Excel Civil Enforcement Bailiff

[hopefilly]

Hi.

 

I seem to have got myself into a dispute with Excel Civil Enforcement and their Bailiff about a Magistrates court fine and the charges imposed by the company.

 

The fine has been paid and the dispute is about the charges Excel are trying to collect on a Distress Warrant when no Distress has been carried out.

 

Anyway although I can deal with this myself. I was just wondering if anyone knew why Excel would send me a reply email to an enquire I made regarding the costs marked.

*****SPAM*****

 

They inserted this heading themselves and I can only think that they would do this because they can actually lie under that heading??

 

Can you lie if you yourself mark emails as spam or Does anyone know of another reason why they would do this?

 

thanks

hope

[hopefilly]

I forgot to add. I am more than happy to post about the dealings I have had with this company, and the outcome once its resolved, if it would help anyone else.

 

hope

xxx

[Jamberson]

Do you need any advice here, except suggestions why they put the word spam in the email subject line?

[hopefilly]

I think I am doing ok with it at the moment.

 

I have made a statement to the police because they put a note through my door including a threat to break entry or arrest me to which they have a warrant for neither.

 

I have written a complaint to HMCTS to state that the Distress Warrant does not include an order for cost and as no distress was carried out by the company, I believe no payment is due.

 

And I have made a formal complaint to Excel for both the Malicious communications and mis representation by their company.

 

I have also complete a Form 4 compliant about the bailiff.

 

The reason I asked about the word spam in the subject line is because I had a reply for Excel on friday and it state that there is an Order for cost to a themselves against me. But I have received a reply this morning from HMCTS stating that there is no cost order as such. Just the costs are agreed in the contract with the bailiffs. So I was just wondering if it makes the false statement email made by Excel any less valid because the included the word spam in the subject line.

 

I think I covered everything that I can do but if there is anything else you can suggest I'd be grateful

 

many thanks

hope

[wonkeydonkey]

DO NOT ENTER INTO A FORM 4...you are nowhere near ready to do that and could find yourself lumbered with there charges if/ they defend using a barrister and win?

 

WD

[brassnecked]

You could complain to the OFT about Excel Enforcement under Credit Fitness, as they need a category F licence to collect some forms of debt, and people who engage them like councils usually require that licence before they will award a contract to tha company to collect and enforce on their behalf.. don't know about HMCS, but loss of that licence would hurt Excel, and reduce it's earning capacity severely

[bigshoes...bigsocks]

Anyway although I can deal with this myself. I was just wondering if anyone knew why Excel would send me a reply email to an enquire I made regarding the costs marked.

*****SPAM*****

 

They inserted this heading themselves and I can only think that they would do this because they can actually lie under that heading??

 

Can you lie if you yourself mark emails as spam or Does anyone know of another reason why they would do this?

 

 

Are you suggesting that SPAM on emails is the same as WITHOUT PREJUDICE on letters?

[hopefilly]

Thanks for that advice Brassnecked

 

Excel have 7 to 10 days to reply to the Formal Complaint I made, but I didn't know where else to go with a complaint against them

 

It does seem that everyone I have spoken to sides with Excel. HMCTS just quotes the contract they have between themselves and Excel. The police told me it was a civil matter until I researched further and quoted the law on Malicious communications to them but with what I have, unfortunately that only covers the Bailiff himself and not Excel.

 

Thanks again for the advice

 

hope x

Edited September 18, 2012 by hopefilly

[hopefilly]

I really don't know, what it means Bigshoes

 

In this email, it is my understanding that Excel has committed an offence by stating that have a legal document that they don't have. ie a DW including cost to them.

 

I suppose what I want to know is if I pursue this along those lines, will I come up short because of the email heading.

Edited September 18, 2012 by hopefilly

[old bill]

I wouldn't take any notice of the SPAM in Excel's email as I think you will find it is a red herring. Sending intimidating and/or threatening communications by any means and in any form is an offence under Section 1, Malicious Communications Act 1998 and under Section 127, Communications Act 2003.

 

As for the lies Excel have told with regard to a fictitious Costs Order and equally fictitious warrants, if their intention is to extort money from you, they are committing an offence under Section 2, Fraud Act 2006 (Fraud by False Misrepresentation). They may also be committing a further offence under Section 135, County Courts Act 1984 (Pretending to Be Acting Under the Authority of A Court). The worst case scenario is that they are committing the offence of Blackmail, contrary to Section 21, Theft Act 1968. All of these offences carry substantial prison sentences.

