Another bailiff discussion thread.

[Guest]

Re: Another bailiff discussion thread.

Ah, yes... HCEOs, the resident bailiff who only sees it from a typical bailiff's view. Seems to be a view you take, always arguing the case for the bailiff, always interpretating things that benefit only the bailiff.

If you expect me to trawl through 100+ posts from talks sense, then you obviously feel I have enough free time as yourself. Be careful you don't get a callus on your bum.

Accept that a bailiff can only get paid if he actually recovers anything, not for just knocking on your door.

I feel we are drifitng off a it into the reals of fantasy here now, talk sense has 104 posts over there most of which I am aware of, having participated in the various threads myself, I do not recall him mentioning this issue, IMO he is not the most knowledgeable of posters in any case and has been proven to be mistaken on almost every account, I find it odd that you should be using his posts as authority and not HCEO as , I am sure you know he is (or says he is) a bailiff himself

[doubleslap2]

Re: Another bailiff discussion thread.

Hmmm, I wonder if it would be easy to see which poster you are?

Oh of course, it'll be the one always siding with the bailiff.

[MissFM]

Re: Another bailiff discussion thread.

....siding with the bailiff.

It's incredibly frustrating for those of us trying to understand how the new legislation works in practice that, should the clarification be unpalatable, the messenger is then shot for the above offense.:nono:

In DS2's example

Let me give an example - a debtor receives notice from the bailiff, just a letter, outlining the debt, saying they will call on the 20th. The letter arrives early on the 20th (not an unusual tactic), and the debtor pays the creditor online the debt that is owed including any court costs the creditor had incurred.

2 hours later, the bailiff knocks, and has now charged his £235 fee. Would you pay it?

The common sense p-of-v would appear to be that, had the payment included the £75 first stage fee (ie original debt + costs including kosher bailiff fees), then the bailiff shouldn't call and the £235 isn't due.

If, however, only the original debt was paid without including the £75, then the visit is both legitimate and inevitable and the £235 second stage is due.

Is this anywhere near how it actually applies in practice?:noidea:

[Guest]

Re: Another bailiff discussion thread.

It is equally offensive when the clarification is leaning towards the other side of the argument, to be called a FMOTL or have references made to other message boards that the clique don't approve of.

The definition of "proceeds" can be clarified by referring to regulation 2 of the TCG (fees) Regs 2014 which states:

“proceeds” has the meaning given by paragraph 50(2) of Schedule 12;

Paragraph 50(2) states:

(2)Proceeds are any of these—(a)proceeds of sale or disposal of controlled goods;
(b)money taken in exercise of the power, if paragraph 37(1) does not apply to it.

It should be noted from the above that "proceeds is defined by 50(2) and not 50 in its entirety as suggested earlier.

There may well have been an intention to ensure bailiff fees are covered no matter what. The definition given though, leaves a gaping (dare I say it?) loophole to be explored. Simply turning up in court & telling the judge that the MOJ's/Parliments intention was to cover bailiff fees, no matter what, will not get you very far.

I would also point out that in the majority of cases, debtors do not have the luxury of choice of paying the creditor in full. It is exactly this lack of funds that will have found the debtor facing enforcement in the first place. As usual, Andy has jumped the gun & automatically thought that the mere mention of the word "proceeds" means that people are looking for ways to avoid enforcement fees. I would be interested in who the bailiff would visit to enforce for his fees, after all, if the creditor hasn't given the bailiff his share of proceeds, then the creditor owes the money. There would certainly be red tape to go through in order to establish who was liable for the balance or at least .

My feeling is that the license to recover for fees is also subjective. Ultimately, I can't see it making much difference either way. The type of person paying the creditor directly will be the person wanting to avoid bailiff fees. He will ensure that goods are not available for a bailiff to take control of, should the bailiff return.

As I posted yesterday, I've yet to read of a debtor paying fees when the creditor has been paid directly.

[MissFM]

Re: Another bailiff discussion thread.

I can't thank your post because I don't like you being rude to Andy - but I do thank you for the other parts and for trying to clarify your understanding of the law and its application.

I completely agree with what you say re both the morality and the efficacy of trying to extract even more money from those who can't pay in the first place. FWIW.

Your comments are also very relevant concerning the gap between the intention behind the legislation and its application. It does seem that further "road testing" is needed but since this involves actual lives being potentially ruined there is a huge onus to get any advice right for the desperate when they ask for help.

