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What is Judgment Debtor Summons?

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asked on Jan 13, 2011 at 13:27
by   Jessica Abdullah
edited on Aug 16, 2016 at 03:40
 
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.
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answered on Jan 13, 2011 at 13:34
by   Johan Singh
WHAT IS GARNISHEE PROCEEDINGS?

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 by some other person of money.

Where a judgment creditor is aware that monies is due and owing to the judgment debtor by a third party e.g. contractor, the judgment creditor may obtain an order of the Court to order the third party to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the third party, or such thereof as is sufficient to satisfy that judgment or other and the costs of the garnishee proceedings.

This proceedings is called garnishee proceedings and it includes any monies standing in any bank account of the judgment debtor.

The third party in this proceedings is called the garnishee, a person indebted to the judgment debtor.

IF THE MONIES OWING BY A THIRD PARTY IS BEING PAID TO A JUDGMENT CREDITOR IN COMPLIANCE WITH GARNISHEE ORDER, DOES THE JUDGMENT DEBTOR HAS THE RIGHT TO DEMAND THE PAYMENT FROM THE THIRD PARTY AGAIN?

No.

Under the Subordinate Courts Rules 1980, Order 33, rule 8 of the Garnishee Proceedings, payment by the garnishee in compliance with the garnishee order absolute constitutes a valid discharge of the garnishee's liability to the judgment debtor to the extent of the amount paid to the judgment creditor.
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answered on Jan 13, 2011 at 14:01
by   Jessica Abdullah
WHAT IS WRIT OF EXECUTION?

Writ of execution includes:

- a writ of seizure and sale (WSS)
- a writ of possession and
- a writ of delivery.


Writ of seizure and sale (WSS), 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
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answered on Jan 13, 2011 at 14:10
by   Johan Singh
WHEN SHOULD I INSTITUTE BANKRUPTCY PROCEEDINGS AGAINST A JUDGMENT DEBTOR?

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.

Depending on the judgment debtor's assets situation, you may wish to consider if it is worth your time and money to commence a bankruptcy action.

In any bankruptcy proceedings, the total judgment debt must be more than RM30,000.00.

Where the judgment debtor has not complied with the judgment or order made, you may commence bankruptcy proceedings against the judgment debtor to recover the same.

You should be aware that your judgment debtor could be in debt to several other individuals or companies.

Once a debtor has been adjudged a bankrupt, other creditors will file in the Proof of Debt form and Proxy to be entitled to share in any distribution from the estate of the bankrupt.

However, the distribution of the estate is according to the priority of the creditors' claim.

You can determine whether your claim is secured by the debtor's assets. If you are a secured creditor, you will have a lien giving you specific rights to the property which is collateral for your claim. A secured creditor has the best chance of getting their share in the distribution of the bankrupt's estate.

Most unsecured claims such as personal loans, come low in priority scheme and may receive little or nothing.

HOW DO I START THE BANKRUPTCY PROCEEDINGS?

Before you institute bankruptcy proceedings against a judgment debtor, you should conduct a bankruptcy search with the Official Assignee Office or Jabatan Pemegang Harta to determine the status of your judgment debtor.

A copy of the form can be obtained from the Official Assignee Office and the fee to conduct a bankruptcy search on an individual is RM$5.00.

Where your judgment debtor has been declared a bankrupt, you as a judgment creditor, need only to file in the Proof of Debt General Form and Proxy with the Assignee Office. It costs you extremely less if being compared to starting a bankruptcy proceeding.

Where your judgment debtor has not been adjudged a bankrupt, you may institute bankruptcy proceedings against him or her.

You start the bankruptcy proceedings by filing a Bankruptcy Notice in the Court.

SINCE I CANNOT ACCEPT PAYMENT FROM THE BANKRUPT, CAN PAYMENT BE ACCEPTED IF MADE THROUGH THIRD PARTY?

No.

While a bankrupt has not been discharged or released, all his or her assets will be administered by the Official Assignee.

A bankrupt's debt must be settled through the Official Assignee. The Official Assignee will disposed the bankrupt's assets to pay the creditors and costs.

A creditor's act in accepting payment from the third party is an offence under Section 115(2) of the Bankruptcy Act 1967.
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answered on Jan 13, 2011 at 14:15
by   Jessica Abdullah
WHAT IS A PROHIBITORY ORDER?

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.

In the event that a judgment debtor refuses or neglects to comply with the judgment made by the Court, the judgment creditor can proceed to obtain Prohibitory Order where the properties of the judgment debtor involves land.

A Prohibitory Order is an order obtained from the court prohibiting a judgment debtor from effecting any dealings in relation to his or her landed properties or interest in land held by the him or her.

After obtaining the Prohibitory Order, the judgment creditor can proceed to obtain the Order For Sale to auction the piece of land to recover the same.

