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

[Bru911]

I have never seen them at home at my door, the first time I had set eyes on the bailiff was when the car was immobilised with the clamp and they were sitting there waiting in their van.

[Peterbard]

That is not what I asked, was it the first time they called ?

[Leakie]

Bru 911

What DB is asking is quite important

As it will show if this was the first contact

 

They may have levied on the car did newly signed leave any paper work to say this before the warrant expired

 

Sorry cannot edit on iPad

 

Did newlyns leave any paper work to say they had sized the car before the took it away,

If they did was it before the warrant expired

[Bailiff Advice]

unclebulgaria67 said:

 

We all know that EC's only receive their powers under the law by a court e.g liability order, warrant.

 

In regard to Council Tax Liability Orders, is there any specific legislation that deals with the situation where a Council received full payment of a L/O and the 12 months period provided under a NOE has expired, leaving enforcement fees outstanding ?

 

I will look back on this question later today but there is certainly a question mark regarding the 12 month period with council tax enforcement (and indeed with magistrate court fines).

 

With unpaid road traffic debts (penalty charge notices) the position is much clearer. The warrant expires after 12 months. With court fines...and liability orders, neither debts 'dies' and I would be inclined to think that an enforcement company would quite welcome a legal challenge being instigated.

 

Bru911 said:

 

Any legal action taken against Newlyn PLC, its Clients or its Agent will be vigorously defended and in the event you are unsuccessful, costs will be sought from you.

 

I trust this clarifies our position in this matter,

 

I am not around until later today but I would urge you to think very carefully about litigation. When I return, (or maybe tomorrow if I don't have time today) I will be starting a new thread to warn the public (once again) of the risks that they could face if they issue an injunction against a local authority/enforcement company.

 

I am awaiting further details but in brief, a litigant in person issued an injunction after his vehicle was seized in relation to the previous owners debts. The correct course of action should have been a 'Third Party Claim' under Part 85 of the Civil Procedure Rules.

 

In actual fact, at the hearing on Monday the Judge agreed that the claimant had acquired the vehicle in good faith and the evidence (eventually provided) was sufficient proof. He provided copies of bank statements showing the 'flow of funds' and the updated V5c and certificate of insurance.

 

Nonetheless, he was criticised by the Judge for using the wrong procedure and he was ordered to pay the Counsel's costs, and a proportion of the solicitors fees.

 

He was of course refused permission to have his court fees of £300 refunded.

 

PS: During the hearing, the Judge asked the claimant whether he would be willing to accept an order that he pay a sum of £500 of his error in making such an application. He refused. The Judge therefore asked Counsel to make representation and the order made is outlined above. The claimant was given 14 days to make payment.

[Bru911]

I do not understand what defines a bailiff call.

Is it them attend the premises and leaving a notice

yes they have attended the premises and left notices

the date of notice of enforcement is 19th August 2105

 

They bailiff firm may have on other dates posted letters out to the address, I would have to check with them and get the dates of any letters sent out and what the letters contained.

 

But the notice of enforcement was dated 19th August 2015.

I have not had any seizure notice nor any contact in any form with the bailiff.

I have no arrangement nor conversation with the bailiff

 

Is it was a previous seizure done on the vehicle prior to it being taken away

I am sure the bailiff would have on the day on immobilisation done his seizure but It was not seized prior to the date of immobilisation 10/10/2016. I do not have any documents to say the action was done on any other day.

 

They had not seized it days before nor immobilised it days before and left notification days before . it all happened on the same day.

 

They have left me with zero paperwork and the bailiff has given me zero paperwork, even when I met them twice at the vehicle on the same day 10/10/2016 they handed me over no paperwork before taking the vehicle away.

 

The only letter I have from them is the email as above and a letter from them Notice of Sale which came through the post dated 10/10/16 . If what comes through the post is considered "calling / "called" ?.

