Claim issued against bailiff..now Defendant makes application to Strike Out/Summary judgment

[Teamva]

Hoping someone can help me with this - seem to be hitting a few brick walls trying to find out correct information myself. (please be nice, I'm a newbie!!)

 

My partner had a judgement order to pay his ex's court fees of £5,500. This was due early October 2013. As a single dad on a low income he did offer in October to pay £100 per month but this was rejected. The next he heard was when the bailiffs came knocking at the door.

 

They claimed they could seize and remove his minibus, and called for a tow truck. I asked what needed to be done to to stop them removing the vehicle, to which I was told the debt had to be paid, I informed them the debt could not be paid in full (they had added charges bringing the total to approx £7816.61) but agreed to make a part payment until I had got some advice. I paid £3,000 on my credit card. It was only after I had made a payment that they would let me read the paperwork inside (it was dark outside at the time) and we discovered that the mini bus was in fact a protected good as tools of the trade, they were therefore not entitled to remove it, and I felt they had obtained the payment through misrepresentation and under duress.

 

The following morning I contacted the bailiff to request a breakdown of the charges, a copy of the writ and request my £3000 back as they had taken a payment under false pretense.

 

They still have not provided a copy of the writ or breakdown of the charge and claimed that the mini bus was not exempt as they believed it was being used for personal use - its an 18 seater VOSO regulated mini bus that has a tacko fitted! he also has a car. When I pointed that out they said they weren't aware of that or that another vehicle was available, I pointed out it was no excuse as they are required to make an assessment with due diligence.

 

The writ has now been stayed pending the balance being paid £100pm to his ex.

 

So I have 2 Questions....

 

1) What is the balance?

 

We have written to the ex for her bank details and stated that of her £5500, £3000 has been paid and 25 monthly payments will follow.

She has written back saying that its 48 payments of £100 to include the bailiffs costs - can she enforce this?

How can we check what she has been charged for and get a copy of the writ?

 

2) Can I get my £3000 back as a chargeback?

 

I have phoned tesco credit card, they said no as I had willingly handed over my card and therefore entered into a contract with the bailiff?

Not accepting this answer I have written to them with a sworn affadavit stating the payment was under duress and the baliff had made a false representation to gain a payment.I have rung them again yesterday to get an update, they say it will be next week before it gets reviewed due to a backlog in that department, but they weren't encouraging as they said it had already been refusedonce.

 

Am I correct in thinking that if the charge back is successful, the £100pm order will still stand, but the bailiffs will go after the ex for their fees as she will then be receiving the payments directly?

Sorry for the ramble but there is a lot of back ground! any help greatly appreciated

[hallowitch]

Hi welcome to the site don't worry we are always nice here cant help you myself but im sure ploddertom or wonkeydonkey

will be happy to help when they see your post they are the experts

[tomtubby]

Yours is certainly a question that is better answered by either Ploddertom or Wonkey Donkey. They will be along shortly.

 

It is probably better at the moment not to publish the name of the enforcement company.

 

Firstly, you say that an offer of £100 per month was made and rejected. Who was the offer made to and when was this rejected?

 

Regarding the 'chargeback'; this again is best dealt with my Ploddertom or WD.

 

The minbus that has been levied upon...is this subject to finance?

 

If a chargeback is made there is a real risk of the enforcement officer returning to the property to seize more goods. You say that your partner has a car as well as the minibus. How old is the car and roughly how much is it worth?

[Teamva]

Hi Tomtubby

 

The initial offer was made to the ex's solicitor back in October 2013, don't think she even passed it on to the ex, just said it wasn't enough, however the N244 we made to court requested the writ be stayed AND payment made by monthly installments the Judge has agreed this and we have a judgement order to that effect.

 

There is no finance on the mini bus.

 

The car is 10years old not sure of the value, but doubtful it would cover the debt of £7816.61

[ploddertom]

Is the minibus still being used? What paperwok have you been provided with so far?

 

The Balance

You may be liable for some charges up until the date the Stay was obtained. What were the terms of the Stay and who do have to pay the £100pm to? If they are being obstructive about giving you details that you are entitled to then submit a Subject Access Request to them - costs a tennner but usually well worth it.

 

Chargeback

Could be fraught with difficulty so best avoided as you could face charges yourself.

[wonkeydonkey]

Hoping someone can help me with this - seem to be hitting a few brick walls trying to find out correct information myself. (please be nice, I'm a newbie!!)

 

My partner had a judgement order to pay his ex's court fees of £5,500. This was due early October 2013. As a single dad on a low income he did offer in October to pay £100 per month but this was rejected. The next he heard was when the bailiffs came knocking at the door.

 

They claimed they could seize and remove his minibus, and called for a tow truck. I asked what needed to be done to to stop them removing the vehicle, to which I was told the debt had to be paid, I informed them the debt could not be paid in full (they had added charges bringing the total to approx £7816.61) but agreed to make a part payment until I had got some advice. I paid £3,000 on my credit card. It was only after I had made a payment that they would let me read the paperwork inside (it was dark outside at the time) and we discovered that the mini bus was in fact a protected good as tools of the trade, they were therefore not entitled to remove it, and I felt they had obtained the payment through misrepresentation and under duress.

