andrew wilson Andrew James enforced at a wrong address

[GrumpyToSayTheLeast]

Possibly one on which to agree to disagree for the time being?

 

I'm convinced the EA was wrong here. My last post was entirely twisted to justify what is, to my mind, a fragile argument. I highlighted the first part of it, that first part needing to be read in its entirety rather than a short phrase being decontextualised.

 

However, I don't believe the EA should have charged as he did. I know the enforcement company in question, and they were total crooks. I've no reason to believe they don't still twist things as far as they can.

 

Anything which can be done to get shot of EA's who perform these actions should be done. They increase costs to the debtor unnecessarily. Even here, it is indicated the courts condone this practice. If that is the case, the courts need calling to account as well.

 

The days of bailiffs charging for things they simply shouldn't (and doing things they simply shoudn't) should be gone. As long as bailiffs look for ways of maximising their income from enforcement, people should fight to call them to account for doing so.

 

The most common thing by far which seems to kick start this process is their refusal to accept affordable and sustainable repayment arrangements. Until such time as they have to do this, there is going to be a degree of conflict.

 

So if you were owed £10k, you would happily accept £200 a month even though the debtor has enough goods to satisfy the debt? Thought not. You would be asking us to refuse the offer and push for payment in full.

[Peterbard]

You guys have very little idea of how the real world works in relation to enforcement. Do you realise how many times we go to a business chasing a ltd company only to be told and shown proof that all goods belong to the director personally and are leased or rented or just used by the limited company.

 

What you are basically saying is that until the bailiff proves who owns goods, he cant touch them. That's wrong.

 

You are saying that on a first visit, the EA is not allowed to remove goods for sale. As obviously if he is not allowed to add a sale fee, then obviously he is not allowed to remove.

That's wrong.

 

And paragraph 15 doesn't say a warrant to attend and premises. It clearly states a warrant to ENTER premises.

 

Hi first point.

 

The TCE was introduced to ensure. EA have a method of enforcement which is standardised and transparent, so I am afraid industry standard,and accepted practice are no longer valid arguments when it comes to bailiff procedure,if it is not in the act it is not lawful.

 

Yes you are right section 15 says enter premisses,indeed so does section14 which also refers to first attendance.

However in this instance we are referring to what the fees regulations say.

[Peterbard]

Sorry missed the bit about taking control of disputed goods, it is still the case that the burden of proof regarding ownership is on the debtor,in this nothing has changed. What has changed is the ability to charge a sale fee when no sale is planned and when the stage of enforcement has not yet passed through compliance an enforcement.

 

I have no doubt that the practice's you mention still occur,I a!so have no doubt that adding these fees before they are due is unlawful.

[Peterbard]

So if you were owed £10k, you would happily accept £200 a month even though the debtor has enough goods to satisfy the debt? Thought not. You would be asking us to refuse the offer and push for payment in full.

 

Can I answer this for you.

 

The EAs function under the new ragime has changed. The reason for the enhanced enforcement stage fee is because the days of the smash and grab bailiffs are at an end,although it is accepted that 400 years of practice will not be changed over night.

 

The job of the bailiff at enforcement is not to remove goods, it is to obtain and if nessesary negotiate an acceptable repayment arrangement between the debtor and his client,yes by using the controlled goods agreement or seizure as both inducement for the debtor and security for the creditor.

[Peterbard]

Sorry I should add that sale of goods is a result of the failure of enforcement stage, not it's success and not its goal.

[Coughdrop]

So if you were owed £10k, you would happily accept £200 a month even though the debtor has enough goods to satisfy the debt? Thought not. You would be asking us to refuse the offer and push for payment in full.

 

You ask me a question, then answer it yourself - a little pointless, surely.

 

In that scenario, you are probably right. However, I'm referring to what I believe to be more common (correct me if I'm wrong), the scenario where a debtor is truly struggling, just does not have the money to pay, and is pressured (or threatened with false threats) to agree a repayment arrangement they know they have no chance of sticking to. Alternatively they make what is, to them, a realisitc and sustainable offer to repay, not having goods of sufficient value to repay the debt, and still the offer is declined.

