charging order

[torioc]

Re: charging order

Yes its good news that we won't loose the house.

If it is granted we'll be gutted though as we were hoping to cut all ties with her for good. We are hoping to move to a bigger house, but with all this over us it doesn't look promising.

Just a thought, if it goes our way tomorrow, and we then get the change of equity completed, in a few years if she has other debts could this happen again? Or will the change of equity prevent any more of her debts affecting us?

[Debt Camel]

Re: charging order

Definitely turn up in court!

In addition to the points [MENTION=6]Amethyst[/MENTION] made, add on that as there is no equity in the property there is no point in a charging order being made - as the mortgage is paid off and equity rises, that will accrue to your husband, not his ex, as he is making all the payments.

[Debt Camel]

Re: charging order

Also that the debt was incurred after the split and after ex had ceased living in or contributing to the house.

These are all waffly arguments, but you are just trying to make a case for fundamental unfairness, so one of them may appeal to the judge.

[torioc]

Re: charging order

Thank you.
Is it rare that the judge will refuse to grant it? I spoke to an advisor at national debt line and they basically told me not to hold out much hope!

[torioc]

Re: charging order

We have a hearing time of 3pm, but it does say that they operate block hearings with similar hearings in the same block so it may go over to the next day xx

[Openlaw15]

Re: charging order

Definitely turn up in court!

In addition to the points @Amethyst made, add on that as there is no equity in the property there is no point in a charging order being made - as the mortgage is paid off and equity rises, that will accrue to your husband, not his ex, as he is making all the payments.

There seemingly is a joint tenancy so equity will presume a 50/ 50 split regardless of who contributed the larger or smaller amounts at the point of severance, where then the property is split between the joint tenants, is what people do not understand. This is what a joint tenancy means. If there were tenancy in commons equity will presume unequal shares. The op at this point has an implied trust in equity at best.

[Openlaw15]

Re: charging order

Thank you.
Is it rare that the judge will refuse to grant it? I spoke to an advisor at national debt line and they basically told me not to hold out much hope!

To be fair, national debt is a charity and unless those staff have studied property law they're not going to understand that a joint tenancy binds the land: section 34/ 36, Law of Property Act 1925. From my further research a joint tenancy defence is the only feasible way you have of setting aside the interim charging order. This was confirmed by a case I read where a person had a full charging order on their property and trying to use a joint tenancy defence, were also trying to remove the chargee's restriction. The adjudicator said, once the full charging order is finalised the joint tenancy is terminated, ie no longer applies but at the interim stage the interim charge will be set aside, but only if the proprietor (owners) raises the joint tenancy defence.

[torioc]

Re: charging order

And how would you advise us to raise the joint tenancy defence tomorrow? The intrim charging order was placed without our knowledge

[Openlaw15]

Re: charging order

And how would you advise us to raise the joint tenancy defence tomorrow? The intrim charging order was placed without our knowledge

Argue the claim should to be struck out as you should have had time to respond, ie believe it's 21 days. So it is abuse of procedure under the Civil Procedure Rules. If the court will not strike out, argue that the debt cannot be pursued against the property as it protected by a joint tenancy.

Say it in person, as under civil procedure rules you can 'amplify' what you stated in your witness statements, you can also add it to it in court, at the judge's discretion. Say something like your honour the claimant abused the procedure rules so I now ask for your discretion in these matters.

[Debt Camel]

Re: charging order

@Openlaw15 you appear to have a bee in your bonnet about joint tenancies and implied trusts. You bring it up at any point where a house is mentioned even though it is often unhelpful to people seeking practical advice about what to say in court tomorrow.

And whilst the National Debtline staff may not all have the advantage of your extensive legal education (clears throat) they have seen HUNDREDS of charging order applications. And they know what they are talking about, it is VERY difficult to defeat one.

[Amethyst]

Re: charging order

I have to agree with [MENTION=48934]Debt Camel[/MENTION]; on this.

In real terms the house is most likely owned as joint tenants, which isn't generally a defence to a CO - the property is held equally in both names ( Joint tenants) rather than a 50/50 split (tenants in common) and so any debt charge applied to the property is against the property as a whole, because both owners own the whole.

I'm not sure if you are getting confused between the two ( or if I'm missing where you are coming from )


Simple explanation from gov.uk

Joint tenants

As joint tenants (sometimes called ‘beneficial joint tenants’):

you have equal rights to the whole property
the property automatically goes to the other owners if you die
you can’t pass on your ownership of the property in your will

Tenants in common

As tenants in common:

you can own different shares of the property
the property doesn’t automatically go to the other owners if you die
you can pass on your share of the property in your will

An interim order, is by nature, always made without notice - as it is intended to secure the property temporarily while the charge application is dealt with - basically so the debtor can't sell up or transfer the property when they get notice of a charge being applied for.

[Amethyst]

Re: charging order

We have a hearing time of 3pm, but it does say that they operate block hearings with similar hearings in the same block so it may go over to the next day xx

Urghhh that's nasty... 10.30 block hearings aren't so bad as they wil be heard that day, but 3pm .... and maybe having to go back the next day, that's just mean. Fingers crossed you get in early xxx

[torioc]

Re: charging order

Thank you debtcamel and amethyst, I've made notes from your posts this evening and will be going to court armed with your knowledge xx

[Openlaw15]

Re: charging order

@Openlaw15 you appear to have a bee in your bonnet about joint tenancies and implied trusts. You bring it up at any point where a house is mentioned even though it is often unhelpful to people seeking practical advice about what to say in court tomorrow.

And whilst the National Debtline staff may not all have the advantage of your extensive legal education (clears throat) they have seen HUNDREDS of charging order applications. And they know what they are talking about, it is VERY difficult to defeat one.

Besides my academic knowledge, I did extensive research and joint tenancy defence is the only feasible way to have final charge set aside, so yes I will reinforce this, as it is substantively law. My research includes studying the law commission's materials on the matter, including land registry documents relating to joint tenancies. Previously I thought and really believed the defence of joint tenancy would withstand a final charging order. However it will only go so far as setting aside an interim charge as at this point equity will still assist the legal owner.

[Amethyst]

Re: charging order

Thank you.
Is it rare that the judge will refuse to grant it? I spoke to an advisor at national debt line and they basically told me not to hold out much hope!

It is quite rare yes, your circumstances are slightly different to most cases - and all you can do is put that case forwards - it is your family home ... however when it comes down to it your hubby's ex owns has ownership of the property and the creditor (MIB) needs paying - if the ex won't pay/can't pay then they want to secure that debt so they can be sure they will be paid at some point in the future. The judge will want to know how the creditor is going to be paid if he doesn't grant the order.

If you plead your case and the Judge orders the charge goes to a final charge then you will have to sort out getting this paid up before you can transfer the property to your name... also just to think about for after tomorrow - I think if you can it would be worth going all out to sort that as if there is a judgement against her for this, and she's been driving without insurance, there could be other stuff in the pipeline as well, and protection of your house is your priority. She's signed the docs, if you can get this paid (if tmw doesn't go well), by a loan possibly?, and get the transfer through it might prevent a whole heap of trouble in the future. If she sees she can avoid payment of debts by letting it be bunged on a property she has no emotional or financial interest in... not a happy thought and she might not be like that at all, but having made no efforts to sort this out despite knowing your home is at risk I suspect it might be that way.