Enforcing judgement – urgent advice needed!

[carpetfluff]

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.

[pablodiablo]

i'm in the same boat.

judgement made by court and date given for settlement payment.

landlord has made no attempt to pay, or negotiate a payment.

have a bunch of forms from the court presumably the ones you mention above which apparently aid enforcement, but i fear more realistically probably do not!

[45002]

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.

 

Just an idea

 

Does your ex-landlord drive around in a expense car ?

 

you could get Bailiffs to seizes that and sell it off, if your former LL does not pay up all the money

[GuidoT]

I do not think it would be wise for you to enforce in the knowledge that a suspension has been applied for.

 

The courts will decide the sum that should be paid, there maybe a hearing in private with you both present.

 

For obvious reason you want the sum to be as high as possible. If your ex-landlord defaults on any one of the payments then the whole sum become due and you have the usual enforcement remedies for the entire sum that you seem familiar with.

 

If (I am not that familar with this) possible in your N246 you need to make your case based on the assets that you believe you ex landlord had with evidence. If they own the previous property (or any others including their home) then do a search and issue the findings with your response:

 

Property Search - Land Registry

 

I think page 5 of this answers your question in that yes you can haul your ex-landlord into court for questioning regarding debts at any time. So the N316 application should not be suspended.

 

The thought of being questioned over such matters may bring enough pressure to the fore such that they pay.

 

I had a situation like this, and the person did not turn up for questioning, but his co-director did and the judge said right were does the other person live and was about to issue a warrant for the persons arrest, but the judge asked if I had personally served the papers and I had not (even though the other side accepted they had them) and the judge would not then issue the warrant. Fortunately they had a cheque on the day for the sum, which amazingly did clear and that put an end to the matter.

 

There may not be a debtors prison, but if the other side do not turn up, they are in contempt and it would put them in prison.

 

You seem clued up, so apologies if you know most the above.

Edited July 12, 2010 by GuidoT

[45002]

Just to point out,the land registry search cost £4.00 a search and can be up to a year out of date ?

[carpetfluff]

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?