Enforcing judgement – urgent advice needed!

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    Enforcing judgement – urgent advice needed!

    On the 24th June, my partner and I won a claim against our ex-landlord for failure to protect our deposit, and the judgment against her ordered her to pay us £4200 (the original deposit and 3x the deposit in compensation) plus interest on or before 8th July.

    We waited until the 9th July for her to pay, but she did not, so we posted form N316 (Application for order that debtor attend court for questioning) to the court. The intention being to obtain more information on her financial situation, so we can decide which is likely to be the most effective enforcement method to use.

    However, on the 10th July we received the form N245 (Application for suspension of a warrant and/or variation of an instalment order) which she submitted on the 7th July, and the court forwarded on to us on the 9th. In this form she states that she can only afford to pay us £50 per month, and has detailed her income, expenses and debts, and enclosed a cheque for £50. This is unacceptable, as it would take her 7 years to pay us the full amount. We know that she still owns the property we were renting, so at the very least we should be able to apply for a charging order.

    Along with the N245, we received form N246 (Claimant’s Reply to Defendant’s application to vary instalment order). We now have 2 weeks to return this form, stating whether or not we accept her offer of £50 per month. If we do not accept the offer, then we must say how much we will accept per month, or that we will accept payment in full by a certain date. However, we are not interested in monthly instalments, and would like to enforce payment. We must also record our objections to her proposal.

    From what I’ve read, it seems that if we reject her offer then the court will consider her financial situation based on the information she has provided in the N245, and decide how much she must pay us per month. She missed the original payment deadline of the 8th July, so we have the right to enforcement. However, it is my understanding that if the court orders that she is allowed to pay in monthly instalments, we will be denied the right to enforcement so long as she keeps up with the payments. Surely we have the right to decline this, and follow the usual lines of enforcement? Does anyone know whether our N316 application be suspended due to her submitting the N245?

    Thanks in advance for any advice.

    #2
    Originally posted by carpetfluff View Post
    Thanks in advance for any advice.
    Not a legal answer . . . .

    If everything went smoothly with your tenancy, you would have walked away with £ 1050 deposit returned ?

    Suggest you say you will accept your original deposit plus costs to persue the claim, and go from there.

    Better to get your original deposit back, ( which she must have ) than £50 per month for 7 years.

    If she cant pay, put a charge on her house, or file her for bankruptcy, but if you are happy to receive your original deposit back, plus a small fee for your costs, I think you will get more response from your landlord on £ 1050 than trying for £ 4200

    Best you walk away with £1000, than nothing ?

    But, she must have 2 properties. She lives in one, and rents the other out, so she wont lose anything if she is made to sell one property to pay your deposit !

    Just food for thought.

    Comment


      #3
      Once there is a court order in force specifying instalments, you will not be at liberty to pursue any other method of enforcement whilst she maintains that instalment order.

      Only if she breaks the order by failing to pay one or more months instalments would you be able to pursue by charging order or statutory demand as a prelude to bankruptcy.

      The problem with oral examinations (or order for questioning as it now is) is that whatever the debtor says will be taken as kosher and usually a higher clerical or admin officer takes the questioning session - its only referred to a judge if there is potential for imprisonment in default of the debtor attending. The questions are predetermined though they can be added to by creditor amendment beforehand. One perverse thing about orders for questioning is that you may have to pay for her to attend (i.e. tender a sum for travel to and from the questioning session). As far as I know, since the order for questioning is not enforcement, it will still go ahead and unless there are some serious anomalies between the elicited information and what she has said on the N244 offer, the instalment order is likely to remain*

      (*at the moment, this is an offer - if you accept it, it will be registered as such as an instalment order, if you reject it, an admin officer will review it and in most cases they will endorse it - referring it to a judge if need be - so the outcome is likely the same whether you accept or reject it.)

      If you move quickly before the offer is consolidated into an order, you might get in with a charging order - however, you run the risk of being accused of abuse of process. Tactically, in your shoes, I would not resist the £50 a month offer and wait till she defaults, then slap in a charging order or statutory demand.

      Note that a charging order cannot be turned automatically into an order for sale - all it does is register a charge over the house concerned forcing any solicitor dealing with the proceeds of sale to pay the charge off before it can be transferred to a buyer when and if its sold. You are extremely unlikely to obtain a subsequent order for sale as the argument would be she needs the rental income to pay you the instalments - apart from that, judges are extremely reluctant to make orders for sale following a chargeing order.

      Comment


        #4
        Thanks very much for the replies, the advice is greatly appreciated.

        We went to our local county court yesterday, and they were able to confirm that our N316 application would not be suspended due to her submitting the N245. They also confirmed that if the court makes an instalment order, then we will lose the right to enforcement. Although the N316 application will continue unhindered, the information gained from it will be pretty useless to us if an instalment order is made, as we will no longer be entitled to enforcement (unless she defaults on payments).

        If we act quickly, we may be able to apply for enforcement before returning the N246. However, without the information from the N316, we are unsure which would be the most effective method.

