Dispute with Bailiff

[nogger]

I need urgent help with the following before the Bailiff comes back to remove goods.

I am currently in dispute with B&S Bailiffs employed by my local authority to recover unpaid council tax. I had agreed with the bailiffs to pay by installments over a 12 month period and duly made these payments. When we requested a statement of account after the 12 month period the debt was still at the original level and only the bailiff fees had been paid. I have issued an SAR to the bailiff and have had a reply giving all the information requested.

The statement of account from the bailiff is missing a lot of payments for which I have bank statements as proof of payment.

It appears that the bailif has "Levied" on items in my garden, i.e. table, chairs, parasol, kids paddling pool & BBQ. I have not previously been given a copy of the levy and have therefore not signed anything.

The bailiff has now attended my property with a view to remove these goods and threatened to enter the house and take other goods, he was turned away, but I am concerned that he may return when I am at work.

So I now have a number of queries: -

Is the Levy legal?
Can they charge me for the Levy?
Can they charge me for the attendance to remove?
Can they enter the house and take goods?
What's my next step regarding the missing payments?

Any assistance would be appreciated.

[TUTTSI]

Re: Dispute with Bailiff

Hi Nogger

These are the charges allowed for the bailiff.

I will let someone more experienced answer your on the rest of your queries.

Council Tax

Fees

For each liability order where no levy is made, £24.50 for the first or only visit and £18 for a second visit can be charged. Despite any further visits, the bailiff is only permitted to charge a maximum of 2 separate visits.

For levying distress, the following fees may be charged (or a lesser amount if that would be reasonable):

£24.50 for the first £100
For the next £400 - 4%
For the next £1,500 - 2.5%
For the next £8,000 - 1%
For any additional sums - 0.25 %

Charges

Walking possession------------------------------ £12.00
Attendance with vehicle/removal/storage ---------Reasonable costs and fees incurred.
Valuation --------------------------------------- Reasonable costs, but no charge can be made unless the debtor has been advised of the charge and the manner of its calculation, beforehand.
Sale --------------------------------------------Reasonable costs and fees incurred.
Where sale does not take place ------------------£20 or actual costs up to 5% of the amount of the liability order (whichever the larger sum).

[Amy]

Re: Dispute with Bailiff

If you have not been left any documents for the levy, then it is not valid. In any case is the value of the goods mentioned enough to clear the debt?

I am guessing not and would appear to suggest that these goods have been levied merely to inflate their fees. Is your garden on the end of a terrace? How did he manage to see into your garden?

You need to write back to the bailiffs and ask why there are payments missing from your SAR and why you were unaware of the levy until you received their letter.

For the collection of council tax, the bailiff must be certificated. Have you checked to see if the bailiff is certificated? Have a read here for further information Bailiff Guide - Legal Beagles Consumer Forum

[nogger]

Re: Dispute with Bailiff

Amy,

I have not been left with any paperwork prior to me requesting the statement and subsequent SAR.

The value of the goods on the levy would not cover the total debt as indicated on the statement.

My house is a semi detached with side access which is blocked at the moment, the goods levied can be viewed from the road leading to our property, I suspect that this is their method of viewing the items listed.

I have checked with the bailiff register and their names are on the list.

As previously stated I was not aware of the levy and have not signed any paperwork, the goods are still in my possession so my understanding is they would have had to get me to sign a Walking Possession Agreement for me to retain the goods, there is no charge shown on their statement for a WPA.

The bailiff has also indicated on their statement that the Initial Debt is £650.00, I have requested clarification of the amount passed on to the bailiff from the Council who have informed me this was £632.43. There is obviously a discrepancy there, I have informed the council of all of these matters and copied them in on all correspondence sent so far together with a letter of complaint about B&S Bailiffs. I have also informed the council in writing that I am no longer happy dealing with the bailiffs as there are too many discrepancies in the statements provided and that I wish to pay any money still owed direct to them. I have also informed them that if they do not accept management of the account, I will set aside all sums agreed to be paid on a monthly basis until such time as they take my account back. I am awaiting a response to this letter from the Council.

The Council have informed me that all bailiff action is on hold until Friday 26th March, I am still concerned that the bailiff can use the existing levy to enter my house and take other goods. As things stand can they take any goods including the items listed on the levy?

