How to Get a Writ of Seizure and Sale to Enforce a Judgment
Having obtained a court judgment in your favour, you (Judgment Creditor) can take out an enforcement action against the other party (Judgment Debtor) if the Judgment Debtor has not complied with the court judgment.
To comply with the court judgment means to pay the judgment debt (as specified in the court judgment) owed to the judgment creditor.
In all civil claims (which typically involves a private party suing another private individual or organisation), the Judgment Creditor is responsible for enforcing the judgment (i.e. taking action to ensure that the Judgment Debtor pays the judgment debt).
On the other hand, in criminal trials (where the State is involved in prosecuting accused persons), the State is actively involved in ensuring that convicted persons serve out their sentences.
A Writ of Seizure and Sale (WSS) is one of the options available for enforcement of court judgments.
What is a Writ of Seizure and Sale (WSS)?
Under a WSS, the Judgment Creditor can request the court, who then authorises the Bailiff, to seize property belonging to the Judgment Debtor to pay the judgment debt. Bailiffs are officers of the court who are empowered to handle enforcement proceedings commenced by parties in respect of court judgments and orders.
The Judgment Debtor’s premises may be accessed in order to seize his/her property. The seized property may later be sold via public auction (see below).
This option may be considered if the Judgment Creditor is reasonably certain that the Judgment Debtor has physical assets of sufficient value that may be sold to recover the costs of enforcement, and pay the amount owed as stated in the court Judgment.
Examination of Judgment Debtor to Determine His/Her Assets
To determine what assets the Judgment Debtor has or where the assets are located, the Judgment Creditor can apply to obtain the leave of court (i.e. the permission of the court) for an examination of the Judgment Debtor. This application is made via ex parte summons supported by an affidavit. An affidavit is a signed statement made on oath.
“Ex parte” means that no other parties, whether a party to the lawsuit or not, are being served with the application.
“Summons” are applications to the court, made by parties to a lawsuit, which state the orders sought to be obtained from the court. Applications to the court are made via the Integrated Electronic Litigation System (eLitigation).
If the leave of court is obtained, the court will order the Judgment Debtor to attend before a court registrar. The court registrar will question the Judgment Debtor as to what assets he has and where they are located, and order any supporting documents to be provided to the court.
Such information will be made available to the Judgment Creditor.
What Can and Cannot be Seized Under the WSS?
Generally, most types of movable and immovable property can be seized, with the exception of the following:
- Apparel, bedding, tools of trade, of the Judgment debtor or his family, when the value of such items do not exceed $1,000;
- Wages or salary of the Judgment Debtor (which can instead by claimed through garnishee proceedings);
- Pension, gratuity or allowance granted by the government;
- Shares of the Judgment debtor in a partnership; and
- Tools that may be necessary to enable the Judgment Debtor to earn his living (e.g where he/she is an artisan or agriculturist)
Also, an HDB flat cannot be seized without approval of HDB.
How Do I Apply for a WSS?
All applications for a WSS are made via the eLitigation system. You may appoint a lawyer to make the application on your behalf or file the application yourself at a CrimsonLogic Service Bureau.
Types of WSS
There are 2 types of WSS:
- WSS for movable property; and
- WSS for immovable property.
Apply for a WSS for movable property
Generally, you do not have to obtain a leave of court to apply for a WSS for movable property.
However, leave of the court will be required if:
- 6 or more years have elapsed since the date of the Judgment
- Any change has taken place in the Judgment Creditor or Judgment Debtor (for example, death)
- The court Judgment is against the assets of a deceased person and these assets are in the hands of the deceased person’s executors or administrators
- Where, under the court Judgment, any person is entitled to relief subject to the fulfilment of any condition, and it is alleged that this condition has been fulfilled. For example, the court may make a suspended order for possession. Under this order, the court grants the creditor possession of mortgaged property, but the possession is not enforced so long as the debtor (i.e. the mortgagor) pays the creditor (i.e. the mortgagee) any unpaid instalments due under the mortgage, in addition to future instalments. In other words, relief (from the creditor being given possession of the mortgaged property) is granted to the borrower, but this relief is subject to the fulfilment of the condition of the debtor paying the above-mentioned sums. As a result, if the creditor wants to apply for a WSS for movable property, and the debtor alleges that he has been making those payments as per the conditions of the suspended order for possession, then the creditor must get leave of court to obtain the WSS.
