Proving Beneficial Interest

[multitrackhelp]

Hello everyone,

 

I wonder if people can help here.

I have got a CCJ against someone for 18K recently. I am looking at getting a charging order against this individual on their beneficial interest which i believe they hold in a property.

 

Now they are not a legal owner (ie not on the title deeds)

 

I know it is possible to get a charge against the beneficial interest,but i believe the court sets the evidence bar very high to prove beneficial interest.

 

Before i embark down this path can anyone advise what evidence the court would require to prove the beneficial interest as i dont believe i would automatically get an interim charging order without a hearing or providing substantial evidence

[multitrackhelp]

Hello everyone,

 

(i think i might have posted this in the wrong section earlier)

 

I wonder if people can help here.

I have got a CCJ against someone for 18K recently. I am looking at getting a charging order against this individual on their beneficial interest which i believe they hold in a property.

 

Now they are not a legal owner (ie not on the title deeds)

 

I know it is possible to get a charge against the beneficial interest,but i believe the court sets the evidence bar very high to prove beneficial interest.

 

Before i embark down this path can anyone advise what evidence the court would require to prove the beneficial interest as i dont believe i would automatically get an interim charging order without a hearing or providing substantial evidence

[Guest]

generally, maybe a contribution to the purchase, and or any significant contributions to its improvement.

you've probably seen a relevant HC case on it, as you know.

maybe best bet is to instruct a solicitor

[multitrackhelp]

Yes i have seen this case, in that case the wife (in an attempt to defeat a costs order against order) produced a witness statement which stated she had a beneficial interest , she then tried to retract this as did her husband, they then failed to product bank statements to back their case up.

 

All i have as evidence so far is an email from the defendant last year saying they had put an offer in on a property and was buying it with their girlfriend etc

 

I have no actual transactional evidence that they paid money for the property.

 

Would this be needed?

[honeybee13]

Hi.

 

I've merged your threads into one on the General Legal section. Please continue to post om this one.

 

HB

[Guest]

no idea. seems it would be for a court to decide in the circumstances.

given the amount involved, and potential complexities, maybe see a solicitor.

[multitrackhelp]

Yes, i am just trying to get all my ducks in a row first.

 

A solicitor may well be the best thing, this is a very complicated area of law.

 

The HC case has some relevance, but only if there is any proof of Beneficial interest.

 

If i can get it to hearing i know i can get a third party to furnish documents,

 

i have to get past the first hurdle of a interim charge.

 

Unless i have the necessary evidence then i think i would be wasting my time.

 

I have a feeling they will turn round and deny any beneficial interest and it would be all down to me to prove

[multitrackhelp]

Can anyone else advise on this ?

[unclebulgaria67]

Suggest that you may want to provide some details about the CCJ you obtained. Just a few paragraphs giving some background details and what the judgement states.

 

If you see a Solicitor they will charge £500+ upfront just to take a look at it and will want all of the paperwork. They will look at the options, but I am not sure looking at BI will be one of them. They will tell you to exhaust all other enforcement options first.

 

Can this debt enforcement be looked into by High Court Enforcement Officers ?

[multitrackhelp]

I would rather not go into the details of the CCJ other then suffice to say it was a forthwith judgement and the time has now passed. So it's really just looking at options like you say.

 

Knowing the person involved I have a feeling they don't have any assets in their own name . Hence why looking at the BI option

[unclebulgaria67]

Given need for confidentiality, a Solicitors seems to be your best option, rather than an open internet forum such as this.

 

You could speak to a High Court Enforcement company to see whether they can assist. Remember, if it goes to court, any Judge might be interested in what other enforcement options you had tried. If all other attempts had failed, they might then see why you are looking at any BI that might exist.

 

If you were successful in proving BI in a court, what process do you think you would follow to obtain the release of any BI ?

[multitrackhelp]

Hi

 

Thanks, I don't see what relevance the details of the case have here but.....

 

If can prove the BI then would i apply for a charging order against the debtors BI in the property and then an order for sale.....

Edited February 11, 2018 by Intotheblack

[unclebulgaria67]

From my reading of other cases, I don't think you will have any success in forcing a sale in this situation.

 

You might be successful in proving BI, but any charging order might only be interim and you never get a full charging order. This means that your interest in £x amount is noted, but you would only get notification if they attempted to sell the property. The vendors Solicitors might never arrange to satisfy the debt owed to you.

 

Just my understanding. Others on CAG such as Andyorch are far more legally aware that I am.

 

From an online article on Boodlehatfield.com site.

 

"A judgment creditor may identify a property which, on the face of it, is solely owned by a third party (such as the judgment debtor's spouse). However, the judgment creditor may have reason to believe that the judgment debtor has a beneficial interest in the property.

 

This scenario sometimes arises in practice where a judgment debtor transfers their legal title to the property to a spouse with the intention of thwarting the judgment creditor's attempts at enforcement. Where a transfer of the judgment debtor's legal title to their spouse has occurred in the recent past, the judgment creditor may suspect that this was the true motivation for the transaction.