 

there was no levy on the car prior to the date of seizure, immobilastion and removal

It was the usual find car, clamp it, contact as you have the vehicle and leverage remove if unpaid all in the same day they even baby sat the clamp for the duration

They had not levied on the car previously to that day.

 

 

It is in conversation, they can stand up and say "we first contacted Mr ***** on the */*/20**

by post /email /text whatever medium they wish to use

then the bailiff MR *** called on him at the address of *** st .. and received no response

 

what are you specifically asking when saying called....

 

When was the levy

when was the seizure

when was the removal

when was the notice

 

asking "Was the taking of the car the first time they called on you?" i dont understand?

[Leakie]

Was the car on your drive at the time they made there first visit (19-08-15)

 

If it was then they may have seized it, but should have left paper work to state that.

They do not have to clamp on the first visit, but normally do to put pressure on the debtor to contact them to come to some arrangement.

 

If the car was not there then the ball may be it your court as such.

 

When a Bailiff visits your property is defined as a Bailiff call.

[unclebulgaria67]

Just means attending an address where you are thought to reside at. They don't have to actually speak to you, gain any peaceful entry or take control of any goods you own. The letter posted through the door evidences the £235 enforcement visit.

 

The crux of your case is whether Newlyn can seize your vehicle on a public highway, if there is no liability owed to the Council and more than 12 months has passed since the NOE was posted through your door.

 

If you get the Councils letter confirming liability order paid in full and using that then try the part 85 route pointing to the legislation about the 12 months from NOE applying to enforcement, you will have to see how you get on. Bailiff Advice knows more about this process and can explain it. It is not that straightforward, as Newlyn are likely to oppose it and argue the toss. Judges according to reports i have read are more likely to listen to EC Solicitors arguments than ordinary members of the public. Meanwhile your car is in storage racking up more costs and if you lose, then you get less back after it has sold. You might therefore have to think about the risk of not getting the car back or any money, if you fight against this for months. EC's are bullies and will want to prove the point that they will fight using deep pockets, particularly if you post your story online.

[Bru911]

the car was seized and immobilised and removed all on the same day 10/10/2016

[Leakie]

UB is better at explaining than myself

 

I would follow UB's advise and wait for BA to get back, on the section 85

[Bru911]

I do not care about the vehicle itself, nor the deep pockets they have trying to fight the case.

Once in black and white that NOE date is post 12 moths

and that seizure/immobisation and removal is after 12 months

L/O is the council

debt owed or not is irrelevant

can the EC enforce or are they required to uphold that 12 months has past and accordingly not act

 

Can bailiff act when the cert has expired because they are owed a debt ....

you cannot enforce

they cannot enforce when the NOE is post 12months , i have no agrrangement , not pre seizure

let the judge stand and over rule the legislaton if they want but they put it in place .

 

everything has to be alignment to enforce

your cert in place , l/o in place etc everything must be valid ..one part not valid makes them unable to enforce

l/o expired cannot enforce / cert expired cannot enforce, NOE 12 months expired cannot enforce

 

Judge over ride what is written then as that is what is stated.

[Peterbard]

If the bailiffs called in the intervening period ,after the NOE and before the end of the 12 moths, the enforcment fee will be due, as well as compliance. (£310) + collection £110 if the car has been taken.

This is irrespective of the issue of if the car has been taken.

 

Neither the liability order nor the power to enforce die after 12 months from the NOE, it is the power to take control of goods which die.

Any goods previously on a Controlled goods agrement can be taken after the 12 months as expired also other enforcment measures can be taken.

 

It is a fact that the payment to the council can be regarded as an agreement to fully settle with the baiiff, in this case the failure to pay the balance after a couple of months would be treated as a breach of that agrement and further measure(such as taking control of the vehicle) can be taken.

 

The OP needs to ring again and ask if the enforcment order is still with the bailiff or if it has been passed back.

