Newlyn removed car for CTAX debt - but notice of enforcement is over 12 months old?

[Leakie]

Yes BA

 

But it would not be just a council Clerk,

From my experience once you have a LO you deal with recovery dept.

And they should know better , if not they need to be retrained

 

 

I think we are missing the point

The Op thinks there has been an injustice, as the NoE had expired,

And if the info on here is correct the EC have not followed correct procedure,

 

The Rules are not set just for the Debtor ! They are there for everyone involved.

But for some reason the only ones who suffer the consequences is the debtor and not the EC.

Seems like it was designed that way.

 

Yes you did say early on about settling up to save money,

but too me something smells here in the way the EC have acted.

 

I can only go on the info I have picked up on here it just does not feel right to me,

 

The Op will decide which way he wants to go with this, He is making his own informed decision.

 

He has asked for help with the section 85 so lets help him through this.

that is after all why he came here in the first place,

[Bailiff Advice]

Bailiff Advise is the best one for this, as she has stated in an earlier post she has only lost one

 

Thank you.

 

Over the weekend I intend starting a few 'discussion' threads and an important one will concern the steps that should be made if a bailiff has taken a vehicle.

 

I am also concerned that this thread is getting far too long as turning into a 'discussion' thread'.

 

I really do not care whether I will be criticised for saying so, but the truth is that I have probably more experience that anybody else about 'Part 85' claims.

 

I was the person who put so much pressure on the government to introduce 'Part 85' claims into the CPR regulations almost three years ago.

 

My thread on this subject (from February 2014) is below.

 

Thread on CAG re Third Party Goods and Interpleaders.

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?418396-Third-Party-Goods-Interpleaders-and-the-serious-potential-to-damage-the-new-Bailiff-Reforms-on-6th-April

Edited October 14, 2016 by Andyorch
edited

[Leakie]

I believe there are 2 issues here that need to be separated.

 

1 The car taken on an out of time NoE (Should the car have been taken with the out of time NoE No I do not think so)

 

2 the £310 owed to the EC (are they owed in my opinion yes they are )

[Bru911]

Agreed they are owed £310 No dispute they are owed money. This has never been a point in contention.

My only and one factor is that the NOE had expired

and no agreement is in place with the Enforcement Agent and so I as the debtor did not breach any terms of a repayment arrangement with the Enforcement Agent.

So the enforcement agent may not take control of goods

 

The L/o being in effect

payment to the council being made and dates noted

the EA calling/called dates and times can all be dated and time stamped.

 

None of that is stipulated as terms or factors that over rule the NOE expired and with no arrangement in place the enforcement agent cannot take control of goods.

 

It only says if I had an arrangement in place with the enforcement agent then they can enforce.

If they were owed £310 with the Noe being invalid they are meant not to enforce how they can get around that with no arrangement well I think they will get around their certification being expired and still enforcing, he owed me money we had a l/o he made a payment to the council on x date ...but your certificate expired you cant enforce...that is madness same way your NOE expired you had no arrangement you cant enforce.

 

If somewhere it stipulates that when a payment to the council is made the Noe letter is automatically reset or a payment to the council is deemed to be acceptance or agreement to entering an arrangement with a third party they are within their rights to keep my vehicle, if not give it back.

 

When has paying your council tax to the council meant you automatically entered a payment arrangement with the bailiffs.

If that is true we are all in trouble as we enter arrangements without our knowledge to terms we do not know or agree with.

A direct debit with the council to pay your council tax would automatically bind you to a bailiff firm without your knowledge and without you signing an arrangement with the bailiffs, they do not need arrangements forms or a signature they are automatically there with direct debit forms

[Peterbard]

The danger here is that the op. Goes to law with this.

 

Appart from the ones mentioned, there are other reasons why section 9. May not mean what people on here think it does.

 

Incidentally, did we e ver get an answer about previous visits ?

 

We would not want another. Judgement like the HP one where it would have been far better to leave the matter alone.

 

As said far better paying, getting the car back then taking proper advice regarding what to do next.