 

In this scenario, I have no sympathy with the EA if, say for a CT bill, the debtor simply refuses access and the EA has to return the debt eventually with no fees going to them at all. In fact I'd actively encourage that action.

 

For too long bailiffs abused their position, and this led to a change in legislation and far greater transparency. Rightly now, they are accountable for actions which previously they may have abused, fees being just one example of this.

 

Why in your opinion was the Enforcement Stage fee set at £235? I know why I think it was set at that level.

 

As another point of law, I always thought charging a fee for more than one enforcement stage in the same visit was not legal.

[GrumpyToSayTheLeast]

You ask me a question, then answer it yourself - a little pointless, surely.

 

Retorical

 

In that scenario, you are probably right. However, I'm referring to what I believe to be more common (correct me if I'm wrong), the scenario where a debtor is truly struggling, just does not have the money to pay, and is pressured (or threatened with false threats) to agree a repayment arrangement they know they have no chance of sticking to. Alternatively they make what is, to them, a realisitc and sustainable offer to repay, not having goods of sufficient value to repay the debt, and still the offer is declined.

 

This thread is on about a position where an EA atended a shop where there were goods available, i assume the debtor failed to pay and refuses to pay and therefore removal of assets commenced. Maybe the "proof" of ownership was not sufficent and therefore the EA had no choice but to start the removal. Maybe the OP would not sign a CGA. Maybe due to the OP's attitude(not saying there was one) the EA would not entertain a CGA as fearing goods in jeapordy.

If there are insufficent goods and an offer is put forward, then it will be looked at.

 

In this scenario, I have no sympathy with the EA if, say for a CT bill, the debtor simply refuses access and the EA has to return the debt eventually with no fees going to them at all. In fact I'd actively encourage that action.

 

If there are no goods and no offer of payment, thats exactly what happens. Its called Nulla bona. We get nothig and yet we have paid out expenses like wages, fuel, office admin, insurances etc, and this is why other bills are higher.

 

For too long bailiffs abused their position, and this led to a change in legislation and far greater transparency. Rightly now, they are accountable for actions which previously they may have abused, fees being just one example of this.

 

Some, SOME bailiffs have abused their positions. Dont tar me with the same dirty little brush thank you. When an Ea is found to be acting outside there remit, they are dealt with and have always been dealt with harshly. They lose their certificate which mean they are on the dole. They may have to pay out with their bond which means they will struggle to renew that bond. They may lose employment with their company on a gross misconduct. It happens and most of us welcome it when it does.

 

Why in your opinion was the Enforcement Stage fee set at £235? I know why I think it was set at that level.

 

The MOJ sat down and worked out the cost of admin, tracing, letter writing and stationary and came up with the compliance fee.

 

The same method was used for the enforcement fee where fuel, EA wages, Staff wages, Insurance, van lease, servicing, daily wear and tear etc were all calculated and an average charge was made. That is the £235.

 

They then sat and worked on costs for removals and the costs were worked out and became the single sale stage fee.

As another point of law, I always thought charging a fee for more than one enforcement stage in the same visit was not legal.

 

Really? not seen that point in law anywhere. On HIG COURT matters, Enf1, 2 and 3 can be charged on the first attendance. MAGI/PARKING etc enf1 and sale can be added on the first. We have had it tested and its stood up in court. You can all argue this as much as you want, but i know that you can add sale stage on a first attendance where removal takes place, even if that removal is then aborted if the debtor makes payment. This has already been discussed and agreed with on EAC2 complaints and im sure, if it needs addressing, the MOJ will deal with it on the new updates.

 

[Peterbard]

Really? not seen that point in law anywhere. On HIG COURT matters, Enf1, 2 and 3 can be charged on the first attendance. MAGI/PARKING etc enf1 and sale can be added on the first. We have had it tested and its stood up in court. You can all argue this as much as you want, but i know that you can add sale stage on a first attendance where removal takes place, even if that removal is then aborted if the debtor makes payment. This has already been discussed and agreed with on EAC2 complaints and im sure, if it needs addressing, the MOJ will deal with it on the new updates.

