Post-possession enforcement against guarantor: N244 to vary judgement or new MCOL?

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    Post-possession enforcement against guarantor: N244 to vary judgement or new MCOL?

    Issued a section 8 against T, and got an order against tenant for arrears of about £3000. T abandoned property before bailiffs could come.

    Tenancy was guaranteed by a guarantor "G". I'm sure the guarantee agreement is valid in contract law (it's not a deed).

    When i issued the S8, I neglected to include the G as a defendant so the court order to pay the arrears is only against T.

    T clearly has no means of paying off this debt and works cash jobs as a labourer.

    I want to take action against G who is employed, and has a property that G owns.

    It seems I have two routes:
    1. Issue N244 form (cost: £250) to the court that handled the S8, asking judge to vary the money order to include G.
    2. Issue separate MCOL claim (cost: £180) against G

    Questions:
    A. Which route should I take?
    B. And are there pros/cons against either approach? I was hoping that going via route 1 would be simpler as the same court, and possibly same judge would understand the background whereas MCOL is an independent action.
    C. The contract specified interest chargeable on the debt. Can I add interest to date, to my claim now?

    thanks,
    Ash

    #2
    A court won't simply add the guarantor to an existing judgement, so MCOL is your only option.

    Unless the guarantor paid for the guarantee or you paid them, I'd suggest that it's not going to be easy to enforce if it's not a deed.

    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      I don't see how you can secure a second judgement for the same debt - that would leave both being enforceable and allow you to recover double the amount.

      Comment


        #4
        Originally posted by Ted.E.Bear View Post
        I don't see how you can secure a second judgement for the same debt - that would leave both being enforceable and allow you to recover double the amount.
        An excellent point - so hung up on the guarantor thing, I missed the bigger problem!
        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment


          #5
          Thanks for replies. It doesn't make sense that they'd be no remedy in this case!

          So if I can't have two claims, then it's best to go back to the original court then to vary the original judgement?

          If I just ask the judge (via a general N244), surely he can request a new hearing and ask both T & G to defend the claim and if I win, then issue a new court order naming both?



          Comment


            #6
            Originally posted by ashirusnw View Post
            Thanks for replies. It doesn't make sense that they'd be no remedy in this case!
            When you chose to sue the tenant only, a number of potential remedies were closed off.

            You might be able to persuade the judge to reopen a closed case, but I don't think it's very likely.
            For a start, you'd have to argue that your own case (which was successful) was mistaken.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              Court won't add the G to your claim.
              Your only choice is MCOL against the G.

              Comment


                #8
                Originally posted by mariner View Post
                Court won't add the G to your claim.
                Your only choice is MCOL against the G.
                I'm quite comfortable taking the MCOL route but in post #3 above Ted.E.Bear claimed this would present a problem as the existing court order (a result of s8) against the T is still actionable so I'd have two actions for the same debt. Is Ted.E.Bear right that this is an issue? And if so what's the remedy?

                Comment


                  #9
                  You may have to take professional legal advice.

                  Personally, I don't think that there is a remedy,

                  You elected to sue the tenant, not the tenant and the guarantor.
                  I don't see any way of suing the guarantor now the case has been decided.
                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment

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