Legal Advice - Charging orders

[GirlAloud]

Was shocked to receive an interim charging order on my house this morning!! Breifly my ex has not lived at the property since Jan 09. Although his name remains on the mortgage they have signed a transfer of equity. This charging order is in their name and relates to an unpaid CCJ issued against them last year. Just a quick question, can the company issue a charging order when a transfer of equity has been signed?

[miss muppet]

Poor you, what a horrible situation, the only way I can help is point you in the direction of the drop down search box, type in charging orders.

[costa12]

Hi GirlAloud,

 

Sorry to hear about your latest predicament !

 

A bit of info for you. For them to apply for an interim charging order they must issue an application notice in form N379 and this is verified by a statement of truth (CPR, r 73.3(4)). The form must contain the information prescribed by PD 73, para 1.2.

 

This required information includes details of the judgment debtor, the judgment, and details of the property which it is intended to charge.

 

The judge will deal with this application without a hearing (hence you have received it 'out of the blue'). When he/she makes the decision to issue an interim order they will also fix the date for a hearing to consider making a final charging order (r 73.4).

 

Here we come to the nitty gritty!

 

At least 21 days before the final hearing, the judgment debtor, creditors, and certain other specified persons (IMHO this is why you have received the notice) must be served with the interim charging order, application notice, and any supporting documents.

 

So, have you received a date for a final hearing? Have you received any other documents?

 

Under CPR r 73.8 any person objecting to the order (obviously you ;-)!) being made final must file and serve written evidence setting out the grounds of the objection (transfer of equity in your case) not less than 7 days before the hearing.

 

The Charging Orders Act 1979, s 1(5) lays down particular matters that the court must take into consideration when deciding to make a charging order. Might be worth a look.

 

Costa

[debbbbsy]

The charge should only cover his share of equity in the property. So although his name is still on the deeds, & when they did a search prior to the charge, they would have seen this, & assumed his share was 50%.

Aslong as the transfer was done before the charge, & done legally through a solicitor, if his share/equity value is Zero,they may gain a charge, but the value is only equal to his equity. No equity, no money. A judge should accept this, and refuse to grant the charging order. However they may challenge you, why is his name still on the deeds, this implies an interest in the property.

Your Ex will also have recieved documents informing him of the order. Your mortgage lender will have been informed.

 

Debs

[GirlAloud]

Thanks everyone - very helpful. I am building up a picture of my defence. T of E was signed back in May 09. Quite simply the cost of removing his name from mortgage was 500 T of E was 150!! Done properly through a solicitor. I can prove I have been paying the mortgage since Jan 09.

[hammyhound]

Girlaloud,

 

His name should have also been taken off the title deeds as well making you sole proprietor. I would check this with the solicitor. Your mortgage company would have had to have signed a consent removing him from the mortgage and thereby removing him from the title deeds. I don't understand why his name still appears on the register.

 

I am not prying but was this done as part of the matrimonial package and under an order. If you have that order use that as well in your bundle.

 

HH