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Alex Hughes
Alex Hughes, Solicitor/Partner
Category: UK Law
Satisfied Customers: 2331
Experience:  Partner in national law firm with 25 years legal experience
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hi, i want to apply for an order for sale to force a judgement

Resolved Question:

hi, i want to apply for an order for sale to force a judgement debtor to pay me. she has thus far frustrated the enforcement officers trying to collect on my behalf. she keeps claiming she will file for an IVA. my questions are: 1) how do i apply for an order for sale, what forms do i need and can i do it myself as i cant afford a lawyer anymore. 2) how does an IVA filing affect my ability to apply for the order for sale or failing that apply to have her made bankrupt. Thanks
Submitted: 11 months ago.
Category: UK Law
Expert:  Alex Hughes replied 11 months ago.
My name isXXXXX and I am a Solicitor based in London. I'm happy to help with your question today.

Do you have a charging order on the property? How much are you owed?
Customer: replied 11 months ago.

i have a final charging order form the court and i am owed approx £95,000. she has property worth ~£700k but claism she has £400k mortgage. she also claims to have some Contingent liability of £250k which does not show up on the land registry documents.

Expert:  Alex Hughes replied 11 months ago.
OK. Please bear with me for a few minutes while I type an answer.
Expert:  Alex Hughes replied 11 months ago.
Thanks for your patience.

In order to obtain an order for sale of the property you have to use the Part 8 procedure. Essentially you are starting a fresh claim in order to force the sale.

The form to be used is the Part 8 Claim Form which you can download from the HM Courts and Tribunal/Ministry of Justice website. A copy of the charging order must be filed with the claim form.

In addition you must submit a statement with the claim form and must:

"...4.3
(1) identify the charging order and the property sought to be sold;
(2) state the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim;
(3) verify, so far as known, the debtor's title to the property charged;
(4) state, so far as the claimant is able to identify –
(a) the names and addresses of any other creditors who have a prior charge or other security over the property; and
(b) the amount owed to each such creditor; and
(5) give an estimate of the price which would be obtained on sale of the property.
(6) if the claim relates to land, give details of every person who to the best of the claimant's knowledge is in possession of the property; and
(7) if the claim relates to residential property –
(a) state whether –
(i) a land charge of Class F; or
(ii) a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section,
has been registered; and
(b) if so, state –
(i) on whose behalf the land charge or notice has been registered; and
(ii) that the claimant will serve notice of the claim on that person.
4.4
The claimant must take all reasonable steps to obtain the information required by paragraph 4.3(4) before issuing the claim..."

You will see from the list that a substantial amount of information has to be submitted to the court before an order will be made.

You will need valuations and information about other charges, debts and interest which are likely to take precedence e.g. first mortgage, tax, secured loans, beneficial interests.

Once the claim form, charging order and all the evidence required above is submitted a hearing will be arranged for the court to make a determination. A sample order for sale can be found here ORDER

If she files for IVA or bankruptcy the order that debts are paid are usually as mentioned above e.g. mortgage, tax, secured loans and then judgment debts. Sadly your judgment is not classed as a priority debt but your interest is secured by the charging order - so at the end of the day something will be paid sooner or later.

The sale procedure, as you will have gathered is not straightforward especially if contested. You do not need a solicitor but it would be advisable to instruct one to help with the procedure - legal costs will be deducted from the sale.

Hope this helps. Happy to discuss further.

Alex
Customer: replied 11 months ago.

Hi, can you elaborate more on the IVA. What does this involve? and can she use it to block me applying to make her bankrupt. i am trying to get my money paid to me sooner rather than later and need a means to force that payment. Do you think the order for sale is a harder route than applying to make her bankrupt?

Expert:  Alex Hughes replied 11 months ago.
Hi

There is a difference between an IVA and bankruptcy.

An IVA (Individual Voluntary Arrangement) is a legally binding agreement between a person and his creditors. The arrangement will normally last 5 years and during this period the person will be expected to pay what they can afford outside reasonable living costs. All unsecured debts must be declared into an IVA. This will not affect the charging order you have.

Bankruptcy on the other hand is more severe. A person who is made bankrupt has to use his assets to pay all his debts. The assets, including the house, will usually be sold to pay the bankruptcy debts.

Bankruptcy can be a cheaper and more straightforward method to recover your money. You need to serve a STATUTORY DEMAND (following a court order) setting out the amount you are claiming. The defendant then has 21 days to either settle the debt or make arrangements to pay or apply for the demand to be set aside. If none of these things is done you can then PETITION the court for bankruptcy by submitting a BANKRUPTCY PETITION and paying a fee of £700. This will commence the bankruptcy process.

As I mentioned earlier there is an order of payment of debts. Priority, or preferential debts, such as mortgage and tax has to be paid first. Secured creditors such as yourself are paid second. And thirdly any unsecured creditors have to be paid.

An IVA will not stop you serving a statutory demand and making her bankrupt - in fact this will probably be the best way to secure payment of the money due. But remember that with bankruptcy there will be a host of creditors needing to be paid.

Hope this helps. Happy to discuss further - but please remember to rate my answers.

Alex

Alex Hughes, Solicitor/Partner
Category: UK Law
Satisfied Customers: 2331
Experience: Partner in national law firm with 25 years legal experience
Alex Hughes and 3 other UK Law Specialists are ready to help you

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