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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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We have an on-going situation with a guarantor who owes us

Resolved Question:

We have an on-going situation with a guarantor who owes us money for outstanding rent and reimbursement for rectification of property trashed by tenant (her daughter).

Initially guarantor denied all responsibility, however Court ruled in our favour.

Guarantor then argued amount, resulting in further Court hearing to agree quantum. At this heating Judge ordered guarantor to make payment offer or full payment would be due within 14 days. The Judge actually said had our case been managed better we could have claimed for substantially more including interest.

Guarantor offered £500.00 per month, which we accepted. However immediately following hearing guarantor requested variation, wanting to reduce monthly payment to a mere £50.00 per month. We rejected this and now have to attend Court again.

Guarantor's paperwork says she is an admin clerk yet we know she is PA to M-D of a big civics company and has been for over 10 years.

Thoughts and advice going forward would be very much appreciated as this has gone on for almost two years now.
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your question and welcome.

My name is ***** ***** I will assist you.

Was the £500 subject to any court order?

Does she own her own home?

Have you taken any enforcement action?

Kind regards

AJ
Customer: replied 3 years ago.
We believe she does own her home (probably mortgaged).

The debt is £7000+ and at the last hearing the judge ordered her to make a payment offer. Her offer was £500.00 per month which we accepted. The judge said first payment would be due 4 weeks from hearing then on the 8th of every month. however on first due date we found she had only paid £50.00 pounds. On ringing the court we were told she had applied for the amount to be amended to one tenth of what was agreed. Letter arrived from court asking if we agreed to this. Obviously we did not, we gave them our reasons which has now resulted in us having to attend yet another hearing.

What is extremely annoying is that her daughter was eligible for housing benefit which was initially paid direct to the tenant , we advised the council the tenant had stopped paying her rent which resulted in them paying us direct. However once the tenant realised the money was coming direct she ignored all correspondence from benefits office which resulted in her claim being cancelled. Her mother was informed hoping she would help influence her daughter but at that time, thinking she was no longer guarantor and therefore not liable, she too ignored us. Had she assisted at the time then her debt now would be half of what it is.
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

If the guarantor owns her own home, have you considered applying for a charging order over her property?

Kind regards

AJ
Customer: replied 3 years ago.
How do we go about that and how does that work?
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

When is the next court hearing?

Have the court said at all that you cannot take enforcement proceedings?

Kind regards

AJ
Customer: replied 3 years ago.
The hearing is this Thursday, 10 July. At the last hearing mention was made of a CCJ to which the Judge said she would only have a CCJ against her if she defaulted on her payments, which I assume is why she has made two monthly payments each of £50.00
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

You must have a court order that orders her to pay you the outstanding balance? or is this not the case?

Did you sign a consent order?


Kind regards

AJ
Customer: replied 3 years ago.
Hi Alex, sorry for delay in replying. I've had problems with my broadband this afternoon.

Yes the Court did order her to pay us the money but in front of the judge we agreed to accept payback at £500.00 per month.

Not sure what you mean by 'consent form' .

The question is when we go to court again this week what are our options likely to be?

No doubt she will say she can only afford £50 but that is not acceptable to us we had to pay a mortgage on the property for well in excess of twelve months without receiving a penny from her or her daughter . Then we had to evict her daughter because she refused to move . When she eventually left the house was trashed - radiators ripped off walls, electric fire broken, garden weeds 6ft high.

To date we have received only £100.00. At that rate it will be many, many years before the debt is paid off.

Regards
Pam
Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

You said that the Judge said she does not have a CCJ on here name.

Do you have a copy of the order that the court made? Does it order payment in instalments?

Kind regards

AJ
Customer: replied 3 years ago.
Good morning Alex.
The situation is the Court ordered her to pay the debt and to make a payment offer. She offered £500 per month which was accepted. The Judge said if she hadn't made an offer his sentence would have been 'full payment to be made within 14 days'.

Before the first payment was received she made an 'application to vary' wanting to pay only £50 per month.

She has been notified to take proof of earnings to Court on Thursday.

We have a Court order saying she should pays us £500.00 per month. She appears to be excellent at using delaying tactics. We need to know what our options are for the speediest possible repayment of the debt.

We have considered using High Court Sheriffs but don't even know if we can go down that route as there seems to be no CCJ as she has not technically defaulted ( despite only paying back a 10th of the agreed amount).

