Orders for Sale, Schemes and Mind Maps of Finance

Download Orders for Sale and more Schemes and Mind Maps Finance in PDF only on Docsity! Landmark CHAMBERS Orders for Sale Brooke Lyne Introduction • What is an order for sale? • Why might you want one? Exercise of discretion – generally • Orders for sale are discretionary • CPR 73.10C.1 – “It is one thing to make a charging order giving security to the judgment debtor and quite another thing to order a sale of the judgment debtor’s property… it would be an extreme sanction and all the circumstances would have to be considered… to order sale is a draconian step to satisfy a simple debt and is likely to be ordered for example, in a case of the judgment debtors contumelious neglect or refusal to pay or in a case where in reality without a sale the judgment debt will not be paid” Exercise of discretion – generally • The welfare of those in the property (Forrester Ketley v Brent and Pallette [2009] EWHC 3441) • This applies even where debtor sole legal and beneficial owner (Close Invoice Finance v Pile [2009] EWHC 1580 (Ch) • Article 8 ECHR – There may be circumstances where courts must specifically consider proportionality (Natwest v Rushmer [2010] EWHC 554 (Ch) Exercise of discretion – generally • Attitude of debtor towards paying the debt and conduct to date • The prospects of the debt being paid without an order for sale • Ratio of debt to the value of the charged asset – “no rules or presumptions” (Packman Local v Mentmore [2010] EWHC 1037 (TCC) • The attitude of other secured creditors Procedure – which court? • CPR 73.10C(3) “a claim for an order for sale should be made to the court which made the charging order unless that court does not have jurisdiction to make an order for sale” • CPR 73.10C(2) “Where the charging order was made at the County Court Money Claims Centre a claim for an order for sale… must be made to the judgment debtor’s home court” Procedure – which court? • County Court: – Where judgment debt is no more than £350,000 • High Court – Where judgment debt exceeds £350,000 – Should be brought in Chancery Division (but, see Packman Lucas v Mentmore Towers [2010] EWHC 1037 (TCC)) Procedure • New proceedings are required • CPR 73.10C(4): the claimant must use the Part 8 procedure – Form N208 • CPR 73.10C(5): a copy of the charging order must be filed with the claim form Evidence – Practice Direction 73 “…(7) if the claim relates to residential property – (a) state whether – (i) a land charge of Class F; or (ii) a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section, has been registered; and (b) if so, state – (i) on whose behalf the land charge or notice has been registered; and (ii) that the claimant will serve notice of the claim on that person. 4.4 The claimant must take all reasonable steps to obtain the information required by paragraph 4.3(4) before issuing the claim.” Evidence • (1) Identify the charging order and property sought to be sold – Covered in witness statement and copy of title (if available) • (2) State the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim – Calculate judgment interest on the principal debt and any costs Evidence • (3) Verify, so far as known the debtor’s title to the property charged – In most cases land will be registered, so an official copy entry of title will be enough – Where land is unregistered, then the title deeds may be required – Further evidence of a beneficial interest (e.g. trust deed, witness statement, etc.) The Order • Most orders are conditional or suspended to give the debtor one final opportunity to satisfy the debt before the property is sold • The order will usually make provision for the property to be sold for a sum not less than £X – The Claimant can apply back to reduce this figure if necessary • The order will usually make provision for the practical aspects of the sale e.g. conveyancing solicitors to be appointed • The order will usually include a possession order requiring the occupiers to leave before a certain date The Order • The order will set out how the proceeds of sale shall be applied once the property is sold • Creditors will usually be entitled to costs • There are two precedent orders in Appendix A, Practice Direction 73