 

As WD has warned you, now is not the time for a Form 4 complaint. What may be a more intelligent way of stuffing, trussing and roasting the bailiff without the risks associated with a Form 4 complaint is to complain directly to the District Judge at the court that issued their bailiff certificate. The DJ will either ask you to complete a Form 4 or, as happened in a case in Hampshire recently, the bailiff's certificate was discharged, apparently, without a Form 4 being completed, just the evidence sent with a letter of complaint to the DJ at the bailiff's certificating court, and, seemingly, without any hearing.

[hopefilly]

Thank you for the advice Old Bill

 

I did know about the Malicious Communications Act but not about the others or the option to complain to the District Judge at the court of who issued their bailiff certificate. I was given all the information on the courts that issued their certificate, by Excel, when I asked for their bailiffs name because nothing received from Excel or the Bailiff contains a name. But other that requiring a name for a complaint to the police, it didn't know what to do with the rest.

 

I will of course take yours and WD advice regarding the Form 4 complaint and wait for the response on both what you have advised and other avenues I have pursued.

 

It does seem that if you are a bailiff working under a contract with HMCTS, you think you are above the law and will admit I would pursue this even if the charges were not as excessive as they are. I think the way they get away with bullying people and making them feel unsafe in their own home is wrong on so many levels.

 

Thanks again for the advice it is very much appreciated.

 

hope xxxx

[old bill]

The complaint to the District Judge at the bailiff's certificating court is intended to sound out whether the bailiff's conduct is sufficiently serious enough to warrant discharging their certificate. Being a bailiff working under a contract to HMCTS does not mean a bailiff can consider themselves to be above the law. Quite the opposite, in fact. They are expected to conduct themselves in strict accordance with the law and be beyond reproach. As we all know, the reality is that bailiff companies under contract to HMCTS regularly engage in acts of violence, Marston Group being the principal and worst offenders for this.

[hopefilly]

I know this is what companies like Excel do but they are now beginning to make me question whether I am right about this or not.

 

The keep stating that I am liable for the fee they incurred when executing the warrant.

 

I looked up the definition for the term execute and got

 

to finish, complete, or perform as required, as in fulfilling one's obligations under a contract or a court order. 2) to sign and otherwise complete a document, such as acknowledging the signature if required to make the document valid. 3) to seize property under court order. 4

TO EXECUTE. To make, to perform, to do, to follow out. This term is frequently used in the law; as, to execute a deed is to make a deed.

 

I don't know whether I am allowed to do this on this site. But I will post the letter I sent them and the reply I got from them. Because I really don't know if I am missing something or am completely wrong.

 

 

BY POST AND BY EMAIL

 

17TH September 2012

 

Re

 

Dear Sir

 

FORMAL COMPLAINT

 

I received a letter from your enforcement officer through the door of ************ on 12th September 2012 to collect an unpaid fine of £*** for HMCTS.. Please note this letter had the added text ‘ Returning at 14.00pm to break entry’ ‘locksmith being called’ I also on the same date received an answer phone message from your bailiff stating that he‘ Was returning to 8 ***** ***** to force entry and If I was not at home he would kick the door in’

 

I have reasonable cause to suspect that you bailiff has committed an offence under Section 1 (1)(a)(ii), Malicious communications Act 1988 in that he left me both a letter and verbal communication that contains a threat which he has no lawful authority to make. I understand that this may also be an offence under Section 2 of the Protection from Harassment Act 1997.

 

Relating to the fine which is paid. I have been led to believe by both your bailiff and an email received by your company dated 14th September 2012 that the fee made by you are part of the Court Order and you also indicate that the Distress Warrant makes me liable to pay you those fees. I understand that those fees are set by the HMCTS Enforcement Service Contract and there is no clause that make me Liable for your fees and charges unless you have taken control of my goods and sold them, which you deduct your cost from the proceeds of sale.

 

I now understand the warrant for distress was issued under Section 76 of the Magistrates Courts Act 1980 only enables the recovery of the sum I am adjudged to pay and Leaflet EX345, published by the Court Service says Page 5 ‘They do not charge me for the work they do’ and I confirm no distress, or sale of my goods took place.

 

I believe both your bailiff and call centre representative misled me about this,when they stated that there was a cost order against me.but incase of a genuine error please send me a copy of the order or adjudgement that was relied upon to place a liability on me to pay you bailiff fee on top of the fine. Please don’t send me the Distress Warrant including a schedule of fees printed on it because nothing on that document actually says that I the defendant is liable to pay those fees.

 

COMPLAINT RESOLUTION

To resolve this complaint, No further contact with the Bailiff that left Malicious Communications.

Receipt of a warrant that commands the bailiff to recover the sum stated on the document and makes me liable for bailiff’s fees, without Distress being carried out.

