Tuesday, September 9, 2008

Writ Seizure and Sale


Holy Ramadhan month is a miracle and blessing month, despite every single day complaint regarding the hike of our cost of living, petrol price and etc, people are still spending everyday at the bazaar buying food and some even starting buying 'hari raya' clothes. Where is the money from?

Anyway, it has been long 'delay' since my last post of legal matter, I was a bit struggling 'collecting' hari raya fee..hehe by te way my post today is not to talk about that neither trying to give lecture regarding the important of moderate spending during Ramadhan but rather about one method of enforcing judgment namely 'writ seizure and sale'.

What is writ seizure and sale?

  1. Write seizure and sale is on kind of judgment execution, i.e. after plaintiff successfully obtained a judgment against his defendant, and yet the defendant fails to comply with judgment, and plaintiff now want to proceed further.
  2. This enforcement of judgment is where the plaintiff makes an application in court to seize defendant's property, auction it out so to satisfy the judgment sum.

How it is done?

  1. I do not want to go into detail procedure under the Rule of Subordinate Courts or High Courts, but rather on practical understanding that you (person you know) may encounter one day.
  2. This method is often used by the bank or financial institution to secure back the bad loan after they obtain judgment against the borrower.
  3. After the writ seizure and sale application file in court and the court granted it, defendant may in surprise find that one day the bank officer, bank's counsel and the court bailiff suddenly appeared at your door step show the seizure order.
  4. Now, don't panic, it is not done yet, what they need to do under the law is that they will enter into your premise (you have to allow it, otherwise you will cite for contempt of court order, and don't even try to stop or criminally harassing the bailiff because you may end up enjoying free meal in jail, for obstructing public officer..hehe).
  5. Just relax, let them in because what they just need to do is to create an inventory list for all the property inside your house, and those properties under the list will the property for auction.
  6. After they done, you will given a copy of the list, and 14 days to satisfy the judgment sum otherwise the order for sale will be given and prosecuted.
  7. Now, quickly after you got the list pay the judgment sum within the period. If you manage to pay, then the whole proceeding will be taken off or cancel. And you are free.
  8. On the other hand, if the properties under the list do not belong to you, and for example it belong to somebody else living in the same house, the rightful owner of the property has the right to claim back the property from the proceeding and the court upon hearing the 'third party' application may release the property.

Point to note:

  1. Just remember even if the property belong to somebody else i.e. any third party and that the court release the property upon hearing of the third party proceeding, the plaintiff right to proceed further against defendant does not stop, he may use the same method of write seizure and sale or other method such as bankruptcy or winding up (for company) or even 'judgment debtor summons'.

I hope will be able to post more detail procedure or further explanation on this execution method and other method soon, may Allah give me more time and string will. Thank you.

Regards,

Kamarul Irzuan Bin Busu Piah, Advocate & Solicitor High Court of Malaya.


p/s Second day of fasting, and I am feel a bit dizzy in court this morning. Perhaps I am still adjusting to the new 'sleeping' and 'sahur' time for this holy Ramadhan. Luckily this morning was only mention to fix a decision date.

7 comments:

  1. Hi. Dont home owners in Malaysia have any protection at all from lenders such as banks other then submit to writ of seizure, being declared bankrupt, etc. Sometimes people loose their jobs due to economic slowdowns which on occasions are caused by the banks themselves, sometimes they fall sick, paralysed, etc...Does Malaysia advocate throwing it's citizens out onto the streets.

    I find it hard to believe, that the legal profession, which at times are required to fight for the disadvantaged, always take the easy way out by parroting and justifying man made laws, rather then using their knowledege and matching them with their own common sense, to bring some justice to this world.

    Regretfully I have seen how Malaysian citizens always end up the loosers in 1986, 1997 and again in 2008. I think the legal profession in Malaysia is a disgrace. I have long lost faith in them to use a bit of their God given brains to correct many of the injustices in this country. I will submit to Australian or British laws anytime, for you can expect lawyers there to articulate human rights better then our local chaps. Goodnight.

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  2. Could the legal author, Kamarul Irzuan explain more on the WSS? And how on earth the bailiffs are going to know which items in the house actually belong to the debtor concerned? What about if one room in the house is rented out? Will the bailiffs break into the rented room (if locked) and confiscate the things in the room? Where do the banks hire the service of the bailiffs? Are bailiffs hired from the court?
    What time and day can they visit the house to execute the WSS?

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  3. are the plaintif will send 14-days or 7-days notice before coming in front of defendant/debter house? and what is the minimum value of the loan of debter so that WSS can be done ?

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  4. dear anonymous, 14 days notice is the requirement provided under the law and there is no minimum value of loan just enough the borrower failed to pay the loan according to the agreement provided when entering the loan agreement. that is why it is highly recommended to read agreement you want to enter to avoid any difficulties in future.

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  5. dear anonymous, sorry for the late reply. if one of the room in that house is rented then the owner of that room will have to notify the bailiff about it and will have to make application to court to make an exception. the bailiff has the power to enter the house by force if order of court say so. the bailiff is an officer of the court and they will visit the house after notice has been given and normally during working days.

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  6. hi, i google online about WSS, & found your blog.
    due to i stay in my parents house, so i dont want WSS come to my parent house. if i declare bankruptcy mtself can i protect wss from other creditors. hope will hear from you soon. thanks.

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  7. can the amount of claim in WSS differ with the judgment sum?

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