Fraudulent misrepresentation and Prenuptial agreement

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

When a house is subject to a interim charging order for a unsecured credit card. Would the sale of such a contract come under Fraudulent misrepresentation. When banks sell the loan are they in breach of the data protection act by not ensuring that the data sold isn't used to excess. as the banks sell these loans and still sell them. Is it not Fraudulent misrepresentation to have not informed the person taking out the loans That a house can be attached to the debt. If a debt company applies for such an order on a very old debt that might also be status barred are they also guilty of fraudulent misrepresentation especially if no paperwork has been produced. When You make a Prenuptial agreement. on buying a house. the agreement being the lady would never ever be left without a home. On The break down of the relationship one leaves the house as agreed many years before. the mortgage is then paid off in full using cash from early retirement. to ensure the lady and offspring as safe. the house was left before any credit was taken. Agreed verbally thirty years ago and left house 10 years ago. Are any of these points acceptable for mounting a defence. can a successful objection be raised if reproduced documents are offered against producing the original agreement. No paperwork has been offered at the moment as this firm (Cabot) are trying to press this through. a request for true copies has been sent also asking for them to comply to CPR 31 duties. any updates, etc. plus originals at the court.
If anyone can help with this it is only just started I can post all documents as they arrive and do this from start to final conclusion If people are able to help.

Put prenupt (family law)/ fraud misrepresent. to the side. It is an unsecure creditor with a charging order. Charge order requires a court order to take possession of the property. It is not the same power a bank (secure creditor, ie first mortgage) has. Please tell us about the value of the debt. How much is the property worth, ie how much equity? Is the property subject to an interim charging order now, or is this about to happen? Yiou can challenge a charging order via a non secure creditor as it only an equitable interest (not proprietary). They do not have an interest in land (ie property), just the debt you owe them. If you have the house was assigned via a joint tenancy (than a single owner) you have protection from eviction too, as there is legal and equitable interest. NB: this should have been posted on the property forum.

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

"The judgment debtor is:
[~~| the sole owner \7\ a joint owner Q a beneficiary under a trust
[7] This is shown by the Office Copy Land Register entries attached.
I I The judgment creditor believes this to be so because.."

A property held on trust is safe if the formalities have been dealt with, ie completed by deed. The remedy is against the trustee, not the beneficiary: Trustee Act 1925.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

These are from the land registry. I am sorry if I posted this in the wrong place I didn't know.





Land Registry
Plymouth Office
Private

[IMG]file:///C:/Users/Tony/AppData/Local/Temp/msohtmlclip1/01/clip_image002.jpg[/IMG]

Delivered by

Royal Mail

ROYAL MAIL

POSTAGE PAID GB HQ 319

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Date 14 December 2015

Notice to a registered proprietor of an application to register a restriction against the land - B136(CO)
Important: this notice is not a circular. Please read it carefully. If you do not know what to do, you should consider taking legal advice.
Dear ---------------------------
Property -------------------------------------------------------------
---------------------------
Title number of property -------------Registered proprietor(s)

Land Registry Plymouth Office PO Box 6344 Coventry CV39LL DX 740900 Coventry 24 Tel 0300 006 6000 Fax NA Plymouth.office @landregistry.gsi.gov.uk www.gov.uk/land-registry

of property -------------------------and ------------------------
When you own a property that is registered at Land Registry, we will write to let you know if we receive certain types of applications. This gives you an opportunity to consider the matter and to seek more information if you feel you need any.
We have received an application to enter a restriction in the register of your property. A restriction will regulate the making of an entry in the register of your property. Land Registry will not be able to register a transaction if it is of a type specified in the restriction until a prior condition is satisfied, as also set out in the restriction.
The application was lodged by:
1 of 10

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Its a joint owned property with my partner at the time also on the deeds. That was to make sure she always had a home.
Its worth around £85,000 I would guess and the debt is just over 8000 with all their interests and costs

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

These are from the land registry. I am sorry if I posted this in the wrong place I didn't know.



