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Enforcement

Terms in this set (31)

Taking control of goods
Charging order
Attachment of earnings order
Third party debt order
Insolvency proceedings
What are the methods of enforcement? (5)
An order imposed on a third party to secure funds before they reach the debtor ie bank
What is a third party debt order?
Application to Court by creditor
What is the first step in the procedure for obtaining a third party debt order?
Third party to undertake a search and disclose the relevant information. If objected by either the third party or debtor they must state so and provide reasons
Third party debt order - Creditor has already made application to court, what is the next step?
Without notice interim order imposed to prevent access to funds and binds the third party from enabling access
Third party debt order - after search and disclosure by third party what is the next step?
Upon service of the order, the debtor will be notified of hearing where he can make representations
Court then decides during hearing to uphold the order or discharge it.
Third party debt order - how does the court reach a final decision after the without notice interim order has been served?
Disposal or moving of assets to avoid consequences of litigation

They can be prevented by obtaining a freezing order which is usually made without notice hence the need for surprise.
What is the dissipation of assets? How can they be prevented?
There may be conventions/treaties in place internationally to aid enforcement abroad.
Why is jurisdiction relevant to enforcement?
Where there is no treaty or convention to assist, the enforcers must obtain a judgement from and English/Welsh Court by issuing claim for non payment of debt and entering summary judgement.
There must be no appeal pending in the origin country.
Can a foreign judgement be enforced in the UK?
Where no treaty or convention applies, the judgement will be governed by the common law of that country.
Can English judgements be enforced abroad?
Obtain order to summon the debtor to give information
company search
land registry
Individual insolvency register
Judgement, orders & fines register
Attachments of earnings order index
enquiry agent
What are some of the ways to find out information about a debtor?
All goods besides;
basic domestic items
anything of joint ownership
Traders tools up to value of £1350
What goods can be taken control of?
Under £600 - County
£600 to £5000 - Either County or High
Over £5000 - High
What are the relevant values which categorise whether a taking control of goods application should be heard in the County or High court?
Writ - High
Warrant - County
Which Court do the following come from:
Writ of Control
Warrant of Control
Yes & No so,
They must give notice of their power ordered by the writ/warrant within 7 days of enforcement however,
once notice is given that enforcement (the actual entry & seizure) can occur at any time within the next 12 months without the need for additional notice
Does an enforcement officer have to give the debtor notice before he takes control of goods?
(Similar to police search powers)
Entry using reasonable force against property only
Seizure
List of items seized left for debtor
What is the general powers/procedure of the enforcement officer taking control?
Taking control - the enforcement officer can effectively provide the debtor a last chance to pay and assume control of goods whilst the debtor remains in possession of it.
What is the alternative that may be agreed between enforcement officer and debtor opposed to seizure of goods?
Sale at private auction
Any additional proceeds will be paid back to debtor.
How is money obtained through taking control of goods?
It is an order over land which orders an entitlement to proceeds upon the sale of that land
What is a charging order?
Yes the order would attach to the debtors share of the ownership.
Where ownership is joint, can a charging order be obtained?
Interim order
Final order where C can also make an additional application to force the sale of the property/land
What is the procedure to obtain a charging order?
An order which attaches to a source of regular income through an employer requiring deductions from the debtors pay
What is attachment of earnings?
County Court
Debt must be over £50
Which is the only Court which can order an attachment of earnings? And to what value?
Application by creditor
Application & reply form served on debtor to be completed and returned
Court order made and served on debtor and employer
What is the procedure for obtaining an attachment of earnings order?
No regular source of income through an employer
Debtor could change jobs before order obtained
Delays in returning reply form
Slow method of enforcement usually in small instalments
What are some of the issues with an attachment of earnings order?
Where an individual/company are unable to pay (like monopoly)-
Individual - bankruptcy
Company - winding up
What are insolvency proceedings?
Company - £750
Individual - £5000
What value of debt is required for insolvency proceedings?
Petition issued at the debtors local court
Issue served on debtor notifying them of hearing
If debtor is absent, order will likely be made
Debtors assets will be distributed to creditors in specific order
What is the procedure for insolvency?
A creditor will need to know whether a debtor has other creditors who are owed money as the debtor
a) may not have many valuable assets and
b) the creditor may be need to the bottom of the list in priority order of creditors
What is a main drawback to insolvency proceedings?
A statutory demand. If this goes unanswered for 21 days the assumption will be the debtor is unable to pay
For insolvency proceedings, what may be served before a petition?
Low cost
Easy step to take
Usually high effective
Why might a statutory demand be worth doing?
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