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chatham-chamber
chatham-chamber, Advocate
Category: Law
Satisfied Customers: 11614
Experience:  LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)
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My husband and myself ran a successful electrical business

Customer Question

My husband and myself ran a successful electrical business until July of last year when we were owed in excess of £500k on one contract alone. We had to put the company into voluntary liquidation. We had personal guarantees with a loan company and the bank overdraft facility. We are now retired and of course we have been hounded to settle these guarantees which we are unable to do. We have sought advice and have employed an Insolvency Practitioner who have advised us to propose an IVA to our creditors. This we have done but we are receiving rejections as they believe the second charge over our residential property is not valid. We have a first charge with the Halifax and a second charge due to loans received to assist with cashflow for the business. Our solicitor registered the charge with the Land Registry in March 2015 and the sum borrowed was clearly stated on the CH1 form and yet the solicitors for the loan company insist that the charge is not valid as the date of the final loan agreement was after the charge was registered. These borrowings connected to the charge were taken over a period of eighteen months from Jan 2014 to March 2015. Each loan had a new loan agreement but following the final payment a new loan agreement was drawn up listing all the sums borrowed and this was the figure which was entered on the charge. Could you please advise as to the validity of this charge?
Submitted: 6 months ago.
Category: Law
Expert:  chatham-chamber replied 6 months ago.

Hi,

What date was the loan entered into?

Customer: replied 6 months ago.
The first loan was dated 3rd January 2014, the second loan was dated 7th February 2014, the third loan was dated 20th May 2014, the fourth loan was dated 27th March 2015. They therefore felt very exposed and insisted that a charge was put on our residential property for the full amount they were lending us which included for a further loan which was sent over to us following the registration dated 22nd June 2015. The final loan agreement encompassed all the loans and quoted the dates when these were borrowed.
Expert:  chatham-chamber replied 6 months ago.

Hi,

Thanks for the additional information.

If the loan agreement was dated after the registration of the legal charge then I am afraid that I agree with the solicitors acting for the loan company.

In order for the loan company to have a case, they need to prove that the agreement was signed after the creation of the charge. Generally, applications must be made to HM Land Registry within 2 months.

From the information you have provided, it would seem that the loan ompany may have reasonable grounds for suggesting that the charge is second to their loan.

I hope this answers your question. If so, kindly rate the answer and provide feedback.

If you have any further questions, please do not hesitate to ask.

kind regards

Customer: replied 6 months ago.
but the loan agreement dated 27th March 2015 prior to the charge lists all the borrowings.
Expert:  chatham-chamber replied 6 months ago.

I note what you say but it was still signed after the date of the charge.

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