Thanks Andy. I have replaced post one with Andy's help. Hopefully it is more Intelligible. As for challenging the status quo regarding VAT on fees. As it stands the position is as stated. One has to remember that the collection of fees is a matter for the HCEO and the possession regarding VAT to the revenue. To my mind it is pointless pursuing an action against a bailiff for a procedure which is agreed by the high court and the HMRS. You can complain sure, but any action, say under CPR84.16(detailed assessment, so called) would be spurious, to say the least. Costs of such an absurd application could be extortionate.

This from our friends at the HCEOA. UK enforcement bodies and Just welcome High Court judgment on Controlled Goods Agreements and invite the Ministry of Justice to review the regulations The UK’s two leading enforcement association trade bodies (the Civil Enforcement Association and the High Court Enforcement Officers Association) and Just, have welcomed the High Court judgment on non-entry Controlled Goods Agreements issued on Friday 8 January. CIVEA, the HCEOA and Just have issued this joint statement which also invites the Ministry of Justice (MoJ) to review the judgment and, if appropriate, provide further guidance and/or amendments to the regulations. The Taking Control of Goods Regulations, which came into force in 2014, set out the statutory code for any enforcement agent to take control of goods via a Controlled Goods Agreement (CGA) in order to avoid those goods being removed and sold whilst payments are made under the terms of the CGA. The regulations currently say that a visit needs to take place before goods can be taken into control, but do not specify whether this has to be a physical visit. The judgment today gives clarity on this matter saying “an enforcement agent may enter into a controlled goods agreement within the meaning of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 with a debtor whether or not the enforcement agent has physically entered the premises on which the goods are located.” The concept of remote contact is not new and CIVEA and HCEOA members already use multi-channel engagement tools as part of the compliance stage without applying additional fees Russell Hamblin-Boone, Chief Executive of CIVEA, Andrew Wilson, Chairman of the HCEOA, and Nick Georgiades, Managing Director of Just said: “We’re pleased the courts have reached this judgment on non-entry Controlled Goods Agreements. This is good news for creditors, debtors, members of both associations and Just as it was important to bring much needed clarity in this area of enforcement. The judgment was the appropriate procedure to follow before any new and untested practices are introduced for the enforcement of court orders and warrants.” Further to this the group commented: “Following this judgment, we invite the MoJ to review the judgment, and, if appropriate, provide statutory guidance on the processes to be followed if re-entry is required and any fees which might be applied. Whilst we recognise that members of the associations and Just will be well placed to conduct non-entry CGA’s with appropriate caution, we would like to safeguard the process from others who may not be so diligent. The two associations and Just have offered to assist the MoJ in completing this work, should it be appropriate. The MoJ might also provide guidance on the compliance stage of enforcement process for high court writs, so that it is not undermined by this decision responding specifically to the cvisit is requiredlaim by some high court enforcement officers that they are unable to enter payment arrangements during the compliance stage, due to the wording of the command on the writ.” The trade associations and Just believe that clarity in this area would be useful for debtors and enforcement agents as the different stages of enforcement are closely linked to specific fee scales which set out the fees that enforcement agents may charge. Interesting points. The judgement did not say anything about entering into a CGA at compliance, and for good reason, it is well established in the regulations and the act that a visit is required, in fact it is the trigger for first stage fees on an HCEO enforcement, no it was the necessity of entry which is poorly defined. there was a very good reason for that, as I mentioned earlier. There is nothing in the TCE or regulations thereunder which disallows entry into a payment agreement with or without the control of goods. Although creditors may insist on some form of assurance if the accept a repayment agreement. The piece mentions the belief that the wording of the writ has some baring, as pointed out by the judge, due to the wording of part 62 TCE it doesn't have any baring at all in law, the HCEO must obey the TCE, the same as all other bailiffs. This has been confirmed in other Judgments.

Hi Looks great to me. Minor points You may want to add that the failure to add a default marker removes your statutory protection in that there is no need for them to warn the debtor 28 days before trashing his file. By labelling a default as something else, they seek to deprive the debtor of the benefit of the sol, which is unfair, I would say dishonest.

Hi Paulbefore. Some people dont seem to be able to get their head around the fact that the SB works both ways. Cause of Action on Statute Bar Resolved - General Debt Issues - Consumer Action Group See above, this illustrates my point. As well as protecting the creditor from indefinitely having the possibility of a claim hanging over him, it also ensures the creditor has a full six years to enforce. The judgement, acknowledges that before a credit agreement(not a overdraft) can be enforced a compliant DN must be issued as the CCA disallows any recovery action before that. When a cause of action is updated, it is because the customer indicates, "by promise or payment" that a new agreement to repay is being offered. This of course resets the COA date. This is important, because even if you were to write to the creditor, as long as you do not say you are going to repay, it does not have the effect of restarting the SB. This is all contained in old case law, which absent to any contrary clarification in statute is still binding.

