HOW NOT TO DO IT
Newlyweds Gary and Kirsty O'Boyle were still
settling into their new home when bailiffs broke
in, stole their belongings and changed the locks.
The front door was sealed up and a "No
Entry" sign stuck on it. But the bailiffs,
sent out by Halifax Bank, had got the wrong
couple.
They were chasing the previous owner of the
house, who had built up massive debts. He had
already moved out when Gary and Kirsty bought
their house for £103,000 and moved in.
When the bailiffs called and nobody answered, the
couple were both at work, they assumed the debtor
was out and broke in to seal the house off. The
couple have had no apology from Halifax, who are
still investigating the error. (Source: Sunday Mirror, Feb/07) |
HALIFAX
HIT
Bailiffs entered the Halifax bank headquarters
carrying a court order demanding the repayment of
a customer's overdraft charges. The officials
have the power to seize computers, chairs and
other goods unless the bank pays the money,
£1,900, or decides to fight the claim.
The bailiffs were acting on behalf of Paula and
Darren Share, from Clifton, Manchester, who have
been claiming a total of £4,900 from the
Halifax. The bank paid up £3,000 but disputed
the remaining £1,900.
However, the bank failed to defend the claim made
by the Shares when it went before a county court
judge and so was automatically ordered to pay up.
The Shares used a company called Charge Claims,
which is being paid 40% of the refund, which
could end up at almost £2,000. The consumer
group Which? has questioned the need for these
companies and points out that it is very easy for
individuals to make their own refund claims.
A Halifax spokesman said the bank had not known
about the court order until it was delivered and
said the bank would be looking at the situation
before deciding whether to challenge it or pay
up.
Later, the Halifax claimed the court order had
been rescinded by the court because of a
procedural problem but this was denied by Charge
Claims. The Halifax made profits of £5.7 billion
in 2006. (Source: Mail on Sunday, Apr/07) |
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BAILIFFS
If a person fails to
settle a debt, as a last resort a court can send a
bailiff in to seize the debtor's possessions. Generally
bailiffs cannot break into domestic premises. Bailiffs
acting on behalf of the Inland Revenue or Customs and
Excise can get permission to break into a home, but other
bailiffs have to gain what is called 'peaceful' entry.
This means that if required they can climb over a fence
or gate, go in through an unlocked door or climb in
through an open window. All bailiffs can break into
non-domestic premises (that is premises with no living
accommodation), which include not only commercial
property but also garages and sheds not attached to a
house.
Different Types of Bailiff and Types of Debt they
collect
The main purpose of the bailiff is the
collection of debt. Their only means of enforcement is
the legal authority to seize and sell goods to pay off a
debt. However goods are rarely removed, the threat of
seizure is usually sufficient to make people pay. There
are two main types of bailiff:
County
Court Bailiffs
They are employees of the County Court, and
enforce County Court Judgements. These are usually
for consumer credit debts such as bank loans.
Private Bailiffs
They are private firms used by the
Magistrates Court to collect fines, and by local
Councils (once they have obtained a Liability Order
from the Magistrates Court) to collect Council Tax
and Community Charge.
Contact
and Identification
The bailiff must carry an identity card and show
it on request.
County Court Judgement debts, council tax, community
charge and fines can be collected anywhere in England and
Wales.
County Court Judgement debts and fines can be collected
at any time of the day.
Council tax and community charge should only be collected
between 8.00am - 6.00pm Monday to Saturday, unless there
are exceptional circumstances.
The Bailiffs Rights of Entry
The Bailiff cannot force entry into a domestic
property. The bailiff can walk through an open door,
climb over a garden wall, enter through an unlocked door
or climb through an open window.
The Bailiff can force entry and seize goods if a debtor
defaults on a Walking Possession Agreement.A Walking
Possession Agreement can only be made after peaceful
entry.
Walking Possession Agreement
This is an agreement signed by the debtor which
allows the goods to remain with the debtor as long as
they keep to a payment arrangement. However if the debtor
defaults on a payment arrangement the bailiff can return,
force entry, and seize the goods.
Goods, which can be seized
The bailiff can only seize goods which belong to
the debtor. However, the bailiff can seize goods, which
are jointly owned even if the other joint owner is not
the debtor.
Goods which cannot be seized
The bailiff cannot seize the following:
* Goods which belong to another person
* Fixtures and fittings
* Goods on hire-purchase
* Goods which are rented
If the
bailiff is collecting a County Court Judgement debt,
Council Tax, or Community Charge the following goods
cannot be seized:
"Such
clothing, bedding, furniture, household equipment or
provisions as are necessary for satisfying the basic
domestic needs of the debtor and his / her
family."
"Such tools, books, vehicles, and other items of
employment as are necessary to the debtor for use
personally in their employment, business and
vocation."
