Orders for Sale

[AndyOrch]

Can the Court make an order for sale over a property owned by the debtor jointly with a third party?

 

Yes. The preceding charging order will be made only over the share of the property that belongs to the judgment debtor. The fact that the property is jointly owned will not prevent the court from making an order for sale of the property. Again, the court must exercise its discretion; it will no doubt balance the impact on the creditor of being prevented from enforcing the charging order and the impact on the joint owner of being forced to sell their interest in the property.

Please note that the debt charged will only be recoverable from the share of the proceeds following sale that belong to the judgment debtor. If, for example, a property that is owned by two people equally is sold to enforce a charge of £30,000, and where the proceeds of sale, following the discharge of any charges with priority (most commonly a mortgage) are only £40,000, the creditor will only be able to recover £20,000, the share owned by the judgment debtor.

[CS75]

Thank you for your reply.

 

There is enough equity from my husband's share to repay what's owed if the OFS is granted.

 

The bank suggested the adjournment to negotiate a repayment plan but this is where the struggle is

- we can't raise the finance to pay off in full and 7 monthly repayment plans have been rejected.

 

Do we start paying them something at least now in the interim

(they haven't provided payment details yet) or should we use the money to find a solicitor?

 

OFS are so rare, I'm not sure where to start finding a solicitor with a good track record in defending such claims successfully.

[AndyOrch]

If we take a step back...could you provide details of the CCJ...the date ...the amount and was it forthwith or monthly payments ?

[CS75]

It was dated November 2017, £29,870 plus costs payable forthwith. Interim CO Jan 2018, final CO Apr 2018. Thank you.

[AndyOrch]

Thanks....pity you didnt submit an application to vary (N245)  the forthwith and convert it into a monthly payment......Loophole...you cannot apply for an OFS if monthly payments are up to date as per the court order.

[CS75]

That is a shame. Too late to be reversed I guess?

What do we do now?

 

Thanks for your help.

[AndyOrch]

Keep negotiating ...keep a paper trail of your offers and their responses.

[CS75]

Would you recommend hiring a solicitor to offer a stronger representation at this stage or if an agreement can't be reached over the next few months?

[AndyOrch]

Thats a decision only you can make...I doubt they could add further and will cost you...which you could use to try to reduce the debt in the meantime.

[CS75]

That's our feeling too.

 

Just feel we are quite vulnerable given the seriousness of the situation but I would hate to miss something due to our lack of legal expertise. 

 

We will continue to negotiate in the meantime and if we're fighting a losing battle, we may have to reconsider our options and hire a solicitor. 

 

Thanks so much for your time.

[AndyOrch]

Looking back through your thread you state that this was a Lloyds Buisness debt with Guarantor ? 

 

Do you know if the debt was regulated by the CCA1974 ?

 

A creditor can't get an order for sale if both:

• you owe less than £1,000 - including any court costs

• your debt is covered by the Consumer Credit Act - 

[CS75]

Interesting, how would I find that out, could it be in the court bundle? Yes it was a PG on a business bank overdraft/business loan. Thanks

[AndyOrch]

Well you dont owe less than £1000 so its irrelevant ......  ignore.

[CS75]

Ok no worries, we will keep going with the negotiations. Is it worth asking what their expectations are considering they asked for more time to negotiate with us?

[AndyOrch]

Yes explore everything...the more you can show the judge that you are trying to resolve this and that the claimant is not complying...the less favorable the judge will side with the claimant...Orders for Sale are very rare and not granted just because the claimant is refusing to amicable.

[CS75]

Ok great thanks. The Judge knew we had already made 7 offers but wasn't bothered, just said he couldn't comment on that, we have to work with the creditor so we will continue to do so.

[Ganymede]

22 hours ago, Andyorch said:

Thanks....pity you didnt submit an application to vary (N245)  the forthwith and convert it into a monthly payment......Loophole...you cannot apply for an OFS if monthly payments are up to date as per the court order.

Why can't the OP apply to be paid vary to monthly payments now? 

 

I also agree that Solicitors won't add much to their defence of an OFS. 

 

OFS are issued under CPR part 8 so there is very little scope for defending them. 

 

It's very unlikely an OFS will be granted if there is little or no equity in the property, it's a relatively small debt or if children or vulnerable people live there. 

Edited July 23, 2020 by Ganymede
Typo

[AndyOrch]

Quote

Why can't the OP apply to be paid vary to monthly payments now? 

 

Because they would still be in arrears of the original judgment date and Part 8 claim date....pointless

[Ganymede]

If the OP is able to bring the original judgment arrears up to date then they may be more successful getting a re-determination. 

 

Not sure if this is financially viable for the OP though. 

Edited July 23, 2020 by Ganymede

[AndyOrch]

That would depend on what the court set the rate at and if it would be accepted since the part 8 claim was issued.

[Ganymede]

It may be worth considering if it's affordable to to OP. 

 

Just another option I'm putting out there for the OP to consider.

Edited July 23, 2020 by Ganymede

[AndyOrch]

Worth a punt for £50.....can only get rejected and if accepted hopefully processed before the hearing date and arrears cleared.

[CS75]

Sorry, have just picked up your messages and am not understanding what is being suggested we do and wondered if you wouldn't mind explaining. 

 

The Judge gave us 2 options

- to accept adjournment the Bank requested in order to reach a repayment deal or the OFS claim.

There is enough equity at the moment but the house value is decreasing due to a short lease (leasehold property) so the Judge is concerned the creditor will lose out the longer it continues. 

 

There are school aged children in the family home and there being only one debtor irrelevant arguments.

 

The debt is only worth about 5.5% of what the value would be if it was a freehold property and 13% of the total value of debt.

Again the Judge considered these as irrelevant arguments.

[CS75]

Hi,

we submitted the 8th suggested offer of monthly repayments 3 weeks ago (all other offers have been rejected so far) and was told by Banks solicitor they would reply asap.

 

Have heard nothing since.

Extremely frustrating as we only have 6 months to work out a solution before the hearing. 

 

We have been told that OFS are extremely rare by several forum groups but at the initial hearing the Judge indicated we should accept either the OFS claim or the adjournment to find a repayment solution

- suggested arguments ie. children; one debtor on joint home; small debt in comparison, etc were ignored arguments.

 

We feel like we are fighting a losing battle and the slow replies from the bank denying us the opportunity to repay the debt is not helping our state of mind.

 

Struggling to know what to do as we cannot pay the debt off in full quickly.

Can anyone offer any suggestions please moving forward?

 

Thanks.

[CS75]

Hi,

finally the creditor has agreed to our payment arrangement and adjourned the case if the repayment terms are met.

The debt is in one name only but have asked us both to sign an agreement.

 

Not sure how to respond; gut feeling is to start paying immediately and returning the form with just the debtor's signature with a covering note explaining. 

 

We would be grateful for some advice on this please as soon as possible as the deadline cut off is next week.

Thanks in advance.