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small claim advice

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banned6y, 5m agoPosted 6 years, 5 months ago
Hello, I have a current small claim at the court. To keep things brief, I am at a stage where I have applied to put a charging order on the defendants property, but he has put an application to set the judgement aside.

I have come to know he has money outstanding somewhere and I am aware of the person, so I would like to apply for a garnishee order, can I do this at this stage?

Please help. Thank you
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banned6y, 5m agoPosted 6 years, 5 months ago
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#1
I am NOT a solicitor, but I would think you need to put an application for a Third Party Debt Order (garnishee) as soon as possible, so you get an interim order to protect the money from going straight to the defendent. Then I would think they would hear all 3 applications at the same time (charging order, application to set aside and third party debt final order).

I assume you applied for a charging order because you honestly believe the defendant has no cash or other assets with which to pay the debt - waiting on a charging order (which is not an order to sell) could mean a long wait for your money.

If the debt is large enough to warrant a charging order, then I would have thought about applying for bankruptcy against the defendant (has to be over £750 I think) - an application for bankruptcy has a way of concentrating a defendant's mind, and if it is possible for them to find the money to pay the debt, they will.
banned#2
Do you think the court will let me change the charging order to a garnishee order?
#3
I would think you could withdraw the charging order application and then make a 3rd party debt order application, but if by 'changing' the applications you mean get the court not to charge you for the new application - then no, I don't think they would go for that.
Or are you saying you already have a full charging order? In which case I would think the answer would be no - you can't just change it for another method of enforcement. In that case, as far as the court is concerned your money is secure, even if you have to wait for it. In that case you might have to apply for an order for sale if you want your money quicker.
This is why you need to pick the right enforcement method for the circumstances in the first place. Charging order is often best as a last resort. Oral exam is good for finding out about assets the debtor has (or who might owe him money) before you decide on a method of enforcement.
banned#4
At the moment, I have a charging order application with the court, got a hearing in a couple of months, but also have a hearing as the defendant has put an application to set the judgement aside.
I have just found out he has money owed to him from a current job he is doing.
Please advise.
#5
I shouldn't think the court can make any decision on final enforcement while an application to set aside is pending. But if you are trying to stop money going from a third party to the debtor I would still think you need to act quite quickly to protect that money. It has to be timed right though - so the money is actually owed, but hasn't been paid.
If the debt is for a substantial amount I would suggest you get proper legal advice - I know it will cost you but might be worth it in the long run if it ensures you recover the debt, and you should be able to add costs to a successful claim.

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