INFORMATION ON POSSESSION ORDERS & MONEY JUDGEMENT ORDERSgreenspun.com : LUSENET : Repossession : One Thread
This information may be of interest to anyone repossessed around the 1997 to 2001 where the Building Society / Solicitors inform them that a Money Judgement Order (MJO) has been obtained at the same time as a possession order. Firstly many thanks to all who contribute to this site and particularly to Guy Skipworth whose help has been invaluable in the last few hectic days.
We were repossessed in mid 2000 by Mortgage Express, they sold our home in Feb 2001 and let us know that there was a 28K shortfall (they sold at 38.25K) some 5 months later. We have therefore been in constant correspondence with them for the past year and, taking the advice on this site, served a SARN on them in Sept 2001. Their SARN response was delivered late and incomplete, we now have a censure against them from the Information Commissioner as a result of this. Their SARN response definitely shows mismanagement / professional incompetence in the matters of the – Valuations – Marketing – Auction – Sale and Underselling. In addition they valued, marketed & sold our home with the incorrect name! Form TR2 (for the Land Registry) was the ONLY correct document and they therefore believe that makes matters OK. The Solicitors Completion Statement even contained the incorrect house name. By the way we only had a house name, no house number, this making matters more critical in our opinion.
The latest stage in the saga has been for ME to hand matters over to their Solicitors (DLA). DLA then wrote to us to say that they had been instructed to enforce the MJO obtained at the time of possession. This was followed up, a few days later, with an ‘Order To Attend Court For Questioning’. This was a smart move to obtain information, via the Court, without asking us to complete an Income & Expenditure Form. The penalty for not complying is prison, as it would be contempt of court.
As a result of posting an enquiry on this site, to ask if anyone else had been forced down this route, we suddenly began to wonder about the MJO. Upon reading the Possession Order the matter was unclear so we telephoned the Court for clarification. It would appear that the older computer software, used by the Courts, does not allow a Possession Order to be printed off until all blank fields have text inserted. The Possession Order has one line, which reads as follows –
The court adjudges that the defendant pay the claimant – insert sum -, which is the amount currently outstanding under the mortgage on – insert date -.
Some solicitors may (as with DLA Solicitors) be misreading this as a MJO. In our particular experience this is what happened and they convinced the Court that they had a MJO (did they really know the truth one wonders?) and were therefore justified in requesting an ‘Order To Attend Court For Questioning’ on this basis. This is not so and the Court have, this Friday afternoon, cancelled the appointment for examining our finances, which was due on Tuesday morning. With a Bank Holiday in the way this was certainly cutting it fine.
Apparently DLA were “shell-shocked & furious” and have not, to date, even replied to the Court when informed of their error. No doubt that will now have to apply to the Court for a MJO and this will give us the chance to defend our case (at last) and counterclaim for their mismanagement and underselling. The important information, for everyone out there, is that there may not be a MJO against you just because the Solicitors tell you that there is. Even the Court officers had to read the document carefully and then refer back to the Judge’s (hand-written) judgement, from which the printed judgement is produced.
We shall keep everyone posted on progress, under the heading – MORE ABOUT MORTGAGE EXPRESS.
Regards to you all, Mike.
-- Mike (firstname.lastname@example.org), August 23, 2002
Well done on that, keep fighting. I also second your comment re Guy.
Please find below more useful info I have received from NACAB re MJOs:
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.
With regards to money judgments, the relevant cases are: Cheltenham & Gloucester BS v Grattidge, CA (1993) 25 HLR 454; Cheltenham & Gloucester BS v Johnson, CA(1996) 28 HLR 885. These state that where the lender requests a money judgment at the same time as a possession order, the court must make such an order. If a suspended possession order is made, the judgment must be suspended on the same terms as the SPO. My understanding is that once the terms of a suspended possession order are breached, then the money judgment can come into effect, should the lender wish it to be enforced (they usually don't bother as they're more interested in getting an eviction appointment with the court bailiffs). So they only need to apply for permission to enforce by means of getting bailiffs to seize goods if more than 6 years have passed since the money judgment has been made. They do not require permission to use other means of enforcement (third party debt order, attachment of earnings order, charging order).
It is the experience of many advice workers that district judges know very little about the following legislation and related caselaw: mortgage possession;possession for secured loans which are regulated by the Consumer Credit Act; extortionate credit, and consumer credit generally. Some advice workers have even done training for the judges in their local county courts on the consumer credit act.
-- M Amos (email@example.com), August 24, 2002.
Well done Mike! I watched your case with interest and I am so glad to see it progressing well.
-- Too scared to say (firstname.lastname@example.org), August 24, 2002.
Thanks for your response and help to date. A thought that really worries me (although we do not have the problem now) is that anyone who has been lumbered with simultaneous Possession & Money Judgement Orders is up the creek without a paddle.
At least when it is a straightforward Possession Order one is able to get the BS back into Court and argue if they have mismanaged / undersold after repossession. Where there is a MJO issued at the same time the BS seem able (from your info) to enforce this without leave of the Court, unless it is over 6 years after the Order is issued. This means that one would be unable to argue against the Judgement whatever the BS decided to do. They could sell for £1.00 and just enforce the MJO for the shortfall. A ridiculous example I know, but it does demonstrate that, with a MJO, they believe that they are invincible.
Before we knew that there was no MJO I spoke to the Court and said that I wished to apply for a set aside of the MJO. Their reply was that, unless there had been an administrative error at the time of issue, it was a waste of our money as the Judgement was legal. I think that our laws are crazy and that this one (the issue of simultaneous Possession & Money Judgement Orders) in particular needs reviewing.
-- Mike (email@example.com), August 24, 2002.