[Bru911]

Section 9 seems very clear and straight forward. I do not feel I have mis interpreted it in any way. The only point that it seemed to bring up, that has been mentioned, If i am correct is that paying the council can be regarded as entering into an arrangement with the bailiffs.

 

To which end direct debits mean we all have third party arrangements set up that will bind us to bailiff firms indirectly and we as a society are not privy to that.

 

I know I have to get the section 85 out quickly outlining my understanding of section 9 as it stands as my point is only the NOE expired.

 

I am willing to accept the loss of the vehicle to clarify the issue. Can you enforce when the NOE expired and no arrangement is in place?

 

They can have a case *** v Newlyn where an NOe has expired payment to the council means you automatically enter into an arrangement with the third party bailiffs so all our automatic direct debits with banks to pay our council tax are pre signed agreements that can be used to tie us into arrangements with bailiff firms without our direct consent. If a payment from your bank goes through to the council you have agreed an arrangement with the bailiffs ....Really??

[Peterbard]

The reason you are in this mess is because you believed some nonsense about section 50(3) as you confirmed earlier, so ay advice you are receiving from the same source should be treated with caution to say the least.

 

The creditor is not a third party in the relationship. My mum used to pay her gas to the post office, it did not make them third party in the relationship, nonsense. They are merely collecting the money for the bailiff.

Direct debits are not privy to any agreement, they are not a contractual agreement in any case.

 

Basically paying the authority whilst the account is with enforcement, is the same as paying the bailiff himself. This is one of the things that "contracting out " means.

 

Direct debits are not contracts. You seem to be exhibiting a lot of misunderstood and familiar ideas now. You also demonstrate that you aim is not to achieve justice but instead to get one over the bailiffs, this is not a recommended action.

[Bru911]

I am here to discuss the matter as outlined. I am writing what i read and defining it as i read it. I am writing my source what part of legislation I would be using and what it means to me as I read it and asking if i am correct in my understanding. If my belief after reading it is "nonsense" I am here to get corrected on that part which I have read and misunderstood.

 

When I cite something and another part arises then I move on to the other part, that has been used to address my initial statement and the debate/conversation moves forward and I gain a better understanding of the the whole and not just the part.

 

I am not trying to get one over anyone. I came here saying one thing Noe expired and no arrangement in place and it has been said that payment to the council can be regarded as an arrangement with the bailiff. i ask then if i had a direct debit payment to the council would that payment also be regarded as entering into an arrangement with the bailiff.

 

I have said I await help to get a section 85 so i am listening and acting accordingly with what has been said as the correct course to take. I hope the discussion and understanding is still open and relevant and I am not taken out of hand as being malicious trying to get one over on someone, when I have had my vehicle taken and i dont see who i am getting one over on; when at the end of the day I am trying to get it returned and the correct process undertaken.

 

Should I pay to get something returned when it should not have been taken in the first place. I can freely fill out the section 85 and collect my property if the mistake is clear and not my own.

[Peterbard]

OK the first thing is that the NOE does not expire If anything it removes the bailiffs power to take control of goods, the remaining powers he has under the act, collecting payments, taking controlled goods for sale etc. still remain.

 

You have already admitted you owe £310. In fact the bailiff will maintain you owe an extra £110 also for taking the car for sale.

 

I am sure however the bailiff will waive the sale fee and return your car, on payment of the ammount you admit you owe, TBH if it were me, that is what I would do.

 

The direct debit issue is not really important it is merely means of getting payment to the person you owe. As of course is paying the council under these circumstances.

[Bru911]

following on from what you have said it removes power to take control of goods, does that mean, they cannot then take my car that he met on the roadside on the day, because the power to take control of goods was removed. It was not under a controlled goods agreement.

 

Can i fill this out on a section 85 and get my vehicle back as that is what my sole concern is.

 

I am sure that this issue means that they have not purged their computer system to put on hold expired NOE letters as I have knowledge to cross reference a number of others would have gone before me under similar circumstance totally unnoticed.

