Enforcement of Money Judgments Flashcards
What are the two ways of obtaining information about the judgment debtor’s financial circumstances?
1) Instruct an enquiry agent; or
2) Apply to the court for an order to obtain info from the debtor.
Who is the judgment debtor?
The party liable to pay the judgment.
Explain the procedure for obtaining a court order to obtain information about a judgment debtor’s finances.
1) Judgment creditor files notice of application at court with details of debtor’s name, address, the judgment which has been obtained and the amount owed.
2) Order personally served on debtor. Debtor can request (within 7 days) payment for reasonable travel expenses to and from court.
3) Hearing usually takes place in county court in area where debtor resides.
4) Examination conducted by officer of the court, but director can request a judge.
5) Standard questions are asked but creditor can request additional questions are asked. Officer notes down responses, and debtor will be asked to re read and sign the responses at the end of the hearing.
6) If debtor fails to attend hearing, judge can make committal order against them (which is usually suspended provided debtor complies with the order).
What is an order to obtain information?
Court order to obtain info from judgment debtor.
Requires debtor to attend meet officer of the court to be questioned under oath about their finances (or the finances of the company of which they are an officer).
What are the four main methods of enforcing a judgment?
1) Taking control of goods;
2) Charging order;
3) Third party debt order;
4) Attachment of earnings order.
What is the taking control of goods method of enforcement?
Used where amount owed can be recovered by seizing debtors possessions of equivalent value.
Items then sold at pubic auction.
Who carries out a taking control of goods enforcement of a judgment debt?
In the high court - High Court Enforcement Officer.
In the country court - bailiffs.
What are the powers of enforcement officers?
They cannot force entry into debtors home, but can use reasonable force to enter business premises if they believe goods are inside.
What can be seized under a taking control of goods order?
Cars, computers, banknotes, boats or even share certificates.
If a judgement is obtained in the high court, where can the judgement be enforced?
The writ of control of goods can be issued in the high court regardless of the amount being enforced.
A warrant of control will be issued and enforced by a bailiff.
What is exempt from being seized as part of an enforcement order?
The necessary items exemption.
Only applies to individuals (ie not partnerships, LLPs limited companies etc).
Clothing, bedding, furniture and household equipment reasonably required for the basic needs of the debtor and their family can’t be taken.
Work tools, computers, vehicles and other equipment necessary for the debtor’s own work or study cannot be taken (with aggregate value under £1350).
Goods which belong to other people (eg a spouse or family member), or goods subject to HPAs cannot be removed.
Where the ownership of goods being seized is disputed (eg debtor says they belong to someone else) who resolves such a dispute?
The court.
If a judgement of debt is obtained in the county court, where should the writ of control of goods be enforced?
If sum owed is less than £600 it must be isseud in the country court;
If sum is more than £600 but less than £5000, the writ can be issued in either the county court or the high court. If the High Court is chosen, judgement must be transferred from the county court to the High Court.
A warrant or writ of control will be issued as appropriate to the court issuing it. The enforcement agent used will be applicable to the court issuing the warrant.
If the debt is for £5,000 or more, then it must be enforced in the High Court unless the proceedings involve the consumer credit act 1974. A writ of control will be issued and this has to be carried out by a High Court Enforcement Officer.
Explain the procedure of enforcement for seizing goods in the High Court.
1) Judgment creditor makes a request along with two copies of a writ of control to the court office, and must also send a copy of the judgment;
2) Court seals the writ and returns one copy to the creditor;
3) Creditor then forwards this to High Court enforcement officer for that county where debtor resides/carries on their business. The writ is then executed.
Explain the procedure for carrying out a seizure of goods under a writ of control in the county court.
1) Creditor files form of request for warrant of control at county court hearing centre in the area of the address where the goods are to be seized.
2) Warrant is executed by enforcement officer for where debtor resides/ carries out their business.
What is a controlled goods agreement?
Agreement between debtor and enforcement officers which allows them further time to pay the debt.
Debtor acknowledges the enforcement agent has taken control of the goods, but that they will not remove or dispose of them before the debt is paid.
Goods remain on the premises for a few days, allowing debtor a final opportunity to pay.
No payment within time set out in agreement = goods sold at auction and proceeds used to pay the debt. Any surplus is returned to the debtor.
What is a charging order?
A charge made over either land or securities (stocks and shares).
Creditor is placed in similar position to a mortgagee. Charge sits against asset until creditor wishes to apply for a court order for the sale of the asset.
How is charging order against land made?
Must be registered at LR once made (or on the Land Charges Register if the property is unregistered).
Creditor then has charge over the land, but has to apply for court order for the sale of the land charged.
Judgment satisfied by the proceeds once the land is sold
Can a creditor apply for a charging order over land which is owned by the debtor jointly with another person?
Yes.
In this situation, an order is a charge upon the debtors own beneficial interest, rather than upon the land itself.
In which court should the charging order be sought?
If under 5k, the county court.
If over 5k, it can be made wither in the county court or the high court.
Where an order is being requested in the county court, it should go through the County Court Money Claims Centre.
List the three stages of the procedure necessary to apply for a charging order.
1) Interim charging order.
2) Final charging order.
3) Order for sale.
Explain the first step of applying for a charing order - Interim Charging Order.
Creditor files application notice, including details of judgement debt, land over which charing order is sought and names and addresses of any other persons affected (eg those with current charges over the land). Creditor must also file a draft interim charging order (ICO).
Application usually dealt with by court officer without hearing, who either makes ICO or refers matter to judge to consider further.
ICO application notice and docs filed in support must be served on debtor by the creditor within 21 days of notice being submitted.
Debtor then has 14 days to request court officer’s decision is reviewed by a judge.