If the
Bailiff is collecting a Fine the following goods cannot
be seized:
"The
clothes and bedding of the debtor and his/her family.
The tools and implements of the debtor's trade."
Costs
and Fees
The costs and fees charged by the Bailiff depend upon the
type of debt. County Court Judgement No charges for
signing a walking possession agreement. A fee for the
issue of a warrant to seize goods. The creditor pays the
fee and it is added to the debt. The amount depends upon
whether the judgement is from a normal county court or a
bulk centre county court.
Amount of Debt
County Court £125 or less: £15-£20
more than £125: £35-£40
Council Tax and Community Charge, the Bailiff visits the
premises but does not gain entry:
1st visit
- £20
2nd visit - £15
The Bailiff
gains entry, lists and takes "possession" of
the goods (the goods are not necessarily removed):
Debt less
than £100: £20
Debt more than £100:
20% of first £100
4% of the next £400
2% of the next £1500
The bailiff
makes one attendance with a vehicle and intends to remove
goods (where the bailiff has previously gained entry,
listed, taken "possession" but not removed the
goods):
Reasonable costs and fees: Around £50.
Payment Arrangements
The type of payment arrangement depends upon the type of
debt:
County Court Judgements The debtor can apply on form N245
to suspend the warrant to seize goods and to make an
offer of payment that the debtor can afford. The form
lists details of their income, expenditure, debts, and
the offer of payment.
The bailiff will not take any further action once the
debtor has applied on the form N245 and sent it to the
court.
There is a fee of £10.00. The debtor can apply on form
EX160 for exemption from the fee if they are on Income
Support, IBJSA, Family Credit or DWA, or remission if
they are on a low income.
Council Tax and Community Charge The bailiff will
normally want the debt cleared within 13 weeks.
The bailiff will normally accept £5.00 per week minimum
if there are special circumstances and the Council
agrees.
Fines The bailiff will normally want the debt cleared
within 28 days. There is no provision for longer payment
arrangements.
Ask for the Bailiff Not to be Used
It may be possible to get the bailiff withdrawn if there
are Special Circumstances. The debtor should contact:
the
creditor if they have a County Court Judgement;
or the Council if they owe Council Tax or Community
Charge;
or the Magistrates Court if they owe a fine;
and inform
them of any Special Circumstances, ask for the bailiff
not to be used, and if it is possible to make a new
payment arrangement.
Special Circumstances are usually defined as:
Serious illness, mental impairment, learning
difficulties, physical disability, long term sickness,
unemployment, recent bereavement, severe financial
difficulties.
Refusing Entry
If the bailiff has not previously gained peaceful entry
the debtor can refuse entry. The bailiff cannot force
entry. The bailiff will normally return to try to make
contact and gain entry. However, if the warrant to seize
goods cannot be enforced, the next course of action will
depend upon the type of debt:
County Court Judgements
The warrant will be returned to the county
court. The creditor must decide whether or not it is
cost-effective to ask the bailiff to visit again.
Council Tax and Community Charge The warrant will be
returned to the Council Revenues who will decide to take
one of the following courses of action:
Committal proceedings
The debtor will be summonsed to the magistrates
court for a means enquiry to decide how much the debtor
can pay and/or whether or not they should be imprisoned.
Attachment
of Earnings Order
If Revenues Office have details of the debtors
employment they may ask for a deduction from the
wages of the debtor.
Payment arrangement
If there are special circumstances a new payment
arrangement may be agreed.
Fines
The warrant will be returned to the magistrates court
and committal proceedings will be commenced.
The debtor
will be summonsed to the magistrates court for a means
enquiry to decide how much the debtor can pay and/or
whether or not they should be imprisoned.
Complaints and Legal Action Against the Bailiff
The bailiff may have committed an offence such as:
Illegal entry
charged wrong costs and fees seized goods which
are exempt or belong to another person
failed to provide the correct documents or obtained an
invalid walking possession agreement
sold goods below their market value seized goods which
are worth far more than the debt
Complaints
Complaints about the actions of a bailiff should
be made to the firm of the bailiff and the legal body or
authority who employ or use the bailiff.
County Court Bailiffs
Complaints should be made to the Chief Clerk of
the County Court.
Private Bailiffs who collect Fines
Complaints should be made to the Clerk of the
Justices of the Magistrates' Court.
Private Bailiffs who collect Council Tax, etc
Complaints should be made to your local city
Council.
Legal Action
If a debtor wants to take legal action against a
bailiff they should seek legal advice from a solicitor.
The bailiff removes and stores goods: reasonable costs
and fees.
The bailiff takes walking possession of the goods (the
debtor has signed a walking possession agreement):
£10.00.
Fines - there is no proper regulation of the bailiff's
charges, except that they are reasonable and not
disproportionate to the size of the debt.
(Source: Debt Help UK)
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