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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10722
Experience:  Barrister 17 years experience
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A BANK IS ISSUED A WRIT OF POSSESSION OF SPECIFIED PROPERTIES

Customer Question

A BANK IS ISSUED A WRIT OF POSSESSION OF SPECIFIED PROPERTIES TO SATIFY A JUDGEMENT. CAN THE BANK AT THE SAME TIME PLACE A BUSINESS IN RECEIVERSHIP UNDER THE UNDERLYING MORTGAE DEBENTURE, WITHOUT A COURT ORDER? IS THAT NOT OVERREACHING, COLLECTING TWICE?
Submitted: 3 years ago.
Category: Law
Expert:  Buachaill replied 3 years ago.
Customer:

1. It is one of the unfortunate aspects of the process of execution of a judgment that a judgment creditor (a person holding a judgment) is not limited to one process of execution when it comes to enforcing a judgment or when it comes to exercising any potential remedies which are at their disposal. The options open to a judgment creditor are cumulative and the bank is not limited to merely exercising one of them. Accordingly, in this instance, the bank can exercise their court authorised writ of possession as well as their private law right under the mortgage debenture to place the business into receivership. Whilst there is an inherent unfairness in this process, the law does not limit a creditor to using only one of the remedies available to them nor does it limit them to a single process of execution. I appreciate that the bank is adopting a "belt & braces" approach, but the law does not prevent this occurring. You can make due process arguments under ARticle 6 of the European Convention on Human Rights. But I don't forsee these as being successful. So you should consider other options which are at your disposal.

JACUSTOMER-5gjskoeu- :

What are those options?

Customer:

2. I don't know. Can you agree some payment arrangement with the bank in relation to the judgment? Can you agree some standstill agreement in relation to the appointment of the receiver? Essentially, you need to offer the bank some comfort for their debt and judgment.