Attachment of earnings advice

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  • johnboy
    replied
    Many thanks

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  • Paul Gibbs
    replied
    the bank will not reduce the account below £1. This means if owed £1,000 but theres only £500 in the account you will get £499.

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  • johnboy
    replied
    A great bit of info.

    One question though, if someone owes you say £1000 but they only have £500 in their a/c but have a overdraft limit of another £500 would you get £500 or £1000 given to you by the bank/court?

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  • Paul Gibbs
    replied
    sorry I should have explained clearer!

    you will need to issue the application at court and pay the fee. The court will check your application and if all is ok they will order an interim third party debt order. This will be sent to you and the bank. About 5 working days afterwards the debtor will be sent a copy - the delay is to ensure the debtor does not have a chance to clear the account. The court would then list a final hearing where the debtor is entitled to attend and argue he is not liable, and if he fails you get a final charging order and the bank then receives this and sends the money to you.

    You are not entitled to know any information regarding the debtors bank account prior to the order (they usually say data protection act issues)

    Once the bank receives the order they will discuss the account with you. The will only tell you whether there are funds in there, and whether there is enough to pay all that you have claimed.

    e.g. if you are owed £5,000 they will not tell you there is £210,000 in the account all they will say is that they have frozen £5,000 being all the money you are entitled to. If there was only £2,000 in the account they will tell you that. If there is nothing in the account or it is overdrawn then they will tell you.

    If there is nothing in the account the bank usually writes to the court and says that there is an account but there is no money available and therefore they will not attend at the court hearing.

    If the account has no money when the bank sends its letter you should just write to the court and tell them that as there is no money it is pointless holding the final hearing as its a waste of everyones time. This saves you attending at the final hearing but you do not get your court fee back.

    Judges usually suggest legal advice if they think it would help a party. The judge has seen more evidence than me - he may be suggesting you look at other enforcement steps. He may think you have a shout against the employer - jsut because they say he is self employed does not mean he is! There are legal tests to see if people are self employed or not - you might be able to show he is an employee and therefore get an attachment of earnings order.

    you have options and I think you will get your money. Solicitors can help you and on most enforcement steps limited costs can be recovered. Your legal costs will always be more than the fixed costs, but at least fixed costs are something!

    the key as a creditor is to annoy the debtor so much they pay you as its less hassle.

    As I see it you have a number of options: -

    1. challenge the status of the debtor as an employee - take legal advice in my opinion.

    2. third party debt order

    3. If you know his address apply for court bailiffs to attend. If you do not know his address apply to court for him to answer questions - get his address details of all bank accounts details of all jobs he has and details of any property he owns.

    hope this helps. I think you are in a much better position than many - often debtors cause more damage and there is no prospect of recovery

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  • norroy
    replied
    Originally posted by Paul Gibbs View Post
    Dont forget once the account is frozen it remains frozen until the final hearing which will be around a month later. Also the bank will tell you if there is nothing in the account or if it is closed so then you can vacate the final hearing.
    Just to clarify would I be told if the bank account was empty before having to pay for the TPD ?

    What does vacate the final hearing mean ?

    Frustratingly in my case the former tenant owes me £3000+, earns £600 per week and has been with the same employer for past ten years.

    However, because the 'employer' has told the court he works on a self-employed basis, they will not pursue it. The court says I should take legal advice, which presumably means spending thousands in the hope of setting a new legal prescedent.

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  • Paul Gibbs
    replied
    yes you must have a court judgment before you can take enforcement steps

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  • johnboy
    replied
    Originally posted by jasonmccaul View Post
    Go for the N316, it will cost you 45 pound and the tenant will be required to attend court to show their bank details, assets, pay slips etc. If you know she is working its worth doing this. Provided the notice is served and this is the job of the court bailiff in a personal (ie non business) case then should she fail to attend the hearing she can be arrested.

    You can request that the court ask her other questions, for an attachement of earnings you need to know her employment status i.e. employed/self employed and her employers address.
    Do you have to get judgement first (online money claim) before you go down this route or for the court hearing when the original online money which is then defended?

