HCEO attends for debt of £3,667.93, then escalates debt to just over £4560. on first visit - Cerberus HCE t/a Wilson & Roe

[timewarp3]

HCEO attends for debt of £3,667.93, then escalates debt to just over £4560. on first visit

On the 5th of January i received by post a letter from Wilson Roe HCEO -  Notice of enforcement for a debt to a supplier for  a debt of £3588.37+ interest + £75 compliance. the post man handed it to me whilst i was working on a vehicle outside outside my unit . The letter was Dated 18th December.

a short while later that same day a HCEO turned up. I still had the enforcement letter in my pocket . He walked over and identified himself, I laughed - explained that i had only just received the letter. we went into the unit and sat down.

I explained about the letter arriving earlier that day and my belief that we are usually given 7 days clear notice to pay or arrange a payment plan. he dismissed this.
He asked if i could pay. I said yes but i only had £3000 of the £3667.93 showing on the letter available - i would be able to pay the remaining £667.93 in 2 weeks if possible - otherwise i would need to borrow the remainder. .

He said the amount has now changed because he had attended.

- enforcement stage 1 fees
additional £190+7.5% of debt above £1000 -
(7.5% of £3667.93 = £200  + the £190 = £390 of additional fees)   

-  Total due now being  £4057.93

Obviously i disputed this, stating that it seemed excessive especially considering the delayed post over Christmas and my offer of payment. under duress, I agree to make payment of debt and stage 1 fees. Stating that i need 30mins to an hour to make a couple of phone calls to obtain additional monies.

He then stated that the costs have risen Again ..?
he now wanted and additional £495 because i had refused to pay ( I did not refuse to pay - i had simply asked to explore the options of paying £3000 immediately and the remainder in 2 weeks time)

He stated this was next stage of enforcement
The new amount due was now £4560.73 -
After telling the HCEO that i was not happy with the fees and suspected that they were both excessive and incorrect,

His reply was to say that our conversation was recorded and that all the fees were valid.

I felt very intimidated and told him that i had not long returned to work after having a heart attack and surgery, i told him i was feeling unwell and pressurised, i was physically shaking.

In the end, to get rid of him , i felt pressurised into paying  £4000 ( after borrowing £1000 from my daughters account) and sign an agreement to pay the remaining £560.73 by the 5th of February.

I told him i would be complaining. It does not sit right with  me, Is this normal practice.

any advice on how i dispute this or do i have to suck it up and simply pay the remaining £560.73 ?

 

 

[dx100uk]

56 minutes ago, timewarp3 said:

On the 5th of January received a Notice of enforcement .... The letter was Dated 18th December

how come it took so long. have you no letter box?

it'll be deemed valid sadly.

nothing wrong with his visit the same day

56 minutes ago, timewarp3 said:

He stated this was next stage of enforcement

what stage?

 

[timewarp3]

We have no post box unless the shutter is open .

 

I had reluctantly agreed to pay the £4057.93

but hceo then said fees had increased by another £495  ( within minutes of telling me the fees were £4057.93)

this i assume is 2nd stage of enforcement 

( but i didnt refuse to pay or enter into an acceptable agreement to pay the debt, nor did a break an agreement to pay 

I had offered to pay most of the debt immediately and the remainder in 2 weeks. At no time did  i refuse to make payment .

 

[Grotesque]

43 minutes ago, dx100uk said:

how come it took so long. have you no letter box?

Unless they registered it, I'm not really surprised. RM knew they were in a state even before xmas.

Telegraph: Christmas cards could arrive ‘as late as February’

Edited January 29 by Grotesque
redux

[Bailiff Advice]

Did the Enforcement Agent make a list of any goods (an inventory) that he was  'taking into control?

Was there a vehicle nearby that he may have recorded the number plate of?

[dx100uk]

read me carefully

dx

 

[timewarp3]

EA did not make a list , but there are vehicles in the car park ( private van truck and cars - not company owned) but yes he could very well have put those down in his notes, he did not disclose anything to me

 

[Bailiff Advice]

For ease of reference, my post number 25 from the link made a few moments ago by DX100 explains the position more clearly regarding fees. Although the post was made in 2016, it is still valid.

Elliot Davies Court Enforcement doorstep visit this morning - Bailiffs - Help with Dealing with Bailiffs and Enforcement Agents including HCEO - Consumer Action Group

From your answer, it appears to be the case that the enforcement agent did NOT enter into a Controlled Goods Agreement or take an Inventory of Goods (which must be recorded on a Statutory Notice).

[timewarp3]

if i read correctly , the 2nd stage of enforcement fees £495 is valid? because he did NOT enter into  controlled goods agreement,  

If so , Ill just pay, 

Thankyou to all the people who have taken time to answer.

[Bailiff Advice]

NO...the £495 cannot be applied. 

The following wording is taken from the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations. 