        On the N245, she has stated that she is married with 2 dependent children, has a bank account overdrawn by £1000, and a savings/building society account containing £200. Her home is jointly owned (presumably with her husband). Her total income is £200 per week from take home pay and her pension, but nothing is stated under ‘Other income’ such as her husband’s contribution towards running of the home, or income from the property we were renting (which she said in court she is still renting). Priority debts are £250 per month on mortgage arrears, £500 in water charge arrears, and £435 in gas debt. Her weekly expenses are stated as £190 per week, and she has credit card debts of £80 per month. From this information there is no way she can afford £50 per month (on her own), so we are concerned that the court would order her to pay even less than this.

        Although we dealt with husband and wife as joint landlords throughout the tenancy, the wife was the only one named on the tenancy agreement, so the judgement was made against her. As a result she seems to have detailed only finances relevant to her, rather than jointly as a married couple. Is this correct, or should the court consider their joint income? Despite her individual financial situation seeming poor, her husband clearly supports her, so I doubt she would miss any of the monthly instalments.

        An attachment of earnings order would be pretty useless considering the income she has stated on the N245. A third party debt order would be preferable, but she has stated that she only has £200 in a savings account. We paid our rent into a joint account, which we have details of, but we don’t know whether this is the account mentioned on the N245. In any case, we cannot request a third party debt order against a joint account, since the debt is only in her name.

        A charging order on their home seems like the safest option, but without much chance of getting an order for sale, we would most likely be waiting several years for them to sell their house. Without the results of the N316, we don’t even know how much equity there is in either property. Monthly instalments would be preferable to this, as then at least we’d be getting some money.

        We have no idea whether they own anything of value, so a warrant of execution may be a waste of time. However, my partner is on JSA and we don’t have to pay for court fees, so it might be worth a try anyway? If we were to go down this route, should we apply through the High Court rather than the County Court?

        I feel as though a warrant of execution may be the most effective method, but we don’t want to be accused of abuse of process by attempting to enforce judgement after receiving the N245. Ideally, we would be allowed to wait for the results of the N316, and then follow an appropriate line of enforcement.

        I think the only way this will be allowed to happen is if we are able to provide strong objections to an instalment order being made. Would it be reasonable to state that we do not trust the information she has provided (based on lack of evidence), and are waiting for the results of our N316 application, where questions must be answered under oath? We would also state that we wish to enforce the judgement, and would provide evidence of her assets from land registry records. Is this going to be enough to stop an instalment order going ahead?

        Comment


          #5
          You say "but nothing is stated under ‘Other income’ such as her husband’s contribution towards running of the home, or income from the property we were renting"

          I'm not a lawyer but I would have thought that you can use this fact as a clear demonstration that she is lying. This might well be enough to pursuade the court to up the monthly payment to, say, what she if offering plus half the rental income.

          Probably best to get proper advice from a lawyer with solid experience of what the court's reaction might be. The court must be very familiar with people who exagerate their proverty to reduce payments and I imagine they take a dim view of it.

          Comment


            #6
            Are you able to delay your reply to the £50/pm offer until such time as the order for questioning has been completed - you may then strengthen through that your objections and may be able to get a voluntary charge over the 2nd house or indeed her own?

            There is nothing to stop you writing to her saying what you have laid out in your posts and that you think that, with her assets £50 a month is too little for a debt that size and that you will contest any instalment order and instead seek to make her bankrupt or seek a charging order on the 2nd house with resultant costs and an application for a forced sale.

            Is there a decent motor vehicle which could be siezed? Ask further questions on the order for questioning which you can attend (send extra questions to the court at least 14 days beforehand and remember to keep them relevant as they have to pass the scrutiny of the examining officer)

            Comment


              #7
              Yeah, we’re intending to delay the reply to her offer for as long as possible (we have until the 24th July to reply). If an instalment order is then made, then we have a further 16 days to appeal against the decision. Hopefully by then our N316 application will at least have been processed, and a date set for the questioning.

              Unfortunately we don’t know whether she has a nice car, since we never saw one during the tenancy, and now live over 150 miles away.

              I understand that a Statutory Demand is usually served as a threat to scare a debtor into paying up. However, if this doesn’t work, how would we actually benefit from petitioning for her bankruptcy?

              Comment


                #8
                You will find out in the questioning if it is worth serving a SD and petitioning for her Bankruptcy. If her assets when added up well exceed liabilities, then it might be worthwhile, but if the figures are close you may get nothing and will have thrown away more court fees and the receivers deposit you would have to pay.

                Comment


                  #9
                  judgement against former landlord

                  Is there any mileage in approaching the defendant with on offer on a without prejudice basis?

                  If they agreed to pay you back within 14 days say the deposit plus all receipted costs actually incurred , plus say £750 for general inconvenience, would you, with reluctance accept such an offer in order to have an end to the matter and money in the bank?

                  You can mark your offer "without prejudice save as to costs" in which case, if declined, you will reserve the ability to show to the judge if pushing on with litigation when the matter of costs falls to be determined that you made a very reasonable offer to the other side to dispose of the dispute. If declined by the defendants, the judge will be more inclined in your favour. This correspondence need not be disclosed until the matter at issue has been decided and the judge has to consider the level of costs

                  A very wise old solicitor once said to me better a poor settlement than having a good case........

                  Comment

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