Hello everyone

 

I had equita bailiffs clamp my Mrs car for my outstanding ctax bill.

She showed them her v5, insurance etc but they said they needed a receipt of purchase (which she didn't have with her at the time but has since found) to prove it was hers. They clamped the car and said they'd be back in the morning.

 

The police were called and allsorts.

 

If they don't accept the v5, insurance (in her name I'm not even a named driver), mot and the purchase receipt

can I just sit on the car and refuse to let them take it?

 

I'm going to be putting a complaint in anyway.

 

Thanks.

Reading this, it may be there is a case for the EA to show a reasonable belief that the car was jointly owned, if the two parties were unattached it would be cut and dried that they did not. But it is possible in these circumstance's for both parties to have an interest because of their relationship, I would argue, and no matter who bought the car.

I suppose until there is a case to clarify??

Reading this, it may be there is a case for the EA to show a reasonable belief that the car was jointly owned, if the two parties were unattached it would be cut and dried that they did not. But it is possible in these circumstance's for both parties to have an interest because of their relationship, I would argue, and no matter who bought the car.

 

I suppose until there is a case to clarify??

Yep, until there's a case to clarify then it's open to interpretation and I can see why an enforcement agent would hold a reasonable belief until evidence shows otherwise.

Yes. Because two people are married and living together does not mean they have a beneficial interest in the goods the other person owns.

 

 

 

As an example, a married couple exist, and they both own cars. They each saved for a car from their own wages, and paid for the car from their own bank account which is in the sole name of the car owner.

 

 

 

The car belongs to the person who bought the car, it is not jointly owned.

 

 

The husband has a credit card debt in his sole name and a CCJ, the bailiffs visit. There is no joint and several liability for the debt. The bailiff's clamp the wife's car. She proves she bought the car using a bank account in her sole name in to which her wages are paid, shows the receipt for the car and the bank statement, all in her name.

 

 

 

Are you saying that the bailiffs can legally seize the car and auction it off to pay the husband's debt because he has a 'beneficial interest'? Because that is not the case, the husband has no beneficial interest and the car is not jointly owned.

.But you see,you are arguing against your own case here.

You are saying, here is a situation where BI would not apply, and your right perhaps.

However you imply by this that there must be situations where it does

Who is to decide which is the case. Inthe final case it has to be a judg the bailiff is perfectly within his rights to excersze his belief untill that judgment is made, as it would turn on its own facts

Where a debtor does not jointly own goods but has X% equity invested in them or where the debtor has offered a secure loan against goods could be situations where a beneficial interest exists but not ownership.

In a situation where a bailiff has taken control of goods which do not belong to the debtor, the owner can make a statutory declaration to have the goods released. The debtor can also make a complaint to the Civil Enforcement Association and/or the Local Government & Social Care Ombudsman.

Often threatening any of those actions will make the bailiff concede and remove a wheel clamp from a car which does not belong to the debtor, and it's usually obvious (even to bailiffs) when a person is lying about ownership.

If a bailiff wanted to dig heals in and refuse, it would be hard to insist upon a reasonable belief once the owner has made a statutory declaration and an official complaint but a judge's decision would likely be the next step. Once the reasonable belief clause for the bailiff no longer exits, they are vulnerable to a damages claim.

I doubt the bailiffs would push it that far unless they had solid proof of ownership.

There is a statutory scheme for third parties to claim goods that have controll taken of them. It does not involve nor require a statutory declaration nor an offical complaint. See part 85.4 and 85.5 og the Civil Procedure Rules. The wording gives the procedure and the timescales and can be found at this link and are pasted below:-

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-85-claims-on-controlled-goods-and-executed-goods

Procedure for making a claim to controlled goods

85.4

(1) Any person making a claim under paragraph 60(1) of Schedule 12 must, as soon as practicable but in any event within 7 days of the goods being removed under the exercise of an enforcement power, give notice in writing of their claim to the enforcement agent who has taken control of the goods ('the notice of claim to controlled goods') and must include in such notice—

(a) their full name and address, and confirmation that such address is their address for service;

(b) a list of all those goods in respect of which they make such a claim; and

© the grounds of their claim in respect of each item.