Quote

 

The fee structure for High Court cases also introduces an incentive to enter into, and adhere to, an affordable controlled goods agreement.

Unless a debtor pays in full at the compliance stage, the enforcement agent is obliged to visit the debtor in every High Court case in order to take control of goods, thereby triggering the first enforcement stage.

If the enforcement agent is then unable to enter into a controlled goods agreement (and has to take control of goods in another manner) or a debtor defaults on a controlled goods agreement, the enforcement agent will be under an obligation to remove goods and therefore the second enforcement stage fee will also apply. 

 

In your case, the enforcement agent failed to 'take control' of any goods.....there was no signed inventory listing any items. Therefore, he can merely charge only the Stage one fee....nothing more. 

For the avoidance of doubt, the £495 cannot be charged. 

Edited January 30 by Bailiff Advice

[timewarp3]

Thank you,

I have asked HCEO to supply a breakdown of the fees which they have done,

It clearly shows they have charged the £495.00 fee for Enforcement stage 2.

I have asked them to remove it quoting the wording "taken from the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations. "  as kindly explained.

lets hope the remove the charge.

 

[timewarp3]

Today i received an email stating they are rejecting my complaint - and they are still asking for payment

Stating that i still owe the money .    

The email reply is below

(Note  i made the offer borrowing the difference from a third party prior to any costs being increased and no CGA or warnings were given - The agents recollection of sequence of events is different to actual events )

Quote "

Dear Mr XXXXX

The agent who attended was xxxxxxxxxxx he is certificated enforcement agent whose certificate is issued by the xxxxxxl County Court.

The fees charged are statutory fees set out in the following table which is the Schedule to the Taking Control of Goods Fees Regulations:

Table 2
Enforcement under a High Court Writ
Fee Stage Fixed Fee Percentage fee (regulation 7): percentage of sum to be recovered exceeding £1000

 

Compliance stage £75.00 0%
First enforcement stage £190.00 7.5%
Second enforcement stage £495.00 0%
Sale or disposal stage £525.00 7.5%


ES1 is payable from the first visit of the enforcement agent, there is no dispute that Mr xxxx attended and that sums were due under the Writ when she did.
Both the first and second stage fees may be recovered together where no CGA is entered, and this is confirmed by Regulation 4(5)(b):

"Regulation 4(5)(b):
(b)where— (i)the enforcement agent and the debtor enter into a controlled goods agreement which the debtor breaches; or (ii)the enforcement agent and the debtor do not enter into a controlled goods agreement, both the first enforcement stage and second enforcement stage fees may be recovered from the debtor, and the first enforcement stage fee is recoverable where sub-paragraph (ii) applies notwithstanding that the first enforcement stage did not apply."

No CGA was entered in this case.

In this case you met with Mr. xxx and had a straight forward conversation, he explained that he was instructed to collect the full balance then due under the Writ, he explained that if you could not or would not pay the balance at ES1 then he would escalate the matter to ES2 he also explained that he could then look to escalate the matter further if he was required to remove goods from the premises.

Mr. xxxx asked if you could pay the ES1 balance a number of times, on each occasion he was told that the payment could not be made. Initially he was offered £3000 which he explained would not be full payment so would not halt enforcement or escalation to the second enforcement stage.

You then advised Mr. xxxx that you could potentially raise £3600 odd, which was the original Notice of Enforcement balance. Mr. xxxx confirmed that this was not the balance at ES1 so he would escalate the matter to ES2 and seek payment of that balance.

You then advised that you could have borrowed the additional money to pay the ES1 balance from a third party, you asked Mr. xxxx to reduce the fees back to ES1 which he refused. You then made a part-payment of £4000 the agent agreed to allow the remaining balance to be paid on 5 February.

As the agent explained he was unable to roll back the fees from the escalation point to ES2 which came about because you did not make payment in full of the ES1 balance when it was requested. As Regulation 4(3) makes clear the agent was correct not to remove the ES2 fee because it remains recoverable even if at a later point payment in full of a prior stage of enforcement is offered:

(3) The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.

Therefore, after conducting the relevant file review and review of the statutory fees, I am unable to uphold your complaint.

Payment of the balance which is £565.59 remains due today per the requirement of Mr. xxx. If you are unable to pay this sum today then I will extend the time for payment until the end of this week being Friday 9 February at 4pm.

Yours sincerely,

xxxxx     Technical Enforcement Manager."

[il buono]

This is ridiculous. Almost child like in its stupidity and totally against the principles of the Schedule 12 procedure.

By their own admission, you were not offered the option of entering into a CGA for the balance.

You were told if you did not pay in full, the case would escalate directly to ES2. This was incorrect.

The purpose of ES1 is to attempt to obtain payment in full or to enter into a controlled goods agreement.  Only if those two options have failed should ES2 be considered.  You can’t bypass a CGA just because it’s financially beneficial to do so.

By their reckoning, there is no incentive whatsoever to offer the option of a CGA because they lose circa £500 if they offer it.