[Peterbard]

I think you had better wait for BA on the section 85 issue , there is no one more qualified to assist you in this, I would listen to what she says.

 

You say you came on here to have your ideas corrected if they are mistaken, however your above post seems remarkably similar to post no. 1 on here. I think you have seen all the reasons we dissagree already.

[Leakie]

I suppose the simple way to put this DB,

 

 

1- If there was not a controlled goods agreement in place

 

2- The NoE had Expired

 

3- Would the EA be able to legally, take the car in lieu of payment.

 

4- If they are which part of the legislation covers it.

 

And to answer about the dates The Op did say they had no contact with the EA until the car was taken.

Only letters and the car was taken after the NoE had expired.

 

If the EA did turn up nothing was left to say a visit had taken place.

 

I think this is correct

I am sure Bru911 would correct me if I had summarised incorrectly.

[Bru911]

You are correct Leakie with the points you have stated as they are

[Peterbard]

I am unsure what it is you are trying to get me to say, or why for that matter. I have answered all these many times on previous posts. I do not believe that this course of action is in the OP best interest, is the long and short of it.

 

My attempts to explain why, have fallen on stony ground , I do not believe repeating them will serve any purpose.

 

Have you heard anything back from Marstons ?

 

Leaky you did miss out , if the EA does not regard the payment made as the initiation of a payment arrangment.

[Bru911]

Newlyns sent me back a response email which I posted #76. I was very specific in my email stating it was the NOE letter that had expired and they came back in response that i had stated L/O issued was expired, which is not the case.

 

As can be seen in my email and their response. #76

 

If i worded my email not to be clear to them please advise.

 

I am not trying to get anyone to say anything just to be simply answer clearly on the points as they stand without if this and if that and not jumping around with things that while in force like the l/o do not over rule the point.

 

Sometimes I know i can be very particular and maybe not come across in the correct manner. It's the years of being firm but fair when dealing with people means I just spell it out as it is and without thought for how it comes across.

 

 

Leakie puts it in a better way then I can.

 

1- If there was not a controlled goods agreement in place

 

2- The NoE had Expired

 

3- Would the EA be able to legally, take the car in lieu of payment.

 

4- If they are which part of the legislation covers it.

 

 

Answered clearly enough :

if the EA does not regard the payment made as the initiation of a payment arrangment.

 

is this in legislation in anywhere

[Peterbard]

Ok one more time.

 

They can call if there was not a controlled agreement in place if there was a arrangment to pay in place.

 

The NOE does not expire, the notice is a warning refering to the period in which the bailiff has to wait before making his fist call, section 6

I am not sure what is meant by" in lieu of payment", if you mean able to seize the vehicle in the process of taking control of goods, then it depends on the above.

 

TCE 2007 and associated legislation.

 

As I said before section 9 is probably your argument. Paying the council is a none starter and this has been, proven in the past.

 

I do not believe you should dismiss the arrangment issue, I take it you did receive a NOE so you should have been aware of who you payments were eventually going to.

 

I am not saying the section 9 issue will be successful because as yet to my knowledge there has been no relavant testing of the issue.

We made that mistake in a HP issue not so long ago.

i will state again that it is your only relavant argument. I will also say that a court will be of the opinion that the fees should be payed, whether the sectin mentioned is strong enough or indeed means what you think it does to over ride this in law is something that the court will asses when coming to its decision.

 

There is other points of a technical nature which i would raise, although possibly not on here, regarding the definition of taking control of goods, there is more than one definition in the TCE, which may or may not be relevant.

[josephbloggs]

Had a read through and you have been thorough in writing the course of events

I think you have a strong case that because the 12 months have passed they should have returned it and not continued to persue you.

I guess the reason people are saying to pay then go after the company is so that you are not without the vehicle and then have the time to go down the legal route.

Will be interesting to see what response you get from the company.

By chance have you spoken to the head of revenues or the councils legal team for their take on it? Because i assume the council tax department wont be too clued up on the laws.

