General question ref NoE

[dayoshir]

I've been reading a lot about the notices of enforcement being sent out. I'm just curious about a few things from a legal standpoint.

 

As the debtor is often not informed of the date the debt is passed to the EA until the EA make contact is there not a grey area as to whether the fees are due?

 

An example is:

 

A debt of £100 is passed to the EA on the 1st of the month.

EA send out NoE on 7th of the month with they're £75 fee (bloody expensive letter as that's all it is!!)

You pay the debt on the 3rd of the month directly to the creditor without the EA fees as you are unaware of the NoE or that it's been passed to the EA.

 

Somehow your still liable for the £75 fee!!!! Surely there is a legal grey area here?

[honeybee13]

Hello there.

 

Is this connected with your previous thread please?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?460150-Think-I-ve-screwed-up!&p=4867799#post4867799

 

HB

[Peterbard]

I've been reading a lot about the notices of enforcement being sent out. I'm just curious about a few things from a legal standpoint.

 

As the debtor is often not informed of the date the debt is passed to the EA until the EA make contact is there not a grey area as to whether the fees are due?

 

An example is:

 

A debt of £100 is passed to the EA on the 1st of the month.

EA send out NoE on 7th of the month with they're £75 fee (bloody expensive letter as that's all it is!!)

You pay the debt on the 3rd of the month directly to the creditor without the EA fees as you are unaware of the NoE or that it's been passed to the EA.

 

Somehow your still liable for the £75 fee!!!! Surely there is a legal grey area here?

 

There is no grey area the compliance stage fee is due when your account is passed to the enforcement agency section 5A of the fees regulations

[dayoshir]

Hb no, just curious.

 

Dodgeball but surely if the NoE is sent out 7 days after its passed to the EA (which it was in my case, but my question is general) and the case is passed to the EA by email which is instant, is there possibly not grounds for appealing the compliance stage fee as they've not sent it out in a timely manner? It could be argued that the compliance fee could be void until they send out the NoE??

 

I'm just running ideas out loud.

[honeybee13]

Hb no, just curious.

 

Dodgeball but surely if the NoE is sent out 7 days after its passed to the EA (which it was in my case, but my question is general) and the case is passed to the EA by email which is instant, is there possibly not grounds for appealing the compliance stage fee as they've not sent it out in a timely manner? It could be argued that the compliance fee could be void until they send out the NoE??

 

I'm just running ideas out loud.

 

Thank you dayoshir. As this is a discussion thread, I'll move it to the other area of the bailiffs forum.

 

HB

[Bailiff Advice]

I've been reading a lot about the notices of enforcement being sent out. I'm just curious about a few things from a legal standpoint.

 

As the debtor is often not informed of the date the debt is passed to the EA until the EA make contact is there not a grey area as to whether the fees are due?

 

An example is:

 

A debt of £100 is passed to the EA on the 1st of the month.

EA send out NoE on 7th of the month with they're £75 fee (bloody expensive letter as that's all it is!!)

You pay the debt on the 3rd of the month directly to the creditor without the EA fees as you are unaware of the NoE or that it's been passed to the EA.

 

Somehow your still liable for the £75 fee!!!! Surely there is a legal grey area here?

 

The Compliance fee is charged to the account on receipt of the instruction from the creditor (which in your case, would be the Magistrate Court). However, in the case of unpaid court fines, the account cannot be transferred to the enforcement agents office until the expiry of the Further Steps Notice (FSN).

[Peterbard]

Hb no, just curious.

 

Dodgeball but surely if the NoE is sent out 7 days after its passed to the EA (which it was in my case, but my question is general) and the case is passed to the EA by email which is instant, is there possibly not grounds for appealing the compliance stage fee as they've not sent it out in a timely manner? It could be argued that the compliance fee could be void until they send out the NoE??

 

I'm just running ideas out loud.

 

Not really because the fee is due when the warrant the is received by the ea, not when the notice is sent to the debtor.

[Leakie]

I personally think it is the wrong way around.