The EA should have offered the option of a CGA for the balance. He is at fault for not doing so - Almost certainly motivated by the extra commission he earns from charging an ES2 fee.

[timewarp3]

I have until friday to pay.

They do not look like they are backing down

[dx100uk]

nothing 'they' can do, simply ignore the bailiff.

dx

 

[timewarp3]

what do i do if they come back, ? - They said i have until Friday to pay 

their email says they rejected my complaint  -

I pointed out that no CGA exists and referenced the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations.  as previously advised, 

Their reply ( quoted below )still states that they can recover both fees.

 

"Dear xxx

 Regulation 4(5) read as a whole is clear that an agent is restricted to recovering the first stage enforcement fee if he agrees a CGA with a debtor. ES2 may also become payable if a CGA is agreed and then breached but it is clear from the wording of the statute that if no CGA is agreed at all then he may recover ES1 and ES2 provided that the escalation to ES2 was justified by the action which he took during his attendance.  Because the agent gave you multiple opportunities to pay the balance at ES1 which you did not take he was justified in escalating the matter to ES2 and both fees may be recovered together.

The request for footage has been sent on to the relevant team, they will reply within the statutory 30 day time period.

 Yours sincerely,"

[il buono]

You really have 2 options here:

”Simply ignoring” the EA does not mean that the problem will go away. As there is commission at stake, your case will almost certainly be priority to the EA. He will return at some stage. You are not legally obliged to talk to him or grant him access to your home. If you have a vehicle then that will be a problem for you as he can take control of it. Likewise anything else of value outside.

They probably know that they’re on thin ice so whether they’ll risk committing to towing and storing the vehicle over a £500 debt  is anyone’s guess. You should assume that they will and act accordingly.

Your second option is applying for a detailed assessment pursuant to CPR 84.16. This is a legal step and you need to be aware of the outlay and risks involved. On paper, you appear to have a reasonable prospect of succeeding.

Either way, I would challenge the decision made by the enforcement company, outlining that you weren’t offered the option of entering into a CGA meaning that an ES1 fee alone was impossible unless you paid in full. Ask them to confirm that the complaint process has been exhausted.

You can always fall back on a detailed assessment if you are forced to part with more money at any point.

 

[dx100uk]

i believe this is a business to business debt and the result of a civil court CCJ? 

if not what is it for please?

can you tell us what the debt is please and did you attend a court and file a defence?

if this is the case vehicles owned by the business are at risk and the register business address on the court judgement i'e the 'business premise' can be also at risk i'e he can force entry...

 

[il buono]

A HCEO cannot force entry into a residential property, business address or otherwise.

Just reading the High Court Enforcemet Officers Association (HCEOA) interpretation of ES2:

”This begins if the person who owes the debt: refuses to make payment and also refuses to enter into an acceptable agreement to pay their debt and fees in instalments”

 

 

[dx100uk]

im sorry but an HCEO can force entry into a business premise if its a business to business debt

[il buono]

I’m sorry but he cannot force entry into a private dwelling that is registered as a business address.

However, re-reading post #1, the OP has stated that the EA visited a “unit” which suggests that he can force entry into the premises.

If there is anything of value inside then ignoring the bailiff is risky.  As I stated above, it is debatable whether the EA will remove and store goods for the relatively small amount of £600.  He would be mindful of the thin ice he is on in terms of the way he has applied ES2 and that the agency could end up with a hefty bill.

Unfortunately, we cannot guarantee this so we have to assume that goods are vulnerable and act accordingly.  Only the OP can tell if there are goods at risk.  If there are no goods of value (or the valuable goods can be moved elsewhere) then provided no vehicle is outside, there is little the EA can do.  The biggest worry is that technically he can re-visit at any time over the next 10 months or so.

[timewarp3]

Ill pay it and report to HCEOA see where it goes,

The video footage will show my offer of payment at the outset and my several requests to enter in a repayment plan for the remainder, it will also show how he changed the amount without warning or a CGA once i said i had the funds available to pay.

Disappointing really because i've had dealings with HCEO's in past, and in all of these circumstances the attending HCEO's have been fair and amicable, 

looks like this company supports the dishonest practice of their HCEO's adding undue fees /  commission.

Thanks to all for the feedback .

 

[il buono]

Just a word of warning. Andrew Wilson has previously been chairman of the HCEOA.

The whole thing is a complete farce.

Bailiff companies will drag things out as long as possible. They will never back down or uphold a complaint save for one of their agents murdering a debtor.

Your only redress is through the courts and even then, they hire specialists in the field and will only drop hands at the 11th hour.

That’s the situation you are in so it depends how strongly you feel.

[timewarp3]

Ok, so i live and learn, 

Obviously disappointed but ill pay and put it down to experience,

Or lack of in my case

Thanks guys - ill be on the ball next time.

 

Edited February 7 by timewarp3
error