 

 

When and where was this tested Grumpy, was it pre or Post April last year.

 

You mention different procedures for the different warrants etc. Problem is that since April last year there has only been one procedure, this applies to all, there are differences in HCEO but this is contained within the procedure.

 

In answer to your question of where is it stated etc. it is stated within the legislature, there would be little point having three stage enforcment p[process if all fees were chargeable on one stage.

[Coughdrop]

I think I've touched a bit of a nerve there.

 

If there are no goods and no offer of payment, thats exactly what happens. Its called Nulla bona. We get nothig and yet we have paid out expenses like wages, fuel, office admin, insurances etc, and this is why other bills are higher.

 

Is it? It's to compensate for those cases which are returned and you get nothing? I think we both know that is not the case.

 

For too long bailiffs abused their position, and this led to a change in legislation and far greater transparency. Rightly now, they are accountable for actions which previously they may have abused, fees being just one example of this.

 

Some, SOME bailiffs have abused their positions. Dont tar me with the same dirty little brush thank you. When an Ea is found to be acting outside there remit, they are dealt with and have always been dealt with harshly. They lose their certificate which mean they are on the dole. They may have to pay out with their bond which means they will struggle to renew that bond. They may lose employment with their company on a gross misconduct. It happens and most of us welcome it when it does.

 

Indeed, some bailiffs. I make no attempt to tar you with the same brush and that was not my intention. In fact I've commented previously on the benefit of your contribution on this forum. It cannot be escaped though that those bailiffs brought the industry into disrespute, and that was to an extent responsible for bringing about the change in legislation. Form 4's and now EAC2's are for the most extreme cases. You know as well as I do that an abuse of the use of Form 4's by debtors led to the enforcement industry fighting back and claiming costs. I have no problem with that per se.

 

I do have an issue when things are not serious enough to warrant an EAC2, but EA's continue to abuse the process. The redress is currently inadequate in my opinion.

 

Why in your opinion was the Enforcement Stage fee set at £235? I know why I think it was set at that level.

 

The MOJ sat down and worked out the cost of admin, tracing, letter writing and stationary and came up with the compliance fee.

 

The same method was used for the enforcement fee where fuel, EA wages, Staff wages, Insurance, van lease, servicing, daily wear and tear etc were all calculated and an average charge was made. That is the £235.

 

They then sat and worked on costs for removals and the costs were worked out and became the single sale stage fee.

 

I think we'll have to agree to differ on that. I thought there was a significant element of spending time with the debtor in the £235.

 

Going back to this case, surely if you are removing goods for sale, the debtor MUST be given the relevant notice before moving onto that stage. Was this done?

 

If the goods were being removed because there was a genuine worry they might disappear before the EA returned, then there is a clear procedure for doing so, and for keeping the goods safe etc.... At this stage in proceedings my understanding is we are still in the Enforcement Stage, as the goods are being removed to 'encourage' payment still - there is no intent at this time to sell the goods.

 

Only when there is a clear intent to sell them is the £110 payable. If this is incorrect (quite possible), please could you point me to the legislation that states you can charge £110 for storage as opposed to sale?

[Peterbard]

The compliance fee was set at a value which would enable the EA to spend time with the debtor, in order to to check on third party ownership of goods, arrange suitable repayments o the debt and if necessary to negotiate with creditors and complete a binding contract for repayment.

 

Sale stage fees charged in these circumstances are simply wrongful and in breach of the Act; the bailiff is still at the enforcement stage and can only charge the enforcement fee.

[Peterbard]

I think I've touched a bit of a nerve there.

 

 

 

Is it? It's to compensate for those cases which are returned and you get nothing? I think we both know that is not the case.

 

 

 

Indeed, some bailiffs. I make no attempt to tar you with the same brush and that was not my intention. In fact I've commented previously on the benefit of your contribution on this forum. It cannot be escaped though that those bailiffs brought the industry into disrespute, and that was to an extent responsible for bringing about the change in legislation. Form 4's and now EAC2's are for the most extreme cases. You know as well as I do that an abuse of the use of Form 4's by debtors led to the enforcement industry fighting back and claiming costs. I have no problem with that per se.

