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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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I have a charging order on a property. The property is in joint

Resolved Question:

I have a charging order on a property. The property is in joint names but the charging order is registered to one of the co-owners.

I don't know where the defendant is living at the moment and I need to serve him with court proceedings.

Would it be okay to serve the proceedings to the property where the charge is registered or would the Judge say that proceedings were not served to the defendant and discharge the case, or should I try and find out where the defendant lives and serve the proceedings with a process server?

I have read that a charging order that is not regulated by the CCA carries statutory interest at 8%, is that correct?

How long do I have to issue proceedings for a charging order, is it 6 or 12 years or forever?

Can you help.

Regards

Dave
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, welcome to the website. My name is***** can assist you with this.

tdlawyer :

You need to register the charging order at the land registry against the property and serve the order. If you cannot find the address of the person concerned now, you can serve at the last known address.

tdlawyer :

However, before serving at the last known address, you should make reasonable enquiries to find out where he/she lives, such as enquiries of the owner at the last known property, and electoral rolls searches etc.

Customer:

Hello Tony, I have already registered the final charging order in 2009.

tdlawyer :

Okay.

Customer:

I need to issue a letter of claim

Customer:

and then issue the proceedings to force a sale on the property

tdlawyer :

Okay.

Customer:

i don't know where the defendant is living and have his last known address

tdlawyer :

Okay - you have to make reasonable enquiries.

tdlawyer :

If you can't find him, serve at the last known address.

Customer:

what's considered reasonable enquiries

Customer:

If the defendant objects in court that he was not served, the Judge may close the case and I will have to start again

tdlawyer :

That is a valid method of service under CPR 6.9 - see here: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.3

tdlawyer :

If the judge disputes service, all that;s likely is you will be directed to go away and serve properly.

Customer:

okay

tdlawyer :

It's highly unlikely you would have to start again. That would likely be considered to be disproportionate, and Rule 1 of the CPR requires the court to be proportionate in applying the rules.

Customer:

i have the address of the property I have a charge registered

Customer:

I have already sent a letter of claim to the charge address would that be sufficient

tdlawyer :

How do you know he/she is not there now?

Customer:

the wife resides that the property, but the (husband) who is co-owner does not live there

Customer:

the charge is with the husband

Customer:

not the wif

Customer:

not the wife

tdlawyer :

Then you should make enquiries of the electoral role, and her (if she will talk).

tdlawyer :

There is no set rule as to what is reasonable and so the court retains a discretion, but the more leg-work you do to try and find him, the more likely the court would be to accept it's reasonable.

Customer:

i have spoken to the wife during a 30 minute call, and she says that she has not seen her husband for sometime

tdlawyer :

Okay. The electoral role?

tdlawyer :

This is a favourite requirement of courts, because all adult voters should be on it. And that's what you'd be saying when you go to court having served at a last known address. If he was on there, as he should be, then he could be served there.

Customer:

and if he does not vote or not on the electoral role what do I do

Customer:

I have received a last known address but he moved out on March 19

Customer:

I received the address from a private investigation company

tdlawyer :

If you can't trace him, you could instruct a process server/enquiry agent to try, probably cost you about £50.

tdlawyer :

Ah ... done already, okay.

Customer:

yes I have already spoken to a process server company

tdlawyer :

Then in that case, you could try and serve at that address, as being the last known, and also at the house with the charge marked for his attention too.

Customer:

they visit the property 3 times

tdlawyer :

You can't chase him forever, and you only have to do reasonable things to find him.

Customer:

right okay

Customer:

so if I server his last known address 3 times and serve the registered charge address would that be sufficient in court

tdlawyer :

Try that - and if the court says it's not enough, you could ask for substituted service, and the court could give you permission to advertise in the local paper, for example.

tdlawyer :

Or perhaps even serve through Facebook or something like that.

Customer:

okay

tdlawyer :

It should be sufficient I would have thought, but a Judge has discretion over what is reasonable. Hence,different judges might say different things.

Customer:

just another point

tdlawyer :

Sure

Customer:

how long do I have to serve any proceedings?

