Majo help needed with Marston- Visit, Seizure notice

[gazhodge1981]

Hi All,

 

Long story short, My mum and Dad bought a hotel in 2006 and my dad signed up to CNG. They broke up early 2007 and my mum changed here name and agreed to a new contract with Contract natural gas There was an outstanding balanced owed by my dad of around £1400 which he could not pay so CNG applied for a interim charging order was then put on the property in November 2007. then a final charging order was granted in January 2008 for around £2200 and was registered with the land registry.

yesterday a Marston High court enforcement officer came to the door and a customer had let him in but he only just got inside the door he showed his badge and said who he was and what he was there for. He said he has a high court writ of fifa. They have sent a letter and a notice of seizure which shows total amount of £2445.97 and lists some goods and states that the Walking possession was refused to be signed which he never even asked (would never have been signed anyway) one of the letters say they are coming on 9/6/2010 to remove goods. There is a statutory declaration which list all the hotels stuff in it (council tax problems in the past) in a name not connected with the hotel.

Can they do this with a charging order on the property?

any advise would be great

[High Court Enforcer]

Yes, enforcement action can be used whilst a charge is in place.

 

Why should the creditor have to wait many years for their money? Since January 2008 you have had more than ample time to start making payments towards the debt.

 

Any third party claim to goods must be made in writing. If disputed by the creditor, interpleader action may commence under RSC Order 17, whereby a hearing will be listed in front of a Master of the High Court who will decide whether the claim is genuine. The losing party will be liable for costs, which can run into many thousands. The HCEO will be protected from prosecution and his costs to date (including their Solicitors fees) will be payable by the losing party also.

 

You really should make arrangements to pay the sums due.

Edited June 3, 2010 by High Court Enforcer

[ploddertom]

It may be painful but HCE is correct in what he says.

 

I note you say the balance was owed by your dad - was this just because he happened to sign the contract? How was the original CCJ awarded - against a person or a company? What is the business status of the hotel? I don't doubt they will be back when they say so time is of the essence - is there any way you can afford to pay even split over say 3 payments.

 

PT

[gazhodge1981]

the Hotel property has 3 owners and everything in the hotel is owned by someone outside the business (to cover a loan of money back in 2006)

on the final order it is in the name of the person and not the hotel.

To pay the amount would have to be more than 3 payments due to the business slowing down due to the economy

[ploddertom]

the Hotel property has 3 owners and everything in the hotel is owned by someone outside the business (to cover a loan of money back in 2006)

 

Is there any paperwork to back this up or is this what you allude to about the Stat Dec in the original post. This will need to be given to the HCEO - he could still seize and let the Court decide of course.

 

on the final order it is in the name of the person and not the hotel.

 

If that is the case then you could argue that person no longer lives at the property - you will need proof of someone elses name being on present utility bills totally unconnected with your dads name. Might be a bit tenuous though.

 

To pay the amount would have to be more than 3 payments due to the business slowing down due to the economy

 

You can still make an offer to pay although it will have to be substantial, the HCEO can ask the original Claimant if they will accept. I was going to suggest over 3 months but think they would only go for 6 payments max - still worth a try.

 

 

There is always a possibility of applying for a Stay of Execution to halt any further action. You would need a good reason and the only one I see at present is that the named Debtor is no longer resident at the premises - but as said previously this may be stretching things a bit - you may need legal advice on that.

 

PT

[gazhodge1981]

It may be painful but HCE is correct in what he says.

 

I note you say the balance was owed by your dad - was this just because he happened to sign the contract? How was the original CCJ awarded - against a person or a company? What is the business status of the hotel? I don't doubt they will be back when they say so time is of the essence - is there any way you can afford to pay even split over say 3 payments.

 

PT

 

The balance is from an agreement he made over the telephone to supply gas to the hotel

[ploddertom]

I'm thinking out loud here.

 

When the hotel was first "bought" certain people became responsible for certain agreements and payments. Following a falling out for whatever reason someone left owing monies on a gas agreement.

 

I assume this agreement was later taken over by someone else on a new agreement and under a new name therefore leaving the old agreement unpaid. Logic suggests that the Gas Company if unsure of how to proceed should have added the sums outstanding to the new agreement if they thought the "new" owners were one and the same as the "old" owners otherwise they are accepting this is a totally new agreement and the "new" owners are not responsible for the debts left behind.

 

As the outstanding sum was never paid the Gas Company took the "old" name to Court for non-payment and were awarded a CCJ against your dad. Did he know of these proceedings and if so did he:

a - acknowledge service of the documents

b - file a defence.counterclaim/make an offer of payment

c - attend any Hearing

 

Since the CCJ was awarded no payments have been made and the Claimant has subsequently transferred the Judgment through the High Court for you to arrive at the position you are in now.

 

If he never knew anything about the CCj then he is entitled to apply for Set Aside although think he may have trouble with it. As the person responsible for the debt he no longer lives at the premises and by stretching things a bit you could maintain the Debtor no longer lives at this address as they are only allowed to seize the goods of the Debtor.

A lot of ifs and buts and think you need proper legal advice. If Marstons do re-attend they may decide to remove everything and it is up to you to prove that what they have seized belongs to someone else. If this happens it will make trying to trade difficult. It may pay to try and sort out some form of payment proposal which the HCEO can put to the Claimant.

 

PT

[tomtubby]

Yes, enforcement action can be used whilst a charge is in place.

