Another bailiff discussion thread.

Re: Another bailiff discussion thread.

Not if the costs aren't paid?

I think in that case then, the bailiff must take it up with the creditor. After all, the majority of the costs are in the creditors bank account.

The creditor keeps the money, puts 2 fingers up to the bailiff, tells the debtor that the debt is paid & no further action will take place.

Yours & Andy's theory will only work if creditors pass on proceeds of payments made directly. To date, that doesn't seem to be happening.

If a creditor is satisfied & a bailiff cannot recover his fees, a stalemate exists. Mo disagreement on my part, "proceeds" does not cover money paid directly to the creditor, bailiff costs will be up to the bailiff to recover & if they can't recover them, I fail to see where they would go from there.

It is not a "theory" it is the regulation, not posting them again.

The point is that now the amount owed is part of the outstanding amount section 50, and the proceeds taken from the debtor "must" be used to pay this sum.

[MissFM]

Re: Another bailiff discussion thread.

Not if the costs aren't paid?

I think in that case then, the bailiff must take it up with the creditor. After all, the majority of the costs are in the creditors bank account.

The creditor keeps the money, puts 2 fingers up to the bailiff, tells the debtor that the debt is paid & no further action will take place.

Yours & Andy's theory will only work if creditors pass on proceeds of payments made directly. To date, that doesn't seem to be happening. It's early days, though, isn't it? Do you have any actual examples? (and, btw, it's not my and Andy's theory it's a simple reading of the legislation)

If a creditor is satisfied & a bailiff cannot recover his fees, a stalemate exists. Mo disagreement on my part, "proceeds" does not cover money paid directly to the creditor, bailiff costs will be up to the bailiff to recover & if they can't recover them, I fail to see where they would go from there.

I'm so sorry ST and have no desire to be argumentative but I just don't see what you're getting at. The regulations are clear - the "debtor" is liable for the original debt plus prescribed recovery costs.

Are you saying that the bailiff would have to turn to the creditor for recovery of his costs if the payment were not distributed pro rata as per the legislation?

Re: Another bailiff discussion thread.

Not if the costs aren't paid?

I think in that case then, the bailiff must take it up with the creditor. After all, the majority of the costs are in the creditors bank account.

The creditor keeps the money, puts 2 fingers up to the bailiff, tells the debtor that the debt is paid & no further action will take place.

Yours & Andy's theory will only work if creditors pass on proceeds of payments made directly. To date, that doesn't seem to be happening.

If a creditor is satisfied & a bailiff cannot recover his fees, a stalemate exists. Mo disagreement on my part, "proceeds" does not cover money paid directly to the creditor, bailiff costs will be up to the bailiff to recover & if they can't recover them, I fail to see where they would go from there.

[MissFM]

Re: Another bailiff discussion thread.

If the creditor is paid, the debt is gone not if the costs aren't paid it isn't:confused2:

Just ignoring it, will not make the debt go away.

Quite :thumb:

And the debt isn't satisfied if the costs (now rolled up as an integral part of the debt) aren't paid

So where is the disagreement? :caked:

Re: Another bailiff discussion thread.

That's also how I read it



Doesn't all that apply to all bailiff activity?

He is now enforcing, legally, on his own account (on behalf of his employer) so I don't see what's so different (sorry to be thick - I do see your point but don't see how it makes any material difference)


[/INDENT]

Nail on head time again.

The debtor can always decline to let the bailiff in and refuse to pay him, then it would have to get handed back to the creditor, however if he had paid whoever dependent in the stage the collection process was, the bailiff would be entitled to his fee out of those proceeds, therefore if he had just paid the order, the authority could be short that amount.

Re: Another bailiff discussion thread.

If the creditor is paid, the debt is gone

Just ignoring it, will not make the debt go away.

[MissFM]

Re: Another bailiff discussion thread.

Yes I think he is however he would be wrong, because the bailiff is entitled to the fees under section 50/ 62 of the legislation. The fees are part of the amount owed.

That's also how I read it

No-I'm asking how the bailiff will recover them?

I have no car outside, if he comes to my door, I shall tell him to go forth & multiply. I have paid the creditor, so they are not bothered any more.

How will the bailiff recover his fees?

He can come round every night of the week, twice on Sundays for all I care, he won't ever be in a position to enforce the debt, so what next?

Doesn't all that apply to all bailiff activity?

He is now enforcing, legally, on his own account (on behalf of his employer) so I don't see what's so different (sorry to be thick - I do see your point but don't see how it makes any material difference)

Re: Another bailiff discussion thread.

AAhhh! Got it. :doh:

You're saying that, even if the fees are legally due as part of the debt the bailiff has no authority to collect under the new legislation if the "debtor" (God, how I hate that word) paid the OC direct minus the collection fees and would have to go to court to get them?

Is that what you mean?

Yes I think he is however he would be wrong, because the bailiff is entitled to the fees under section 50/ 62 of the legislation. The fees are part of the amount owed.

Re: Another bailiff discussion thread.

No-I'm asking how the bailiff will recover them?

I have no car outside, if he comes to my door, I shall tell him to go forth & multiply. I have paid the creditor, so they are not bothered any more.

How will the bailiff recover his fees?

He can come round every night of the week, twice on Sundays for all I care, he won't ever be in a position to enforce the debt, so what next?

Re: Another bailiff discussion thread.

and of courrse again

Recovery of fees for enforcement-related services from the debtor

4. (1) — The enforcement agent may recover from the debtor the fees indicated in the Schedule in accordance with this regulation and regulations 11, 12, 13, 16 and 17, by reference to the stage, or stages, of enforcement for which enforcement-related services have been supplied.(2) The fees referred to in paragraph (1) may be recovered out of proceeds.(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.

