charging order

[Openlaw15]

Re: charging order

Hi, this is a bit of a difficult situation but ill explain as best I can.
My husband owns our house with his ex partner, we live here with our two small children, his ex hasn't lived here for over 5 years. As there is no equity in the property we began the process of having his exes name removed from the property and mortgage and adding mine instead. His ex is in agreement to this and has signed all relevant documents. Transfer of equity is going through when bang, we receive a letter from a debt collection agency saying that his ex has a debt that she's not paid and so they've placed an intrim charging order on the house with a court date 1/2/16 to get a final charging order.

We are obviously objecting to this, objections being property in no/negative equity. Myself having beneficial interest in the property. And the fact that my husband put down the deposit and has made each and every mortgage payment.

Now what I need to know is how likely is it'll we'll be able to stop the order. And do we need to seek legal representative for court or can we go alone?

2nd idea: if debt is not in your husband's name, then the interim charge order is a problem. However, If the debt is against your husband's ex and him, ie in joint names, then both are liable for the debt. Can you confirm?

[Openlaw15]

Re: charging order

Hi, this is a bit of a difficult situation but ill explain as best I can.
My husband owns our house with his ex partner, we live here with our two small children, his ex hasn't lived here for over 5 years. As there is no equity in the property we began the process of having his exes name removed from the property and mortgage and adding mine instead. His ex is in agreement to this and has signed all relevant documents. Transfer of equity is going through when bang, we receive a letter from a debt collection agency saying that his ex has a debt that she's not paid and so they've placed an intrim charging order on the house with a court date 1/2/16 to get a final charging order.

We are obviously objecting to this, objections being property in no/negative equity. Myself having beneficial interest in the property. And the fact that my husband put down the deposit and has made each and every mortgage payment.

Now what I need to know is how likely is it'll we'll be able to stop the order. And do we need to seek legal representative for court or can we go alone?

3rd idea: The following applies where the interim charge order stands, ie debt is in both names; and you have formally moved the ex joint tenant off the property's title Ie legal ownership).

There is another remedy, the land is held on trust so there is an implied trust of land, meaning a type of beneficial interest relating to land, ie your home. Your husband, at the least will be a trustee and can apply to the court in his own right under section 14, Trust of Land and Appointment of Trustees Act 1996. He can ask for a order to set aside the interim charge order as the property is held on trust, ie held for others, ie you, the children. You can apply under the law too as you hold a proprietary interest (rights other than ownership, ie beneficial type).

[torioc]

Re: charging order

Hi sorry, I had no reply hence the re post today.

We haven't yet applied to change the title deed with the land registry, we've got the approval from the mortgage company which is valid until June so we are holding off to see what happens in court tomorrow.

The debt is in her name only, for a motoring offence it appears. We only have info from the intrim court order, the debt is just under £6000

From what I gather she has just ignored the debt and hasn't paid anything. I don't even know if she's aware of it now and doubt she'll be in court tomorrow.

Unfortunately we don't have the means to pay the debt for her, and her questionable character means we are certain she wouldn't pay us any money back

[torioc]

Re: charging order

She doesn't own any other property, we believe she is working so will be asking if they can consider an attachment of earnings instead?
The property is in negative equity which we'll also be explaining tomorrow.
Will they let us speak tomorrow? How likely is it that we can prevent the final charging order?

[Amethyst]

Re: charging order

Oh horrible for you.

A £6k motoring offence ??? Is it a court fine ? What's the name of the company who are after the charging order, and who is the CCJ holder ( named on Registry Trust - trustonline you can look it up if necessary )

Have you spoken with them at all ?

[Openlaw15]

Re: charging order

Hi sorry, I had no reply hence the re post today.

We haven't yet applied to change the title deed with the land registry, we've got the approval from the mortgage company which is valid until June so we are holding off to see what happens in court tomorrow.

The debt is in her name only, for a motoring offence it appears. We only have info from the intrim court order, the debt is just under £6000

From what I gather she has just ignored the debt and hasn't paid anything. I don't even know if she's aware of it now and doubt she'll be in court tomorrow.

Unfortunately we don't have the means to pay the debt for her, and her questionable character means we are certain she wouldn't pay us any money back

If the debt is in the ex's name....then the debt cannot be against him. Regardless, the home is still protected by the joint tenancy if you haven't removed the ex off the ownership (ie deeds). Look on your property's land register, you will see if it is protected by joint tenancy. Under proprietor, it should say 'absolute ownership' and nothing else, which means it's joint tenancy. If the property however has the words "restriction....trust corporation..." underneath absolute ownership it's not protected by a joint tenancy.

[torioc]

Re: charging order

Debt collection agency is DWF LLP, but the case is motor insurers bureau v the ex

We contacted DWF when we got the letter but they refused to speak to us but did request we email them her forwarding address which I did.

[Amethyst]

Re: charging order

She doesn't own any other property, we believe she is working so will be asking if they can consider an attachment of earnings instead?
The property is in negative equity which we'll also be explaining tomorrow.
Will they let us speak tomorrow? How likely is it that we can prevent the final charging order?

Have you responded to the court at all since receiving the notice of hearing ?

Yes you should be able to speak and put your case forward.