Charges shown on the bailiffs statement are: -
1st visit - £22.50
2nd visit - £16.50
Levy - £43.00
Attending with a view to remove goods - £150.00
For every payment made by debit card there is also a transaction fee of 2.5%, (they would not accept payment by standing order).

I will write to the bailiff for clarification on the missing payments and the fact that I was unaware of any levy being carried out. Can you advise on the wording for the section of the letter relating to the so called Levy.

All help and advice is appreciated.

[Amy]

Re: Dispute with Bailiff

As previously stated I was not aware of the levy and have not signed any paperwork, the goods are still in my possession so my understanding is they would have had to get me to sign a Walking Possession Agreement for me to retain the goods, there is no charge shown on their statement for a WPA.

This is correct, for it to be valid you should have signed it. Usually, what a bailiff will do is levy on a vehicle on a driveway and because this causes the maximum amount of inconvenience (which is why it is done) people pay up immediately.

The bailiff has also indicated on their statement that the Initial Debt is £650.00, I have requested clarification of the amount passed on to the bailiff from the Council who have informed me this was £632.43. There is obviously a discrepancy there, I have informed the council of all of these matters and copied them in on all correspondence sent so far together with a letter of complaint about B&S Bailiffs. I have also informed the council in writing that I am no longer happy dealing with the bailiffs as there are too many discrepancies in the statements provided and that I wish to pay any money still owed direct to them. I have also informed them that if they do not accept management of the account, I will set aside all sums agreed to be paid on a monthly basis until such time as they take my account back. I am awaiting a response to this letter from the Council.

Perfect.

The Council have informed me that all bailiff action is on hold until Friday 26th March, I am still concerned that the bailiff can use the existing levy to enter my house and take other goods. As things stand can they take any goods including the items listed on the levy?

They cannot enter your house as they have not previously been allowed entry. You should put the items listed away safely though.

Charges shown on the bailiffs statement are: -
1st visit - £22.50
2nd visit - £16.50
Levy - £43.00
Attending with a view to remove goods - £150.00

The attendance fees must be "reasonable." £150 to attend one property even if you believe they have attended, is not reasonable when a van can be hired for around £40. If they visited you, they did not only visit you, therefore, the cost for this should be shared between all debtors visited. They are not allowed to levy on anything belonging to a child, but as before levying on the items they have is plain silly.

For every payment made by debit card there is also a transaction fee of 2.5%, (they would not accept payment by standing order).

This is your golden egg. Read this thread from post #21 onwards Equita bailiffs Urgent help required!! please - Legal Beagles Consumer Forum and here from post #10 equita backing out of agreement - Legal Beagles Consumer Forum

[nogger]

Re: Dispute with Bailiff

Amy,

Thanks for the quick response.

I have now returned home to find on my doormat the response from the council to my letter of complaint.

In effect the council are standing by the actions of B&S Bailiffs and are backing them 100%.

The council have stated the following: -
Extract from letter
"I am satisfied with the actions taken on our behalf by B&S Bailiff Services, I have no reason to return the case from them, and so you will be required to continue making payments to them as previously agreed.

The other alternative to this is to consider an Attachment of Earnings Order to your employer so that deductions are taken direct from your salary. Regulation 36 of the Council Tax (Administration and Enforcement) Regulations 1992 provides that once a liability order has been obtained, we are able to request certain relevant information from the debtor who will then be under obligation to provide it.

In line with these regulations, I am therefore asking that you provide the following information:
Name and address of your employer and works identity number.
Confirmation as to the level of your earnings or expected earnings
Confirmation of any sources of income other than from your employer.

You are now legally required to provide this information within 14 days, and I must advise you that it will be considered a criminal offence not to supply this information without a valid reason, or knowingly or recklessly provide us with false information."

I have interpreted this as a threat that if I don't comply then they will enforce the Attachment of Earnings Order.

This has obviously annoyed me slightly!!! and I've logged back on to let you know about it.

I then find your "Golden Egg" posting and am intrigued. My payment method was with a Natwest issued Maestro card so I'm assuming that the chargeback option is not available to me.

But the thread copied below:

Section 10 of the Distress for Rent Rules 1988 states:

No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

By charging you £1 in order to "process" the card payment the bailiff has defrauded you under Section 2(1)(b)(i) and Section 4(1)(c)(i) of the Fraud Act 2006.

This will result in the entire sum being credited and, since the council are vicariously liable for the actions of their agents, they too have committed fraud.