(2) On receipt of a notice of claim to controlled goods which complies with paragraph (1) the enforcement agent must within 3 days give notice of such claim to—

(a) the creditor; and

(b) any other person making a claim to the controlled goods under paragraph (1) ('any other claimant to the controlled goods');

(3) The creditor, and any other claimant to the controlled goods, must, within 7 days after receiving the notice of claim to controlled goods, give notice in writing to the enforcement agent informing them whether the claim to controlled goods is admitted or disputed in whole or in part.

(4) The enforcement agent must notify the claimant to the controlled goods in writing within 3 days of receiving the notice in paragraph (3) whether the claim to controlled goods is admitted or disputed in whole or in part.

(5) A creditor who gives notice in accordance with paragraph (3) admitting a claim to controlled goods is not liable to the enforcement agent for any fees and expenses incurred by the enforcement agent after receipt of that notice by the enforcement agent.

(6) If an enforcement agent receives a notice from a creditor under paragraph (3) admitting a claim to controlled goods the following applies—

(a) the enforcement power ceases to be exercisable in respect of such controlled goods; and

(b) as soon as reasonably practicable the enforcement agent must make the goods available for collection by the claimant to controlled goods if they have been removed from where they were found.

(7) Where the creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, fails, within the period mentioned in paragraph (3), to give the required notice, the enforcement agent may seek—

(a) the directions of the court by way of an application; and

(b) an order preventing the bringing of any claim against them for, or in respect of, their having taken control of any of the goods or having failed so to do.

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Procedure for making a claim to controlled goods where the claim is disputed

85.5

(1) Where a creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, gives notice under rule 85.4(3) that the claim to controlled goods, or any part of it, is disputed, and wishes to maintain their claim to the controlled goods, the following procedure will apply.

(2) The claimant to controlled goods must make an application which must be supported by—

(a) a witness statement—

(i) specifying any money;

(ii) describing any goods claimed; and

(iii) setting out the grounds upon which their claim to the controlled goods is based; and

(b) copies of any supporting documents that will assist the court to determine the claim.

(3) In the High Court the claimant to controlled goods must serve the application notice and supporting witness statements and exhibits on—

(a) the creditor;

(b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and

© the enforcement agent.

(4) In the County Court when the application is made the claimant to controlled goods must provide to the court the addresses for service of—

(a) the creditor;

(b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and

© the enforcement agent,

('the respondents'), and the court will serve the application notice and any supporting witness statement and exhibits on the respondents.

(5) An application under paragraph (2) must be made to the court which issued the writ or warrant conferring power to take control of the controlled goods, or, if the power was conferred under an enactment, to the debtor’s home court.

(6) The claimant to controlled goods must make the required payments on issue of the application in accordance with paragraph 60(4)(a) of Schedule 128, unless such claimant seeks a direction from the court that the required payment be a proportion of the value of the goods, in which case they must seek such a direction immediately after issue of the application, on notice to the creditor and to the enforcement agent.

(7) The application notice will be referred to a Master or District Judge.

(8) On receipt of an application for a claim to controlled goods, the Master or District Judge may—

(a) give directions for further evidence from any party;

(b) list a hearing to give directions;

© list a hearing of the application;

(d) determine the amount of the required payments, make directions or list a hearing to determine any issue relating to the amount of the required payments or the value of the controlled goods;

(e) stay, or dismiss, the application if the required payments have not been made;

(f) make directions for the retention, sale or disposal of the controlled goods;

(g) give directions for determination of any issue raised by a claim to controlled goods.

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That is the long-term solution once a court order is required. But in the short-term, the bailiffs have clamped a car and they can potentially tow it away after two hours. It's preferable to get the clamp removed before that stage.

With respect, think you lose sight of what Bailiffs do for a living and the powers under which they operate.

They do not seize other peoples cars at a whim, what would be the point?

There are penalties for a bailiff who takes goods which he does not believe to be the "property" of the debtor, and how would this satisfy the creditor?

As Mr M says there are procedures in place within the legislation.

AS for your other claims, I am afraid you are factually incorrect in all those assertions. I will not go into that, fortunately most on here recognise these misconceptions and are aware of their source. I don't think further clarification is required there.

Initially, bailiffs clamp a lot of cars which do not belong to the debtor, possibly in the belief that they do or purely for leverage to get the debtor to pay under that pretence. You underestimate the tactics which bailiffs use to secure payment.

