HOW TO ENFORCE A DEBT COLLECTION JUDGMENT

Following on from last week’s blog post on our debt collection service, this post sets out the many options that are available to creditors to assist in recovery of the Judgment debt.

The options available to you are as follows:

1. Execution by the Sheriff

A Judgment Order can be lodged with the local Sheriff. The Sheriff will call to the debtor’s address and attempt to seize any goods the debtor may have, in satisfaction of the debt owed. The Sheriff does not have to give the debtor notice of intention to seize their goods or property and will not seize essential household items or the tools of trade. There can be delays in this process and often the Sheriff can decide that the debtor has no goods worth seizing and selling. However, where it is not economically viable to seize goods, the Sheriff will often enter into instalment arrangements with debtors.

2. Registration of Judgment

To bring a judgment to the attention of the public at large, it must be published. When a judgment is registered in the Central Office of the High Court, it is published in trade gazettes and various commercial databases. These gazettes are widely read by credit controllers, bank managers etc. This will affect a debtor’s credit rating which can have serious consequences.

3. Examination, Instalment and Committal Orders

An Examination Order follows service of summons requiring a debtor to complete a Statement of Means and to attend Court to be cross examined regarding his means. If the debtor fails to attend, or fails to submit a statement of means or fails to prove their inability to pay, the Judge will be obliged to make an Instalment Order. This order compels a debtor to repay by weekly or monthly instalments the amount of the debt and legal costs which are due. If the debtor fails to comply with the Order, then a Committal Order can be sought from the Court, which directs that the debtor be arrested and committed to prison for contempt of Court on the basis that they have failed to comply with the terms of the Instalment Order.

4. Garnishee Orders

Where a third party holds or owes money for the Judgment debtor, you can apply Ex Parte (without notice) to the Court for an Order directing that any monies be paid by the third party directly to the creditor. Timing is important to ensure that the third parties such as the Bank, National Lottery, Local Authority etc. are advised of the Garnishee Order before the monies are paid to the debtor. This procedure is dependent on you having good intelligence on any monies being paid to the debtor.

5. Judgment Mortgage

We can carry out property searches to ascertain whether the debtor has any property or land, owned or part owned, on which a judgment mortgage can be registered. Once registered, it may prevent the property from being sold and you have the right to have the property sold off and the proceeds used to pay the debt.

6. Injunctions

An injunction is an order of the Court directing a party to do or refrain from doing something. Injunctions can vary in duration and be either mandatory or prohibitory. For example, a Mareva Injunction can be sought to freeze the debtor’s assets to prevent the debtor from attempting to dissipate or dispose of the assets up to the value of the debt pending trial of the action or pending payment of the judgment debt.

7. Winding Up

Where the judgment has been obtained against a limited company, a Notice can be issued threatening to wind up the company. If the debt is not paid within 21 days, a petition may be presented to the High Court to have the company wound up.

8. Bankruptcy

This applies only when the debt is very large and the debtor is an individual. You can apply to the High Court to have a debtor adjudicated as bankrupt. The bankrupt’s assets are realised by a Court Officer and the proceeds distributed amongst the creditors.

To find out more about recovery of your debts, please contact Brophy Solicitors on (01) 679 7930 or by email.

Rebecca Townsend
Brophy Solicitors

IRELAND'S THREE PROPOSALS FOR GENDER RECOGNITION LEGISLATION: DID ANYONE GET IT RIGHT?

A transgender or trans-person is a person whose self-identified gender does not reflect the gender assigned to him or her at birth. Under Irish Law, transgender individuals cannot legally change their gender on their birth certificate under any circumstance – applying to schools/colleges and for a driver’s license become extremely problematic tasks for trans people.