It seems that TCE was not about making everything clear for the debtor,

 

Especially as the council now does not give notice that it being pushed the the EA company.

it is penalising the poorer of society. you can not get blood out of stone.

 

If the powers to be, wanted to try and help the debtors, pay in a quicker manner then this not the way to go, for the can not pay.

[Peterbard]

There used to be 14 days notice which was required before the enforcement power was conveyed to the bailiff. This was removed,although there is a talk of reintroducing it I believe.

[dayoshir]

Yes dodgeball. However, surely the fee should become due when the NoE is sent, as this is the first point at which the EA are acting on the transfer of the warrant.

[GrumpyToSayTheLeast]

No, the collecting, sorting, checking, inputting, client calling etc is the first point of acting.

 

 

Once everything is checked and inputted, then the NOE is sent.

The NOE, to us, is just a small cog in the engine that is admin before a warrant is assigned out.

The fee has nothing to do with the sending of the NOE.

 

 

The now essentially says that we have no processed your warrant

or writ and we now formally give you 7 days to settle the matter before enforcement commences.

Its pretty simple really.

 

And regarding the amount of warnings that are given to debtors like the original 14 day letters..

..if one letter was sent, it wouldn't be enough and people would want at least two.

If ten letters were sent, people would want 12. And so on and so on.

 

Apart from the very few cases where the debtor is generally unaware that they owe money or genuinely vulnerable,

most debtors are deliberately ignoring or burying their head,

and no amount of warnings are going to get them to deal with the situation.

[Bailiff Advice]

Yes dodgeball. However, surely the fee should become due when the NoE is sent, as this is the first point at which the EA are acting on the transfer of the warrant.

 

That is not correct. The amount of the Compliance Fee (like the enforcement fee) was arrived at after extensive research by an economist who had been retained by the Ministry of Justice.

 

For the avoidance of doubt, the fee is to cover the enforcement agent's office costs and covers many activities such as:

 

 

Receipt of the instruction from the creditors.

 

Checking the warrant for any errors.

 

Opening an account for the debtor.

 

Inputting the warrant onto the computer system.

 

Cross referencing with other debt types to see whether there are any other accounts for the same debtor (important so as to avoid 'multiple fees' being charged).

 

Sending a Notice of Enforcement to the debtor.

 

Receiving telephone calls and correspondence from the debtor following receipt of the NoE.

 

Scanning correspondence onto debtors account.

 

Setting up payment arrangements

 

Receiving payments from the debtor and updating account.

 

Processing payments and allocating payments to the creditor.

 

Monitoring payment arrangements.

 

In the case of default or non payment, referring the account to an enforcement agent.

 

etc etc.

 

The Ministry of Justice have made expressly clear that the £75 Compliance fee must be deducted first from any payment made.

[Peterbard]

In any case,the regulations say "from receipt" so theorsing about what should be is pointless.

[Bailiff Advice]

 

The Ministry of Justice have made expressly clear that the £75 Compliance fee must be deducted first from any payment made.

 

With any legislation, it is important to also read the Explanatory Memorandum supporting the relevant legislation as this outlines the purpose of the legislation in ordinary non legal terms. Item 8.3 addresses the Compliance fee and confirms that it will be deducted at source and deals also with the 'pro rata' distribution of payments.

 

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

[Bailiff Advice]

There used to be 14 days notice which was required before the enforcement power was conveyed to the bailiff. This was removed,although there is a talk of reintroducing it I believe.

 

 

If the government are able to secure access to HMRC data for the purpose of making an attachment of earnings order then there would need to be an initial letter being sent to the debtor asking him to voluntarily provide his employment details (failing which HMRC will be contacted). As to whether this would lead to the re-introduction of the '14 day' letter, I do not know. Presently, there is a lot of debate on this subject.

[Peterbard]

No, the collecting, sorting, checking, inputting, client calling etc is the first point of acting.

 

 

Once everything is checked and inputted, then the NOE is sent.

The NOE, to us, is just a small cog in the engine that is admin before a warrant is assigned out.

The fee has nothing to do with the sending of the NOE.