 

I do have an issue when things are not serious enough to warrant an EAC2, but EA's continue to abuse the process. The redress is currently inadequate in my opinion.

 

Why in your opinion was the Enforcement Stage fee set at £235? I know why I think it was set at that level.

 

 

Only when there is a clear intent to sell them is the £110 payable. If this is incorrect (quite possible), please could you point me to the legislation that states you can charge £110 for storage as opposed to sale?

 

 

This is correct and echoes what JK says also. However the fee is due not payable, it becomes payable out of the proceeds of sale together with the disbursements that are part of the sale procedure or before the return of the goods,(it is added to the amount outstanding section 62) nit picking I know.

[GrumpyToSayTheLeast]

I think I've touched a bit of a nerve there.

 

No, all is fine. I am just shocked that some of you guys have your eyes so closed on this subject.

 

 

Is it? It's to compensate for those cases which are returned and you get nothing? I think we both know that is not the case.

 

So what would you say it is for? We cant collect on a lot of warrants, so unfortunately, the ones that do pay make up the difference.

 

 

 

Indeed, some bailiffs. I make no attempt to tar you with the same brush and that was not my intention. In fact I've commented previously on the benefit of your contribution on this forum. It cannot be escaped though that those bailiffs brought the industry into disrespute, and that was to an extent responsible for bringing about the change in legislation. Form 4's and now EAC2's are for the most extreme cases. You know as well as I do that an abuse of the use of Form 4's by debtors led to the enforcement industry fighting back and claiming costs. I have no problem with that per se.

 

Thank you for clarifying. Absolutely, some shocking displays of brutality and fraud have been uncovered and they do get dealt with. But most of us in this trade want to distance ourselves from that era. Not to forget that you see far more in the news about corrupt builders, electricians, politicians and police than you do about bailiffs. We are just naturally hated though. We are already seeing an abuse of the EAC2 action and this is resluting in costs being awarded..

 

I do have an issue when things are not serious enough to warrant an EAC2, but EA's continue to abuse the process. The redress is currently inadequate in my opinion.

 

How is it inadequate? What more could be done to deal with an EA abusing the process? or is it the court not SEEING the abuse? is that because they are turning a blind eye? or is it because the EA is actually abiding the regulations but the debtor/complainant has translated the rules another way and thinks they are right? Thats the problem, as you can see from this thread. The rules can still be misread in any number of ways.

 

Why in your opinion was the Enforcement Stage fee set at £235? I know why I think it was set at that level.

 

Various things were looked at, including time spent with the debtor trying to work out a solution.

 

 

I think we'll have to agree to differ on that. I thought there was a significant element of spending time with the debtor in the £235.

 

Going back to this case, surely if you are removing goods for sale, the debtor MUST be given the relevant notice before moving onto that stage. Was this done?

 

And what relevant notice is that??? I have not seen any notice that must given if they refuse to pay and you are going to remove? The only thing that must be done is reasonable time must be given for the debtor to pay. Reasonable time in the case of a company, enough time to actively start phone accounts and getting the ball rolling, say thrity minutes. For an indivdual at home, then an hour or so for them to collate funds or travel to a bank to collect those funds. Bearing in mind if the car is clamped then they are walking or catching the bus as we are no longer allowed to transport anyone even though they beg us to. About an hour or two would be normal there. But there no 24 hour or 48 hour written notice saying that we will be back, UNLESS there is a CGA in place. In which case a notice of intention to renter must be given.

If the goods were being removed because there was a genuine worry they might disappear before the EA returned, then there is a clear procedure for doing so, and for keeping the goods safe etc.... At this stage in proceedings my understanding is we are still in the Enforcement Stage, as the goods are being removed to 'encourage' payment still - there is no intent at this time to sell the goods.

 

No, the clear procedure is good in jeapordy and therefore no CGA to be given and goods removed for sale with the defendant given 7 clear days to make payment of goods will be sold at the next available auction. There is NO procedure in place to just remove goods to encourage a payment. Its always pay, or goods removed for sale. Thats it. Nothing else.