[MissFM]

Re: Another bailiff discussion thread.

ME to understand??????????????????????????????

Lets be generous here. Lets say the charges apply 3 weeks before a stage commence

That means for a debt of £500 & a compliance letter, the outstanding sum would be £125 Where do you get that from? I thought it was £75?

The debtor pays the creditor £500 directly.

This is not money taken in the exercise of power because the debtor paid voluntary, not dut to being forced to by any exercise of power.

FM & indeed yourself are/have asked the question that if a letter or a visit has taken place, this act is an exercise of power. Indeed it is but can it be proven that this act actually prompted the debtor to pay? Impossible to do so.

Try to forget about the fees being added at the commencement of a stage, it is only confusing you and, I don't dispute this. The argument is should the creditor be obliged to hand over part of this payment.

I say that because the money was not taken as an exercise of power, then the creditor is not obliged to hand any money over as "proceeds"

I don't argue that the fees then magically disappear, I ask how they will be collected?

Hope this simplifies the matter for you.

AAhhh! Got it. :doh:

You're saying that, even if the fees are legally due as part of the debt the bailiff has no authority to collect under the new legislation if the "debtor" (God, how I hate that word) paid the OC direct minus the collection fees and would have to go to court to get them?

Is that what you mean?

Re: Another bailiff discussion thread.

It is alll clearly laid out in the regulations

http://www.legislation.gov.uk/uksi/2014/1/regulation/5/made

Stages of enforcement for which fees may be recovered – enforcement other than under High Court writs

5. (1) The relevant stages of enforcement under an enforcement power which is not conferred by a High Court writ are as follows—

(a)

the compliance stage, which comprises all activities relating to enforcement from the receipt by the enforcement agent of instructions to use that procedure in relation to a sum to be recovered up to but not including the commencement of the enforcement stage;

As said there is no room for missinterpretation

[MissFM]

Re: Another bailiff discussion thread.

But what Andy is saying is that they should be due from the creditor. ???

If a debtor owed £300 and had a letter and a visit, the total outstanding would be £510. If the debtor was to pay £300 directly to the creditor then £75 of that should go straight to the bailiff. In addition, a percentage (around 25%-30%) of the remainder should also be paid to the bailiff. Bit murky whether it would go straight to the baiiff but it would appear, in those circs. to be legally due (actually £610, by my calculations)

Now if the creditor doesn't pass that onto the bailiff and the bailiff cannot take control of goods, how exactly does he get paid? Andy suggested a begging bowl but I have my doubts that this would be effective. I think Andy might have been making a little joke there

We seem to have a situation here where people are claiming that it is perfectly acceptable for creditors to ignore legislation but if debtors do the same, they are worse than criminals. No-one's suggesting that. We all find it as horrifying as you do - we're just trying to understand what the legislation, fair or unfair, actually means for people facing the consequences. It's not a question of whether it's right or wrong but a question of what it actually entails and how best to help people who are caught up in those consequences

Sorry - crossed with you both (again):fear:

Re: Another bailiff discussion thread.

Why is ths taking so long for you to understand, no seriously.

The act says form the "commencement of the stage", it is not necessary to prove anything if the debtor pays after the stage has begun then he is liable for the fee.

ME to understand??????????????????????????????

Lets be generous here. Lets say the charges apply 3 weeks before a stage commence

That means for a debt of £500 & a compliance letter, the outstanding sum would be £575

The debtor pays the creditor £500 directly.

This is not money taken in the exercise of power because the debtor paid voluntary, not dut to being forced to by any exercise of power.

FM & indeed yourself are/have asked the question that if a letter or a visit has taken place, this act is an exercise of power. Indeed it is but can it be proven that this act actually prompted the debtor to pay? Impossible to do so.

Try to forget about the fees being added at the commencement of a stage, it is only confusing you and, I don't dispute this. The argument is should the creditor be obliged to hand over part of this payment.

I say that because the money was not taken as an exercise of power, then the creditor is not obliged to hand any money over as "proceeds"

I don't argue that the fees then magically disappear, I ask how they will be collected?

Hope this simplifies the matter for you.

[MissFM]

Re: Another bailiff discussion thread.

Impossible to prove that the act of enforcement prompted the debtor to pay the creditor directly. But, as I understand it, irrelevant under the new regs.

Anyway the "may" debate is an interesting one. I actually agree with your interpretation of the use of "may". I think JK summed it up perfectly when he stated that should an action be compulsory/mandatory, then the word "may" would have been replaced by the word "shall" Agree - "may", in that context, means: has authority to do it if they so wish

Bailiff companies use this definition both ways to suit themselves. When a debtor "may" complain to a magistrates court (the now repealed Reg 46), bailiff companies argued that it was mandatory for cases to be decided in a magistrates court. This was because a magistrates court is little more than a kangaroo court & the debtor would have very little chance of success, choosing this route.

When it came to debtors changing an address after a PCN had been issued, the fact that councils or bailiffs "may" seek for the warrant to updated by the TEC was taken to mean that it was a choice. In reality, (I believe), the intention on that particular subject was for the warrant to be updated. Clearly nobody would have bothered if there was a choice in the matter.

Legislation is far from simple as you make out. It is generally very unclear. The fact that you believe you are aware of the intention of the author, makes no difference. If it is not written clearly, it should be open to challenge. Absolutely agree with this - and it must be challenged to the hilt. Proceeds is a classic example of this. The fact that creditors are holding onto money paid direct reinforces this assumption.

Some very good points.

However, I don't think it's kind, or fair, or the purpose of this particular forum to use people in extreme situations to test the law - ie the onus is to give sound, practical counsel that reflects how the system operates in practical terms as things stand now.