I'm not sure which other claims that you think are factually incorrect or which source they come from, I am referring to real life situations, not theoretical.

How would immobilising someone else's car get the debtor to pay? Mistakes are made of course, but as said remedy is included within the TCE.

We both know that this is not the reason the vast majority of such complaints are made and so do the courts.

When bailiffs clamp a car on lease? If bailiffs were to do this now, could that breach GDPR?

I don't see how, cars on lease cannot be taken control of, as the debtor has no financial interest in them of course, if the owner were on site it should be easy enough for him to prove.

If for some reason no proof was forthcoming the bailiff would be free to take control, if he was of the opinion etc.

Since his action is permitted under the warrant and a court/enactment etc. It would be difficult to see how any other action could be brought under any other enactment.

He is doing his job as per the TCE.

How would immobilising someone else's car get the debtor to pay? Mistakes are made of course, but as said remedy is included within the TCE.

We both know that this is not the reason the vast majority of such complaints are made and so do the courts.

Bailiffs clamp cars which do not belong to the debtor regularly. If it is on the driveway of the debtor it is fair game but often belongs to a partner, parent, friend etc., and bailiffs often demand proof of ownership before removing the clamp.

It's a widely used tactic and debtors often pay up so that bailiffs remove the clamp.

it is for the debtor to prove the ownership of goods.

Ultimately it is the person who owns the goods who has to prove ownership where a bailiff insists upon seizing them.

No not at all.

A third party claim for goods , is for goods already taken under control(section 85).

PART 85 - CLAIMS ON CONTROLLED GOODS AND EXECUTED GOODS

http://www.justice.gov.uk › … › Civil › Rules & Practice Directions

SECTION I SCOPE AND INTERPRETATION Scope. 85.1 (1) This Part contains rules about claims on con controlled goods and executed goods as follows— (a) Section II sets out the mode of application for claims under this Part'

Deciding to take goods under control is a matter between the debtor and the bailiff. It is for the debtor to present proof.

What is a clamped car if it is not classed as controlled goods?

I think you are being a little pedantic. The bailiff can simply remove the clamp if the DEBTOR provides proof whilst he is still in the process of taking goods of course.

Jus to be clear the bailiff is authorised by the warrant to negotiate with the debtor. If a third party wishes to make a claim under CPR he must contact the bailiffs office who will then contact the creditor.

There is nothing stopping the bailiff removing the clamp due to evidence presented to him through the debtor but until the claim is made by the third party he has no authority to deal with him.

The problem with interpleader claims is that they have always been wide open to abuse, hence the restrictive conditions regarding a deposit introduced by the TCE.

In some circumstances it is impossible for the debtor to prove that goods are not his.

If a bailiff calls at the last known address of a debtor who no longer lives there and clamps the car of the person who now lives there, how does the debtor provide proof that the car is not his?

The person now living there may not even know the debtor personally, and if the owner of the car produces evidence that the car does not belong to the debtor, the bailiff should remove the clamp as he can no longer claim a belief that the car belongs to the debtor.

Where does it state that the bailiff cannot accept proof of ownership of goods from anyone but the debtor?

how does the debtor provide proof that the car is not his?

The debtor does not have too.

Its the person who claims the goods belong to to prove they own them

In some circumstances it is impossible for the debtor to prove that goods are not his. If a bailiff calls at the last known address of a debtor who no longer lives there and clamps the car of the person who now lives there, how does the debtor provide proof that the car is not his? The person now living there may not even know the debtor personally, and if the owner of the car produces evidence that the car does not belong to the debtor, the bailiff should remove the clamp as he can no longer claim a belief that the car belongs to the debtor.

 

Where does it state that the bailiff cannot accept proof of ownership of goods from anyone but the debtor?

We have been through this, in such a case the bailiff will use his judgement, but it is for him to decide. If you are not happy it is interpleader time for the owner.

I really don't see the problem. If the car has been taken and it does belong to someone else, surely it is plain that the issue is between the owner and the bailiff/creditor.

Actually that is a little disingenuous, I do see the problem. A true reading of the act does nothing for the debt avoiders among us.

In some circumstances it is impossible for the debt

Where does it state that the bailiff cannot accept proof of ownership of goods from anyone but the debtor?

Sorry I missed this post 45 first paragraph