Liberty To Restore?

[NancyGru101]

Hi. If a possession order says adjourned generally with at 'Liberty to Restore' for the money claim, but doesn't have a deadline. How long does the Liberty To Restore last? The Possession order was over 7 yrs ago. Neither party has been in touch with the court since. Will there be a point where the judge will dismiss the case, or do you think they would have already.

[NancyGru101]

Could someone please provide any help on this, it would be greatly appreciated. We just need to know if a time limit, is/would be, applied to an adjourned generally with liberty to restore money order claim, given that the initial hearing for possession was 7 years ago. Thanks.

[R0b]

Hi,

If there is no time limit for one party to restore the claim, then there is no time limit. However, I stress that is the general rule because it actually depends on whether or not this was a court order or was it a consent/tomlin order between the parties. The latter order being very important because they are considered contractual settlements and may be subject to the 6 year limitation period for enforcement, and if true, would mean the claiming is out of time for pursuing/seeking judgment.

If you can provide some further background around the order/what it fully says and maybe we can help identity what your position is.

[NancyGru101]

Hi. In 2017, a lender obtained a possession order, involving a non regulated secured loan on an asset, that they repossessed and later, sold, approx 6 years ago. Whilst they was considerable shortfall due to their obscene levels of interest, charges, receiver costs etc, they haven't gone back to court nor made any contact to us in over 5 years. They did inform me it had been sold and informed me of shortfall and threatened court and/or bankruptcy but we haven't heard from them since. As you can imagine, it causes you to live in fear. I lost everything then and fear it could repeat, I don't know if I would pull through that again. Thank you for your time in helping me with this.

[R0b]

As I understand it, a possession order is not the same as a money judgment. So if the order was simply obtain possession of the home to force a sale, but there is no order as to you paying any shortfall or other payments under the mortgage, then in my view the lender would have to go back to court to start fresh proceedings for a money judgment of the remaining balance - that appears to tally with what you have described about the lender going back to court and threatening bankruptcy proceedings but it doesn't make sense in relation to an order with liberty to restore proceedings.

If the lender had to start fresh proceedings, then they would be subject to the 6 year limitation period when the lender first demanded the money to be due. That date will usually be the date when you are served with a default notice and would have been before the 2017 possession hearing. So it's possible that you have heard nothing back because the lender is out of time to bring further proceedings.

Do you still have a copy of the possession order and are you able to upload it with any personal information redacted so we can see exactly what it says?

[NancyGru101]

Hi. Thank you so much for providing me this information and feedback, it is very much appreciated. I have attached the possession order, I have censored all confidential elements, due to sharing over the internet. Thanks again.

[R0b]

Hi

Sorry I didn't realise you replied.

From looking at the order, it's a little strange because the judge has adjourned the money part of the claim indefinitely with the ability for the claimant to restore those proceedings by making an application. The reason why I find it a little strange is the use of the word "adjourned" because an adjournment is generally seen as a temporary postponement to another date whereas if one was to halt a claim or part of a claim then a court would normally "stay" proceedings.

I suspect the adjournment phrasing with liberty to restore was probably intended to mean a stay of proceedings rather than a temporary postponement to a later date, but it all depends on what was said and argued during that hearing to make the judge decide to stop the money claim from proceeding - do you have any idea why this might be the case?

So I think to answer the original question, yes I think they would have a right to restore proceedings but with some qualifications:

1. They would need to make an application to the court to restore proceedings, that would cost them £275 at least. The application should normally be made with notice meaning you should get a copy of the application for you to reject, but quite often claimants try to skirt around that and make a without notice to avoid you becoming aware. Some judges order a hearing with you on notice and others simply rubber stamp the request. What should happen is that the court should consider whether the claim should be restored and offer you an opportunity to respond.

2. If that opportunity was available you could say that since the money claim element was stopped 7 years ago, it would be a reasonable argument to say the money claim should not be restored due to delay. I assume you argue they have made no attempt to restart those proceedings, no explanation has been given for the delay but crucially, it has prevented you from relying on a statute barred defence since a claim will be time barred after 6 years when the creditor demanded repayment of the debt.

3. You could make an application yourself to strike out the claim based on delay and lack of action taken for the same reasons given in point 2 above, but it will come at your own expense and alert the claimant to and they may defend it and seek to restore proceedings.

It is up to you depending on whether anything is happening now but you may be better off keeping quiet as the longer the claim doesn't get restored, the bigger chance you have at arguing it should be dismissed entirely due to delay.