Statutory Demand for non-payment of Judgment?

[Weird Al Yankovic]

I have a Judgment (default) against a financial company who owe me £8000.

They didn't bother replying to the small claims court and now it looks as though they are to ignore the Judgment which gives them until the end of the month to settle.

(However, as it is a bank holiday weekend, I am very unlikely to receive cleared funds by month end)

 

A friend has suggested to bypass bailiffs, warrants etc and to just serve onto them a Statutory Demand (Insolvency Act) which gives them just 21 days to pay or face having their business face a Winding Up Order.

 

Is this a good strategy to take? And it's free.

[buzby]

No really, they could argue it is an abuse of process and this could work against you. Also, if you did force them into a situation whereby they ceased trading, the chances of you being on the preferential creditors list would be nil, so all you'd be doing is throwing away money to give it to someone else!

[sequenci]

Why is it an abuse of process?

[Weird Al Yankovic]

Thanks Buzby.

 

However, it seems to be a remedy that is available in law, so why not use it?

 

It is they who are ignoring the law after all, surely?:-?

[buzby]

Why is it an abuse of process?

 

Because the creditor has not taken action to enforce the judgement already obtained. A winding-up order is a different action, and achieves different results. I've known judges to disallow an action for winding-up telling the pursuer to seek legal advice on how to recover his money.

[buzby]

Thanks Buzby.

 

However, it seems to be a remedy that is available in law, so why not use it?

 

It is they who are ignoring the law after all, surely?:-?

 

It's cutting off your nose to spite your face. They do have time to pay after losing, only then is further action warranted, and this would be to enforce the judgement already awarded. Winding up works against you, unless you weren't bothered about being paid in the first place!

[sequenci]

Because the creditor has not taken action to enforce the judgement already obtained. A winding-up order is a different action, and achieves different results. I've known judges to disallow an action for winding-up telling the pursuer to seek legal advice on how to recover his money.

 

aha! got you. thanks for the info. so if i'm correct, due to this one going down the money judgement route the correct method of action should be enforcement. if the bankruptcy avenue was investigated from the off it would have been ok to do it?

[buzby]

if the bankruptcy avenue was investigated from the off it would have been ok to do it?

 

Absolutely! It's a good way of brining your grievance to the attention of the directors but if the company is teetering, then you could be doing them a favour, which is the last thing you'd want to do!

[sequenci]

thanks i got it!

[Weird Al Yankovic]

Could it not be the case that this company are unable to pay the debt anyway? Or just will not. (As in just start up a business again in the future)

 

It appears I will need to exhaust the small claims system and then find out if I will ever get paid.

 

Or I could get an answer in 3 weeks if I use a different method.

 

I'm not too hopeful of getting my cash anyway-why would any financial company let a Judgment linger over them?

[dw190]

You could try issuing a Warrant of Execution for the minimum fee allowed. If its successful you then issue another from the proceeds of the first one and continue until you get the lot.

 

This way limits your cost if the warrant fails.

[alanfromderby]

Does this "financial company" hold a Consumer Credit Licence, or are they regulated in any way?

[Weird Al Yankovic]

Yep, good idea.

 

Trouble is this has taken since last October and they have been obstinate right the way through-and all I have now is a default Judgment-which really means jack.

 

I've just had enough and if I'm not getting any cash then I'll apply to put them out of business.

At least some satisfaction.

[Weird Al Yankovic]

Does this "financial company" hold a Consumer Credit Licence, or are they regulated in any way?

 

They do, yes. Been in touch with the OFT about their work practices and they were not too helpful.

 

They are [problem] merchants.

[alanfromderby]

Perhaps Trading Standards would be worth a call.

[tomterm8]

Because the creditor has not taken action to enforce the judgement already obtained. A winding-up order is a different action, and achieves different results. I've known judges to disallow an action for winding-up telling the pursuer to seek legal advice on how to recover his money.

I disagree, it is not an abuse of the process of the court to issue a statutory demand on a judgement debt as long as that debt is liquidated.

In effect, there is a minimum period to wait of 14 days after a judgement under 40.11

So, if the arrears are greater than 750, or it is a forthwith judgement for more than 750, this is a valid enforcement method.