 

It is possible to apply for an interim and final charging order and an order for sale in these circumstances under section 2(1)(a) of the COA 1979. However, evidence of the judgment debtor's beneficial interest will need to be adduced at all three stages of the process (that is, when applying for interim and final charging orders and an order for sale).

 

The judgment creditor will need to rebut the presumption that beneficial ownership of the property mirrors legal ownership. (See Jones v Kernott [2011] UKSC 53, at paragraphs 10 and 12.) There will then be a further evidential challenge in establishing the extent of the judgment debtor's beneficial interest.

 

At both of these stages, it is likely that the judgment creditor will only be able to satisfy the evidential burden if they have access to specific evidence of the couple's intentions at the time of the transfer. This evidence may have been obtained during the proceedings which led to the judgment. Alternatively, the judgment creditor could apply for an order to obtain information under oath from the judgment debtor about his or her assets under CPR Part 71."

[multitrackhelp]

Thanks for your help. Appreciated . I believe in my case the person who is not the debtor has owned the house constantly and there has been no transfer

Edited February 11, 2018 by Intotheblack

[multitrackhelp]

I think I am going to have great difficulty proving this given the evidence I have.

[unclebulgaria67]

Given no interest has transfered from your debtor to the owner of the property concerned, I can't see you getting a charging order, let alone force any sale. There would then be no point in proving any BI, as you could never get hold of it.

 

If it were me, I would look at other options. Might be best to elevate to High Court and get a High Court Enforcement Officer to pay them a visit. They might obtain a payment arrangement and at least you would get something.

[multitrackhelp]

It's looking that way. But I have seen this HC case as was mentioned at the beginning

 

https://www.walkermorris.co.uk/publications/banking-matters-january-2016/landmark-decision-allows-recovery-from-non-debtors/

 

The Chancery division of the High Court has produced a landmark judgment in relation to charging orders over a debtor’s beneficial interest. In a decision which will be of great benefit to judgment creditors, the court ordered that a charging order could be granted over the property of a non-debtor. Walton v Allman [1] therefore allows a creditor to recover from a debtor even though an asset may not be in the debtor’s own name.

 

Walton v Allman – facts and proceedings

The claimant, Mrs Walton, brought a breach of contract claim in 2011. In the course of the proceedings the defendant, Mrs Allman, issued an application for security for costs against Mrs Walton, who appeared to have no assets in her name. Mrs Walton opposed that application and adduced evidence that she held a beneficial interest in the marital home, which was registered in her husband’s sole name. The claim was dismissed at trial and Mrs Allman was awarded her costs in the sum of £30,000 When the costs went unpaid Mrs Allman applied for a charging order over the Mrs Walton’s interest in the home.

 

Mrs Walton’s husband joined the proceedings and disputed that his wife had any interest in the property. In addition, Mrs Walton then filed a witness statement which stated that she accepted that she did not have an interest in the property on a legal or equitable basis and that she had never held such an interest. Finding for Mrs Allman, the court held at first instance that Mrs Walton did hold a beneficial interest in the property, and made the charging order final, although it did not quantify the nature of the beneficial interest [2].

Edited February 12, 2018 by Intotheblack

[unclebulgaria67]

Is this case precedent really applicable to your debtor ?

 

Are you willing to argue this in a court yourself or pay Lawyers thousands to make the case for you ?

 

As you know the debtor and the person owning the house are likely to defend any actions. You could be liable for their legal costs, if a Judge decides you have to pay them. You could end up owing a debt to this debtor and the home owners in costs.

 

I think you are best advised to look at other options. E.g if the CCJ has remained unpaid for awhile, the debtor can be requested to attend court for questionning about their financial position to pay the debt. You could go for HCEO enforcement.

[multitrackhelp]

I am just playing devils advocate here.

 

The case might not be relevant as the debtor will never admit to having any interest in the property.

 

I am just exploring it at the moment and will look at other options

[honeybee13]

From what you've said, ITB, proof seems to be your major obstacle. Do you have other avenues for that?

 

HB

[multitrackhelp]

I literally have emails saying he had offer accepted on house and that they were buying it. I have nothing else. I could do an order for questioning (oral examination)

[multitrackhelp]

I have spoken to a couple of HCEO firms , they have advised they can help, however i advised that i believed most of the debtors assets to be in their partners name, there was little they could.

 

Could seize a car if of value but again i dont think this would have been in their name

 

I think if i want to recover this money i may have to see a solicitor and show them the proof i have , see if i can get 30 mins free advice.

[unclebulgaria67]

Does the debtor work ?

[multitrackhelp]

I believe so but no idea where or what

[unclebulgaria67]

I reckon you should get them in court for questionning first about all of their finances. Then you can see what the options are.

 

Not sure what a Solicitors would advise, as you already have the CCJ.