Am I correct in interpreting this as meaning that all card payments which included a transaction fee are contrary to the above Fraud Act, even though they are for Council Tax not Rent?

If I cannot charge back because I didn't use a Visa Card am I correct to assume that I can reclaim the "fraudulent" payments back from the Bailiff/Council?

What are the implications to the initial debt if the payments are credited back?

I take note of your other points on your last thread but why beat around the bush when I can go straight for the Jugular.

I look forward to your response.

[Amy]

Re: Dispute with Bailiff

Am I correct in interpreting this as meaning that all card payments which included a transaction fee are contrary to the above Fraud Act, even though they are for Council Tax not Rent?

You are correct. Adding a transaction fee is not a prescribed fee and is therefore fraud.

If I cannot charge back because I didn't use a Visa Card am I correct to assume that I can reclaim the "fraudulent" payments back from the Bailiff/Council?

No. You are able to claim the whole amount paid (once the whole amount is paid). It might be best if you obtain a Subject Access Request and let them hang themselves in writing first.

I take note of your other points on your last thread but why beat around the bush when I can go straight for the Jugular.

Precisely. It won't be easy and they will not just give in - you will have to fight them and the council. If you have in writing the fee you have been charged for paying with a debit card then I would reply to the council letter immediately and ask if they are condoning fraud.

[nogger]

Re: Dispute with Bailiff

Amy,

Once again thanks for the quick response.

I have a copy of the bailiffs response to my Subject Access Request which shows the transaction fees, so they have already given me enough rope........

I have just looked at the Distress for Rent Rules 1988 and note the following extract section 12:

Levy and Removal
12.—(1) Every bailiff levying a distress shall produce his certificate to the tenant if he is present or, in the absence of the tenant, to such other person present as appears to be in control of the premises.

(2) A bailiff levying distress shall deliver to the tenant, or leave on the premises where distress is levied, a memorandum in Form 7 identifying the bailiff and specifying in an Inventory the goods distrained on and setting out the amounts for which the distress is levied and the fees, charges and expenses authorised by these Rules and being actually and necessarily incurred under them.

I had not received a copy of the Inventory prior to my S.A.R. where i requested copies of the Levy and Inventory. They could just say that this was carried out in line with the above, and posted it through my letter box without me signing it. Either way is this a legal Levy?

I have also checked the required information to be included on a Form 7 at The Distress for Rent Rules 1988. This states amongst other things that the form must include the names of all partners / directors, registered office address and company registration number, none of this information is provided on their form.

I want to write a letter to the bailiff today, detailing all the discrepancies in payments, illegal charges etc. I need to be sure that all the facts are included in this letter and that I have covered all the legal (illegal) bits and quote the relevant statutes.

A copy of this letter will be sent to the council along with my response to their letter received yesterday, I will highlight the fraudulent charges made by B&S Bailiffs on their behalf and request a response.

If the bailiff is charging fraudulently then this is a criminal act, what action should I take? Can I start or threaten County Court proceedings against the Bailiff and Council?

Let me make one thing clear in all of this, I do not dispute the fact I owe money to the council and want to pay this debt off as quickly as possible. What I am not prepared to do is line the pockets of an unscrupulous bailiff who uses peoples ignorance of the law to bully them into paying illegal and inflated charges.

I look forward to your response.

[Amy]

Re: Dispute with Bailiff

I had not received a copy of the Inventory prior to my S.A.R. where i requested copies of the Levy and Inventory. They could just say that this was carried out in line with the above, and posted it through my letter box without me signing it. Either way is this a legal Levy?

This tends to be a grey area, which is how they can levy on cars. However, they should have left you the paperwork and I would argue that in order for them to be able to remove the goods, then yes, the levy would need to be signed. So:

1. The goods that were levied on were nowhere near enough to clear the debt
2. The only possible conclusion to be drawn from this can be their intention to inflate fees, which they are expressly forbidden from doing.

I want to write a letter to the bailiff today, detailing all the discrepancies in payments, illegal charges etc. I need to be sure that all the facts are included in this letter and that I have covered all the legal (illegal) bits and quote the relevant statutes.

Excellent. Post up a draft if you need any help and we can take a look for you.

If the bailiff is charging fraudulently then this is a criminal act, what action should I take? Can I start or threaten County Court proceedings against the Bailiff and Council?