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  • Paul Gibbs
    replied
    Originally posted by Ericthelobster View Post
    Not disagreeing with that advice, as I can't come up with anything better, but as far as I know the trouble with a TPDO is that you will only be able to 'grab' whatever funds happens to be in the account you freeze, at that time. So if the debtor has half a clue (especially if he thinks you might try to get a TPDO) he's going to make damned sure he doesn't leave any substantial sum in the account longer than necessary.

    Dont forget once the account is frozen it remains frozen until the final hearing which will be around a month later. Also the bank will tell you if there is nothing in the account or if it is closed so then you can vacate the final hearing.

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  • Angela
    replied
    Very interesting. Thanks for the comments!

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  • Ericthelobster
    replied
    Originally posted by Paul Gibbs View Post
    If the debtor is self employed then personally I would think about a third party debt order. Get info on their bank accounts and then freeze whatever is in there. Any sums in excess of £1 will be released to you as long as the court is satisfied you are entitled to any money (i.e. that you have a judgment against the debtor that has not been satisfied).
    Not disagreeing with that advice, as I can't come up with anything better, but as far as I know the trouble with a TPDO is that you will only be able to 'grab' whatever funds happens to be in the account you freeze, at that time. So if the debtor has half a clue (especially if he thinks you might try to get a TPDO) he's going to make damned sure he doesn't leave any substantial sum in the account longer than necessary.

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  • Paul Gibbs
    replied
    If you make a request for a debtor to attend court to provide information on his/her finances then they are under oath so should tell the truth. The court fee is not added to the judgment debt as it is not deemed to be a successful attempt at enforcement.

    If you subsequently try to obtain an attachment of earnings order, you can claim those costs as long as you are successful. As stated by others the employer must be legally distinct from the debtor. If the debtor is self employed then personally I would think about a third party debt order. Get info on their bank accounts and then freeze whatever is in there. Any sums in excess of £1 will be released to you as long as the court is satisfied you are entitled to any money (i.e. that you have a judgment against the debtor that has not been satisfied).

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  • Angela
    replied
    Yes I naively thought that being self-employed a landlord may be entitled to claim against tenant earnings from that individual, not the employer as would be the case if working for someone else.

    Is there some more protection for a tenant against the landlord making this kind of claim if a tenant is self employed?

    Self-employed or not, this particularly egotistical tenant from the bowels of hell is running a business which (apparently) is doing very well indeed. If the tenant is doing that well, the rent arrears is a bit of a play on the AST system presumably which is malicious. Any suggestions on wrenching rent out of a solvent self-employed tenant will be noted!

    Cheers

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  • jeffrey
    replied
    Originally posted by Angela View Post
    "You can only get an attachement of earnings if she is employed, if she is self employed you cannot use this method."

    Have a tenant who is self-employed. Can I do something similar to the attachment to earnings order? Why can you not use the same procedure for self-employed individuals or am I missing something really obvious about their employment status?
    Self-employed status obviously means that the person [X] has no employer other than him/herself. Consequently, there is no-one else whom a Court could order to deduct amounts from the employee's pay; how could a Court order X to deduct from X's own salary, when the self-employed are not salaried employees by definition?

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  • Angela
    replied
    "You can only get an attachement of earnings if she is employed, if she is self employed you cannot use this method."

    Have a tenant who is self-employed. Can I do something similar to the attachment to earnings order? Why can you not use the same procedure for self-employed individuals or am I missing something really obvious about their employment status?

    Leave a comment:


  • jasonmccaul
    replied
    John,

    yes the tenant will have to give this information. I forgot to add I think you can only issue the N316 if you have an outstanding served claim against the tenant i..e. a money claim through MCOL, otherwise anyone could drag anyone else to court for 45quid.

    I believe all landlords should use these procedures regardless of the inconveniece it causes us, if we dont make a stand these tenants will simply move from house to house causing the next landlord grief. My tenant has been torturous throughout their tenancy and now I am replaying him through the legal system, I have probably hurt my chances of getting him out into another property by getting CCJ's on him but I will chase him for ever and a day just to make him pay and prove a point that he cant get away with this.

    Best of Luck

    Jason

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