Nevertheless, it may not be justified to obtain a Prohibitory Order where the land is charged to a bank or financial institution for a huge loan.

WHAT SHOULD I DO BEFORE I PROCEED TO OBTAIN A PROHIBITORY ORDER AGAINST A JUDGMENT DEBTOR'S LANDED PROPERTY?

You have to conduct a landed property search on the debtor with the Land Office or Penolong Pemungut Hasil Tanah in the districts where you believe the judgment debtor has landed property.

A landed property search will cost you around RM$20.00.

Where the result of the search is positive, you should then request for an abstract of the land title of the judgment debtor from the Land Office.

You should be able to justify whether it worth while to proceed with prohibitory order based on the information obtained from the abstract of the land title, valuation report or credit checking where the land is charged to a bank or financial institution.

The Court will only consider issuing ex parte a Prohibitory Order upon production of an abstract of title or other sufficient evidence of the title or interest of the judgment debtor.
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answered on Jan 13, 2011 at 14:19
by   Nicky Menter
WHAT IS WINDING UP?

Winding up is also known as "liquidation".

Where a company cannot pay its debt as and when it falls due, a company is insolvent.

Winding up means where under the companies law, an insolvent company in order to discharge its liabilities, the control of the company's affairs will be undertaken by a form of external administration under a person called a "liquidator" who will prepare for the company's dissolution.

The Company Act 1965 Section 218(2) states that a company shall be deemed insolvent if a creditor to whom a company owes more than RM$500.00 and such sum is due for payment, serves a written notice is given or to secure or compound such sum to the satisfaction of the creditor.

A company that is insolvent will cease business and go into liquidation after being wound up by the Court. The company will be struck-off from the register of companies and the assets of the company will be liquidated or sold off. The proceeds of sales will be distributed according to law.
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answered on Jan 13, 2011 at 14:26
by   Anonymous
Do you know how the laws of Malaysia are made?

In Malaysia, there are the lower house known as the Dewan Rakyat or House of Representatives and the upper house known as the Dewan Negara or Senate. The Parliament will exercise its power to make laws by the passing of Bills in both houses.

A Bill may originate in either of the House. However, there is one exception with the "Money Bill". Subject to Article 67 of the Federal Constitution, the "Money Bill" must originate in the House of Representatives and can only be introduced by a Minister.

The House, which a Bill is originated, shall send it to the other House once the Bill has been passed. After the other Houses passed the Bill, it must then be presented to the Yang di-Pertuan Agong for his assent under the Article 66(3) of the Federal Constitution.

A Bill goes through several stages of "Reading", in both the Houses of Parliament. At the First Reading stage, only the long title will be read. This is a formality when the Bill is first introduced to the House. The most important stage is the Second Reading. The contents of the Bill are debated at length and discussed by all members of the House. After that the Bill goes through a Committee Stage. The committees is normally the Committee of the whole House as opposed to special select committees. Special technical details of the Bill may be discussed at this stage. Finally, the Bill is returned to the House for its Third Reading. Again this is a formality.

Under the Article 66(4) of the Federal Constitution, the Yang di-Pertuan Agong must assent to the Bill by causing the Public Seal to be affixed thereto. This must be done within 30 days from the date a Bill is being presented to him. The nation Constitution provides that a Bill will become law at the expiration of the 30 days period specified in the like manner as if he had assented thereto, should the Yang di-Pertuan Agong, for whatever reason, fails to give his assent to the Bill within the specified period.

A Bill assented by the Yang di-Pertuan shall become Law. However, no laws shall come into force until it has been gazetted or published under the Article 66(5) of the Federal Constitution.
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answered on Sep 3, 2011 at 23:04
by   Zulkifly Soleh
edited Aug 16, 2016 at 03:44
 
I heard the government may be going to propose a law to auto-discharge all bankrupts automatically after serving a period of two years in Malaysia.

However, those bankrupts need to be of good conduct. Another issue is to allow bankrupts to do withdrawal of their EPF without a percentage cut from Jabatan Insolvensi Malaysia (JIM). There may be other things in the pipeline to relax certain enforcement and limitations imposed on the life of a bankrupt so that a bankrupt can cope with his/her financial life in a more productive way through our 1Malaysia Culture where people come first!

Stay Tuned!
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answered on May 27, 2016 at 15:10
by   awcnjacobs
edited Aug 16, 2016 at 03:45
 
How do I file a Judgment Debtor Summons in court? Where to get the forms?
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answered on Jun 23, 2017 at 12:52
by   Gibson
If debtor does not sign the JDS, does he/she still need to appear before the court?
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answered on Jun 23, 2017 at 23:16
by   LawFacts
@ Gibson

If you do not want to sign the JDS, be prepared to spent some time inside court jail. The warrant of arrest will be executed for sure.
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