There is no doubt, they are charging you fraudulently. Yes, you should threaten them with a Form 4 complaint (details of how to do and the consequences of a successful Form 4 complaint, can be found in the bailiff guide) but you need to give them an opportunity to sort it out before you start court action.

[nogger]

Re: Dispute with Bailiff

Amy,

Thanks for all your help so far.

Below is a draft letter to be sent to the Bailiffs, can you take a look at it for me?

Dear Sirs,

Ref: ****

I am writing concerning the above unpaid Council Tax and your recent response to my Subject Access Request.

I would like to take this opportunity to point out the discrepancies I have identified between my records and the information you have provided in the S.A.R.:

• I am unable to find the following Card Payments made either directly by me or indirectly through a family member:
  • 23/05/08, sum of £102.50
  • 24/06/08, sum of £102.50
  • 01/10/08, sum of £205.00
  • 26/11/08, sum of £102.50

Bank statements as proof of payment are attached for your information.

• You have stated that you have attended the property on the 10/1/2008 and 12/08/2008 to Levy Distress and on both these dates no one was at home. Please explain why the first indication that you have levied goods at my property is when I have requested copies of the Levy in the Subject Access Request?

• In order for you to levy on goods you must gain peaceful entry to the property, you cannot levy on goods which are visible through a window or over a boundary wall in a garden. You have at no point gained peaceful entry into the property and therefore the Levy is Illegal.

• The goods listed on your Notice of Distress & Inventory (provided in response to my S.A.R.) include items which obviously belong to children namely Garden Pool, which is not allowed and therefore the Levy is Illegal.

• The value of the goods levied is nowhere near enough to clear the debt, the only conclusion I can draw from this is that you have intentionally levied to inflate your fees which is expressly forbidden.

• The goods listed in the levy are in my possession and without a legal signed Levy or Walking Possession Agreement remain my property.

• I note that your Notice of Distress & Inventory does not include the following information required under Statutory Instrument 1988 No.2050 (L.25) Distress for Rent Rules:
  • The Names of all Partners and/or Directors of the Company.
  • The Companies Registered Address.
  • The Company Registration Number.

• You have charged £150.00 for Attending with a View to Remove on each account; these charges are unreasonable and disproportionate to the cost of van hire locally. I have enclosed a copy quote for hire of a Transit Connect for one day which indicates an appropriate level of charge. I can also assume that your Bailiff made other calls during the day as you have quoted in the S.A.R. response that “Our Bailiff drove around the area in a white transit connect van at all times, unfortunately we cannot give you the precise time of the call” the cost of the van hire must be reasonably split between each of these calls.

• You have indicated in your response to the Subject Access Request that you have charged Card Transaction Fees for all debit card payments made on these accounts.

I must inform you that Section 10 of the Distress for Rent Rules 1988 states:

No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

By charging me a 2.5% Card Transaction Fee you have defrauded me under Section 2(1)(b)(i) and Section 4(1)(c)(i) of the Fraud Act 2006 and risks a criminal record which ultimately revokes a bailiff’s certificate. Your company director may also be criminally liable for Assisting an Offender by receiving or benefiting from the proceeds of a money transfer originating from crime.

For the avoidance of doubt, that in your failure to furnish me with a satisfactory response within seven days, I will automatically file at the bailiffs certificating court a Form 4 complaint on the grounds of abusing his position of trust and defrauding me with fees not prescribed in law. If you wish to start an investigation of your own, please be advised that in the absence of a response this doesn't delay proceedings or filing a criminal complaint with a police authority.

This document is a notice of proceedings and is delivered by Royal Mail and I deem it to be served on you by the ordinary course of post in the meaning of Section 7 of the Interpretation Act 1978 and therefore your responsibility and in your own interests this letter is handed to the relevant person within your organisation, and I regret I am unable to discuss this matter by telephone or in person as I am acting under legal advice.

A copy of this letter is being sent to the council and I am requesting that it be filed with my account for further reference.

Yours faithfully,
*****

What do you think?

[Amy]

Re: Dispute with Bailiff

I think it is excellent.

A few points though;

(a) You should add how much you have paid and how much they say you still owe.

(b) Your third bullet point is not correct. They can levy on goods outside the home, for example a car or in your case garden items.

(c) With regard to your penultimate paragraph you will need some sort of proof that you have posted the letter and a free certificate of posting from the Post Office is sufficient - so mention this in this paragraph.