 

I think manly forums confuse the binding of goods in the case of CT, which occurs when the notice is sent with the point where the compliance fee is due. Which as you say has nothing to do with the notice.

[Peterbard]

Incedentally talking about this and unintended consequences. The old chestnut regarding the warrant being sent to the agent rather than the agency keeps croping up. I know many think that this is too trivial a point to be considered in the consultation.

 

The reason the act says agent is because there is no facility within it to certify an agency the agent must be an individual. The warrant. could not be passed to an uncertified body.

 

The advice is to just read "agency" when it says agent in these circumstances. However I feel that leaving these things to common sense may be a little out of reach of some, so I wouldn't be surprised if some clarification or measure were introduced.

[Bailiff Advice]

Incedentally talking about this and unintended consequences. The old chestnut regarding the warrant being sent to the agent rather than the agency keeps croping up. I know many think that this is too trivial a point to be considered in the consultation.

 

The reason the act says agent is because there is no facility within it to certify an agency the agent must be an individual. The warrant. could not be passed to an uncertified body.

 

This point was picked up by JK a while ago and there is something in a recent trade mag that I was reading last night on the subject. I will have a proper read tomorrow.

 

The regulations are silent on the term "enforcement agency" and this is not at all surprising given that there are a small number of individual enforcement agents who do not work for an 'agency' (or company). Instead of using the term 'enforcement agency' the regulations use the term; 'enforcement agents office'.

 

In this respect, the regulations (8.2) of the Taking Control of Goods Regulations 2013 provide that the Notice of Enforcement may be given by either an 'enforcement agent' (thereby assisting an individual agent) or far more commonly, by the 'enforcement agents office' (i.e.; Rossendales Ltd, Marston Group, Jacobs, Newlyn etc, etc.

 

http://www.legislation.gov.uk/uksi/2013/1894/regulation/8/made?view=plain

[Peterbard]

Yes that is given by of course not given to. The proceed also must be given to the agent, although there may be a third party involved it is the ea who will apportion the debt. The certified agent is responsible for the enforcement.

 

There was talk about certifying an agency in the early days but it was discounted.

[Bailiff Advice]

 

In this respect, the regulations (8.2) of the Taking Control of Goods Regulations 2013 provide that the Notice of Enforcement may be given by either an 'enforcement agent' (thereby assisting an individual agent) or far more commonly, by the 'enforcement agents office' (i.e.; Rossendales Ltd, Marston Group, Jacobs, Newlyn etc, etc.

 

http://www.legislation.gov.uk/uksi/2013/1894/regulation/8/made?view=plain

 

It is the wording under regulation 8.2 that is causing difficulty to all local authorities who had been considering bringing part of the bailiff enforcement 'in house' (i.e; the Compliance stage).

 

The 'enforcement agents office' cannot possibly mean that a local authority can give the NoE.

[Peterbard]

Yes and this is one of the lest of their problems, especially if they envisage sending these notices from their back office.

 

The compliance stage is part of the schedule 12 procedure and can only be used by an EA licensed under section 63, it is not a warning that the account is on the verge of being sent to the EA, the account will already be with him. He would have to send the notice or instruct someone to do so under his authorization.

[Peterbard]

Yes and this is one of the lest of their problems, especially if they envisage sending these notices from their back office.

 

The compliance stage is part of the schedule 12 procedure and can only be used by an EA licensed under section 63, it is not a warning that the account is on the verge of being sent to the EA, the account will already be with him. He would have to send the notice or instruct someone to do so under his authorization.[/quote]

 

Some seem confused regarding my last comment(highlighted) on here regarding the EA being able to authorise another individual to act as EA under his certification.

 

It is no secret and is contained within section 2(3) of schedule 12.

 

"(3)An enforcement agent, if he is not the person on whom an enforcement power is conferred, may act under the power only if authorised by that person."

 

If the person receiving the enforcement order from the LA is authored as an "EA" by someone who is registered under section 63, he can operate as an EA and be compliant.

 

It is just if the transaction is addressed to the company rather than the individual'.