 

Only when there is a clear intent to sell them is the £110 payable. If this is incorrect (quite possible), please could you point me to the legislation that states you can charge £110 for storage as opposed to sale?

 

When goods are classed as "removed to storage in expeptional circumstances" this applies to, for instance, a boat, moved from the water to a dry dock to stop it being sailed away. It is then stored in the dry dock until it can be sold. The sale process has begun though and the charges will be added.

Goods are never just removed and held to provoke a payment.

[GrumpyToSayTheLeast]

The compliance fee was set at a value which would enable the EA to spend time with the debtor, in order to to check on third party ownership of goods, arrange suitable repayments o the debt and if necessary to negotiate with creditors and complete a binding contract for repayment.

 

Sale stage fees charged in these circumstances are simply wrongful and in breach of the Act; the bailiff is still at the enforcement stage and can only charge the enforcement fee.

 

And if the debtor is refusing to deal with the matter? refusing to offer payment? what then? does the bailiff just have to walk away and come back another day to remove goods?

[Peterbard]

And if the debtor is refusing to deal with the matter? refusing to offer payment? what then? does the bailiff just have to walk away and come back another day to remove goods?

 

No if the debtor refuses to enter into a controlled goods agreement the EA removes the goods under section 13c, then if no offer of payment is made he can remove them from that location to a place of sale and this would then trigger the sale fee. (Fees regs)

 

Goods have to be under control before they are removed for sale, the ways of taking control of goods are itemized ins section 13 of the act sched 12.

[GrumpyToSayTheLeast]

The goods can be secured on the premises by way of a clamp or locking them in a cupboard or by the EA remaining with those goods. Removing the goods is just that, a removal. There are multiple ways to take control, please do not fall into the trap of picking which bit of the regulation suits your argument and ignoring the rest. Option C may be used, but i can see no use for it right now unless its a boat being removed by a marina owner to secure it for the EA at no charge. Then the EA may choose not to go to sale stage as he is just securing the boat while doing his checks, which can take a day or so for a boat.

 

Ways of taking control

 

13(1)To take control of goods an enforcement agent must do one of the following—

 

(a)secure the goods on the premises on which he finds them;

 

(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;

 

©remove them and secure them elsewhere;

 

(d)enter into a controlled goods agreement with the debtor.

[Coughdrop]

The goods can be secured on the premises by way of a clamp or locking them in a cupboard or by the EA remaining with those goods. Removing the goods is just that, a removal. There are multiple ways to take control, please do not fall into the trap of picking which bit of the regulation suits your argument and ignoring the rest. Option C may be used, but i can see no use for it right now unless its a boat being removed by a marina owner to secure it for the EA at no charge. Then the EA may choose not to go to sale stage as he is just securing the boat while doing his checks, which can take a day or so for a boat.

 

Ways of taking control

 

13(1)To take control of goods an enforcement agent must do one of the following—

 

(a)secure the goods on the premises on which he finds them;

 

(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;

 

©remove them and secure them elsewhere;

 

(d)enter into a controlled goods agreement with the debtor.

 

Surely the parts highlighted above show that, in your opinion, the EA was removing goods to secure them elsewhere (in case the goods vanished overnight). This is clearly part of taking control, and thus part of the Enforcement Stage.

 

As the Sale Stage has not yet begun, the £110 cannot be payable. The start of the Sale Stage is clear as per 5© HERE:

the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by regulation 14).

 

(Apologies re the notice earlier on - my mistake!)

[Bailiff Advice]

Can I just add that this subject has turned into an excellent 'debate' on the matter of when the 'sale stage' fee of £110 may be charged and it is very helpful indeed to have regular input from an enforcement agent (even though the regulars on here disagree with his 'theory' on this particular subject). An important point however is that the differing opinion is the reason why I would never suggest that a debtor take legal action.

[Bailiff Advice]

 

 

Why in your opinion was the Enforcement Stage fee set at £235? I know why I think it was set at that level.

 

 

In fact the Ministry of Justice did not work out the fee scale themselves. What happened is that they employed the services of an economist by the name of Alex Dehayen. His first suggestion was rips to shreds by CIVEA and his second draft was used with a uplift of his suggested fee scale to the present £75 and £235.