Speaking as the classic lay person - it really would be so appreciated if you all contributed your knowledge to debate in a dispassionate way.

With respect :yo:

[Guest]

Re: Another bailiff discussion thread.

I can't thank your post because I don't like you being rude to Andy - but I do thank you for the other parts and for trying to clarify your understanding of the law and its application.

I completely agree with what you say re both the morality and the efficacy of trying to extract even more money from those who can't pay in the first place. FWIW.

Your comments are also very relevant concerning the gap between the intention behind the legislation and its application. It does seem that further "road testing" is needed but since this involves actual lives being potentially ruined there is a huge onus to get any advice right for the desperate when they ask for help.

Speaking as the classic lay person - it really would be so appreciated if you all contributed your knowledge to debate in a dispassionate way.

With respect :yo:

With regards your question on the other thread, it would indeed be possible (& likely) that an act of enforcement has prompted the debtor to pay. In a court of law though, facts are required, not assumptions. it would be impossible to prove that a debtor was prompted to pay by compliance or enforcement stages.

[Guest]

Re: Another bailiff discussion thread.

no you have it Right Miss Fm

Section 50 defines proceeds as being the amount recovered from the debtor this single sum is then used to pay all parts of the debt included in the next subsection, amount, this details contains the sum of the debts under the warrant and the fees, . Quite simple and straight forward and really no room for misinterpretation. The section has been written to avoid any loopholes and does so very well, there is I repeat no room for misinterpretation.

If an enforcement stage has commenced then the fee is due under section 50 via section 62, then it will be accessible as from the proceeds recovered, as said simple and straightforward.



As you say if some do not like it they should see their MP and see if they can table an amendment, because as it stands this is how it works.

[MissFM]

Re: Another bailiff discussion thread.

With regards your question on the other thread, it would indeed be possible (& likely) that an act of enforcement has prompted the debtor to pay. In a court of law though, facts are required, not assumptions. it would be impossible to prove that a debtor was prompted to pay by compliance or enforcement stages.

Agree and disagree - because to me it looks as if the new regs. say that once the debt has been passed to the bailiff to enforce (and the "debtor" informed of that fact) the £75 is due (ie adds to the total due) .

The same for the next stage - once it is in train, the fees would appear to be due, even if the enforcement is not complete.

I'm quite happy to be corrected on this, by the way.

[Guest]

Re: Another bailiff discussion thread.

With regards your question on the other thread, it would indeed be possible (& likely) that an act of enforcement has prompted the debtor to pay. In a court of law though, facts are required, not assumptions. it would be impossible to prove that a debtor was prompted to pay by compliance or enforcement stages.

Impossible to find out when an account was passed for enforcement to a bailiff, why ? because this would be all that it would be needed to show, as said(again) the fee is due from the start of the particular stage. ?

[Guest]

Re: Another bailiff discussion thread.

Agree and disagree - because to me it looks as if the new regs. say that once the debt has been passed to the bailiff to enforce (and the "debtor" informed of that fact) the £75 is due (ie becomes part of the total due) .

The same for the next stage - once it is in train, the fees would appear to be due, even if the enforcement is not complete.

I'm quite happy to be corrected on this, by the way.

NO you have it absolutely correct, it is quite simple , some are seeking to complicate it in order to create a loop[hole where none exists this is all that is happening.

[Guest]

Re: Another bailiff discussion thread.

Incidental this is why there are stages, it was mentioned when the act was going through the house that the debtor should be given chance to remedy and avoid costs by staging the enforcement process, I think it was Mr Mitchell who raise the point. It will be in the Hansarrd

[Guest]

Re: Another bailiff discussion thread.

Impossible to prove that the act of enforcement prompted the debtor to pay the creditor directly.

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"

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. Proceeds is a classic example of this. The fact that creditors are holding onto money paid direct reinforces this assumption.

[Guest]

Re: Another bailiff discussion thread.

Impossible to prove that the act of enforcement prompted the debtor to pay the creditor directly.

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.

[Guest]

Re: Another bailiff discussion thread.

Agree and disagree - because to me it looks as if the new regs. say that once the debt has been passed to the bailiff to enforce (and the "debtor" informed of that fact) the £75 is due (ie adds to the total due) .

The same for the next stage - once it is in train, the fees would appear to be due, even if the enforcement is not complete.

I'm quite happy to be corrected on this, by the way.

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.

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.

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.

[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.