Swindled by Swift, is it legal?

[Michasm]

Back in July, my wife answered the door to a tv licensing guy and admitted we had not yet set up a tv licence in our new(ish) house.This despite reminders.He cautioned her and the case went to court.She didnt turn up, choosing to bury her head in the sand and hid the ensuing letters.The first i knew of it was when a Bailiff attended at our home tonight.My wife foolishly invited him in.He then informed us the fine was £250, a letter sent from the bailiffs had cost an extra £50 and his visit was another £50 bringing the total owed to £350.He asked my wife to pay on the spot.She did not refuse but asked what the options were.He then offered a payment plan which was swiftly agreed to by my wife.He told her it would be a 12 week plan and then made a phone call.He then informed her it could only be over 6 weeks.My wife agreed.He then informed her that he would be taking an inventory of goods in the house which would be taken away if the agreement was defaulted upon.He proceeded to do this and at the end, my wife saw on the piece of paper a "seizure charge" of £210.She challenged him about this and he said it was an agreed charge with the court and that he had effectively seized the goods in a walking possesison.I said, if you had told us it woudl cost an extra £210 for a payment plan, i woudl have gone to the bank and ithdrawn the money from our Christmas savings to cover the initial required amount.I then said, forget the payment plan, ill go and get you the money you originaly came for.He then said, i have entered the deal in my PDA and the full amount of £510 is now what you owe.You have 6 weeks to pay this in the form of £85 per week or your goods will be taken away and sold.He then gave the document to my wife to sign who refused as this was not what she agreed to prior to him wriitng it out.He told her in that case the time decreases to 6 days before i take your goods away.She then agreed to sign provided she could write the words"signed under duress".He wouldnt allow this and again insisted on her signature only on the form so she could have he 6 weeks to pay the £510 otherwise with no signature its 6 days.I once again tried to reason with him and offered the original amount in full which he refused again.I presume he is a certified bailiff although he didnt show a certificate and we never requested one.He works for swift credit services.Surely this £210 is not leagl? as it was added without out knowledge or agreement, he basically bullied my wife into signing it which she eventually did as she was so upset and scared at this stage.I found the following information and am seeking clarification on its authenticity:

The law (Section 92 of the Courts Act 2003) only provides for HM Court Service to tender a contract with a fee agreement for collecting unpaid fines, bailiff companies then tender-bid for these contracts. This allows a bailiff to deduct his fee at the agreed rate out of fine paid. A fine is not the same as a debt, and bailiffs cannot lawfully increase a fine by adding fees. The contract is not legally binding on any convict or defendant unless a magistrate has made a Cost Order against the convict (very Rare!)

 

 

I have also been informed that its possible the bailiff has committed an offence [

under Section 2 of the Fraud Act 2006 by maiking a false representation by adding fees on to the original fine to benefit himself/his company

 

I would be grateful for advice on how i go about paying the original fine but not the bailiffs extortionate demands especialy as in my opinion no goods were actually "seized" but just a walking possession conducted.What can i do?are his actions justified and legal? especially as i eventually offered payment in full of the orginal amount?

Edited December 2, 2009 by Michasm

[Michasm]

Can Anyone Help?

[Nintendo Pü]

There are not prescribed fees for bailiff when enforcing payment of a TV license. If TV licensing contract out the work to a private company, then TV Licensing is liable to pay the fees under that contract. You are only liable to pay the statutory fine.

 

To recover unlawful bailiffs you need to go through the parliamentary ombudsman. If the bailiff is a private company then use the small claims court.

 

On a Form N1.

 

I received the defendant carrying on business as a bailiff acting for TV licensing collecting an unpaid TV license fine. The bailiff dishonestly charged me [£AMOUNT] bailiffs fees and there is no statutory requirement for me to pay any bailiffs fees for this type of debt. The law says I am required to pay the fine which was paid on [DATE]. The defendant made a false representation to obtain a money transfer under the pretence he had a lawful right to enforce payment of bailiffs fees for collecting an unpaid TV license fine. The defendant did not levy on, or move any of my goods in a vehicle and I did not sign any documents for the defendant agreeing to any such charges. I have been defrauded by the bailiff who is cheating with his fees and I asked for a refund but it was the bailiff's choice to keep the money. The claimant claims i) the sum of [£AMOUNT], ii) Interest under Section 69 of the County Courts Act 1984 at the rate of 8% a year from the date the money became due at the daily rate of 0.00022%, iii) reasonable costs the court thinks fit for being defrauded by the defendant iv) Reasonable costs the court thinks fit for Discovery of Information and compiling this case for court, v) costs allowed by the court at the prescribed rate.

[Michasm]

But he is not acting for the TV licensing.He is a certified bailiff acting for the magistrates court.Does that not therefore give him the right to add charges? My issue is, he didnt tell us about the extra charges before going ahead and carrying out the walking possession.

