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Buachill I have a friend that has a judgement order against…

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Hi Buachill I have a friend...
Hi Buachill
I have a friend that has a judgement order against him only and not his wife. The other side have been trying to convert it a well charging order. He has poor income, is heavily mortgaged with 15 years on the debt and his wife says she is not a party to the debt. He is in good standing with his lender though. The other side have reduced the exorbitant by over 45,000 euro to 15000 euro but still he cannot pay going forward. This case was because he thought a customer in his store stole a pair of gloves worth less than 10 Euros leading to a defamation suit which he lost. He finances are so bad that his family of six have medical card and his accountant advised that he would earn more on welfare. All lending institutions have refused him any further loans with a stack of creditors still left to be paid from his retail shop. I advised that the other side have little or no wriggle room as his home, shop and small farm are in joint names and the debt is his only and because he i
Submitted: 2 years ago.Category: Republic of Ireland Law
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1/23/2016
Solicitor: Buachaill, Lawyer replied 2 years ago
Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 11,153
Experience: Barrister 17 years experience
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1. Dear *****, I expect you know that the creditor has difficulty getting a well charging order and an order for sale in relation to jointly owned property. However, the next tactic of the judgment creditor holding the judgment will be to either send in the dto remove goods to the value of the judgment or else to seek to get a payment order against your friend, whereby he will then have to pay weekly instalments from his income to the judgment creditor. So, you need to realise that the impediment to getting the money is only temporary.

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Solicitor: Buachaill, Lawyer replied 2 years ago

2. Be aware that the usual method of enforcing a judgment of 15k is to simply send in the sheriff. This is a court appointed official who will seize any saleable goods and take them away for sale. The amount realised is then deducted from the judgment. Another method of payment is to seek to attach any debt, such as rent due to your friend and have it paid over to the judgment creditor. So, this is why your friend's legal team tell him to pay the judgment however he gets the money.

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Solicitor: Buachaill, Lawyer replied 2 years ago

3. Be aware here that the sheriff can seize goods from the retail shop and sell them. So I don't think your friend is in a very good position. His trade will suffer if he doesn't pay off the judgment. I am sorry I cannot offer you any bullet proof solution. But I regret to say that the law is aligned with allowing the judgment creditor to get their money.

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Solicitor: Buachaill, Lawyer replied 2 years ago

4. Please Rate the answer as unless you Rate the answer your expert receives no payment for answering your Question.

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Customer reply replied 2 years ago
Hi Buachaill
The Most important question is can they bring a well charging order against him on co owned property rather than have just difficulty in doing it keeping in mind that the debt is his only. Secondly: Like their properties, all goods are in joint names as well with his wife while also being co owned by stock merchants first until paid. Can they get around that? His bank has always been paid but little else plus overdraft facilities. He is maxed out in debt. There are also long term mortgages beyond 12 years on shop, farm and home.
Solicitor: Buachaill, Lawyer replied 2 years ago

5. Dear *****, the important point is that it is not possible to get a well charging order against jointly owned property. there is recent caselaw from the Irish courts on this point up to Supreme Court level. So your friend is protected against this. Secondly, you are delusional if you think some point about all goods in the shop being jointly owned will help him. The same rules do not apply to goods as they do to property. So, this is a foolish outlook. The goods will be seized. And sold. That is the point. it makes no difference that someone might have a half share (questionable) in them. They can be sold.

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Customer reply replied 2 years ago
Hi Buachill
The goods, such as there are, have not been paid for in the main and remain the property of the wholesaler until they are and as stated on their terms and agreements. He has plenty of irate demand letters from wholesalers on this matter. On the goods that remain unpaid, is this still the case that a sheriff can take goods that are not the shop owners and the proof of such that that is indeed the case????
Solicitor: Buachaill, Lawyer replied 2 years ago

7. You need to be aware that a claim that goods in a shop belong to someone else will cut no ice with a hard-nosed sheriff. The goods will certainly be seized and taken away for sale. It will then be up to the true owner to come along and prove the goods are theirs. You fail to realise that the sheriff meets people making such claims all the time and generally ignores them. YOu can have documentation in the shop in the hope he believes they are someone else's. However, don't bet that this sort of claim will work. Execution for debts is peopled by aggressive people. It is not for the faint-hearted.

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Solicitor: Buachaill, Lawyer replied 2 years ago

8. I should also point out that in relation to the two other properties, which are not a family home, the creditor can seek an order for Partition in relation to these two properties in order to separate out the interest of your friend. It takes time, for the creditor to do this and most creditors don't want the 2/3 year wait. However, be aware that this can also happen if the creditor is properly advised. So even here, be aware that the judgment creditor can take the long way round to get the judgment enforced against your friend.

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Customer reply replied 2 years ago
Hi Buachaill
My friend has absolute proof his goods are not his and I believe the judgement creditor, according to the law and the law reform commission interpretation of it, can be sued for the illegal purchase of same. Furthermore, the sheriff cannot seize anything when irrefutable evidence is offered that the goods do not belong to my friend; if he did, then he would be breaking the law as well.
On the matter of properties: you are right about recent rulings in the Supreme Court and similarly so in the District court. It is their interpretation that is interesting for they ruled a spouse or innocent other cannot be held liable for the other persons debt, and we are not just talking about the family home. It also ruled against any well charging order because of it unless it was consented by spouse or other. Laffey was the judge in one of those rulings. Can you confirm what I have written here.
Customer reply replied 2 years ago
There are also long mortgages on these properties outside of twelve years
Solicitor: Buachaill, Lawyer replied 2 years ago

9. I am glad your friend has absolute proof that the goods are not his. He can tell that to the sheriff when the time comes. Secondly, your interpretation of the Laffoy ruling is not fully correct. The ruling only related to the family home. It did not relate to all jointly owned property. This is because the Act upon which the judgment is based, the Family Home Protection Act, only applies to the family home. It has no application to other jointly owned properties, such as the two your friend possesses here. So this is a key weakness in your "friend"'s case.

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Customer reply replied 2 years ago
In an unanimous Supreme Court ruling recently, they refused the Irish tax revenue department (a worthy opponent for anyone) a Well Charging order for sale of 'lands' co-owned by a man and his estranged wife because the judgements were against him only and this was not the family home. The effect of that decision is that the courts have no jurisdiction to make an order for the sale, or the partition of, co-owned property to enforce a judgement mortgage. That I believe is as unanimous as you can get. What do you think? Finally: about the long term existing mortgages; is the the bank the first debtor?
Solicitor: Buachaill, Lawyer replied 2 years ago

10. Dear Barry Clifford, you seem to know more about the law than I do. However, i would suggest if you read the judgment you will find that there is a different outcome in the thousands of other cases in which someone seeks to well charge a judgment against jointly owned property.

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Customer reply replied 2 years ago
But I do know more than you.
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