A Charging Order is another approach that a creditor can take in order to make the debtor repay a debt. Generally this is done when a creditor has issued a CCJ and it is a way to enforce the CCJ should it not be paid in full or if any of the agreed instalments are missed. A Charging Order gives the creditor security of the debt. Once the Charging Order has been granted the debt becomes “secured” on the debtors’ house / land in the same way a mortgage or secured loan is.
The first step of a Charging Order is an Interim Order, this can be issued to the debtor without a hearing, normally it outlines the date for the Charging Order hearing (21 days notice must be given) which will be heard in front of a District Judge. As a precaution a copy of the Interim Order will also be sent Land Registry and this will be noted – this makes it impossible for the property to be sold. The Land Registry will also inform the debtor in writing that an Interim Order has been made.
If the debtor objects to the Interim / Charging Order then it is imperative that they send their written objections along with any evidence to the petitioning creditor at least 7 days prior to the hearing. It is also good practice for a copy of this to be sent to the court and the petitioning creditor’s solicitor (all should be sent by registered post).
At the Charging Order hearing the District Judge will decide whether to make a permanent charge on the property – he will take into account evidence / objections from both sides. It is imperative that the debtor attends the hearing as if they do not it is more likely that the Charging Order will be granted. If the hearing is not at a local court then the debtor can apply for it to be transferred to a local court – the form to complete is N244 and there is a fee.
The District Judge must consider whether it is reasonable to make a charging order. Under the Charging Orders Act 1979 they have to consider all of the circumstances of the case such as the personal circumstances of the debtor and whether if the Charging Order was granted it would be “unduly prejudiced” – this means that if the Charging Order was granted there would be a disadvantage to other creditors that the debtor may have.
If the property is in joint names but the debt is in a sole name – the other owner of the property has the opportunity to explain why they do not feel that the Charging Order should be granted. Some of these objections could include: who has paid for the deposit or who has made the mortgage payments. All of these are valid points but must be sent to the court, petitioning creditor and petitioning creditor’s solicitor at least 7 days prior to the hearing.
If the Charging Order is granted it is very rare for a court to allow a creditor to sell the property. The majority of creditors are happy to wait for the home to be sold at some point in the future. If the creditor requests that the property is sold there must be another hearing, again the District Judge would decide using objections / arguments from both sides whether to grant this or not. As before it is vital that the debtor files their objections at least 7 days prior to the hearing and attends the hearing.
Receiving an Interim Order / Charging Order can be a very worrying time, but it is crucial that the debtor acts fast and receives professional advice.
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