Once he had done that, my wife noticed the extra charge on the sheet.He then said that he was going to tell her about it at the end.I then said i didnt want to pay the extra amount and no longer wanted the payment plan and offered him payment in full for the original fine which he declined to take.surely his primary role is to recover the money for the Court fine and not to add on cash to make himself and his company extra? I think i have got him on the fact that he added it on without our knowledge and that he kept stating the costs are agreed with the court.This to me adds to a false representation which equals Fraud?

[Nintendo Pü]

But he is not acting for the TV licensing.He is a certified bailiff acting for the magistrates court.Does that not therefore give him the right to add charges?

 

The official advice from the Court Service website on bailiffs fees and magistrates court fines says: not allowed to charge you more than the amount you are fined.

 

It can be found on Page 3 under Magistrates courts. http://www.hmcourts-service.gov.uk/courtfinder/forms/ex345.pdf

 

 

 

This to me adds to a false representation which equals Fraud?

 

Officially its fraud. A bailiff who dishonestly charges for work that has not been done will be committing an offence under the Fraud Act 2006. Section 2 of the Act specifically describes a person dishonestly makes a false representation and intends, by making the representation, to make a gain for himself or another, or cause a loss to another, or expose another to a risk of loss.

 

On 20 April 2007, Lord Lucas in the House of Lords asked HM Government (inter-alia) "whether it would be right for the police to claim that such an action is a civil and not a criminal matter" Baroness Scotland of Asthal, The Minister of State, Home Office replied: (inter-alia) "A bailiff or any other person who dishonestly charges for work that has not been done will be committing an offence under the Fraud Act 2006".

 

he kept stating the costs are agreed with the court.

 

The law, Section 92 of the Courts Act 2003 only provides for HM Court Service to tender a contract with a fee agreement for collecting unpaid fines. This only allows a bailiff to deduct his fee at the agreed rate out of fine paid. This is an agreement between court and bailiff is not legally binding on you.

 

The poster on this thread successfully had all bailiffs fees removed unchallenged after telephoning the magistrate's court and quoting the above information: http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/229873-help-philips.html#post2547500

Edited December 2, 2009 by Nintendo Pü

[Michasm]

Nintendo, many thansk for your much valued advice.

However, i have referred to Page 3 of the EX345 form and find much to the contrary.

It in fact states that Certificated Bailiffs are entitled to charge fees and add them to the money you owe.

 

It only refers to Civilian Enforcement Officers as not being allowed to charge more than the amount fined.

 

Looks like im stuffed then??

[Nintendo Pü]

Unlike other types of debts collectable by a bailiff, there is no legislation enabling bailiffs to charge fees on unpaid court fines without first having a costs order.

 

A bailiffs certificate is not a contract between bailiff and debtor enabling a bailiff to charge fees for collecting unpaid court fines. It just means the bailiff has been tested to be of good honest character and has made over a security or insurance policy of £10,000 to protect the public authority incase the bailiff absconds with their money. Any bailiff handling public money must be certificated.

 

If you want to pay bailiffs fees then you can agree to pay them, just sign a levy or similar fee agreement with the bailiff and he will tell you how much you can pay.

[Michasm]

Nintendo.Many thanks again for your continued support with this.

 

That sounds good then.They basically cannot add charges without a costs order?

 

I definitely do not want to pay the charges.My only worry is that my wife signed the Inventory and agreed to pay it over 6 weeks inclusive of the costs,this was because after his continued bullying and harrassment,she just wanted him to leave.She did try to write signed under duress on the form but he snatched it back before she could do so.

 

I want to build an understanding of where i stand before sending a letter of complaint to Swift in an attempt to get the charges removed so we can simply pay the original fine.

 

I just dont want to send a letter containing lots of inaccuracies which make me look stupid.Thats why im double checking everything with you.

 

Should i send a copy of the letter of complaint to the Issuing court also?

 

My biggest fear is that nothing happens before the 6 weeks are up and he bailiff returns to take away the items, leaving us without tv, table and chairs etc..over Christmas.

[Nintendo Pü]

Yes, cc the letter to the mags court as well.

 

Keep the letter simple.

[Michasm]

 

Oops! I have detailed the whole experience outlining where i feel the bailiff has overstepped his rights.Its around 4 pages long.I simply couldnt get everything across in a simple letter.

[Michasm]

I was also thinking of sending the bailiffs a cheque for the £250 fine only.I am thinking that would leave only the bailiffs £310 fees outstanding.Would the bailiff be within his rights to take my stuff away to cover the fees or are they non enforceable?

This would be a nice result but obviously i need to know where i stans if i take this approach,can anyone help?

[Nintendo Pü]

No, the bailiff cannot take your goods if you have paif the fine.

 

When sending a cheque, enclose a copy of Page 3 of this doc and highlight in floursecent marker yellow http://www.hmcourts-service.gov.uk/c...orms/ex345.pdf where it says -- not allowed to charge you any more than the amount you are fined.

 

If the bailiff returns your cheque uncashed then send it direct to the court enclosing the bailiffs return letter.

 

Bailiffs cannot enforce payment of his fees.

[Michasm]

think thats what im goping to do then!

i have sent a letter t the bailiffscand the court.ill let you know what their response is!

thanks again for all your help