Land Registry
Plymouth Office
Private

[IMG]file:///C:/Users/Tony/AppData/Local/Temp/msohtmlclip1/01/clip_image002.jpg[/IMG]

Delivered by

Royal Mail

ROYAL MAIL

POSTAGE PAID GB HQ 319

-----------------------
---------------------
---------------------------
-----------------------------

Date 14 December 2015

Notice to a registered proprietor of an application to register a restriction against the land - B136(CO)
Important: this notice is not a circular. Please read it carefully. If you do not know what to do, you should consider taking legal advice.
Dear ---------------------------
Property -------------------------------------------------------------
---------------------------
Title number of property -------------Registered proprietor(s)

Land Registry Plymouth Office PO Box 6344 Coventry CV39LL DX 740900 Coventry 24 Tel 0300 006 6000 Fax NA Plymouth.office @landregistry.gsi.gov.uk www.gov.uk/land-registry

of property -------------------------and ------------------------
When you own a property that is registered at Land Registry, we will write to let you know if we receive certain types of applications. This gives you an opportunity to consider the matter and to seek more information if you feel you need any.
We have received an application to enter a restriction in the register of your property. A restriction will regulate the making of an entry in the register of your property. Land Registry will not be able to register a transaction if it is of a type specified in the restriction until a prior condition is satisfied, as also set out in the restriction.
The application was lodged by:
1 of 10

Ok, James

Q. Is the home protected under a trust? Is there a joint tenancy on the property. What is the essence of this restriction, is it protecting residents who do not have legal ownership or does it represent the trust? You need to be specific. A restriction potentially binds the land but it depends on the specific details as to what the restriction is protecting and whether it is ultimate protection.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

The mortgage was for the two of us, both names on the deeds. When I left work I just paid it all off so it belonged to us. Well her because I had already moved out
She lives there with my son now. I don't know of any trust but I am not to sure of what you mean. I am not legally minded. So this is hard for me to get to grips with
Hop that answers your question.

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

Unless you have severed the joint tenancy you will have a joint tenancy, which is like an invisible protection on the property. A trust means something which legally protects assets such as homes or stocks etc, so it creates a trustee (person responsible for it). Ok, what you need to do is check the property (home) on the land register. You will then know which persons have any interests in the property. How much is the property worth approximately. You can send a message to my inbox if you want to keep things private.

[Debt Camel]

Re: Fraudulent misrepresentation and Prenuptial agreement

If the mortgage is paid off, it means the OP has more equity and less value for the chargee.

[COLOR=#333333] That is completely the wrong way round. A paid off mortgage means there is more equity for a charge to attach to.

Unless you have severed the joint tenancy you will have a joint tenancy

Well we don't actually know on what basis the property was bought, I can't see this has any relevance to this case.

It is possible for an unsecured creditor such as the owner of a credit card debt to get a charge over a jointly held property.

I am afraid that nothing that has been said so far indicates to me a good basis for defending this Interim Charging Order becoming final.

[Debt Camel]

Re: Fraudulent misrepresentation and Prenuptial agreement

Let me re-phrase this then.

If I can't understand what you are saying, it is a fair bet that the OP can't either.

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

Okay before we get into all the ins and outs and finer points of law, there is a judgment of £8k - which the OP was unaware of until receipt of the interim charging order info, and a final charging order hearing set ( for when ?)

So, what is the date of the judgement?

Had you had any paperwork about it previously ? ( ie did you receive the claim form originally, or the judgment order from the court ? )

You have a couple of options from the info we know.

- Apply to set aside the judgment and defend the debt. - as you have been communicating the debt isn't statute barred, and although it was in dispute it was more on the amount you could pay side than the you don't owe it side.