(d) The only other thing I would do is, in addition to copying the council in on this letter is, using this one as your template, turn it around and send it to the council as they are every bit as liable since they employ these bailiffs and appear happy to allow them to do as they please.

[nogger]

Re: Dispute with Bailiff

Amy,

Ok, If I re-word bullet point 3 to read:

In order for you to levy on goods you must gain peaceful entry to the property, you have at no point done this and therefore the Levy is Illegal

How's that?

[Amy]

Re: Dispute with Bailiff

No, because they can levy on goods that are outside. I think you should leave that bit out.

[nogger]

Re: Dispute with Bailiff

Hi Amy,

Recommended changes have been made to the bailiff letter.

Please see draft letter to Council below, can you check this one over?



Re: Council Tax Reference: *******


Further References: My letter dated **** regarding the above Council Tax Accounts and your subsequent response letter dated ****


I have enclosed with this correspondence a copy of a letter posted today to [Bailiff], also enclosed is all documentary evidence referred to in the letter and copies of statements provided by [Bailiff].


In response to your letter I must make the following points in the order raised in your letter

1. [Bailiff] are obviously not aware of what they can legally charge, I have clearly demonstrated this in the enclosed letter.

1. Fees incurred by the actions of [Bailiff] are excessive and in part Illegal.

1. At the time of writing my letter dated 5th March I was awaiting a response from [Bailiff] to my Subject Access Request, I was therefore not in a position to fully furnish all evidence relating to discrepancies in payments made. I am now in receipt of all evidence and have detailed the discrepancies below:

I am unable to find the following Card Payments made either directly by me or indirectly through a family member:

1. 1. 23/05/08, sum of £**.**
   2. 24/06/08, sum of £**.**
   3. 01/10/08, sum of £**.**
   4. 26/11/08, sum of £**.**

Bank statements as proof of payment are enclosed for your information.


By my calculation I have made payments totalling £**.** on these accounts yet [Bailiff] say I still owe the sum of £**.** when the initial debts totalled £**.**.

1. You have stated that you are “fully satisfied with the actions of your bailiff and that any fees incurred by [Bailiff] are valid and have been incurred in line with legislation”

I have clearly demonstrated that [Bailiff] have levied illegally, charged fees illegally and employ procedures and tactics which allow them to inflate their fees to maximise their profits. I can only assume that you were fully aware of the methods employed by your bailiff to have defended their actions so strongly in your letter.

1. Employment details will follow in due course, I hereby request the relevant documentation is issued to enable me to submit a Means Test prior to any Attachment of Earnings Order being enforced.

1. I accept that the debt is a result of my previous failure to make the necessary payments direct to the council in line with my statutory demand notice. Although I must point out that I am under no obligation to deal with your appointed bailiff as the debt is with you and not them and I have not refused to make any payments due under the agreed instalment plan.

Please provide me with copies of the Liability Orders/Warrant of Execution relating to the two referenced accounts.


[Bailiff] have indicated in their response to the Subject Access Request that they have charged Card Transaction Fees for all debit card payments made on these accounts.


I must inform you that Section 10 of the Distress for Rent Rules 1988 states:

No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

By charging me a 2.5% Card Transaction Fee [Bailiff] have defrauded me under Section 2(1)(b)(i) and Section 4(1)(c)(i) of the Fraud Act 2006 and risk a criminal record which ultimately revokes a bailiff’s certificate. [Council] and it's Executive Officers may also be criminally liable for Assisting an Offender by receiving or benefiting from the proceeds of a money transfer originating from crime.


For the avoidance of doubt, that in your failure to furnish me with a satisfactory response within seven days, I will automatically file a complaint with the ombudsman If you wish to start an investigation of your own, please be advised that in the absence of a response this doesn't delay proceedings or filing a criminal complaint with a police authority.


This document is a notice of proceedings and is delivered by Royal Mail Recorded Delivery and I deem it to be served on you by the ordinary course of post in the meaning of Section 7 of the Interpretation Act 1978 and therefore your responsibility and in your own interests this letter is handed to the relevant person within your organisation, and I regret I am unable to discuss this matter by telephone or in person as I am acting under legal advice.

What are your thoughts on this one?

[Amy]

Re: Dispute with Bailiff

Erm, this is a bit "templaty" and devoid of detail.

You really need to stress the point that the council are equally as culpable as the bailiffs for this situation and that they cannot just absolve themselves of all responsibility. They employ them, they must do something about it.