charging order

[Amethyst]

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

Concentrate on tmw and the hearing, all you can do is your best, hope for a nice judge and know that it is not your fault, and also NOT the end of the universe, and doesn't mean the loss of your home if it doesn't go your way xxx We'll be thinking of you, crappy situation to be in (((((((((((( hugs))))))))))))

[Openlaw15]

Re: charging order

I have to agree with @Debt Camel; 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



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.

Look at the wording 'equal rights' to 'the whole property.' Ie each party owns nothing individually but together they own the whole, ie no individual share. A joint tenancy is not an equal share but an equal right to the whole property. Ie death occurs, property transfers to the other - the whole of it. Charging Order situation, it can't apply as each joint tenant has equal rights to 'the whole property' but no share individually. In short the whole of the land is protected by a joint tenancy but no share individually. You cannot have whole and share as one cancels the other out, it's logical never mind law.

[Amethyst]

Re: charging order

I was simplifying - the debt applied as a charge to a property held as joint tenants is a charge applied to the whole, not to a share.

[Openlaw15]

Re: charging order

I was simplifying - the debt applied as a charge to a property held as joint tenants is a charge applied to the whole, not to a share.

Here's a simple analogy of joint tenancy.

A pizza is boxed and cannot be opened to take a slice. Once the box is opened the pizza can be cut into slices, ie shares, but not before. Like a pizza a joint tenancy cannot realise a share until the (metaphorical) seal from the joint tenancy is removed, to take a share, as analogous to the pizza therefore. This is why a restriction is entered on the land registry, ie the seal is broken on the joint tenancy by a final charging order, to indicate that the joint tenancy has been severed.

[Amethyst]

Re: charging order

Ok You've made me hungry now though xxx

[wales01man]

Re: charging order

Is the Judge ruling on the sharing of a pizza now? My god iam more confused than a comparison website now

[torioc]

Re: charging order

Is the Judge ruling on the sharing of a pizza now? My god iam more confused than a comparison website now

Glad I'm not the only one

[MIKE770]

Re: charging order

do not like pizzas, can we have explanation using fish & chips oopppssssssss Zoommmmmmmmmmm

[Amethyst]

Re: charging order

Morning Toiroc xxx How you feeling today ? Hubby all raring to go this afternoon ?

[Openlaw15]

Re: charging order

Morning Toiroc xxx How you feeling today ? Hubby all raring to go this afternoon ?

Even if they do make the charge order final, it is still abuse of process. Op's husband/ his ex should have been served at least 21 days prior to the interim charge order application to the court: CPR 73.5 (1). The Op's husband therefore was not given at least 7 days before the hearing to put his objections to the interim charge order. OP's husband could make an application to have the final charging order set aside owing to this abuse of process. So, no, it's definitely not the end of the world at all. Op has such a good case notwithstanding it was a joint tenancy, as the debt was only in one debtor's name and procedure was abused.

[wales01man]

Re: charging order

All the OP has to do is point that out Openlaw then its dismissed !

[Openlaw15]

Re: charging order

All the OP has to do is point that out Openlaw then its dismissed !

It's this shocking, this comes from a land adjudicator's case about interim charging orders:

"57. However, experience shows that a detailed consideration of this nature prior to the making of a final charging order rarely takes place. Applications for final charging orders are often put in a busy list with about 10 minutes allotted for each case. Some courts are inundated with them as explained in the White Book at paragraph 73.10.10:At the time of this edition the UK is recovering from a recession which saw two banks nationalised and most others receiveGovernment help. Lenders remain concerned about their balance sheets. A debt which would otherwise be a bad debt but which is then securedby a charging order will now appear on the balance sheet as an asset. This hasled to many courts being inundated with applications for charging orders. The courts will make the order, subject to normal principles, but generally do so merely to give security rather than as a prelude to an order for sale. Unfortunately some courts are now receiving unmeritorious applications for an order for sale often made by an assignee in respect of small or modest debts (such as credit card debts) purchased at a knock down price. Such applications are likely to be dismissed as totally without merit and subject to an adverse costs order.58. Final charging orders are often made as a matter of routine. Assignees of the beneficial interest rarely take part in theproceedings."

Are they all dismissed though? Creditors who purchase debts (well the right to claim the debts) are made in bundles for pence in the pound, yet still harass the debtors to pay or they'll lose their home. Even though this is just an outright abuse and charging orders are merely to secure the debt, not an interest in the home at all.

[Kati]

Re: charging order

It's this shocking, this comes from a land adjudicator's case about interim charging orders:

"57. However, experience shows that a detailedconsideration of this nature prior to the making of a final charging orderrarely takes place. Applications for final charging orders are often put in abusy list with about 10 minutes allotted for each case. Some courts areinundated with them as explained in the White Book at paragraph 73.10.10:At the time of this edition the UK is recoveringfrom a recession which saw two banks nationalised and most others receiveGovernment help. Lenders remain concerned about their balance sheets.A debt which would otherwise be a bad debt but which is then securedby a charging order will now appear on the balance sheet as an asset. This hasled to many courts being inundated with applications for charging orders. Thecourts will make the order, subject to normal principles, but generally do somerely to give security rather than as a prelude to an order for sale.Unfortunately some courts are now receiving unmeritorious applications for an orderfor sale often made by an assignee in respect of small or modest debts (such ascredit card debts) purchased at a knock down price. Such applications arelikely to be dismissed as totally without merit and subject to an adverse costsorder.58. Final charging orders are often made as a matterof routine. Assignees of the beneficial interest rarely take part in theproceedings."

can I have a link for that OL (I'd like to read the whole thing)??

[Openlaw15]

Re: charging order

can I have a link for that OL (I'd like to read the whole thing)??

Yes of course you may. http://www.bailii.org/cgi-bin/markup...method=boolean

[Amethyst]

Re: charging order

CPR 73 -

(1) An application for a charging order may be made without notice.


Service of interim order
73.5

(1) Copies of the interim charging order, the application notice and any documents filed in support of it must, not less than 21 days before the hearing, be served on the following persons –

(a) the judgment debtor;



Which means the app for an charging order does not need to be served on the debtor, and the court can make the interim order without notice, but they must serve the interim order etc on the debtor 21 days before the final charge hearing - which has been complied with.