 

The following morning I contacted the bailiff to request a breakdown of the charges, a copy of the writ and request my £3000 back as they had taken a payment under false pretense.

 

They still have not provided a copy of the writ or breakdown of the charge and claimed that the mini bus was not exempt as they believed it was being used for personal use - its an 18 seater VOSO regulated mini bus that has a tacko fitted! he also has a car. When I pointed that out they said they weren't aware of that or that another vehicle was available, I pointed out it was no excuse as they are required to make an assessment with due diligence.

 

The writ has now been stayed pending the balance being paid £100pm to his ex.

 

So I have 2 Questions....

 

1) What is the balance?

 

We have written to the ex for her bank details and stated that of her £5500, £3000 has been paid and 25 monthly payments will follow.

She has written back saying that its 48 payments of £100 to include the bailiffs costs - can she enforce this?

How can we check what she has been charged for and get a copy of the writ?

 

2) Can I get my £3000 back as a chargeback?

 

I have phoned tesco credit card, they said no as I had willingly handed over my card and therefore entered into a contract with the bailiff?

Not accepting this answer I have written to them with a sworn affadavit stating the payment was under duress and the baliff had made a false representation to gain a payment.I have rung them again yesterday to get an update, they say it will be next week before it gets reviewed due to a backlog in that department, but they weren't encouraging as they said it had already been refused once.

 

Am I correct in thinking that if the charge back is successful, the £100pm order will still stand, but the bailiffs will go after the ex for their fees as she will then be receiving the payments directly?

Sorry for the ramble but there is a lot of back ground! any help greatly appreciated

 

Hi and welcome to cag

 

I have been asked to take a look at your post.

 

Having the stay in place means, it matters not if you have a Rolls Royce as your second car because, they goofed on the levy of the mini bus so they don't have a levy and unless you default on the payments they cannot return to levy on another car.. They will also need to remove all fees associated to that levy.

 

"Am I correct in thinking that if the charge back is successful, the £100pm order will still stand, but the bailiffs will go after the ex for their fees as she will then be receiving the payments directly?"

 

Yes you will carry on paying the £100pm to the creditor if that is what the court has ordered regardless of the success or failure of the chargeback.

 

A writ lasts for 12 months and although it can be renewed by the claimant, it cannot be acted upon unless you default on the agreement, so it is merely there as a 'safety net'. What happens to the HCEO fees....well that depends..it could be a simple answer or it could be complicated as to who picks up the bill.

 

I will need to know a little more to the background of the matter and it won't pay you to give that on open forum (for now) As you don't yet have the facility to receive or reply to PM I will ask a moderator to pass a message to you later this evening and we can take it from there.

 

For the time being can you start the ball rolling by sending IN WRITING another request for a copy of the writ and a breakdown of the HCEO's costs to date. Send initially by email,with read receipt if you have that facility, if not I would suggest you also send a hard copy by recorded/signed for snail mail. They are legally obliged to provide you with BOTH.

 

WD

[Teamva]

Thank you WD and plodder tom!

 

Will wait for moderator message - I'm not good on these forums so hope I don't miss the link!

[HCEOs]

Is it only your partner that uses the minibus or are others insured to drive it? That is important as to whether the seizure is valid.

[HCEOs]

they goofed on the levy of the mini bus

 

WD

 

WD, this will really depend on whether the vehicle is exempt from seizure under Section 138(3A) of the Supreme Court Act 1981. Which is why I asked the question above.

 

If the Op's partner thinks it is then he should make a claim to the enforcement officers under RSC Order 17 Rule 2A. No doubt you will advise the OP all about this anyway.

[Teamva]

Ploddertom re post #5 - Yes the bus is still being used,

 

The only paperwork i was given on the evening was a 'form of request', a form 55: notice of seizure which actually says the judgement debt is £5668.77 and £111.75 cost of execution are due under the writ, together with interest and fees and charges.

 

Before signing the document I noted on it "£3000 paid by me seeking legal advice as no notification was given of hearing. This payment is not showing intent to pay in full"

 

The wording on the writ is; Upon having considered the written application of the defendant (no other person having had notice of the application to

- stay the writ of fi fa

and upon it being noted that the defendant

-resides at an address which is with the X district registry

IT IS ORDERED THAT

1. Execution of the writ be stayed upon payment of £100 per calendar month, starting 30days from the date of the order.

 

As there was no instruction as to who to pay I did speak to the chancery dept and they (very unhelpfully) told me it was as the original order so we wrote to the ex and got her bank details for standing order payments to be set up.

[Teamva]

HCEO Re post #8 & 9

 

I believe it is only my partner who is insured on the vehicle - hes not with me to check at the moment, is that good or bad?

 

I have heard that it is something to do with an old case bailiffs use to levy exempt goods that will be over ruled at the beginning of April?

[wonkeydonkey]

HCEO's your inbox is full...

[HCEOs]

HCEO's your inbox is full...

Not any more.