- Negotiate with the claimants/judgment holders to pay by monthly installment while the charging order is in place. It is very unusual for a family home to be subject to a sale order, and if you put your income and expenditure together and make a reasonable AFFORDABLE offer the charging order will more than likely just sit on the house until you either have paid off the debt or sold the property yourself ( then the sum would be paid to the charge holder out of your equity at the point of sale )

To do this you would need to put in an offer and witness statement to the court outlining your circumstances and what you can afford to pay and include your Income and Expenditure sheets. Your statement could include points about the pre-nuptial agreement - We can give you a hand doing that - when is the hearing ?

also we need to know how the property is owned - is it still in joint names ?

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

[COLOR=#333333] That is completely the wrong way round. A paid off mortgage means there is more equity for a charge to attach to.


Well we don't actually know on what basis the property was bought, I can't see this has any relevance to this case.

It is possible for an unsecured creditor such as the owner of a credit card debt to get a charge over a jointly held property.

This is minor point and it's your perception the way you're perceiving the facts. A Chargee has an interest in the security of the debt, ie the charge and added interest. The chargee does not have a legal interest in the property or an equitable interest, as there is no proprietary interest whatsoever. The charge is merely an equitable charge not the chargee having an equitable interest, in other words the chargee cannot take possession or force a sale without a court order. The charge is only 8k so this is a very minor amount relatively so it is very unlikely a court would allow the chargee said powers, as it is simply not a secure creditor benefitting from property (proprietary) rights which banks enjoy.

The way I understand the law unless joint interest has been severed through voluntary severance by the joint tenants or subject to a bankruptcy where title transfers to the official receiver who takes the equitable interest as trustee (ie land held on trust), this is a legal severance. The OR however cannot take the legal interest of the JT as unless one person dies or the property is transferred to the new owners, a legal interest is automatic and binding. I put it in simple way, the property is owned by the joint tenants together but individually they hold no thing individually unless there is severance: s36, Law of Property Act 1925. This is why when a JT died the other automatically is a beneficiary and wills have no effect.

I am afraid that nothing that has been said so far indicates to me a good basis for defending this Interim Charging Order becoming final.

Well, to be fair I was merely ascertaining facts not at this interim proving ideas of a defence.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

Again I want to thank you all for taking the time to help me. The deeds are still in both our names to answer your question. All I received was the judgment order. The case is set for the 25th of this month where they want to finalise the judgment. I have to contact the courts to change the place to a more local area and plead my case. 7 days before.
I have already objected to the land registry but they have only every refused one order in ten years according to what I have read so I would imagine that the interim will be attached.
I sent my CPR 31.14 Request for True copies of all documents using the template shown a the beginning of this post. I put the name of the claimant verses and my name. the claim number and the Cobot reference number on it. I also put their address as shown in the template but I didn't add mine. Was this wrong? My reasoning was it didn't show it on the template so my thoughts were that the case number and their reference were all that was needed. that request reached them on 23rd of December and they have not replied in anyway to that request. Do I now need to and add the address which is the same one that their letters have already been sent to. If so and my request was void do I have to give them another seven days to comply? I changed banks April 2010 so the last payment on the card was before that date. The card was about 2007, 2006. I do not believe that the documents exist due to the time lapse and the fact they do not seem to want to comply to my CPR 31.14 Request. Do I Apply to set aside the judgment and defend the debt. as you suggest or could I apply for the court to instruct them to send me the documents if all my paperwork is in order and ask to have the case deferred for non- compliance with the documents. Bearing in mind the short time I have left before I have to file my defence. I am not legally minded like I have said so don't be to harsh if some of my questions seem stupid to you.
I can send another CPR 31.14 Request to both the solicitors and Cabot with the address on or a letter stating that the send the documents to the house address if you think that is wise. If I have to apply again that will take it very close to the time when I have to enter my Defence. If do ask for it to be deferred how would I do it and still make sure I get the copies of the documents or prove that they do not have any.

