HCEO - onus of ownership proof? Affadavit?

[Hheyes]

I have a debt for which I received a CCJ 3-4 years ago, of an amount sufficiently high to enable enforcement by HCEO rather than County Court Bailiff.

I haven't been too bothered about it until now, because the creditor hasn't tried to enforce. However, as the creditor died earlier this year I'm concerned that the executor of the estate may try to enforce.

Having long-since sold (not to avoid seizure, simply to help cover essential bills) anything of value belonging to me, my concern is that a HCEO may try to sieze/take walking possession of items belonging to my adult son with whom I live.

To prevent/reduce the possibility of this, I'm wondering whether it's advisable for my son to swear an affadavit/statutory declaration (to the effect that 'this, this, this, etcetera' belong to him and not me) before any visit - or whether an inflexible HCEO may still seize anyway and say 'prove it'.

Ownership of some things can be proven, but not so with others - example, used guitars which were bought from individuals and for which there's no receipt. (There's also another here, on loan from a friend.)

[ploddertom]

Re: HCEO - onus of ownership proof? Affadavit?

First of all the officer has to gain access to view/sieze/take control of the items in question and I assume you will not be inviting him in. he has no automatic right of entry and must write to you giving 7 clear days notice of his intention to visit should you not contact him.

[Hheyes]

Re: HCEO - onus of ownership proof? Affadavit?

First of all the officer has to gain access to view/sieze/take control of the items in question and I assume you will not be inviting him in. he has no automatic right of entry and must write to you giving 7 clear days notice of his intention to visit should you not contact him.

Thanks.

There's too many instances where entry can be gained, including a door left open while younger grandchildren are visiting, hence my desire to think ahead.

My understanding is that if a CCJ is transferred to the High Court there's no prior notice of enforcement visit.

[des8]

Re: HCEO - onus of ownership proof? Affadavit?

Following the implementation of the Tribunals Court Act 2007 on 6th April 2014 following the Writ of Control being obtained by the HCEO, the EA is no longer able to attend a debtor's property unannounced. Instead, they have to first send a Notice of Intention to the debtor. This Notice gives the debtor 7 clear days written notice before the EA's first attendance at the debtor's property, so it is estimated that this first attendance will be no earlier than 13 days after the Writ of Control is obtained. This Notice allows the debtor to make contact with the EA within this 7 day period to make payment, or alternatively to discuss a repayment arrangement. If payment is agreed at this stage, the Debtor will only be liable to pay the HCEO an additional 'compliance fee' of £75 plus VAT.

[Hheyes]

Re: HCEO - onus of ownership proof? Affadavit?

Following the implementation of the Tribunals Court Act 2007 on 6th April 2014 following the Writ of Control being obtained by the HCEO, the EA is no longer able to attend a debtor's property unannounced. Instead, they have to first send a Notice of Intention to the debtor.

Thanks - I didn't know... I'd first become aware of the whole HCEO thing from the daft BBC programme, and on a search earlier today I read 'no need to give prior notice to the judgment debtor that a Writ has been issued' and understood that to be 'just like on the telly - they turn up unannounced'.

After a further search I can now see that various changes have been made, which appear to make the process fairer for the debtor.

I'm wondering about one thing I read: 'Third Party Claims - it is now a requirement for a third party to make an application to court claiming ownership of goods, rather than the HCEO on behalf of the Claimant. At the same time, the third party will need to pay the costs of any application, and may also be required to deposit funds equal to the value of the goods with the Court.'

Does this mean that if an EA seizes goods which they think belong to the debtor but which are actually owned by someone else,then that person has to apply to the court and prove ownership? And, if so, is a previously-sworn statutory declaration no longer enough to stop EA seizure?

[des8]

Re: HCEO - onus of ownership proof? Affadavit?

you;re welcome.
Even "writ of Fi Fa has changed to Writ of Control. Most confusing if one reads sites written before the changes.

[Hheyes]

Re: HCEO - onus of ownership proof? Affadavit?

you;re welcome.
Even "writ of Fi Fa has changed to Writ of Control. Most confusing if one reads sites written before the changes.

Yeah - I noticed the name changes. And there seem to be a good few sites (lawyers and HCEO members, rather than forums) which have the old info.

[des8]

Re: HCEO - onus of ownership proof? Affadavit?