 

As said earlier the apportionment of the proceeds is the last measure to be taken and would be preformed before the order went back, the bailiff would have to ensure that all funds were included, this could only be done in the final instance, the compliance fee is of course not included in the pro rata calculation.

[Peterbard]

My guess about the sequence of events here is;

 

A notice of enforcement was sent

 

An unsuccessful visit was made after this some weeks later.

 

A decision was made by the debtor to sit it out and then pay the council direct.

 

He waited a year, thinking the debt had been passed back, he paid the council direct.

 

Unfortunately the debt had not been passed back and the council informed the bailiff a part payment has been made.

 

The bailiff waited a couple of months for the balance.

 

He then visited and took the car.

 

Oh and a question posed earlier. he enforcement stage commences when the bailiff visits the property he does not have to meet with the debtor

 

Bailiff Advice said:

I.

 

Nonetheless, he was criticised by the Judge for using the wrong procedure and he was ordered to pay the Counsel's costs, and a proportion of the solicitors fees.

.

 

And well he might be, I suppose this will make no difference to the knuckle dragging morons who are supporting this kind of action, in spite of the fact that there is absolutely no evidence to date of any of them being successful.

 

They really should have their subscription to the Beano cancelled as punishment.

[Leakie]

Total understand the above DB

 

But the council have then mislead or misinformed the OP saying the LO is satisfied, and only the bailiff fees remain.

 

And I also agree with the OP if the paper trail is not complete and they have not followed the correct procedure and Time scales,

then the EC is also wrong,

I guess we will have to wait and see what happens when the OP challenges the EC and Council

[Peterbard]

I think most of us have had dealing with counter staff at authorities. The fact is that the order must still be with the bailiff, and their fees are still due out of the amount paid, therefore the liability order has not been settled and the bailiffs are still going to take their fees out of whatever has been paid once the account is returned.

 

If the account is with the bailiff then the "amount outstanding£ is owed as the account is being recovered under the TCE.

 

The person at the council still says that fees are due, in other words even to them the account has not been settled, the fact that he/she does not understand the complexity of the enforcement regulations is not really surprising.

[Leakie]

I do not disagree that in theory the fees are due.

 

But one of the main part of the Op's question was whether they could legally take the car as it has been over 12 months from the NoE,

If the EC have not enforced within this period then should they not have sent a new NoE,

It is also unusual for an EC to hold on to the account for 12 months or more.

 

In my case Newlyns held the account for 10 months before sending it back, with only one attempt, but they called at 5.00am

that was the first and last I saw of them.

 

He may have a valid reason to complain because of the time scales

If Newlyns did not follow procedure then they are in the wrong, regardless if they are owed the fee's or not

 

The procedures are there for a reason so if there is a dispute it can be sorted out,

But unfortunately, the procedures are interpreted in different ways.

 

I urge the OP to go down the section 85 route first, and it will have to be done soon, before taking the EC to court. if he has to follow this through to the end.

[Peterbard]

I didn't state a theory. If you dont believe the fact then lets here your argument, and i will tell you why you are wrong.

[Leakie]

Ok DB

 

Yes the fee's are due to the EC

but if they went out side of the Procedures they are meant to follow the car should be returned.

 

If you owed me £310.00 and refused to pay me, and I walked in your house and took this amount from you, it would be theft because I did not go through the proper procedures to get the money owed,

 

If the 12 months had expired and they had not renewed the NoE then what is the difference, they did not follow procedure.

The rules are there for a reason. for The EC and the Debtor.

[Peterbard]

OK first ting , i apologize for the tone of my last post, having a ****ty day, no cause to take it out on others.

 

The thing is that the baiiff may well have gone through the correct procedures.

 

If the payment made within the time period to the council, it will indeed be regarded the first payment of an arrangment, then the time limit on taking control of goods would be re set.

 

If for the sake of argument it was not the case, all the baiiff is guilty of is taking a car which he was not suposed to and as you say a section 85 claim would be applicable he point is that the warrant is still live.