Yes absolutely right. or to be exact the demand on the letter of termination plus whatever time they give you to pay.. As a point of interest, before the Sol, common law cause of action on a loan was when the loan is given, that is without a demand.

Hi Paul Perhaps ask them for the case law which says that correspondence alone resets the SB. It would if you pro mised to pay, but nothing they can send acknowledges the debt. The termination letter asks for full repayment, so after the 14 days or whatever, the account is in default, there cannot be monthly missed payments, because no schedule has been set up. It s A loan as prescribed by the SOL section 6. The CRA should have described the condition of the account correctly six years ago and, therefore it should have dropped of the file. The procedure they use is to place a Default on your file then backdate it, then remove the D altogether. I have never seen Grace implemented TBH. Durkin is a bit questionable, as I remember it, the Scottish judgement was not defeated or modified in the lords, as they could not" go behind" it. I have lots of case law about the SB, and what can reset it and why.

This is the appropriate section of the SOL 1980 (3)Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.

Oh thank goodness for that, had me worried for minute. Right so no argument now about the status of the account. Just to say what you already know. Termination refers to anything regarding the functioning of the agreement(contract). It does not mean the money is not owed, merely that there is no prescribed method of repaying it. The firm would have to take you to court or reach an agreement with you, or assign it to a DCA.

Re your credit file entry. It is not really correct to record an overdraft as having monthly missed payments, unless there is something in the guidance that says they can. Because on an overdraft there are no monthly repayments to miss.

A phantom payment by yourself?

Just to add the bank bizarrely maintain that the account was never statute barred because they sent an annual statement. Lol. Plonkers. They do this to convince the unwary that the account is still live. Vanquis even quote a reducing credit limit on payment arrangements, despite the fact you have no drawdown facility, and the agreement is terminated.

Capitalisation is when the creditor adds the default and charges to the amount outstanding on the agreement, then re-finances the whole lot at the same rate. It effectively forms a new agreement with an increased credit. I see this is an interest only Mortgage, so the default sums will be added to the principle. Do youhave a policy in place to settle the initial loan.

Just as UB says, he bailiff does not need to be invited in, but he certainly should have announced himself. i dont suppose he said what the enforcement was for? The bailiff has to have a "reasonable belief" that the debtor resides at your address, if he is permitted to enter. In the first post you say the Warrant was addressed to next door, is this your daughters property and did this Richard live at that address or your address.? We should find out what the bailiff may say to try and justify his actions.

Hi IFR Many people have been in your position so try not to let it play on your mind. It can be sorted in a variety of ways, dependant on the outcome you want. An IVA is seldom in your best interests especially if you own your own property You 0% cards will eventually come out of their initial period and you will stuck with interest on them also. So now is the time to develop a plan If you want the creditors to stop pestering you immediately you could start a debt management plan, we can help with that There are several downsides to this and although I used to advise this whole heartedly, recent developments now make the idea less attractive. Chances are you will end up with a trashed credit rating for six years whatever you do. Is this a big problem for you?

Hi I hope you dont mind me asking for some details, it is not because anyone doubts what you say, its just so we have a clear picture. You found the bailiff in your kitchen. Can I ask how he gained entry? Also, can you say what time this was. They are only supposed to call between certain times of day.

It seems to be epidemic. ahem A record, stating payment arrangement or as in Pauls case condition 6 is put on the file ,then instead of dropping off after six years, it appears as a defaulted live account. Which means that they record a default and also pursue the debt in court. All because of what seems to me, to be an error in the GDPR drafting, or more likely translation from its German origin. I had an argument on the phone with link recently about them recording an arrangement marker, then changing it to a default after six years. It was about the relative harm in recording markers when a default should have been registered. He seemed the think the AR marker had little or no effect !!, when in many ways it is worse than an aged default. Because it means the subject has recently been through an assessment which confirmed all his disposable income has been used. so what would he use to pay off further credit? A default just indicates that sometime in the past there were problems.

Great letter Paul. Going to pinch that and use it as a template, it expresses the situation perfectly. MB It does seem that these institutions take a personal interest in certain individuals, and from the receivers perspective, I agree it certainly feels like they do. However i suspect there is a monetary motive, behind all this. Isn't there always. When debts are sold, there value falls into several categories and generally they are purchased, in blocks, by DCA's who specialise in recovering that particular debt type. The amount owed of the debt of course, but also, approaching SB, Defaulted, un-defaulted?, not yet registered on the CRA etc. Each have a different value, which is dependant on the leverage still available that can be applied by the DCA . A debt that has yet to be defaulted and still has a long time on the credit file represents a valuable commodity as compared to one that was defaulted several years ago and is approaching SB. IMO. Regarding SB, you should always inform the creditor that the debt is statute barred, as this switches the burden of proof, and according to the FCA, they cannot pursue unless they can prove you are not.