 

Why should the creditor have to wait many years for their money? Since January 2008 you have had more than ample time to start making payments towards the debt.

 

Any third party claim to goods must be made in writing. If disputed by the creditor, interpleader action may commence under RSC Order 17, whereby a hearing will be listed in front of a Master of the High Court who will decide whether the claim is genuine. The losing party will be liable for costs, which can run into many thousands. The HCEO will be protected from prosecution and his costs to date (including their Solicitors fees) will be payable by the losing party also.

 

You really should make arrangements to pay the sums due.

 

 

HCE.

 

The advice that you have given is correct BUT is it really fair to be saying that the losing party will be liable for costs "WHICH CAN RUN INTO MANY THAUSANDS OF POUNDS". This would appear to be serious scare tactics and is very naughty.

 

In this particular case, all that should be required is that a letter should be sent to Marston Group to confirm the willingness to pay at an agreed rate and to advise them that there is already a Statutory Declaration in place with regards to the assets.

 

Marston Group would then be obliged to make their cleint aware of the circumstances ( and of the Stat Dec) and hopefully gain their approval to accept the offer.

 

I would be SHOCKED if there was any need for an Interpleader in this particular case.

[gazhodge1981]

Thanks PT, Tomtubby

 

A new agreement was put in place and is still in that name to this day, they did not add anything to the new account.

 

Can the set aside or stay be dont at a local county court?

 

I will write to them today with a copy of the statutory Declaration is it worth ringing them as well to say a letter has been sent?

[High Court Enforcer]

HCE.

 

The advice that you have given is correct BUT is it really fair to be saying that the losing party will be liable for costs "WHICH CAN RUN INTO MANY THAUSANDS OF POUNDS". This would appear to be serious scare tactics and is very naughty.

 

In this particular case, all that should be required is that a letter should be sent to Marston Group to confirm the willingness to pay at an agreed rate and to advise them that there is already a Statutory Declaration in place with regards to the assets.

 

Marston Group would then be obliged to make their cleint aware of the circumstances ( and of the Stat Dec) and hopefully gain their approval to accept the offer.

 

I would be SHOCKED if there was any need for an Interpleader in this particular case.

 

TT,

 

Unfortunately, it is not uncommon for a third party to spuriously claim title to goods that have been seized to try and prevent enforcement. In my many years I have also seen countless statutory declarations that are just twaddle and have been proved as such.

 

Also, many creditors often dispute the claim and therefore interpleader action is the only way forward. In my experience, the costs of these proceedings often run into the thousands because the creditor and the HCEO use solicitors etc.

 

The OP should note that even if they can prove ownership of the goods in the hotel, the personal effects of the defendant are bound by the seizure and are liable for removal if payment is not made.

 

My post is not a scare tactic, it details the very reality of the situation.

 

The OP needs to arrange an agreed payment method ASAP, or fear the removal of goods whilst incurring additional charges for the privilige.

[gazhodge1981]

The Statutory Declaration in place was witnessed and signed by a solicitor and done in 2008.

 

The debtor (Dad) has not lived at the hotel since 2007.

An offer will be made but over a period which can be made every month.

As the only paperwork on this claim is from Marston it is difficult to know the full story. The Option to have the claim set aside or stayed if no agreement can be reached is an option.

I know currently my dad is unemployed and is on JSA due to an injury but would have to double check as i have only spoken to him a few times since 2007.

[tomtubby]

The Statutory Declaration in place was witnessed and signed by a solicitor and done in 2008.

 

The debtor (Dad) has not lived at the hotel since 2007.

An offer will be made but over a period which can be made every month.

As the only paperwork on this claim is from Marston it is difficult to know the full story. The Option to have the claim set aside or stayed if no agreement can be reached is an option.

I know currently my dad is unemployed and is on JSA due to an injury but would have to double check as i have only spoken to him a few times since 2007.

 

 

When writing to Marston Group just be sure that your father provides some sort of evidence to support the fact that he is in receipt of benefits.

 

Sadly, although myself and HCE are on "different sides of the street" (so to speak) it is the case that many people CLAIM to be on benefits when they are not so provide some sort of evidence with the letter.

 

PS: And write as soon as possible.

[High Court Enforcer]

Sadly, although myself and HCE are on "different sides of the street" (so to speak) it is the case that many people CLAIM to be on benefits when they are not so provide some sort of evidence with the letter.

 

TT/OP, until now it was never mentioned whose name the judgment was in. If it is solely in your Dads name and he is genuinely unemployed and on benefits then he needs to make the HCEO aware immediately.

 

However, it is worth remembering that an HCEO can seize goods that are deemed jointly owned (eg: through marriage). These could be your mothers goods. The proceeds of the sale of such goods would be split 50/50 meaning the 'joint owner' would get 50% of the sale value at auction. This would be considerably less than the replacememt value usually.

 

Again, the debtor really needs to make a sensible offer to repay his debt.

[RaeUK]

... Again, the debtor really needs to make a sensible offer to repay his debt...

 

Apologies for interrupting in an area I know nothing about.

 

HCE, if the debtor is unemployed and on JSA - and can provide proof of such - what would you suggest is a 'sensible offer'? Obviously, I'm asking as HCEOs seem to charge the earth, the moon and a wee solar system on top. And, of course, bearing in mind the National Standards for Enforcement Agents ...

 

Just curious...

 

Best wishes

Rae