 

As said the pro rata split is not carried out until the account is due back, and that that point it will be taken out of funds paid, which in turn will mean that the liability order is still outstanding.

 

All this continuing blarney about who the payment is paid to is nonsense , the ammount is due to the bailiff, no one is claiming that debt ha been returned even now.

[Leakie]

My understanding is that the NoE needed to be renewed,as it had run it's 12 month course. and was not.

 

I may be wrong and I freely admit my understanding is not as good as some.

 

But if my understanding is correct, then the car should be returned, and the correct procedure followed.

I agree the fee's are owed the TCE states this but the procedures set out are there for a reason.

[Peterbard]

Hi the only restriction is on the ability to take control this is due to the tce, no restriction on the liability order at all, it will run until it is paid,

The order itself will continue to run also,it just will not permit takesing control of goods

[Bailiff Advice]

Personally, I do not think that any further advice can be given without this threat turning into a 'discussion' thread (which must be avoided).

 

My main concern here is that if I was the debtor, then for the sake of a relatively small amount of (£310) I would be making immediate payment in order to gain possession of my car. Mind you, it may be that the car is worth very little. I would be very worried at daily storage fees.

 

Once the car is back in the OP's control (and the amount paid) his vehicle is no longer at risk and he can then pursue a complaint against Harrow Council /and or Newlyn's PLC.

[Leakie]

Hi BA

possibly good advise but you do tend to pay up then fight for the money back.

It may be easy for you to say, but some debtors do not have the spare cash,

Yes may be lose the car, but with the fees it probably will not cover the fees if sold.

By the sound of it the OP is working on the Principle of what he thinks is right and the Bailiff is in the wrong and not following procedure. which may be the case.

 

Why should people have to try and get the cars back if the Bailiffs do not do the proper checks

If there was a penalty for the EA for every time he got it wrong then may be things would change very quickly.

 

As I have said before Procedures are there to be followed to protect the Debtor and the EA, if not followed, the EA should forfeit part of the fees just like the debtor is penalised for not following, or able to follow procedure.

 

BA may be advise on the section 85 would be good advise for the OP

[Bru911]

Where can I get advise on filing the Part 85 accordingly and correctly to lay out the grounds The Taking Control of Goods Regulations 2013 9.—(1) Subject to paragraphs (2) and (3), 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.

(2) Where—

(a)after giving notice of enforcement the enforcement agent enters into an arrangement with the debtor for the repayment, by the debtor, of the sum outstanding by instalments (a repayment arrangement); and

(b)the debtor breaches the terms of the repayment arrangement,

the period in paragraph (1) begins with the date of the debtor’s breach of the repayment arrangement.

(3) The court may order that the period in paragraph (1) be extended by 12 months.

 

 

and Newlyn issued the Notice of enforcement 19/08/2015 and took control of goods 10/10/2016. So I should get my goods back.

I have 7 days from the 10/10/2016 to present this and the clock is ticking.

for clause 2. Newlyns have no arrangement to present as I made none with them and made none with any enforcement Agent.

for clause 3. there is no court order to extend by 12months

 

so what they hope to present as documented evidence is nothing, so they have zero documents to disprove the claim

[Leakie]

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

[Bailiff Advice]

Good post Leakie.

 

Firstly, as I outlined earlier in this thread, it is my opinion that the enforcement fees are due. The 'pro rata' distribution is to be applied when a 'partial' payment is made (which is what has happened in this case).

 

I would not be taking took much notice of what a council tax clerk may have said over the phone about the payment clearing the account. If this particular case were to go to a formal complaint, (or legal proceedings issued), I would suspect that an entirely different answer would be given by somebody in a much more senior position !!

 

On the second point on the affordability to pay, I agree that it is a lot of money but my point here is that all this week my advice has been aimed at trying to save this OP from incurring more storage charges.