- Where movable property to be seized is in a receiver’s hands. For example, if a company is insolvent, a receiver may be appointed by its creditors to manage the company’s assets.
Where leave of the court is required, application for leave must be made by ex parte summons supported by an affidavit.
The grounds of this application are stated in the affidavit. In this case, the affidavit must:
- Identify the court judgment
- If the court judgment is for the payment of money, state the amount originally due under Judgment and the amount due thereunder at the date of the application
- State any change that has taken place in the parties since the date of the Judgment
- State grounds for delay in enforcing Judgment if 6 years have elapsed since the date of judgment
- With respect to points (3) and (4) mentioned above, state that a demand was made on the Judgment Debtor to satisfy the Judgment, but that the Judgment Debtor failed to satisfy the judgment
- Provide such other information as necessary to satisfy the court that the Judgment Creditor is entitled to execute the judgment and the Judgment Debtor is indeed liable to pay the judgment debt
Apply for a WSS for immovable property
You have to obtain the leave of court to apply for a WSS for immovable property. The application for the leave of court must be made by ex parte summons supported by an affidavit.
The affidavit must:
- Identify the Judgment
- Identify the Judgment Debtor
- State the amount due under Judgment and at the date of the application
- Specify the property to be seized
- State that, to the best of your information or belief, that the property belongs to the Judgment debtor
After leave of court is obtained, you may proceed to apply for a WSS via eLitigation (as mentioned above).
Prior to Executing the WSS
If the Judgment Debtor applied for a stay of execution
After the Judgment Creditor obtains a WSS, the Judgment Debtor can apply for a stay of execution on the basis that he is unable to pay the Judgment debt.
A stay of execution is a court order temporarily preventing the Judgment Creditor from enforcing the judgment and executing his WSS.
It is also possible for the Judgment Debtor to apply for a stay of execution on the basis of special circumstances. Such circumstances would include the fact that the Judgment Debtor intends to appeal (i.e. request the court to review the judgment debt) and that the appeal would have little practical value because the Judgment Creditor is likely to dissolve the assets taken in execution, such that the Judgment Debtor is unable to reclaim them from the Judgment Creditor should the appeal be successful.
Applications for a stay of execution must be made by an inter partes summons, served on the Judgment Creditor, supported by an affidavit stating the grounds of the application.
Inter partes means that one or more parties to the lawsuit are being served with the application and will have to attend a court hearing, where he may contest the application.
Where the application is made on the grounds of the applicant’s inability to pay, the affidavit must state:
- Judgment debtor’s inability to make payment.
- Judgment debtor’s income.
- Nature and value of assets owned and liabilities.
Where the application is made on the grounds of special circumstances, the affidavit must explain those circumstances.
For example, the affidavit could state and justify the Judgment Debtor’s belief that the assets which have been seized by the Judgment Creditor are likely to be dissipated by the Judgment Creditor.
How is the WSS Executed?
If your application for a WSS is successful, you will receive an appointment letter from a Bailiff to inform you of the date fixed for execution.
On the appointment date, you or your authorised representative must hand the following over to the Bailiff assigned to your case (as indicated in the Appointment Letter):
- The appointment letter (issued by the Bailiff)
- The official receipt to confirm that a deposit of $300 or such amount as requested by the Bailiff, has been paid at the Finance Section of the State Courts; and
- A Letter of Authorisation and Indemnity signed by you. If you are a business entity, the letter should bear your firm’s stamp
If requested by the Bailiff, you would be required to provide transport for the Bailiff to the Judgment Debtor’s premises for the purposes of executing the WSS.
