Response to does the 12 years start from sale of property and mig payout

The following is a clarification (items 1-6) in respect to Money Judgment Orders, which isn't mine in fact, it comes from a solicitor.....

1. The lender can ask for an MJO on getting a possession order or within the 12 year limitation period.

2. Once the 12 year period has expired, any money claim is statute barred(if defended)

3. Where an MJO is obtained within the limitation period, the judgment can be enforced.

4. Where it is intended to enforce the judgment by way of execution of goods, leave of the court must be obtained where 6 or more years have passed since the judgment became enforceable

5. Where it is a vol repo, no possession order therefore no MJO on possession, but lender can issue a money claim within 12 years. In vol repo situations there are sometimes difficulties establishing when the cause of action accrued, e.g. if there were no arrears when the keys were handed back.

6. To reconfirm, the creditor only needs leave where more than 6 years have passed and it wishes to used execution against goods, as in 4.

To put numbers 4 & 6 into plain English, what is meant is, that if a lender has an MJO and more than 6 years have passed they need to return to court to get leave to enforce the order anew. Although the court may take a dim view of the fact that the lender has left things for so long. The case about the enforceability of money judgments is actually a House of Lords decision: Lowsley and another v Forbes - 29.7.98. You can find the full transcript on the Parliament website www.parliament.uk.(My comment-Mark)

Also in a message to me from the same solicitor...... "The point confirmed by Lowsely in the H of L has been settled law for some time - starting with Lamb v Rider (1945) 2 KB 428, CA, Nat West v Powney (1991) Ch 339, CA, and Lowsley in the CA.

A creditor will be able to sue again on an existing judgment where it has been impossible to enforce the debt using the normal methods - e.g. because it was impossible to execute on the judgment debtor's foreign assets (ED and F Man v Haryanto (the Times, 9 August, 1996, CA). If the normal methods of enforcement were available, suing for the same debt a second time will be an abuse of process, although it is up to the debtor to prove this (Pritchett v English & Colonial Syndicate (1889) 2 OB 428).

In England and Wales the rules concerning the enforcement of judgments are to be found in the Civil Proceedure Rules (CPR) - see CPR Schedule 2, CCR Order 26 rule 5 (County Court) and CPR Schedule 1 RSC Order 46 rule 2(1). These say, as you said, that ct must give leave if the judgment is more than 6 years old."

There is more if anyone is interested but it does get a bit technical.

Mark.

[ Previous | Next ]