[James Last]

Re: Fraudulent misrepresentation and Prenuptial agreement

I would like to thank you all for the time and help you have given me
To try and answer your questions as best I can. Yes the house is still in joint names
The date for the final judgment is the application will be heard on the 25th January 2016
The credit card was issued around 2006 2007. I changed banks in April 2010 so the last payment was made on a date before that.
I sent my CPR 31.14 Request and it reached them on the 23^rd December. I used the template shown at the start of this post, I put the claimant name verses my own name plus the case number and their reference number. I also put their address but not my address. My reasoning being it didn’t show on the template and as they had used the house address on their previous letter they would still use it on my request. Was this wrong? They have made no contact or sent any documents to show their claim even though the 7 days are past. Do I send them another letter and a new copy of my request which includes the address of the house or is this not wise? Bearing in mind that I have to set out my defense and ask for the hearing to be moved to a more local area 7 days before the hearing date.
If I apply to set aside the judgment as you suggest would I do it on the bases of the claimant not sending any documents about the claim and ask the court to instruct them to send me the documents as asked for in the CPR 31.14 Request and use that as a defense? The reasoning being that they do not seem to want to produce any proof that they even have a claim. Or do you think this is unwise?
Whichever approach you think best and if you could tell me what template to use plus when I ask for the hearing to be deferred and moved to a local area is Manchester a bad choice?
In the pre-nuptial agreement that you mentioned. It was the intention and the spirit of that agreement to always make my family safe and we have adhered to it for nearly ten years. I never asked for anything. Yes I should have change the title but it wasn’t that sort of break-up. I walked away as I said I would and let her have the house. I am much older than she is and am a lot more likely to die long before she does or for that matter my son. So it’s not as if I am trying to gain anything.
In one famous case it was appealed on this point. In the write-up on here I think it is he refers to another case where the intention of the agreement had not been considered correctly. Not I am not sure on this because I don’t know anything about law so don’t be thinking I have read this correctly. I do not even know what op is that you use. Is it Rankin? I seem to remember it being all over the news at the time because there wasn’t many cases about prenuptials and because we had one it caught my eye.
Please don’t be too harsh on me for my questions. I am not legally minded and though they might seem simple or even stupid at times is just that I don’t understand or I haven’t quite grasped what you are trying to tell me. Again I can only thank you for the help you are giving me

[Openlaw15]

Re: Fraudulent misrepresentation and Prenuptial agreement

Again I want to thank you all for taking the time to help me. The deeds are still in both our names to answer your question. All I received was the judgment order. The case is set for the 25th of this month where they want to finalise the judgment. I have to contact the courts to change the place to a more local area and plead my case. 7 days before.
I have already objected to the land registry but they have only every refused one order in ten years according to what I have read so I would imagine that the interim will be attached.
I sent my CPR 31.14 Request for True copies of all documents using the template shown a the beginning of this post. I put the name of the claimant verses and my name. the claim number and the Cobot reference number on it. I also put their address as shown in the template but I didn't add mine. Was this wrong? My reasoning was it didn't show it on the template so my thoughts were that the case number and their reference were all that was needed. that request reached them on 23rd of December and they have not replied in anyway to that request. Do I now need to and add the address which is the same one that their letters have already been sent to. If so and my request was void do I have to give them another seven days to comply? I changed banks April 2010 so the last payment on the card was before that date. The card was about 2007, 2006. I do not believe that the documents exist due to the time lapse and the fact they do not seem to want to comply to my CPR 31.14 Request. Do I Apply to set aside the judgment and defend the debt. as you suggest or could I apply for the court to instruct them to send me the documents if all my paperwork is in order and ask to have the case deferred for non- compliance with the documents. Bearing in mind the short time I have left before I have to file my defence. I am not legally minded like I have said so don't be to harsh if some of my questions seem stupid to you.
I can send another CPR 31.14 Request to both the solicitors and Cabot with the address on or a letter stating that the send the documents to the house address if you think that is wise. If I have to apply again that will take it very close to the time when I have to enter my Defence. If do ask for it to be deferred how would I do it and still make sure I get the copies of the documents or prove that they do not have any.