Regards
Pam
Expert:  Alex J. replied 3 years ago.
Thank you.

In my opinion one of the best routes would be to either:

1. Apply for an attachment of earnings order as you know she has a full time job;

2. Apply to court for a charging order over her home, because at least that way you will be secured.

I do not think you can take either of these actions if the court has ordered and installment plan or until the hearing to vary the installment plan has been disposed of.

Neither of the above applications are expensive, but until you take such action there would need to be a default of her installment payments. While technically there is a default, you know there is application to vary it outstanding, and if the Judge does not rule in your favour it could cause costs consequences if you have already taken enforcement action.


When you go to the hearing to very the installments, you should ask the Judge to confirm if you can take further enforcement action on the basis that she has missed an installment and assuming the Judge does not vary it.

Has she served you with her proof of earnings yet?

Kind regards

AJ
Customer: replied 3 years ago.
We've not had sight of her proof of earning. She is supposed to be bringing them with her to Court.

At the last hearing the Judge did say that had the claim been handled properly then we would have been able to claim more plus interest.

The original verdict (Northampton C.C.) said the defendant should pay the debt plus interest. No payment was made and the matter was transferred to Dudley C.C. for enforcement. Defendant made application to 'set aside judgement. Hearing found in our favour but a further hearing was ordered to establish 'Quantum'. No specific mention was made as to interest. The 'Quantum' hearing ended with the offer to pay £500 per month.

Are we able to go back to the original ruling and claim interest or would we be able to ask the Judge on Thursday to apply interest if he varies the payment to a much lower amount than that agreed.

Regards
Pam
Expert:  Ash replied 3 years ago.
Hello my name is ***** ***** I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.


I see the expert opted out - what else do you want to know?

Customer: replied 3 years ago.
Hi Alex

Below is the question we are waiting to be answered:


We've not had sight of her proof of earning. She is supposed to be bringing them with her to Court.

At the last hearing the Judge did say that had the claim been handled properly then we would have been able to claim more plus interest.

The original verdict (Northampton C.C.) said the defendant should pay the debt plus interest. No payment was made and the matter was transferred to Dudley C.C. for enforcement. Defendant made application to 'set aside judgement. Hearing found in our favour but a further hearing was ordered to establish 'Quantum'. No specific mention was made as to interest. The 'Quantum' hearing ended with the offer to pay £500 per month.

Are we able to go back to the original ruling and claim interest or would we be able to ask the Judge on Thursday to apply interest if he varies the payment to a much lower amount than that agreed.

Regards
Pam
Expert:  Ash replied 3 years ago.
Did you plead interest on the original claim form?

Customer: replied 3 years ago.
The original Court case was heard in Northampton C.C. The judgement orders the defendant to pay the claimant £7807.42 for debt (and interest to date of judgement) and £210.00 for costs.

The judgement following the 'quantum' hearing reads as follows: The claimant recover against the defendant the sum of £7,312.42 for debt and interest to date of judgement inclusive of court fees.
It is ordered that the defendant pay to the claimant the sum of£7,312.42 by instalments of £500.00 for every month. The first payment to reach the claimant by 8 May 2014.

Reading the judgements again leads me to believe that interest has already been factored in. However, if the amount is varied to a lower amount which means it will take much longer to pay back can we claim interest on the outstanding amount?
Regards
Pam
Expert:  Ash replied 3 years ago.
When you issued the claim did you ask for interest? Yes or no please.

Customer: replied 3 years ago.
Case originally handled by a company called Legal 4 Landlords. Have just re read the evidence they submitted but can't find any reference to interest. The first intimation of it appears in the Northampton judgement.
Expert:  Ash replied 3 years ago.
The text on the judgment is standard. It allows for if interest has been pleaded in the claim. If it has not then you are not entitled to it.

Therefore if you did not ask for interest you can not claim it,

Can I clarify anything for you about this today please?

Alex

Customer: replied 3 years ago.
If the repayment amount is varied will we be able to refuse it if we feel it is too low, or do we have to accept the judgement anyway? All through this case the judgements have all been in our favour and yet we are still waiting for payment. We have done nothing wrong but the system appears strongly weighted in favour of the wrongdoer. We hope Thursday's hearing does not completely destroy our faith in the system!
Expert:  Ash replied 3 years ago.
You can refuse but then the judge will decide what the repayment will be.

Alex

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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