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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Following my D50K Application, I already have a Judge's

Resolved Question:

Following my D50K Application, I already have a Judge's Court Order for Sale. How can I enforce it now and make my ex respect the named Estate Agents, Solicitors and deadlines set in that order?
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstWhat is the actual position at the moment?
Customer: replied 1 year ago.
After the court order for sale, we went back to court and Judge made order for possession in my favor and permission to enforce in the High Court. Meanwhile, my ex appealed and the hearing is on Friday.
Expert:  Clare replied 1 year ago.
OkThat is good.So once he is out you can continue with the sale regardless.How has he inhibited the sale to date?
Customer: replied 1 year ago.
I already have a sealed High Court Writ of Possession. However, the Judge at the last hearing (for permission to appeal), said that the transfer from the Family Court to the High Court was in error. Under which Act/Paragraph/Clause can the possession order be transferred to the High Court for enforcement? And have I missed a step after the order for sale from last year?
Customer: replied 1 year ago.
Should I have made another application (which form) to enforce after the court order for sale last year?
Expert:  Clare replied 1 year ago.
Do you understand that the site charges more for a phone call?Why was the case transferred to the High Court - you are already at the last stage of enforcement - evicting your ex?
Customer: replied 1 year ago.
Sorry, did not realize there are further charges, please cancel.
I thought that this was last stage in Jan this year. But she is appealing this decision and her lawyer is questioning the court procedure. Arguing that the Judge was wrong ordering sale after my D50K application and so on.
I was forced to go back to court over and over, as she ignored all orders.
It is a typical Mesher Order that she was in breach of since Jan 2013.
Expert:  Clare replied 1 year ago.
What were the original terms that you had to enforce?
Customer: replied 1 year ago.
I simply want the property to be sold and the net proceeds distributed as stated in our 2008 Consent Order and the Legal Deeds from 2009. With full possession or with her there, but she delays and does not want to sell. As she is still receiving my monthly maintenance , despite our son being 21 and her working.
Customer: replied 1 year ago.
The terms were :
The flat to be placed on the market with the Chestertons estate agents by Dec 2015
Named solicitors to be instructed by the set date, also.
Minimum price set at £ 695K
And following sale we come back to the court to decide the net proceeds of sale distribution, as per Consent Order.
Expert:  Clare replied 1 year ago.
Why do you need to go back to the court to decide the division - is it not already clear?
Customer: replied 1 year ago.
Yes, it is 70-30 split of net proceeds in her favor. Judge said that, if we cannot agree the distribution, we refer back.
I appreciate your help Claire.
Alexander
Customer: replied 1 year ago.
How do I enforce the sale order, if the Appeal Judge decides to grant the appeal against the High Court enforcement transfer?
Customer: replied 1 year ago.
Claire?
Expert:  Clare replied 1 year ago.
Sorry for the delay.Why are you still paying maintenance?
Customer: replied 1 year ago.
as in our consent order, monthly maintenance is during joint lives, but my legal team failed to appeal against this original order by the Judge in 2008
Expert:  Clare replied 1 year ago.
Have you considered applying for the dismissal of the spouse maintenance as part of the ongoing matters
Customer: replied 1 year ago.
yes, my application to vary or cancel the maintenance was submitted in Aug 2015. However, the Judge that ordered the sale, put it on hold until the completion of the sale.
Expert:  Clare replied 1 year ago.
OK that is something.Anyway you have an order to evict her - and if the appeal fails then you can go forward with that - what more have you been told you need?
Expert:  Clare replied 1 year ago.
Well that is good.You have the Order for sale - and hopefully her appeal will fail.What else have you been told you would need?
Customer: replied 1 year ago.
Her solicitor is arguing that I should have applied for the sale and enforcement in the County Court instead of Family Court and that the sealed Consent Order was not by consent, despite all obvious evidence and long history of my ex being in contempt of all the orders to date.
Customer: replied 1 year ago.
I have been told to seek legal advice, about how to enforce the sale order. Do I need to submit a claim form to follow up judge's order?
Customer: replied 1 year ago.
Also, a legal basis (Matrimonial Causes Act / Paragraph / Clause?) for the Judge's transfer of his sale order to the High Court to enforce?
Expert:  Clare replied 1 year ago.
NonsenseIt belongs in the Family Court as you are enforcing a Family Court Order.Once the appeal has failed then you simply write the Bailiffs and ask them to deal with the evictionOnce she has gone you have control of the house and the sale - if she will not sign the paperwork then the Judge can do so!
Expert:  Clare replied 1 year ago.
You do not need to make a further claim or transfer it to the High Court
Customer: replied 1 year ago.
Why did the last Judge record as error, the transfer to the High Court Enforcement ?
Expert:  Clare replied 1 year ago.
Because there was no need for it to have happened
Customer: replied 1 year ago.
but how can the possession order be enforced,otherwise?
Expert:  Clare replied 1 year ago.
By completing this form and sending it offhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/n325-eng.pdf
Customer: replied 1 year ago.
and finally, in an unlikely case that the possession order is overturned at the appeal hearing, which form to use to enforce the previous sale order?
Expert:  Clare replied 1 year ago.
What is her argument to overturn it?
Customer: replied 1 year ago.
good question. Following 4 court orders for sale Judge that finally gave me a possession, prior to that, gave her another chance to buy my 30 percent share out at the set figure of £175K and if she failed by 5 Jan 2016, the possession will be granted.
Her barrister is arguing that this figure did not refer to the redemption date (Jan 2013) value, as stated in the Legal Deeds.
However, I do not see this as relevant, as this was happening long after the redemption date. Also, the value that the Judge set, was well below the redemption date value plus the interest of 8pc to date.
Customer: replied 1 year ago.
Also, the legal deed states in paragraph 3, that ON OR BEFORE THE REDEMPTION DATE the buyer is entitled to redeem the charge.....
so, arguing for the right to buy 3 years after the redemption date is not relevant.
Expert:  Clare replied 1 year ago.
Well that seems quite clear - and THAT is the only argument they are relying on?
Customer: replied 1 year ago.
their argument is based on that and trying to say that I should have pursued the enforcement in 'the county court instead the family court, despite the consent order saying in paragraph 7 that either party has liberty to refer back to the court for application and timing of the order.
Expert:  Clare replied 1 year ago.
What tosh - you enforce in the Family Court because you have a family court order!You have already identified the flaw in the other argument If the appeal succeeds then immediately ask for permission to appeal the resultAt the same time you can issue a TOLATA claim for an immediate sale
Clare and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
That is great help, many thanks.
Customer: replied 1 year ago.
Claire, can I contact you again if needed? I need to stop my maintenance for life order too.
Expert:  Clare replied 1 year ago.
Of course - just ask for me in the title of the question
Customer: replied 1 year ago.
Dear Clare, I am just out of court and a bit depressed, as the Judge postponed his judgement.
It all looked good when he confirmed that the previous orders for sale were properly authorized, however, he wanted to find the proof in the transcripts, that the judge that ordered possession following that order for sale, has considered where and how my ex and my son are going to live. There was no point me trying to explain that my son is 21, not living there full time and welcome to move in with me. So, if he grants this appeal against the Possession order, does this also overturn the existing sealed High Court writ of possession?
Today, Judge said that I did not need this court to enforce the sale order, however.
What steps to take now and in which court? Following your earlier advice on Tolata claim, I have completed N208 claim form. Is this correct?

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