M50 Barrier Free Tolling
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Once a judgment is obtained, the next step in the legal debt recovery process is to recover the monies outstanding through enforcement of the judgment. While each case will be judged on its own merits, the type of enforcement action recommended will depend generally on the following;
Summons For Attendance
Once Judgment has been obtained against a Debtor then the Creditor can apply to the District Court for the purposes of obtaining an Instalment Order against the Debtor requiring him/her to pay the debt in instalments. This procedure is available against individuals only and cannot be used against companies. It is a form of enforcement applicable to all amounts. However such proceedings may only be brought in the District Court and cannot be commenced in either the Circuit or High Court. Proceedings must be taken in the area where the Debtor resides. The Summons for Attendance which is sent to the Court Office will be allocated a date for Hearing and returned to the Solicitor on behalf of the Creditor.
Certificate of Amount Due
Once the Summons for Attendance has been returned from the District Court office it will be served on the debtor. The Summons requires the Debtor, to attend Court on the date and at the venue specified on the Summons. On that date the Debtor will be examined as to his/her means. The Summons for Attendance also requires the Debtor to complete, detach and lodge with the Clerk of the District Court Office, in not less than 1 week before the date of the Sitting, a Statement of Means which sets out his/her income and expenditure on a weekly/monthly basis. The Certificate of Amount Due will inform the Debtor as to the total amount due on foot of the Judgment obtained against him/her.
Solicitor Instructed for Instalment Order Application
The Creditor’s Solicitor will instruct a Firm of Solicitors to appear at the relevant Court on behalf of the Creditor to apply for the Instalment Order. At that stage the Creditors Solicitor will have had sight of the Statement of Means filed by the Debtor and will therefore be in a position to instruct a Solicitor to apply for a reasonable Instalment Order in view of the Debtors circumstances. If the Debtor does not appear in Court or does not file a Statement of Means then a Solicitor will be instructed to apply for an Instalment Order, as appropriate, given the information known to the Creditor of the Debtors’ personal circumstances.
Commence Committal where No Payments
Once the Instalment Order has been granted by the Court a Draft Instalment Order in duplicate is sent to the District Court Clerk. After it has been signed, it will be returned to the Creditors’ Solicitor for service on the Debtor. The Instalment Order must be served on the Debtor by registered post. The first instalment will fall due approximately 7-14 days after the Instalment Order has been served, depending on the Order of the Court. If the Debtor fails to make the instalments, as per the Order of the Court, then the Creditor can apply to the Court for an Order committing the Debtor to prison for failure to discharge outstanding instalment(s).
Committal Summons to Court For Date of Hearing
If the Creditor instructs his/her Solicitor to proceed with a Committal Application then the Solicitor will lodge a Summons on Application for Arrest and Imprisonment in duplicate with the District Court Clerk. The District Court Clerk will require to see the Original Instalment Order and Endorsement of Service, as proof that the Debtor has been served with the Instalment Order. The District Court Clerk will then fill in the date for Hearing and return the Summons to the Creditors’ Solicitor.
Once the Committal Summons is returned from the District Court Clerk it will then be served on the Debtor by registered post. It will set out that a Committal Application is being made against the Debtor at a particular Court on a particular date. It is a matter for the Debtor if he/she wishes to attend Court on that date or if they wish to instruct a Solicitor to appear on his/her behalf.
Solicitor and Client Instructed for Court Hearing
Prior to the Court date set out in the Committal Summons, the Solicitor on behalf of the Creditor will instruct a Solicitor to appear in Court in relation to the Committal Application. It will also be necessary to have the Creditor or a representative of the Creditor in the relevant Court. It will be necessary for them to give evidence relating to the Debtor as to the following matters; the amount of the Judgment including costs, the date of the Instalment Order, the date on which the Instalment Order was served, the date on which the first instalment falls due, the number and amount of instalments falling due as of the Court date, if any payments have been received on foot of the Instalment Order and if so how many and for what amount.
If the Debtor appears in Court on the relevant date then he/she may be examined as to why they have not made any or all of the payments on foot of the Instalment Order. In the event that the failure of the Debtor to pay is as a result of and because of hardship and financial difficulties then the application may be treated as a Variation Application and the Judge may substitute a lower figure for the instalments to be paid. This is where a Committal Application is treated as a Variation Order. In that event the Variation Order, once received from the District Court Clerk, will be served on the Debtor by registered post. If the Debtor fails to make the repayments, in accordance with the Variation Order, then the Creditor may instruct his/her Solicitor to commence Committal Application Proceedings.
Committal Order Granted and Warrant Lodged for Execution
On the date of the Committal Application Hearing, if the Debtor is not in Court then it is very likely that an Order will be made that the Debtor be imprisoned. This is also likely to be the result in the event that the Debtor appears in Court and the Judge is of the view that the Instalment Order has not been complied with due to willful failure and neglect on the part of the Debtor.
Once the Committal Order has been granted by the Court it will be served on the Debtor by registered post. It is often the case that the Court will grant a “Stay” on the Committal Order. This in effect means that the Committal Order cannot be lodged at the relevant Garda Station until the “Stay” Period has elapsed. Any such “Stay” Period is at the discretion of the Court and it allows the Debtor a further opportunity to pay the outstanding instalments due, for which the Committal Order has been granted by the Court.
Once the Committal Order has been sent for execution, with the relevant Garda Station, then the Debtor will be arrested on foot of the Committal Warrant and imprisoned in respect of the outstanding monies due to the Creditor on foot of the Instalment Order.
This procedure is normally initiated by service of a demand on Bankruptcy on the debtor. If the debtor fails to pay, it is then open to the creditor to have a Debtor Summons issued based on an Affidavit completed by the creditor. The Summons is then issued and the creditor may during the following six months apply to the High Court to have the debtor adjudicated bankrupt.
If a Judgment Creditor ascertains that the debtor is owed money by a third party, he can take steps to attach such amounts by means of “Garnishee” proceedings. The successful outcome is that the Court directs the third party to pay over the monies which are owed to the debtor to the Judgment Creditor.
Forced Sale Proceedings can be initiated either on foot of a judgment which is registered against the title to the debtor’s property i.e. judgment mortgage or where a legal charge has been registered against a debtor’s property. The successful outcome of such proceedings is that the Court orders that the property is sold to satisfy the outstanding liability to the Creditor.
Where a judgment has been obtained, it can be lodged with the Sheriff’s office with a view to having the Sheriff seize the goods of the debtor in satisfaction of the outstanding liability.