Transgender people in Ireland have been waiting for gender recognition legislation to be published by the government since 2007, where the High Court ruled that Ireland’s failure to recognise Dr. Lydia Foy’s female gender was in violation of her rights under Article 8 of the European Court of Human Rights. Sixteen years have past, since Dr. Foy first began legal proceedings to get a birth cert and she is still waiting! Since this judgement, Ireland has been the subject of much criticism from international human rights bodies over its failure to afford such legal recognition. On the 27th of February Dr. Foy issued new proceedings in the Irish High Court, seeking orders requiring the government to act on the 2007 judgment - http://www.flac.ie/news/2013/02/27/new-legal-proceedings-issued-to-highlight-continued-state-injustice-on-transgender-rights/

The excitement of the Gender Recognition Advisory Group’s report in 2011 was short lived. Despite recommending legislation, it was deemed disappointing and conservative. It required individuals to be a minimum of 18 years old, those in existing marriages or civil partnerships to be excluded from the scheme and a formal diagnosis of Gender Identity Disorder or gender reassignment surgery to have taken place. The latter two are particularly problematic from a human rights perspective, excluding those who do not have this particular diagnosis or surgery from exercising their right. Ireland is the only country in the European Union that does not legally recognise transgender people in their preferred gender. But there is change on the horizon.

Recently three Legal Recognition of Gender bills have been put forward, with an aim to resolve the incompatibility identified by the High Court in Foy v An tArd Chláraitheoir. Each bill provides that everyone has a right to legal recognition of their self-identified gender and to be issued with official documentation.

Social Protection Minister Joan Burton published the General Scheme of the Gender Recognition Bill, following Cabinet approval, on the 17th of July 2013 - http://www.welfare.ie/en/Pages/Gender-Recognition-Bill-2013.aspx. This draft bill is an improvement on the 2011 report but it still comes up short. It requires a self-declaration that the applicant intends to live permanently in their self – identified gender and a validation from a qualified physician that a person is transgender – seemingly a diagnosis under another name. However, there is no recognition for those under 18; prolonging the confusion and isolation of young trans people. Those in a happy marriages or civil partnership will also be forced to divorce to meet the criteria, avoiding any possibility of having same sex marriages.

Sinn Féin spokesperson for Social Protection, Aengus Ó Snodaigh's launched a Private Members Gender Recogntion Bill on the 22nd of May 2013 - http://www.oireachtas.ie/documents/bills28/bills/2013/5613/b5613d.pdf. A simple piece of legislation that offers a liberal, human rights based approach. It abolishes the prerequisite age of 18 plus and allows transgender people in valid marriages or civil partnerships to be included in the scheme. The Argentinian Model is emulated in this bill, a model that was heralded as the most progressive in the world, enshrining the self – determination of trans people. However, this bill lacks the necessary detail for such a complex and sensitive area.

On the 27th of June 2013 Senator Katherine Zappone introduced the Legal Recognition of Gender Bill in the Seanad. Following on from the aforementioned bills, it adopts the self – declarations model - http://www.oireachtas.ie/viewdoc.asp?DocID=23950&&CatID=59

It provides for a Gender Recognition Register which would collate self-declarations of gender from transgender individuals. The information contained on this register would then be used when new birth certificates are issued. The bill does not require individuals to attain a medical diagnosis to be eligible for recognition, allowing both trans and intersex people the possibility to exercise their rights. Furthermore, it enables trans and intersex youth under 18 to make an application for recognition. This can be done with the support of one legal guardian or if the individual is under 16 their guardian can make an application on their behalf. Furthermore, it eliminates the prerequisite that applicants must be single. Senator Zappone contends that “the bill seeks to ensure the dignity of transgender people and protect their rights to self-determine their identity.” A statement we here at Brophy Solicitors strongly agree with.

Although all developments in this area are welcomed, Minister Burton’s bill; albeit a step in the right direction, is a missed opportunity. The proposal has not become law yet and there is still time to influence the shape to a model similar to that of Senator Zappone’s, one that embodies the principles of equality and non-discrimination of all Irish people within its legal framework.

Rebecca Townsend

Brophy Solicitors