Accessing the Judgment Debtor’s premises
If the premises are accessible, the Bailiff will enter the Judgment Debtor’s premises and may seize items identified by you (or your representative) and mark them accordingly with an official sticker.
After the seizure, the Bailiff will serve the necessary forms/documents on the Judgment Debtor including a notice not to remove or tamper with the seized items.
If the Judgment Debtor’s premises are not accessible or Judgment Debtor refuses/resists the execution of the WSS
If the premises are not accessible or if the Judgment Debtor refuses/resists the execution of the WSS, the Bailiff will serve or leave a notice at the premises. Generally, the Bailiff will not exercise his power of forced entry onto the premises on the first attempt at execution.
If execution of the WSS is not successful on the first attempt, it is possible to request for another attempt to execute the WSS. You will then have to apply for a new appointment date by filing the “Request for Date to be Appointed for Execution” and pay the requisite fees (see below).
The Bailiff may choose to exercise his powers of forced entry onto the premises on the second or subsequent attempts. In practice, forced entry is only conducted with the assistance of a professional locksmith.
You will be required to engage the services of a locksmith on your own and at your own cost. You may also need to cover the Bailiff’s transport expenses, should this be requested by him/her.
What Happens After the Property has been Seized?
The Judgment Debtor is given 7 days to settle all sums owing to you.
Following the seizure, if you still do not receive payment on the outstanding judgment debt, you can choose to proceed with an auction sale of the seized property.
Filing for an auction sale
An application for an auction sale is made by filing the “Request to Proceed with Auction” through eLitigation and paying the requisite fees where applicable.
The Bailiff may require that a valuation report of the seized items be prepared and submitted before fixing the auction date. The valuation charges are to be borne by Judgment Creditor.
Once the “Request to Proceed with Auction” is filed, a Notice of Sale must be posted at the place where the auction will take place at least 7 days before the date of the auction. You will be informed of the auction date through a letter sent by the Bailiff.
This date may be within 3 to 5 weeks from the date of service of the Notice of Sale, subject to availability of dates and the validity of the WSS.
You will then have to contact and appoint the auctioneer selected by the Bailiff at least 7 days or 3 weeks before the auction date (depending on what is stated in the Bailiff’s letter). The auctioneer’s fees and expenses will also be borne by you.
What happens if I do not proceed with the auction sale?
If you do not proceed with the auction sale, your WSS will be aborted. You may then wish to obtain legal advice about filing a fresh WSS.
The Bailiff may also exercise his discretion to release any or all of the items seized.
Filing Fees and Other WSS-Related Expenses
The filing fees associated with a WSS would depend on which court/tribunal issues the Judgment or court order that you are seeking to enforce:
|Small Claims Tribunals / Employment Claims Tribunals||Magistrates’ Court||State Courts|
|WSS Document Fees||$60||$155||$270|
|Undertaking, Declaration and Indemnity||$10|
|Request for Date to be Appointed||$10||$50||$100|
|Request to proceed with auction||$10|
Other expenses may also be incurred. These expenses include:
- Deposit: At least $300
- Bailiff’s attendance fee: $50 per hour or part thereof
- Court Commission (seizing of items): At least $50
- Court Commission (auction): At least $100
- Auctioneer’s fee: At least $150 (if estimated value of seized item is below $2000), at least $800 (if estimated value of seized item is above $2000)
You may be able to recover your expenses if the WSS is successfully executed and the proceeds of sale of the seized items are sufficient to cover both the judgment debt and the expenses incurred.
However, if the proceeds of sale are insufficient to cover any expenses arising from the Bailiff’s execution of the WSS, any outstanding sums will be deducted from the deposit amount.
A WSS is just one of the methods used to enforce a court judgment issued pursuant to civil proceedings. You may wish to seek legal advice as to whether a WSS is appropriate for your situation.
Feel free to get in touch with one of our civil litigation lawyers should you need any assistance in this regard.
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