Methods of enforcing judgments or orders

70.2

(1)

The relevant practice direction sets out methods of enforcing judgments or orders for the payment of money.

(2)

A judgment creditor may, except where an enactment, rule or practice direction provides otherwise –

(a)

use any method of enforcement which is available; and

(b)

use more than one method of enforcement, either at the same time or one after another

 

The relevant protocol is PRACTICE type="start" timestamp="1040029633444"DIRECTION – INSOLVENCYtype="end" timestamp="1040029633444" PROCEEDINGS -

[tomterm8]

I don't, however, think it's a very practical method of enforcement. I would suggest a baliff, LOL:)

[Weird Al Yankovic]

Thanks for the info tom.

 

I think my friend was thinking that this company just play around with the small claims process but possible inslovency is a different matter-which may make them buck their ideas up.

 

With the small claims I have to go through getting a director to come to court, reveal the accounts etc, then further action...

 

It's not fair.

[tomterm8]

see http://www.consumeractiongroup.co.uk/forum/bailiffs/99563-got-judgment-how-get.html .

 

You can always issue a statutory demand and see what happens. Do it through a process server.

[Weird Al Yankovic]

Excellent tom, thanks for that.

 

It does appear that a Statutory Demand could be quite effective. At the very least it may shake them up a bit.

 

My friend is in business and he said he has given up on the small claims in trying to get his monies and always threatens bankruptcy for individuals & businesses and his results are spectacular with little time/money wasted, so he says.

 

Cheers again.

[dw190]

Thanks for the info tom.

 

I think my friend was thinking that this company just play around with the small claims process but possible inslovency is a different matter-which may make them buck their ideas up.

 

With the small claims I have to go through getting a director to come to court, reveal the accounts etc, then further action...

 

It's not fair.

 

You can do this yourself for about a Fiver.

 

Companies House

 

Whats the name of the Compan? Someone on here may have access to the database of Company Records.

[Weird Al Yankovic]

You can do this yourself for about a Fiver.

 

Companies House

 

Whats the name of the Compan? Someone on here may have access to the database of Company Records.

 

I would need to be able to get their bank account number and sort code to apply for a third party debt order-will companies house give that info?

 

I can't name them here as they may be reading it!

[buzby]

I disagree, it is not an abuse of the process of the court to issue a statutory demand on a judgement debt as long as that debt is liquidated.

 

Disagree away, however this was the response I received from a judge why I tried this. He accused me of attempting en 'end run' before exhausting my original approach. It was he who termed it an abuse, not me.

 

Either way, it pays to be prepared for it, either from the Judge, or an application from the defender. Or just complete the action as started, as parallel actions are frowned upon.

[Weird Al Yankovic]

Disagree away, however this was the response I received from a judge why I tried this. He accused me of attempting en 'end run' before exhausting my original approach. It was he who termed it an abuse, not me.

 

Either way, it pays to be prepared for it, either from the Judge, or an application from the defender. Or just complete the action as started, as parallel actions are frowned upon.

 

My friend has suggested that one, or more, actions can be taken at the same time anyway to enforce a debt.

 

My court papers themselves indicate that a Statutory Demand is a viable option-the debt is a Judgment and not just what I think I am owed.

 

The debtor is refusing to acknowledge any of the proceedings thus far which may be an indication of being unable to pay the debt.

 

Surely a Statutory Demand will just confirm it? How can that be an abuse?

[tomterm8]

My friend has suggested that one, or more, actions can be taken at the same time anyway to enforce a debt.

 

My court papers themselves indicate that a Statutory Demand is a viable option-the debt is a Judgment and not just what I think I am owed.

 

The debtor is refusing to acknowledge any of the proceedings thus far which may be an indication of being unable to pay the debt.

 

Surely a Statutory Demand will just confirm it? How can that be an abuse?

 

It would be an abuse of process if:

 

1. You did not wait until 14 days after judgement, OR 7 days after the date it indicates an appeal or redetermination request can be lodged, if longer.

 

or

 

2. It is a debt of less than £750 (more in scotland), OR it is an installment order with arrears of less than £750 (more in scotland)