 

The following makes very good reading:

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

[Peterbard]

Apoint I made earlier on which seems to have been missed. The intent of the legislation is shown in the following extract form the fees regs:

 

the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by regulation 14).

 

Goods removed at enforcement stage and secured elsewhere can then be removed for sale from the new location, the latter action triggers the sale fee.

 

Notice the highlighted section"first attendance at the property" not first attendance at the debtors premises, this phrase is used because the EA may be attending the "property" where the goods are being secured.

[mikeymack2002]

Question time

1. With the debtor agreeing to make regular AFFORDABLE payments the EA does not have to take control of goods, see the final sentence of the attachment at 7.3 (post 94)
   


1. For non-High Court debt there is no such obligation and therefore we have introduced an incentive to enter into an agreement without taking control of goods at the (earlier) compliance stage which avoids triggering the enforcement stage with its larger fee.
   

 

[*]If a debtor then agrees a repayment plan the EA cannot add the £110 fee unless he has taken control of goods, and then removes them for sale then the fees gets added is this correct?

[*]If the job of the EA is to acquire funds to repay the debt then why not allow time to pay with AFFORDABLE repayments'?

[Peterbard]

Hi

The section quoted refers to the compliance stage.

This is when tnhe initial letter is sent and before the visit of the bailiff.

The incentive for the debtor to enter into a repayment plan at this stage is, one that it will avoid the bailiff visit and two that the additional £235 enforcement fee will not be added.

 

Yes it is correct only goods which have been previously taken control of can be removed for sale.

 

The EA has to work to the creditor (his clients) instructions, but yes there must be added pressure on EAs to negotiate between the creditor and the debtor to find an affordable and acceptable repayment scheme secured by the control of goods agreement. It is to this end that the enforcment fee was set so high, the EA should spend more time with the debtor.

[brassnecked]

Hi

The section quoted refers to the compliance stage.

This is when tnhe initial letter is sent and before the visit of the bailiff.

The incentive for the debtor to enter into a repayment plan at this stage is, one that it will avoid the bailiff visit and two that the additional £235 enforcement fee will not be added.

 

Yes it is correct only goods which have been previously taken control of can be removed for sale.

 

The EA has to work to the creditor (his clients) instructions, but yes there must be added pressure on EAs to negotiate between the creditor and the debtor to find an affordable and acceptable repayment scheme secured by the control of goods agreement. It is to this end that the enforcment fee was set so high, the EA should spend more time with the debtor.

 

In reality the usual suspects will refuse all offers at Compliance Stage to engineer the Enforcement visit to get the £235

[Peterbard]

In reality the usual suspects will refuse all offers at Compliance Stage to engineer the Enforcement visit to get the £235

 

Yes BN, and that is the fly in the ointment, there should be some sanction that can be imposed if EAs reject out of hand offers of payment.

 

There are a number of factors to consider, the creditor may be willing to accept an offer of repayment but may feel more comfortable if it is secured by a controlled goods agreement for instance, this serves the creditors interests and the EAs(because he gets the enforcment fee) but not the debtors.

[Coughdrop]

Yes, we're starting to repeat ourselves here - there's no doubt EA's should be accepting more repayment offers at Compliance Stage.

 

It's worth pointing out that to have control of the goods, the EA does NOT need a controlled goods agerement in place which is signed by the debtor. There are several ways to take control of goods, all mentioned previously.

[Peterbard]

Yes it is also worth noting that goods must be taken into control by one of these methods before it can be considered to be under control or can be removed for sale. Sounds self evident but.

 

A reported case where a EA placed a sticker on a car saying the car had been taken under control, another was put through the letter box.

 

The debtor rang an advice line and the adviser told her that the car was not under control because it had not been clamped and no control of goods agreement had been signed, the debtor hid the car.

 

On his return the bailiff rang the police and had the debtor charged with removing a vehicle whilst under control of the EA. The court dismissed the case, the vehicle was not under control for the above mentioned reasons.

 

Eas have to be very careful that they follow the legislation when taking control of goods.