Receipt of a cost order being made against me by the Magistrate Court.

Yours faithfully

[hopefilly]

the reply I got :

 

 

I refer to you letter of 17th September 2012 in which you complain that the bailiff (Mr ******) has made a malicious communication regarding forced entry. You have also complained regarding the cost of enforcement and believe we have no madate to enforce payment and that it is a civil matter.

 

On the first issue regarding the notes to forced entry, I have to say that the Domestic Violence Crimes and Victims Act 2004 enables us, when executing a warrant of distress or arrest for criminal penalties issued under section 76 of the Magistrates Courts Act 1980 to enter and search any premises in order to execute the warrant and to use reasonable force in order to do so. The act provides a defence to any civil or criminal liability that might otherwise arise.

 

As the bailiff threatened to do something which he could do, then any statement in that context is not malicious.

 

Notwithstanding that, I would be grateful if you could forward me any notice comments. The reason is that while forcing entry is perfectly legal under the circumstances, we have policies and procedures regarding these matters which do not include adding [ personal ] comments to pre-printed notices or using inappropriate language to convey certain messages. I Mr ****** has broken our own rules, I would very much like to take that up with him.

 

On the second issue of enforcing the fees (after the primary debt has been paid), I am afraid the advice you have received is incorrect.

 

A warrant issued under Section 76 of the Magistrates Courts Act 1980 is subject to the Magistrates Courts Rules 1981, which permit the ‘person charged with execution’ to retain the ‘proper costs and charges of the execution of the warrant’. However neither the Act nor the Rules provide a statutory fee scale.

 

According, when appointing the current four contractors to enforce HMCTS matters, the Ministry of Justice set out the fee scale, which it approves and which all four contractors must adhere to

 

Although we do not hold warrants as they are maintained by HMCTS and available for your inspection at the Port Talbot Enforcement Centre (we are not legally bound to have the warrant in our possession in order to execute it). I have set out the relevant extract from the warrant regarding costs.

 

Directions

 

1. You may take goods and money belonging to the defendant to the value of the money owed and any costs of carrying out this warrant.

 

Your further claim that we are unable to continue enforcing the warrant once the primary debt (fine) has been paid. This is not the case and the Ministry of Justice some time ago, through the Treasury Solicitors, confirmed that a distress warrant issued under Section 76 of the Magistrates Court Act 1980 can continue to enforce even after the original sum is satisfied. In other words, the fees applied in execution of this warrant become as enforceable as the original sum under that warrant. You will need to approach the Ministry of Justice, for any correspondence relating to this as I do not have anything to hand.

 

I cannot therefore uphold you complaint as there is no evidence of any breach of any rules, regulations or law.

 

I am, of course duty bound to advice you that while we placed matters on hold to deal with your complaint, that hold will now be lifted and unless the outstanding sum of £ ***

Is paid forthwith, we will execute the warrant as the law directs. This may involve additional costs in relation to the removal of goods

 

I trust this clarifies our position.

 

Yours sincerely.

[hopefilly]

Does anyone have any advice on fees charged When the fine has been paid after the distress warrant has been issue.

 

I have got the same response from the court stating that I owe the Bailiff his fees and have written a formal complaint to them also.

 

Am I wasting my time?

[Jamberson]

You will be liable for bailiff fees if they were applied lawfully at the time.

[ploddertom]

May I ask what offence you were convicted of? Reason for asking is that they use the Domestic Violence Crimes and Victims Act 2004 as a threat hoping it will force people to pay up. The realisation of the use for that is essentially against those who see this as a game and have a long list of penalties which have gone unpaid.

[old bill]

Okay. Just come off the phone to the Enforcement Manager at my local magistrates court. The fees that are permitted under the Criminal Procedures Rules 2011, 52.8.5a, are -

 

Administration Fee - £75.00

Attendance Fee - £225.00

 

Both these fees can only be charged once and the maximum chargeable is £300.00.

 

As regards the use of the threat of forced entry under the Domestic Violence and Crime Victims Act, this can only be used where a defendant is persistently avoiding payment of a fine or who has a number of fines outstanding. It may not be used as a repeated threat or to force someone who is asking to pay by instalments, due to financial hardship, to make a single payment they cannot afford and MUST be used sparingly.

 

Therefore, any person with an outstanding fine who is experiencing problems with any bailiff company acting on behalf of HMCTS, including the use of threats, should contact the Enforcement Manager at the court that imposed the fine, soonest.

 

DO NOT -

 

Let the matter drift; or

Cave in to bullying and threats from the bailiff company involved

 

CONTACT THE HMCTS ENFORCEMENT MANAGER AT THE COURT.

