Relative deluded about court process?

[Courtrobs]

I would appreciate some advice on whether my relative is being realistic about the small claims court process. Unfortunately my info is patchy but the long and short of it is that relative gave someone a lot of money (400k) based on trust before the exchange of property they wanted to buy. They don’t have any sort of cognitive problems, they are just arrogant and stupid and won’t listen to sound advice, just to make that clear. Property is long gone, was repossessed and the person who they gave the money to has paid off their mortgage so all relatives money is now in the other person’s property, as far as we know. The person also owns other properties. Obviously this was done without solicitors, against our advice.

Relative has said that the court has ruled in their favour and they are just in the process of sending the letters and they will then be able to seize 2 properties (not the one they live in) of the person who owes them? I can’t see how this is possibly realistic? As I understand it, it’s one thing winning the court ruling but another collecting the debt. Is it really possible for them to force the sale of someone’s property without a detailed court hearing ? I’ve only ever heard of banks repossessing property, not individuals. Is there really a hope in hell of seeing the money again? Thanks.

how can it be small claims if it involves 400k

If they have a judgment and have obtained a charging order then they can go back to court for an order for sale. The person who the judgment is against would have been advised of the applications at each stage and could have attended a hearing if they wished. If it has gone through without any hearing at all it suggests they did not defend or oppose any part of the proceedings.

What evidence have you seen re court ruling in his favour recently. What does the ruling actually say?

Thanks. Well they haven’t responded so far, but I think only 2 letters have been sent. They haven’t had any kind of hearing. I think they are only at the 1st stages of notification. I didn’t realise it would be possible to get a court to agree to them having a charging order without a detailed hearing. Relative has made it sound like it’s a case of sending 3 letters, then the court rubbing stamping to allow them to sell the properties. Surely if it were that simple then small claims rulings wouldn’t go unpaid so often?

There isn’t a ruling afaik. They say they don’t need one, they just have to send 3 letters of notice, with the courts blessing (they have paid a £10k fee for the ‘rubber stamping’. The person will likely not respond (this is likely because of the way they are) and then they can seize their property within 24 hours. To me this sounds delusional!

An order for sale would not usually be made for small claims. However £400k is not a small claim.

If the party didn't defend the original writ then the claimant can get a default judgment which is merely a paper exercise.

Same with unopposed enforcement proceedings.

This may help you understand the process

england.shelter.org.uk/professional_resources/legal/debt/charging_orders_and_orders_for_sale

Thanks those links are helpful. So it’s probably not a small claims court but they are obviously trying to get an order for sale. So the best they can hope for is that the defendant continues to ignore the letters, and then they will sort of win by default?

First off a debt of £400k would not be in the small claims court. It would be in the multi-track.

If a claim form has been issued and not responded to, you can get judgement pretty easily. Once you have judgment you then have other avenues open to enforce that judgment.

An order to force a sale is different to a charging order. A charging order is noted with the land registry, and means that the parties owning the house can only sell once the debt has been settled. If it is a final charging order, then you can apply for an order for sale, which will be another court hearing.

Did the judgment order that the sum be paid in one go, or were instalments agreed?

to know exactly what is going on, you need to see the court papers and any orders made x

Thanks for your input everyone. In truth I expect we won’t be able to find out exactly what is going on and what sort of order they have. There never seems to be a clear answer when we probe. Relative seems certain they will get their money back. I just didn’t want to be overly encouraging if there wasn’t a hope in hell. The thing I keep coming back to is that there was never any agreement between the 2 parties. No proper contract. So how would the courts rule that they are owed x amount? Do they just go on one parties say so and proof that the money changed hands ? They haven’t said anything about instalments so assuming it’s to be paid in one go. They have been through about 3 different solicitors and a barrister at this point. Barrister was to advise in subrogation. I don’t understand why they would have bothered with all that if the court process was as simple as they are making it out to be?

A multi-track case will never be straight forward, you have various hearings for directions, costs etc (although only if a party is represented is that needed).

Then you got to factor in the cost of bringing a claim which for this amount will be £10,000 for the court fee.

There doesn't necessarily have to be a written agreement, but you do have to be able to prove that the money was lent. Any messages, emails, anything at all that will help the case that the money was a loan would need to be put forward.

In absecence of this it really is down to the judge (if it gets that far) to decide whether there is a case to answer and whether the money has to be paid back x

If there's anything in writing (email/text etc) between the parties that says your relative will / is / has loaned the money rather than gifted it. Or discusses repayment, or anything like that then that would be evidence to support it being a gift. It doesn't have to be an actual written detailed signed contract.

An entirely verbal agreement also forms a contract, but obviously is hard to prove with no tangible evidence.

Sorry, 'support it not being a gift'!

As with all things there are a lots of "ifs" and "bits" and without seeing all the court papers, knowing exactly what is going on it's impossible to say what will happen, or indeed what has happened so far.
I'm just outlining the procedural knowledge I do have, there are lots of things that could have happened that will throw things on a different course