joint owner but has an ‘interest’ in the property) should be part of the court proceedings so they can explain their case to the court as well. They would be sent notice of the hearing and be allowed to attend.

 

Andy

[scarydays]

Thank you Andy.

 

It's probably also worth saying that my case is now being considered as one of the additional cases relating to the HBOS reading fraud scandal

 

which is why I am surprised they have asked me to sell my property to pay back the debt at this stage.

[scarydays]

One final thing

- if we have already put the property on the market for sale,

 

what happens if the bank apply for an order to sell?

[AndyOrch]

They cant if your payments are up to date.....refer to post#6

[scarydays]

Thanks Andy, I've submitted an application to vary the judgement.

 

They have already put in the order sale, expect that to come through first.

 

Just wondering, if we actually put the house up for sale ourselves,

 

what will happen to the order for sale?

[AndyOrch]

There is no order for sale...it will be dismissed ...there are no arrears

[scarydays]

Well technically it is in arrears right now, as the judgement was a forthwith judgment.

 

Also, doesn't the bank have to agree to the variation?

 

If they disagree with it, or if the order of sale hearing date is before the variation hearing date, the Order for Sale may be granted. Yes?

[AndyOrch]

Well your varying the forthwith to payment arrangement...the judgment claimant was happy to accept your in formal arrangement previously .......yes they have a say but the court can overide and set the amount.

 

Order for sales are as rare as chicken lips.

[scarydays]

Sadly, they are no longer happy to have a payment arrangement, they have demanded I re-pay the full amount.

Hence the escalation in proceedings.

 

They have, in reasonably quick succession, applied for both the charging order and now the order for sale. It's possible, therefore, I will need to defend the order for sale.

 

Also, as we were forced to move away from the area for work purposes, we now no longer live at the property.

 

We rent elsewhere, and rent out the property to cover the mortgage as we couldn't afford to pay a mortgage and rent.

I won't even have the defence of 'we're living in it'.

[Guest]

... the HBOS reading fraud scandal ....

wondered what this was about;

https://www.theguardian.com/business/2017/jul/21/lloyds-compensates-only-five-victims-of-hbos-scandal

 

what is the amount of your charge?

[scarydays]

£140k

[Guest]

not a small amount!

 

aside from anything else, maybe when you show that you are a potential victim of the fraud re the j wont order any sale.

but, have they actually put in a formal application for sale. you mentioned that they have 'threatened' one. until they do that, it is just that a 'threat'.

[AndyOrch]

Sadly, they are no longer happy to have a payment arrangement, they have demanded I re-pay the full amount. Hence the escalation in proceedings. They have, in reasonably quick succession, applied for both the charging order and now the order for sale. It's possible, therefore, I will need to defend the order for sale.

 

Does not work like that Im afraid just because they are no longer happy...they leave a paper trail behind them...and moved the goal posts...you have complied and done everything requested.The court will view your application to vary in consideration of the judgment claimants change in mood......if you could maintain the payments in the meantime until your hearing to vary happens which will now coincide with their application...and the court will take it all into consideration.

 

I would be astonished if their application was allowed...as they have no grounds on which it is based.

[Guest]

ps, yes i see now your post that you say that they have put in an application.

[scarydays]

Just to update this post - the bank were successful in obtaining an order for sale.

[dx100uk]

how can they when it was a restriction??????

what happened in the last 3 mts??

[scarydays]

Apparently even if it is only recorded as a restriction at land registry

- It is still a charging order and they are entitled to obtain an order for sale,

but they can only take what's owed to them from my share of the proceeds.

[dx100uk]

which doesn't become relevant until/unless you move...

 

somethings not right here....

 

we are missing part of the story....????

[scarydays]

The bank applied for a charging order, which the courts granted.

 

Because the property is jointly owned, it was recorded as a restriction at land registry.

 

They then applied for an order for sale, which they have now obtained, so they will force a sale of the property.

[dx100uk]

AFAIK on a restriction they cant...

 

let the experts comment....

 

dx