[Teamva]

I made an application last year to claim back a payment made to a Bailiff to stop repossession of a vehicle, turns out they had no right to take it as it qualifies as exempt goods (tools of the trade)

 

Application defended, mediation agreed to, then no appointment made, witnesses statements submitted,

 

Application to move to my local court made Oct14 - Seemingly ignored by the court despite cheque being cashed Nov14!

 

Mediation agreed to for a second time, then failed Dec14 as defendant was not willing to be flexible.

 

Rang court for update this morning to be told;

 

12 Jan15 Defendant made application to strike out claim (I have never received a copy)

 

24 Jan Order made contents of which the operator could not see (again I have not received a copy)

 

How can this happen???

 

Have emailed the court to request copies of the documents and an explanation as to why my application has not been dealt with, expect an answer around Easter!

Edited February 10, 2015 by Andyorch
Link added

[Andyorch]

I take it you have also requested a copy of their application /witness statement and a copy of the order Teamva ?

 

Regards

 

Andy

[Andyorch]

Further developments...new thread now in Financial Legal Issues

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?441083-Claim-issued-against-bailiff..now-Defendant-makes-application-to-strike-out-Summary

[Teamva]

Hi Andy,

Yes I have but last time I emailed central London they never even got back to me! It took literally 4 weeks on constant ring back to actually speak to a real person, who promptly read from a script! they are very busy, working 6 weeks backlog etc, so how can I expect to respond to them within deadlines if Ive not had copy documents?

[HCEOs]

This comes as no surprise to me if it is as I suspect.

 

In the original thread I explained the procedure required to claim that the goods were exempt for seizure. This was under RSC Order 17 Rule 2A and is known as an interpleader claim.

 

Did you do that?

 

I presume you're now saying you issued a claim against the bailiff company after you paid them. Is this correct?

[Andyorch]

They will get them to you...there may be a small fee...but as you are claimant you should be served on notice ( by the defendant ) any copies of applications.

 

Considering that they have not even responded to your request to transfer and that no hearing date as yet been set to consider their application...you will have time to submit a witness statement in response and objection.(this must be submitted/served pre 7 days before any hearing)

 

Strike out and summary judgments are cover by the the following relevant CPR (Civil procedure Rules)...read up....knowledge is power.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/pd_part03a

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

Regards

 

Andy

[wonkeydonkey]

I am gob smacked...It has been a while since I last communicated with this poster but I had assumed (wrongly as it would seem) the matter of a hearing date and transfer to home court was being dealt with. As I recall the HCEO which is Burlington Group, offered their reason for not engaging in mediation to be 'we are Hceo; protected by the Courts' ie: Untouchable.

 

I will make contact with the poster to see if I can advise further

[Teamva]

Hi, I didnt issue an interpleader claim, I emailed the company concerned and despite my emails they didnt tell me to raise such a claim nor did they tell the original claimant, which I believe they are required to do by law?

 

Its all very confusing cos you don't know who's advice is reliable when thrown into the lions den!

 

I made the claim in writing and by telephone to the manager handling the case, he didnt advise me I needed to do anything else - at the time the priority was to get the writ stayed and an order to pay by installments, which I did.

 

I've learnt a lot in 12months but mainly that the company invloved use many tactics to ensure that it is difficult to follow how things should be done!

By not telling me about the interpleader the day after the visit, they deliberately let the deadline pass for such a claim to be made, knowing full well I would have made that claim given the chance.

[wonkeydonkey]

I think it worthy of mention, the poster was neither the debtor or the owner of the vehicle in question. The person named on the writ was not at home when the agent enforced, the poster was a third party who had become friends with the debtor a few weeks prior to the incident and was merely visiting.

There can be no doubt from the evidence the agent enforcing the writ saw this to be a golden opportunity to secure payment from the poster by taking advantage of their ignorance in these matters.

 

Furthermore the vehicle he was threatening to remove was used soley by the debtor in the running of his business ie; transporting disabled children to and from school. It displays a Vosa certificate in the windscreen and is fitted with tacho. However even providing Burlingtons with that evidence was apparantly not enough, they claimed they had reason to believe it was used socially and when asked to provide their reasons/evidence .....silence.

[HCEOs]

OK, that paints a clearer picture (and not a good one).

[Teamva]

OK, that paints a clearer picture (and not a good one).

 

Hi HCEO ( have to say your username makes my toes curl, I'm sure your very nice and I will not tar all with the same brush! Dentist have the same effect!)

 

Can you shed any light on why the hceo,s concerned think that they a

 

without question protected by the court (they say they were following court instructons) when they have not adhered to industry guidelines??

 

Further to wonkeydokeys post and this only came to light in the defendants witness statement, the original creditor even provided the times the vehicle would be parked up "when the debtor had finished his school run". Telling me the defendant and original claimant were both aware the

Vehicle was a tool of the trade before they even made one visit - due diligence???

Edited February 11, 2015 by Teamva

[Teamva]

Morning all,

Thanks for all the comments yesterday, just to be 100% is there anything else I should be doing whilst waiting for the court to respond to my email?

I have further evidence to submit to court (disproving points made in their witness statement) when is the best time to do this and how?

Cheers