HCEOs should not take goods that belong to other people. If theythreaten to do this, explain that the goods do not belong to you.
Show a receipt or credit agreement as proof.
If there is no receipt, a sworn ‘statutory declaration’ SHOULD suffice/
BUT if an HCEO takes goods belonging to a third party, the third party should write to the HCEO to show that they own the
goods. The HCEO should pass this information onto the creditor. The creditor should then decide whether to accept or
reject the third party's claim. If the creditor rejects it, the third party can apply to court to get the goods back. However,
they will need to pay the court a deposit. The size of the deposit depends on the value of the goods that have been taken.

Altogether best to remove items of value that belong to your son in advance, and don't forget the car outside!

[Hheyes]

Re: HCEO - onus of ownership proof? Affadavit?

HCEOs should not take goods that belong to other people. If theythreaten to do this, explain that the goods do not belong to you.
Show a receipt or credit agreement as proof.
If there is no receipt, a sworn ‘statutory declaration’ SHOULD suffice/
BUT if an HCEO takes goods belonging to a third party, the third party should write to the HCEO to show that they own the
goods. The HCEO should pass this information onto the creditor. The creditor should then decide whether to accept or
reject the third party's claim. If the creditor rejects it, the third party can apply to court to get the goods back. However,
they will need to pay the court a deposit. The size of the deposit depends on the value of the goods that have been taken.
Altogether best to remove items of value that belong to your son in advance, and don't forget the car outside!

Thanks. That clarifies.

So, if I've understood everything correctly...

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EAs have to give 7 days notice prior to first visit.

They can open and enter through an unlocked door.

They may usually not take control or remove items on first visit - but they can.

Taking control of 'protected/exempt' goods shouldn't happen, but does.

Providing the EA with a Statutory Declaration before and on the visit may stop them taking control/removing goods. A Stat Declaration pre-sworn in advance of proceedings may be better than one sworn after notice/visit.

If EAs do remove 'protected' goods the onus is on the owner to prove ownership, through Court proceedings which likely require them to lodge a deposit equal to the value of the disputed goods.

-------------------------------------------------------

Although the requirement to provide notice before a visit is a change in favour of Debtors, two changes here seem to skew the process toward the advantage of the EA - the ability to open and enter through an unlocked door, and the revised proof of ownership required where protected goods have been removed.

[des8]

Re: HCEO - onus of ownership proof? Affadavit?

I think your understanding regarding the current situation is correct, but there are others on this site whose knowledge of EAs is far superior to mine, and I'm sure they'll be along to correct us if we're wrong.

The EA (previously HCEO) has always been able to enter through an unlocked door, the change being he may not enter through an unlocked window (but I wouldn't necessarily trust to them following the new regs.
If third party goods are taken the size of the deposit (if any) required will depend on the values involved. I think this part(&this is only my opinion) will evolve as time goes on.

[Hheyes]

Re: HCEO - onus of ownership proof? Affadavit?

The EA (previously HCEO) has always been able to enter through an unlocked door.

Thanks for correcting me - read so much I'm losing the plot. :-)

[ploddertom]

Re: HCEO - onus of ownership proof? Affadavit?

To be honest trying to guesss at what may happen is pointless. Until something happens and you see what direction they are taking will dictate the action you need to take. First step should be to establish exactly what date the original CCJ was awarded, any enforcement action they decide to take also has a financial consideration for the Claimant who has to pay first. Using HCEO's is one of a long line of different actions they can take.

[Hheyes]

Re: HCEO - onus of ownership proof? Affadavit?

To be honest trying to guesss at what may happen is pointless. Until something happens and you see what direction they are taking will dictate the action you need to take.

I'm not trying to guess - simply prepare for a situation which may happen, and do what may be worthwhile.

First step should be to establish exactly what date the original CCJ was awarded, any enforcement action they decide to take also has a financial consideration for the Claimant who has to pay first. Using HCEO's is one of a long line of different actions they can take.

I don't see how the date is relevant... surely it'll always be enforceable, albeit eventually perhaps not without prior consent of the Court.

...any enforcement action they decide to take also has a financial consideration for the Claimant who has to pay first. Using HCEO's is one of a long line of different actions they can take.

Agreed - and as the initial costs to the creditor are relatively small, and it's faster and often more effective than some other options, it's often a preferred one.