HI Paul, i should mention the Termination notice which demanded immediate payment or the recording of the status of account on your file. When this was not paid the account must be in default. It is not for them to hold off registering the point, in case they want to record it at some later date. The relationship has broken down. Nevertheless this is something many other credit suppliers are taking advantage of on reviewing old accounts. Principle 1 of the GDPR states that data processing must be fair.

Hi Andy Yes, its a question of what the court will enforce. the section 98 and 76 terminations are none default terminations. It is unlikely a court would give the creditor a judgement if they did not offer some kind of arrangement in the first instance. They did permit the overdraft. You are right in saying it is not as cut and dried as in say a running account agreement where there was an agreed repayment schedule on the terminated agreement.

Hi Paul Yes they can terminate the account, this would be true on any loan or financial agreement regulated or not, as could the debtor. What they should not do is demand immediate repayment, as this would be thrown out of any subsequent proceedings because there is no default. That is what I meant by the sum is due but not payable, as there has been no reasonable repayment schedule proposed. at least, that is what I would argue. There was no break-down in any agreement ,no defaults they just closed your account. I am assuming on little facts that this is true in your case. Having done that, they have in addition shot themselves in the foot in regards to the SB, as mentioned earlier the six years period commenced from the date on that document. Any recovery agent should drop the case immediately upon being informed of this under FCA rules. Cheers

Sorry didn't answer your question. yes a default will be registered on your bank account and on your CRA If the 98 notice says 14days, from the date on the notice and the notice was sent before Jan 2015, and you have not paid anything since, it is SB. And also should not appear on your file.IMO

Hi Paul I understand this is an overdraft? If so there would be no agreement(usually) unless your OD was a separate open ended loan, which again generally didn't happen back then. It is covered by the CCA however, any signed agreement would be the one you signed when you took out your bank account. If you send the letter DX proposes i dare say you will get this from the horses mouth. The info you require regarding your overdraft will be on your bank statement of course, not any CCA related document. The CCA was amended with section 61, i think, this made banks issue agreements after that date.

Hi A couple of things. This was an overdraft, ie there was no individual signed agreement? It was generally the case back then, they were called Tacit agreements, the facility was there for you to draw on but it was not covered by part v of the consumer credit act, therefore there is no need for them to send a DN under section 87 of that act. The do however have to warn you about recording a default(little d) on your file. You will probably find your termination notice was sent under section 98 or 76 of the cca. Should be 98 none default termination really. This means that the full sum is due on demand after termination, you should check your agreement to confirm this. This does not mean its payable at that point. Overdraft statute bar is covered by section 6 of the SOL not section 5 and applies six years from when the loan was recalled. So it should have been SB from that date. If they say the termination notice was not a demand, you can say, Ok why is it being recorded as such now As far as registering a default, it was they who terminated and failed to suggest an alternative payment arrangement, so what exactly did you default on. I remember there was a big issue about the termination of egg agreements on here about 2011.Egg terminated all there none performing(not defaulted) agreements and sold the lot, I think it was to Barclay's funny enough.

Hi Paul long time This is becoming a regular occurrence and is entirely due to the sloppy way the newish guides and regs are worded. What they will be saying as that the account was never closed, and more importantlya default notice was never issued, therefor they are entitled to do this x years later. I have recently handled five like this, mostly from lower end credit card suppliers or their chosen DCA's. You will be pleased to hear, One of the Vanquis accounts did this exactly the way you describe, cash apology and all. However i continued to press them, the cheque they sent you is for damages due to there error and subsequent damages. They have not rectified the source of that damage. In my case they had to get the account back from the dca backdate the default date and then remove all mention of it from the file. The default should never have been issued so long after termination of the account, although legally due to a recent court case they can. There are plenty of other solid reasons for this action being wrong luckily . The default should have been recorded before sale and also it is unfair, possibly legally so under section 140 to name but two, you need to contact them both by phone and back up any responses by email, the Vanquis one took me about six months to sort out, they tried all sorts of delaying tactics.

"All debtors goods & Chattels belong to us, after all after gaining entry after a Virtual CGA, what's to stop them listing goods as they remove them after their in their mind legal forced entry?" Yes absolutely. It is bad enough at the moment, where some bailiffs misrepresent goods being bound as goods being under control, the former not enabling goods to be taken from premises for sale. To be under control a visit must be made of course, even if this amendment is passed. Under the TCE, as you say since 2014, re attendance is permitted by the debtors signed CGA, that is all. Even a previous attendance does not permit it, unless goods are taken under control under part 13(d) of the TCE Schedule 12 and section 20 of the Taking Control of Goods regulations 2013 and the agreement struck. This is in stark contrast to the earlier rules, where re attendance was permitted after the Bailiff had just gained initial access. I am unsure, reading the judgement, that the Master was fully aware of this(in parts). I consider this, as said earlier to be due to the way section 14 and 16 are written, both parts imply that forced entry can be used, and in neither case, due to the 2014 amendments neither actually can. The Master referred to the Memorandum and the Beaston report of 2000, but in this respect neither of those generally reliable tomes of knowledge are relevant.