restriction/charging order against property

[BJOE]

Hello, any help will be appreciated. We have recently started the process of selling our home,
As part of this a restriction/charging order from a CCJ has come to light. The restriction / CCJ is against me not my wife,
dates from 2007 CAPQUEST who it appears bought a credit card debt.
My conveyancers have advised that If I do not pay the debt then we cannot sell our House.
I have tried to understand the legalise and I feel that the law states that any restriction against only one party in joint ownership
should not prevent the owners 'dealing with the property.'
I am retired as is my wife, funds are very limited, we simply have to 'downsize' sell our house in order to survive.
Any advice as to how we could proceed ?
Regards

this may be in the wrong forum, apologies

[Diana M]

Re: restriction/charging order against property

The Restriction is against the person with the CCJ only. The creditor can only 'take' what is owed under the CCJ from that person's share of the equity.

So if there is a Restriction for £10k and there'll be only £10k equity left in the property after the sale, then the creditor should only be entitled to £5k on completion of the sale, assuming the property is held as a Joint Tenancy (50/50) and not as Tenants in Common (with a defined unequal share).

You would not be expected to pay the sum owed (if it is owed) prior to completion - it would come from the proceeds of the sale.

Is this the first time you've heard of the Restriction and the associated CCJ? Is there a possibility that this CCJ was obtained without your knowledge?

Di

[BJOE]

Re: restriction/charging order against property

Thanks for your reply. The restriction on Land registry came to light when we had a boundary dispute in 2014, the boundary specialist solicitors noted the restriction, but advised it would not affect us unless we
wanted to sell. ( The boundary problem was resolved as soon as new neighbours had site of Land registry map/plans - walling.)
At that time we had no intention of selling, but Old age has forced our hand now. We do have a fair amount of equity in the property , fortunately.
I had absolutely no knowledge prior to the copy of title deed/Land register 2014. We still are waiting for the company Drydensfairfax to forward us a copy of the originall documents.
and what the debt is for , they seem very slow to respond to letters.
From April 2005 until October 2011 we were both living and working out of the U.K.. Our house was rented out for most of that period.

[seduraed]

Re: restriction/charging order against property

You should have queried the restriction at the time of first discovery. Do you know whom the original creditor was? It may be that the judgement was granted against the tenant at the time. If you have the number of the judgement then going to trust online and paying a small fee will allow you to view the judgement.
Once you have out who the original creditor was there may be things,which can be done.
I am sure that wiser members will be,along later.

[BJOE]

Re: restriction/charging order against property

DRYDENSFAIRFAX have stated that their client has no need to send information to us as a CCJ has been done - 2007,
They have however said that 'as a gesture of goodwill they have requested that their client forward us a copy of the Credit Agreement, they go on to say that they will revert to us upon receipt of same '?
Is it me or am I not speaking English.? I think they mean once they have got copy they will send this to us, should make interesting reading.
Our credit files on Trust Online show no defaults or ccj for either of us, I think that goes back 6 years.

[Diana M]

Re: restriction/charging order against property

It may be that the judgement was granted against the tenant at the time.

A Restriction or Charging Order can only be placed on a property owned by the person who has been given a CCJ.

A CO is security for the debt (following a CCJ) so nothing to do with the Landlord if the Tenant has a CCJ - I'm pleased to say

Di

[Diana M]

Re: restriction/charging order against property

From April 2005 until October 2011 we were both living and working out of the U.K.. Our house was rented out for most of that period.

You say the CCJ (and subsequent Restriction) happened in 2007 which was two years after you left the country. This may (and I stress 'may') give you grounds to get the CCJ set aside.

If there is no CCJ (because it's been set aside) then there can be no Restriction (you would then need to get that Order set aside too). However a set aside doesn't extinguish the claim so you would still have to defend it.

When you left the country and rented out your home did you tell any of your creditors?

Did you remain on the electoral roll after 2005?

Did you keep any credit functioning at your home address while you were away? This would show on your CRA files at the time.

Once you know who the original creditor was (assigned to Capquest) you will need to assess whether you would have had any reasons to defend the claim if you had been given the opportunity.

It may be helpful that Drydens are offering to volunteer a copy of the CCA in case that sheds any light on things.

Once you know who the original creditor is/was you can send them a Subject Access Request to see the history of the account. That way you'll know if there are any potential reasons to challenge the Default Judgment (CCJ).

To get the CCJ set aside you would also need to demonstrate to the court that you would have reasonable prospects of success with any future Defence.

How much is the CCJ for?

Di