[Bru911]

They could do whatever they want but the enforcement agent may not take control of goods of the debtor after the expiry of a period of 12 months beginning with the date of notice of enforcement.

That is legislation. no court extension was involved and the enforcement agent had not entered into an arrangement with the debtor for the repayment

[Peterbard]

You seem to be taking a lot for granted. I thought you had sent another email for further clarification.

 

H and the instrument,(note) ,does not say, the EA cannot etc.

 

Dodgeball said:

H and the instrument,(note) ,does not say, the EA cannot etc.

 

 

This section is a rule of secondary legislation. Not primary stature, although still binding it does not carry the same weight.

 

The section says," may "not and not "must," not, which is also worth considering. Just for simple readers they are considerably different terms in law.

 

JUst to add for hose who do not understand the must may thing, must means that an action must always be taken in that particular situation, May means that ther may be reasons why the action should not be or canot be taken, usually because of contradictory law, orpractical considerations.

It in no way represents the availability of a choice to the bailiff.

 

For instance in section 14 it says, the bailiff may enter relavant premises.

As we know, if he is collecting a council tax debt he can only do this if he enters peacefully, not in all occasions.

Hence "may" rather than "must", if must was used he would have to enter come hell or high water.

 

I just thought i would explain it may prove useful when people look at other statue, in this case it "may" be useful (see what i did there).

[Bailiff Advice]

 

I know I have to get the section 85 out quickly outlining my understanding of section 9 as it stands as my point is only the NOE expired.

I am willing to accept the loss of the vehicle to clarify the issue.

 

I would really suggest that you tread very carefully.

 

I have not been around much today and have been relying upon viewing via my iPhone. Assuming that you have no objections, in the morning I will get a message to one of the moderators to seek permission to contact you to offer assistance with a Part 85 Claim.

 

It would be wise not to make any further posts.

[Guest Pink Tiger]

Can't you post it where other's can see? It would benefit everyone surely?

[Peterbard]

Best left until the issue is resolved, I am sure the thread will be updated then..

[Bailiff Advice]

Can't you post it where other's can see? It would benefit everyone surely?

 

Over time, I have drafted Part 85 claims for goods other than a vehicle (goods inside a property or business.....a recent one being a gym and a deep sea training company) but in the vast majority of 'Part 85 claims', the asset will be a motor vehicle. Accordingly, I would expect a viewer to posts a query on the forum. They will then receive all of the support they need.

 

It would be most unwise for anyone with such an expensive asset to simply look at a forum, chance upon a 'Template Part 85' claim and use it for their purposes. That would be foolish in the extreme. A Part 85 claim is very 'time sensitive'. Submit it a day or two late, and the enforcement agent can make a speedy application to court preventing a claim.

 

By way of example, a client uploaded onto the internet in 2013 a copy of an Out of Time witness statement that I had drafted for him (before the regulations were amended). His application had been accepted (which by and large is normal for ones that I have assisted with). That draft was specific for that particular person and his particular circumstance. I am very disappointed that that same draft is provided in the library of at least four of the 'Beat the Bailiffs' social media sites. Most people do not even bother changing the wording to reflect their own circumstances. Utter foolishness. I have made complaints to the various social media sites but they are ignored.

 

As I keep pointing out, an Out of Time application is a court procedure and a vitally important one (in particular if a vehicle has been taken). They must be prepared properly.

 

In the same way, a 'Part 85' claim is equally as important and no two cases are alike (at least from my experience).

 

Anyone posting on here will get full assistance and support. Questions will of course be asked to ascertain the correct procedure for that poster.

 

Lastly, enforcement companies tend to come across 'template' documents day in and day out. They know where the 'templates' have been sourced from and by and large, they are ignored.

[Guest Pink Tiger]

So will you let everyone else see how this one should be filled out?

[Peterbard]

Pink Tiger said:

So will you let everyone else see how this one should be filled out?

 

Wouldnt that be creating a template ?

 

I think this would be better served in the discussion area in any case.