Customer:

one court said 6 years, another source 12 years, another source lifetime

tdlawyer :

I just want to check that ... but I think it's unlimited. Just bear with me a moment.

Customer:

for the charging order

Customer:

okay thank you

tdlawyer :

Okay, in terms of forcing the sale, there is no time limit. The court decided this specifically in the case of Ezekiel -v- Orakpo. It is immune from the 6 year/12 year limitation period on enforcement of judgment debts under s.24 of the Limitation Act 1980.

tdlawyer :

However, interest might be limited to the last 6 years.

tdlawyer :

But that's a monetary issue, and is different from enforcing the sale to collect the judgment debt.

Customer:

okay thank you... on your point interest might be limited to the last 6 years... do you mean statutory interest at 8%

Customer:

sorry for any confusion

Customer:

I have also read...


If the judgment was obtained on an agreement regulated by the CCA 1974 then they cannot apply statutoury interest post judgment. However, if there was a clause in the original agreement allowing the creditor to apply contractual interest post judgment this would be valid. I'm afraid judges need educating in this area.

tdlawyer :

Yes, I do. This is set out in the wording os s.24(2) of the 1980 Act. Have a look here: http://www.legislation.gov.uk/ukpga/1980/58/section/24

Customer:

this is a blog

tdlawyer :

Is your debt a CCA debt?

Customer:

how would I know?

tdlawyer :

What is your debt for?

Customer:

the defendant is a former tenant who smashed up my flat and defaulted on rental payments

Customer:

there are two charges

tdlawyer :

This isn't an issue.

Customer:

one for damage and one for rent arrears

tdlawyer :

You're entitled to 8% post judgment on any judgment amount in excess of £5,000.

tdlawyer :

If it 's less than that, there is no statutory interest at all.

Customer:

for an unlimited amount of time

Customer:

or 6 years

Customer:

apprecaite your help on the matter

tdlawyer :

If enforcing by way of charging order, 6 years.

Customer:

sorry

Customer:

i already have a final charging order

Customer:

i meant can i charge interest on the debt until the matter has been resolved

Customer:

for example; if the debt is £5000 registered in 2009 and the debt is paid in 2015 (am i able to charge interest at 8%)

tdlawyer :

I think the answer to that is that you would need to issue a fresh claim for interest that is older than 6 years.

Customer:

right I see

Customer:

so if I issue proceedings before the 6 years expires (can I consolidate my interest in the proceedings)

tdlawyer :

In the case of Lowsley v Forbes the court says that interest continues to accrue until the charged debt is repaid, but to enforce to recover it, you're limited to 6 years on the underlying judgment/charging order.

tdlawyer :

It's a bit complicated, but I would suggest looking at the case, they have a better way of explaining it (albeit a longer way!).

tdlawyer :

http://www.bailii.org/uk/cases/UKHL/1998/34.html

Customer:

okay where can I find the case to read

Customer:

okay thanks

tdlawyer :

It's a house of lords decision too - you don't get any better case from which to read it!

Customer:

very interesting

tdlawyer :

Okay - does this answer your question today, and are you happy with the service please?

Customer:

if i went along with the proceedings are you able to represent

Customer:

if i need your services again, how do I get in touch

tdlawyer :

Just come back and mark your question for me "For TDLAWYER" and I'll pick it up as soon as I can for you.

tdlawyer :

Sadly, I can't represent you at proceedings. We're limited to information only on this site.

Customer:

okay i understand, should i represent myself in court (would I get sympathy from the Judge)

Customer:

because forcing a sale may be very difficult to achieve with the wife living the property

tdlawyer :

Litigants in person used to get sympathy, but not so much now, following some pretty high profile cases last year. So, my suggestion would be to get a solicitor to attend with you, and that shouldn't cost more than a few hundred pounds or so, but it's hopefully peace of mind for you. That said, there is nothing in law preventing you doing it yourself, but personally, I always suggest people get professional help if they can.

Customer:

okay thanks

Customer:

i will come back to you

Customer:

thanks, Dave

Customer:

going to select my rating face to excellent service

Customer:

are you a solicitor or barrister

tdlawyer :

Thanks Dave.

tdlawyer :

Solicitor.

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