 

I hope this helps.

[old bill]

Does anyone have any advice on fees charged When the fine has been paid after the distress warrant has been issue.

 

I have got the same response from the court stating that I owe the Bailiff his fees and have written a formal complaint to them also.

 

Am I wasting my time?

 

If you paid the fine and the bailiff has not yet attended, but you have received a letter from them, you are liable to pay a fee of £75.00. If you experience any problems with the bailiff company involved, speak to the HMCTS Enforcement Manager at the court that imposed the fine.

[hopefilly]

May I ask what offence you were convicted of? Reason for asking is that they use the Domestic Violence Crimes and Victims Act 2004 as a threat hoping it will force people to pay up. The realisation of the use for that is essentially against those who see this as a game and have a long list of penalties which have gone unpaid.

 

 

The offence was no TV Licence.

 

It was the only fine I had and have ever had.

[hopefilly]

Thanks yet again Old Bill

 

So with that in mind.Although I think it is wrong because the contract is between HMCTS and Excel not me, I am liable for the fee's to Excel.

 

It leads me to another question. Are Excel still permitted to gain entry to my home, under the Distress Warrant once the fine is paid to levy for their fees or does it become a civil matter due to the fact that the Distress Warrant was issued to recover the fine.

 

Maybe I am reading or understanding the extract from the warrant that keeps being quoted

 

ie You may take goods and money belonging to the defendant to the value of the money owed and any costs of carrying out this warrant.

 

I refer to the 'costs of carrying out the warrant'. It is my understanding that they have not carried out the warrant, as they have not entered my home and I have made no arrangement as yet to pay them. But can they still carry out the warrant for their fees alone?

 

I will speak to the HMCTS enforcement Manager as you suggested.

 

Many thanks again Old Bill.

 

xx

[ploddertom]

At what stage did you pay the fine? Was this before or after Excel wrote to you? Did the Court send you a Further Steps Notice before Excel contacted you?

[hopefilly]

At what stage did you pay the fine? Was this before or after Excel wrote to you? Did the Court send you a Further Steps Notice before Excel contacted you?

 

 

Yes they did send me a further steps notice, but I am no longer living at the address they sent it to. So the bailiff had already sent their £85 letter before I received it.

 

I only work 10hrs a week and do not claim any benefits, so while I was trying to sort out paying Excel in instalments (which they refused) they called to my old address and added a further £215

 

So the total they are now asking for is more than I earn in a month and they will not accept any form of payment except the full amount in one go.

[old bill]

If the court had been informed of your change of address and failed to act upon it, then the HMCTS Enforcement Manager needs to be contacted directly and made aware of Excel's bullying and what sounds like sharp practice. If HMCTS Enforcement Managers do not know what contracted bailiff companies are up to, they cannot act to stop the likes of Excel ripping people off or bullying them. Speak to the HMCTS Enforcement Manager today and get this sorted out.

[Peccavi]

So just to get this straight; you were fined for having no TV license.

You didnt pay the fine and were sent a warning by the court.

You didnt respond to this and they sent you a second warning.

You didnt respond to that and the matter was forwarded to a bailiff company

The bailiff company wrote to you at which point you were charged an administration fee you didnt pay the fine and a bailiff attended at which point an attendance fee was applied, at this point you started to take the matter seriously and thought you best pay the fine.

 

The point is that a warrant of distress was issued by the magistrate because you hadnt paid a criminal fine.

You didnt engage with the bailiff company which is why a bailiff called. The bailiffs fees are legally recoverable and as regards 'threatening to break in', their warrant gives them that power under the Domestic Violence Criminal Victims Act 2004 scd 4a. Its not a threat just a warning of possible consequence was they believe you are a 'willful evader', which it would appear you were.

As regards you Form4 complaint, forget it, the bailiff was an agent of the court seeking to collect the courts money, the fine, which you were trying to evade, the judge will just laugh at you and hit you with a bill for costs.

The bailiff costs are agreed by the court and go on to form part of the outstanding fine, if you dont pay them the magistrate Court Act 1980 s.76 states that you could be arrested for a committal hearing and sent to prison, unlikely but it does happen.

 

However you state that you changed address and never received the further steps notice, if this is true then you should have applied to the court for a statutory declaration to stay the proceedings, you would have to do this on Oath and therefore perjury rules would apply.

 

Dont forget bailiff are agents of the court and act upon the courts instructions they can only work on what the court gives them so if that information is incorrect then its a failing of the court.

Dont forget bailiffs have been opperating since the Act of Marlborough 1267, they have the law on their side

Edited December 13, 2012 by Peccavi