Understanding Court Summons & WSS

WHAT IS JUDGMENT DEBTOR SUMMONS?

In monetary claims, judgment debtor is the person against whom the judgment or order is made or given. It is generally called the losing party.

The other party is called the judgment creditor where the judgment is obtained for the payment of money by some other person.

By the action of Judgment Debtor Summons, the judgment debtor will be brought before the Court and the judgment creditor or judgment creditor's solicitor to examine as to his or her means of repaying the judgment debt.

Judgment debtor will have to produce proof of income and expenses.

After examining him or her and it is shown to the satisfaction of the Court that he or she is financially able, a Consent Order, where he or she consents, or an Order of the Court, where he or she does not consent, can be made which requires him or her to settle the judgment debt in full or monthly installments.

In the event that the judgment debtor does not appear in Court despite service of the Judgment Debtor Summons, the Court will issue an Order of Arrest against him.

If the judgment debtor fails to pay in accordance with the terms of the Order of Court, a Judgment Notice can be issued against him or her which would require him to explain why he or she fails to comply with the Order of the Court and to show cause why he or she should not be sent to prison for failing to comply with the Order of the Court.

WHAT IS WRIT OF EXECUTION?

Writ of execution includes

    * a writ of seizure and sale
    * a writ of possession and
    * a writ of delivery.

Writ of seizure and sale, being the most common execution among these 3 writs, can be enforced, where

    * a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court

has not been complied with.

An example is the judgment debtor's vehicle, where the judgment creditor able to confirm that the judgment debtor is the owner of a vehicle, application can be made for a writ of seizure and sale of his or her vehicle.

Writ of seizure and sale can also be enforced against the judgment debtor's properties in his or her own residence.

Where the judgment debtor's properties are subject to prior claim by leasing or financial institution for a great amount, it may not be justified to proceed with writ of seizure and sale as the amount from the realization may not be able to cover the costs, commission fees and expenses for the execution or even the amount charged to the financial institution.

Writ of possession can be enforced with the leave of the Court, where:

    * a judgment or order for the giving of possession of immovable property

has not been complied with.

Writ of delivery is for the recovery of movable property or its assessed value where

    * a judgment or order for the delivery of any movable property or payment of their assessed value to the judgment creditor

has not been complied with.

Writ of delivery may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.

Application for Writ of Execution can be made in Form 82.

WHEN DO I NEED LEAVE OF THE COURT TO ENFORCE A JUDGMENT BY WRIT OF EXECUTION?

Under the Subordinate Court Rules 1980, Order 31, Rule 2, a writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases, that is to say:

    * where 6 years or more have lapsed since the date of the judgment or order

    * where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order

    * where the judgment or order is against the assets of a deceased person coming to the hand of his or her executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets

    * where under the judgment or order any person is entitled to relief subject to the fulfillment of any condition which it is alleged has been fulfilled

    * where any movable property sought to be seized under a writ of execution is in the hands of a receiver appointed by the Court

Where the Court grants leave for the issue of a writ of execution and the writ is not issued within 1 month after the date of the order granting such leave, the order shall ceased to have effect, without prejudice, however, to the making of a fresh order.

Application for leave may be made by notice in Form 81 (Notice For Leave To Issue Execution) supported by affidavit.

ARE THEY ANY PROPERTIES OR ITEMS WHICH CANNOT BE SEIZED IN THE EXECUTION OF WRIT OF SEIZURE AND SALE?

Yes.

There exist a series of limitations that enable a debtor to protect funds sufficient to provide the "necessities of life".

Under the Debtor's Act 1957, the following shall not be liable to seizure or sale in the execution of writ of seizure and sale, namely :

    * the wearing apparel, cooking vessels, beds or bedding of the judgment debtor, his wife and children, and the tools and implements of his trade to the value of RM$200.00 in all, which to that extent shall be protected from execution

    * the tools or artisans or where the judgment debtor is an agriculturalist, his implements of husbandry and such cattle and seed-grain or produce as may in the opinion of the Court be necessary to enable him to earn his livelihood as such.

    * houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturalist and occupied by him

    * books of account

HOW IS THE FLOWCHART FOR ENFORCEMENT OF JUDGMENT BY WRIT OF SEIZURE AND SALE?

                                                  File in Writ of Seizure and Sale - Form 82
                                    Signed by solicitor or if judgment creditor acting in person, by him or her
                                                                   /
                         Issue of Writ of Seizure and Sale - Form 78. Sealed by an officer of the Court Registry.
                                                                 /
            Writ of Seizure and Sale - Form 78 is valid 12 months beginning date of issue. May be extended for
             another 12 months if not wholly executed and application must be made before the writ expire.
                                                             /
        Writ of Seizure and Sale delivered to bailiff and endorsed by bailiff the day, hour and minute of delivery.
                                                           /
     Time and date of execution fixed. Must be executed between 9:00 am to 4:00 pm unless the Court otherwise orders.
                                                         /
         Date of execution. Deposit for Execution to defray the costs of the execution will be required.
                                                        /
                                     Bailiff to seize all movable properties
                                                       /
       Bailiff to give judgment debtor a notice of seizure and inventory - Form 85 and file a copy of the notice.
                        An Inventory of movable properties being removed must be given at the time the
                                property is removed or immediately afterwards.
                                                    /
                       Judgment debtor given 7 days to settle the default judgment debt.
                     /                                                          \
Judgment Debtor agrees payment.                                       Judgment debtor refuses to pay.
                   /                                                              \
Apply an order for suspending or staying execution - Form 83.            Properties seized be sold by public auction.
                 /                                                                  \
Payment by judgment debtor to satisfied a judgment debt.       Where the value of properties exceed RM$10,000.00,
                      /                                        licensed auctioneer to be appointed and sale be publicly
                     /                                   advertised. In any other case, bailiff to conduct the auction.
             /                                                                          \
Judgment creditor to file Consent of judgment creditor-Form 84.             Proceeds of sales to be distributed.

THE WRIT OF SEIZURE AND SALE (WSS) HOWEVER CANNOT TAKE:
 
█ Work or study tools, instruments or books up to the value of RM200.00 
█ Clothing, bedroom or kitchen furniture and non-movable items like ceiling fans, water heater, etc. 
█ Property that is rented, mortgaged, on hire purchase or belongs to someone other than the judgment debtor. 

If the WSS does seize your goods in your house, the Bailiff cannot sell your goods 7 days after the goods were seized. Your goods must usually be sold in a public auction.

Time and date of the execution of WSS is fixed. Must be executed between 9:00 am to 4:00 pm unless the Court otherwise orders.  

WHAT IF THE GOODS TO BE SEIZED BELONG TO SOMEONE ELSE? 

The Bailiff can only take property that belongs to the person against whom the court judgment was made (the “judgment debtor”). If the Bailiff tries to seize property that you don’t own, you should say that the goods are not your property. If possible show proof of ownership. The owner of the property must complete an Affidavit. 

An Affidavit is a legal form in which a person swears certain facts on oath before a Justice of the Peace or a solicitor. In the Affidavit, the person must swear on oath that he or she is the owner of the property. Evidence of ownership, for example, receipts should be attached whenever possible. The owner of the property should lodge the Affidavit at the Court as soon as possible after the WSS Court Order was handed to the debtor. The owner should also send a copy of the affidavit to the Bailiff’s Office (the location of the Bailiff’s Office is written at the top of the WSS Court Order).