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How to recover monies won in a lawsuit against Real Estate

by • May 16, 2020 • property legal mattersComments (0)53

You obtained a monetary judgment against the losing party (the “Judgment Debtor”) (i.e. an order for the losing party to pay you a sum of money) and the Judgment Debtor failed to pay you despite a formal demand having been made. In short, how to recover monies against judgement debtor. In this article we have the legalistic terminology as it is necessary to use these legal terms as they are very specific, however we have invited iCompareLoan to do a layman version based on their understanding to better relate to you. 

Layman: You won a lawsuit and is awarded monies, what are your options if the losing party does not pay?

Recover monies against judgement debtor

Image by Tingey Injury Law Firm on Unsplash

By CHIANG WAN TING

You may consider enforcing the Judgment against the Judgment Debtor’s immovable property particularly when the Judgment sum is substantial, and you do not have any information on the Judgment Debtor’s bank accounts or other assets. 

LaymanIf you won a large sum and you are not sure whether the losing party has enough cash / assets to pay you, you can consider claiming against his property.

This article will consider the viability of such enforcement process on the following types of immovable properties in Singapore:-

Property A: A Housing & Development Board (“HDB”) flat; 

Property B: A private property registered in the Judgment Debtor’s sole name;

Property C: A private property held in tenancy-in-common with another; and

Property D: A private property held in joint tenancy with another.

 

LaymanThese are some of your options where the losing party owns a HDB flat, a Private property in his sole name, a Private property held in tenancy-in-common with others and a Private property held in joint tenancy with others.

 

Writ of Seizure and Sale (WSS) to recover monies against judgement debtor

  1. If you wish to sell the Judgment Debtor’s properties to satisfy the judgment debt, you must apply for a Writ of Seizure and Sale of immovable property (“WSS”).
  2. The WSS order takes effect for 6 months from the date it is obtained. It may be further extended for a further 6 months if you make an application to Court.
  3. Upon the WSS order being obtained and registered with the Land Titles Registry, the
  4. Judgment Debtor cannot deal with or dispose of the property; and
  5. Sherriff is empowered to act as Judgment Debtor to effect the sale and execute an instrument of transfer in respect of the property.
  6. However, you should note that the WSS does not prevent an earlier mortgagee from selling the property pursuant to the contractual terms of the mortgage without seeking your consent.
  7. In this situation, you will only be paid if there are balance sale proceeds after paying:-
  8. the cost and expenses of the sale; and
  9. the monies owed to the earlier mortgagees.

LaymanIf you wish to lay your claim on the losing party’s property, you must apply for a Writ of Seizure and Sale (“WSS”) and register the order with the Land Titles Registry. After that, you are able to cause the sale of the property within 6 months. However, an earlier mortgagee can still sell the property without your consent.

Sale by Auction to recover monies against judgement debtor

You must be prepared to wait more than a year to receive sale proceeds if you cause the property to be sold via auction due to the following reasons:- 

LaymanIf you want to put his/her property up for Auction, then you must be prepared to wait for more than 1 year for the sale proceeds.

 

The following must be done before the Sherriff can sell the property by auction:-

  1. You must file the WSS together with an undertaking, declaration and indemnity, and notice of seizure;
  2. The Sherriff must serve the WSS and WSS order on the Judgment Debtor at the property;

You must file the requisite Request showing:-

  1. The date of registration and expiry of the WSS order;
  2. The WSS order and the date on which it was served on the Judgment Debtor;
  3. Whether the property is subject to any mortgage/charge and the mortgagee/chargee’s consent to the sale; and
  4. The names of 3 proposed conveyancing lawyers to act on the Sheriff’s behalf in the sale of the property;

(iv)You must file submit a valuation report and provide proof of registration of the WSS order;

Upon the Sherriff appointing his own valuer, you must file a “Request for Ad Hoc Attendance” for them to enter the property to prepare a full valuation report; and

(vi)You must make arrangements with the judgment debtor or engage a locksmith to allow the Sherriff to enter the premises to facilitate further valuations which the Sherriff might call for and viewings by interested buyers.