It is your family home, your main residence, the 'debtor' does not live there and hasn't done for XX years, and you were in the process of having the house transferred - take any documents in with you that show this. You knew nothing about the 'debt' until you received the notice of hearing from the court ( or the documents from the land registry ). You are extremely concerned as you don't have contact with her other than to do with the transfer of the property and you do not know if she might have any other debts which could end up being forced upon you putting your home at risk.

Question whether the creditor has tried all other enforcement methods before resorting to a charging order ? like attachment of earnings etc

A restriction wouldn't really help you as it would still put a bar on the equity transfer.

[Amethyst]

Re: charging order

Debt collection agency is DWF LLP, but the case is motor insurers bureau v the ex

We contacted DWF when we got the letter but they refused to speak to us but did request we email them her forwarding address which I did.

Uninsured driver claims I think, she may have had an accident without having any insurance on her car and been sued by MIB after the other party had claimed agianst them. She will likely also have a criminal fine for driving without insurance.

[torioc]

Re: charging order

Yes we responded to the court and the debt collection agency saying that we object to the order and our reasons for objecting. We sent these well in advance, more the 2 weeks ago. We haven't heard anything in return but imagine we just turn up at court tomorrow?

[Openlaw15]

Re: charging order

Have you responded to the court at all since receiving the notice of hearing ?

Yes you should be able to speak and put your case forward.

It is your family home, your main residence, the 'debtor' does not live there and hasn't done for XX years, and you were in the process of having the house transferred - take any documents in with you that show this. You knew nothing about the 'debt' until you received the notice of hearing from the court ( or the documents from the land registry ). You are extremely concerned as you don't have contact with her other than to do with the transfer of the property and you do not know if she might have any other debts which could end up being forced upon you putting your home at risk.

Question whether the creditor has tried all other enforcement methods before resorting to a charging order ? like attachment of earnings etc

A restriction wouldn't really help you as it would still put a bar on the equity transfer.

I am not directing the OP to put a restriction, am saying there will be a restriction type if there is no longer a joint tenancy. if they have a joint tenancy but say they have evidence to prove the person is going to be removed off the deeds, it could be inferred 'oh, so the joint tenancy is just a formality, ok the final charging order should apply.' Be careful....whatever defence you use make sure it can't be twisted against you.

[torioc]

Re: charging order

The problem we have is the intrim order was made (unknown to us) before the documents were signed with the mortgage company, and if we show the mortgage transfer offer won't it look like we're trying to do the transfer so she can avoid her debts?

- - - Updated - - -

Official copy of title register still has both my husband and his ex named on it

[Amethyst]

Re: charging order

Yes we responded to the court and the debt collection agency saying that we object to the order and our reasons for objecting. We sent these well in advance, more the 2 weeks ago. We haven't heard anything in return but imagine we just turn up at court tomorrow?

Ahh good so the court will have your main reasons already and the Judge will have read through them before the hearing. Otherwise yes you just turn up tomorrow and try and put your case forward. The applicants may send along a solicitor to argue their side and they may want a chat outside of court before you go in - just be careful with that - sometimes it is a good way to resolve matters but also sometimes they kind of bamboozle you and you end up agreeing to a voluntary charge before you work out what they've said.... so I think it is best to stick to talking with the Judge.

Do you have an actual hearing time, or does it say listed after 10.30 ? Best to be there 15 mins before to get signed in with the court ushers etc ... also the Judge might only hear your husband as the CO is against him, but you will be able to go in with him, don't interrupt and if you want to speak them ask permission right at the beginning. Most Judges are absolutely lovely and make you feel at ease, and they understand the stress these things cause - some aren't though...

DWF want security on the £6k Judgment - they'd rather have payments being made to them than have a charging order though.

The problem we have is the intrim order was made (unknown to us) before the documents were signed with the mortgage company, and if we show the mortgage transfer offer won't it look like we're trying to do the transfer so she can avoid her debts?

that is bad timing.

I don't know how you can avoid mentioning it though If you weren't doing the transfer then the charge would just sit on the house until such time as you sold it, especially if it is just a restriction.

[torioc]

Re: charging order

Thank you for all your help, I am very worried but feel I'm armed with a little more knowledge now. I didn't know there was such a thing as a voluntary charge, think we'll be staying clear of talks with solicitors.

We have a baby who unfortunately will have to come with us tomorrow so I'll just be waiting outside the court whilst my husband goes in. Fingers crossed we get a nice judge.

My husbands just said the documents were signed with the mortgage company before the intrim charging order date, but we do not have a copy of this, all we have is the offer from weeks later after the paperwork had been sent to the underwriters for review, which is dated this month.

I'll let you know how we get on tomorrow xx

[Amethyst]

Re: charging order

Please do, I feel for you as it's really not fair and terrible timing. I have been to my own charging order hearing - but that was my own debt on my own house, and I was really really scared of losing the house - thankfully it was just when we were setting up this site and was reassured that a charging order DID NOT mean I was going to lose the house. I ended up with the charge finalised and paying the debt by installments (as I always had done before they'd applied - the gits) and paying it off out of the equity when I sold the house. I don't know if that helps at all xxxx