I'm going to see what I can find on charging orders as i know they're only equitable (discretionary...not binding). Property (ie land, homes) ownership is either sole owner; co-owner (either joint tenants or tenancy in common). If it is joint tenancy the property is legally protected as neither tenant owns anything by their self so that they have a share to sell to pay debts. They instead own the property between them but nothing individually. A tenancy in common is different it is property where the joint owners own individual shares and can gift their share in a will or surrender their share were a bankruptcy to happen to either one. A tenancy in common is therefore not protected in a possession type situation. Let's say this was a bank going for a repossession (ie possession court order), if there were a joint tenancy the courts seemingly are more reluctant to grant possession orders simply because the law is that a joint tenancy is protected by law (legal interest) and there is no property to claim in reality until the joint tenancy has been severed. So, there must be a very good reason why the courts would allow it. If there were a tenancy in common a charge, possession or sale order is more likely. The problem is if the joint tenants do not rely on this argument then the bank, creditor applying for the charge isn't going to tell them. Look at post 15 extract:

"Judgment debtor’s interest in the land or property

The judgment debtor is:
[~~| the sole owner \7\ a joint owner Q a beneficiary under a trust
[7] This is shown by the Office Copy Land Register entries attached.
I I The judgment creditor believes this to be so because..."

The creditor has to inform the court of the debtor's (ie your) interest in the property. A joint owner, in your case a joint tenancy is a legally binding interest in the property (as aforesaid). If the joint owners were tenants in common it would mean that the joint tenancy was either severed or there was not one to begin, so a charge could be placed automatically. However, the reason for your joint tenancy is very relevant to the court for instance. If the reason for the joint tenancy still applies then this is even a more solid case. Now my question to you is what was the reason for the joint tenancy initially '30 years ago.' I now refer you to your first post:

"a Prenuptial agreement. on buying a house. the agreement being the lady would never ever be left without a home. On The break down of the relationship one leaves the house as agreed many years before. the mortgage is then paid off in full using cash from early retirement. to ensure the lady and offspring as safe. the house was left before any credit was taken. Agreed verbally thirty years ago and left house 10 years ago.

Was this the reason for the joint tenancy that the property would be protected were you to leave or were you to die that the property would pass to this lady? If is not the reason for the joint tenancy please tell me what that reason is. The joint tenancy will be your main defence as it is simply still in tact, and if it applies to banks (secure creditors) which I know it does to an extent, it should be even more robust an argument for you. The charge amount in any event is likely very insignificant to the property's actual value (equity). There may be case law where charge severs a joint tenancy but if one is raised you're going to argue based on the Parliament's intent (statutory intent) and this has priority in the UK Constitution, as Parliament has sovereignty (the most powerful).

NB: proof official receiver only entitled to equitable interest once the joint tenancy has been severed: https://www.insolvencydirect.bis.gov...2/Part%202.htm
JT legal interest is held by tenants but OR claims the equitable interest. This means the receiver can only take what the debtor tenant owns, where the receiver claims adopts the role of trustee as though he/ she were the debtor themselves (so he is trustee of the bankrupt's estate, which is why the equitable interest can be sold or given back to the debtor tenant).

[Amethyst]

Re: Fraudulent misrepresentation and Prenuptial agreement

The CPR 31.14 request is uneccessary at this stage as it is already past judgment so don't worry about that.

The order from the court about the final charging order hearing on application will be heard on the 25th January 2016 should contain a claim reference on it which relates to the original claim ?

If not give the court a call and ask them - which court is it in? Northampton CCBC ? also ask them how to have it transferred to a court nearer you.

Actually it might really help, as things sound a bit confused, if you could take a photo of the letter from the court and from the LR and upload them (TAKE OFF PERSONAL INFO) or email them to me at admin@legalbeagles.info

We should aim to get a witness statement sorted and in by the 11th Jan ( 14 days before the hearing ) so need to know exactly where things are at and then make a decision.

Forget the pre-nup etc type bits for now - you aren't going to lose your home so long as you deal with this CCJ and Charging order properly now.