5. As the property can only be sold above the forced sale value set out in the valuation report, multiple actions might   

    be held before obtaining a bid above the said value.

6. If it is not possible to meet the forced sale value after multiple auctions, you may have to request that the Sherriff

    obtain an updated valuation report to reflect a lower forced sale value.

 

LaymanThese are steps that you need to comply to meet the “Sale by auction” method. Usually your lawyer will have to assist you in taking these steps.

 

Negotiations with the Judgment Debtor (Person owing you the money from the law suit)

If you wish to avoid the hassle of causing the property to be sold via auction, you can negotiate for the Judgment Debtor to pay the judgment debt via instalments.

However, you should be wary of the following:-

  1. An earlier mortgagee can sell the property without seeking your consent while the judgment debtor is still making instalment payments; and
  2. The instalment period should not exceed the duration of the WSS Order (6 months). You can work around this by requiring the Judgment Debtor to consent to your application to extend the duration of the WSS Order for another 6 months.

 

LaymanYou can negotiate for the losing party to pay via instalment. But the instalment plan should not exceed 6 months. For example the court awards you $800,000. If the losing party pays $100,000/month for 8 months, you will have difficulty recovering the remaining $200,000 after the WSS expires on the 6th month. You should try to have the losing party agree to an extension of the WSS for another 6 months.

 

Property A – HDB Flat

WSS is not a viable option for the following reasons:- 

  1. A HDB flat cannot be seized without HDB’s approval; and
  2. It will be difficult to obtain HDB’s approval as the occupations of Property A will become homeless and pose a burden in terms of housing needs.

 

LaymanDo not consider WSS if the losing party owns a HDB flat. It is very hard to obtain HDB’s approval.

 

Property B – A private property registered in the Judgment Debtor’s sole name;

WSS is a viable option if you have done the necessary background checks verifying that the net sale proceeds (i.e. sale price of Property B less the costs and expenses of sale and outstanding earlier mortgages and charges) are sufficient to satisfy the judgment debt.

LaymanIf the net sale proceeds are enough to pay the judgment debt, you can proceed with WSS against the private property solely owned by the losing party.

 

Property C – A private property held in tenancy-in-common with another; and

WSS is a viable option if the Judgment Debtor’s share in the net sale proceeds is sufficient to satisfy the judgment debt.

LaymanIf the losing party owns 30% of the property and the total net sale proceeds are $200,000, his share of the net sale proceeds will be $60,000. You must consider whether it is enough to pay the judgment debt. 

If the person owing you the legal judgement monies, i.e. Judgement debtor, he has a share in a private property, let’s say 30% of a $2,000,000 property. His share is $600,000, and that is sufficient to pay off his monies owing to you, then it is viable. However it is often contentious, because who will buy the his/her 30% share with the majority owner staying in the house with 70% share. What about the use of the rooms, toilets, living rooms, who use what?

 

Property D – Private Property under joint tenancy

Writ of seizure (WSS) might not be a viable option for the following reasons:- 

  1. there might be an appeal against the WSS order – there is no judgment from the Court of Appeal holding that a joint tenancy can be severed by a WSS order; and
  2. the other joint owner might mount a claim against you for a greater share of net sale proceeds. The other joint owner might produce evidence and argue that his/her share exceeds the presumed half share of the net sale proceeds.

LaymanThere might be complications if the losing party’s property is held in joint tenancy as the other owner might challenge the Writ of Seizure (WSS).

If you want to know the difference between Joint Tenancy and Tenancy-in-common, you may check here or contact iCompareLoan.com

Conclusion

  1. If you wish to find out more about enforcing judgments against the Judgment Debtor’s immovable property, contact our friendly lawyer CHIANG WAN TING at 63275767 of ASCENTSIA LAW CORPORATION located conveniently at 10 Anson Road #03-22 International Plaza Singapore 079903 (Tanjong Pagar MRT) or contact us HERE.

 

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