soopamuddle wrote: ↑04 Nov 2018 15:28
Hi everyone, I new here and probably like most of us I've been searching all over the internet for as much information as possible to try and get things sorted without having to rely on someone else. I've tried Stepchange, National Debt Advice, CAB, Law schools etc and am still in the same position two years later.
They are all taxpayer-supported charities and consequently will only give advice on how to pay a debt rather than doing a fact-find to see whether the debt is genuine, or giving help on challenging unlawful enforcement action.
Unfortunately it's quite a long story so I'll try and summarise as best I can...
Aug 2016 I was evicted from a property with a section 21. They followed the correct procedure but they didn't give us a date that the bailiff was coming to evict. I know most of you will say we should have moved, but there's a whole-nother story to that one including harassment, poor mental health to deal with the situation etc. Anyway, bailiffs turned up and evicted us. The landlord said I had 2 weeks in which he would allow me to return to the property to collect my belongings.
When it came to it, he refused to allow me to get my possessions. I know that is a breach of the Torts Act.
You only have 6 years to bring that action.
Anyway, he did that as he had gone to court for a money order of £600 to pay for the eviction. He sent the court papers to the address he had us evicted from so he knew we wouldn't receive them (there was an address in the tenancy for any communication after).
You can apply to set aside the order because the address is wrong. Section 7 of the Interpretation Act 1978 together with a copy of the order showing your old address must be exhibited with your application. Its made on a form N244.
He had clearly done so so we had no idea, and it was also why he wouldn't let me collect the possessions, as he let the bailiff in himself to levy on them.
Its an enforcement fail because bailiffs can only take control of goods where the debtor lives, and since you were evicted from the address, you didn't live there. The goods cannot be taken into control - unless a separate order under paragraph 15 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 has been made specifying that address.
You can sue for the replacement cost of the goods by bringing an action against the landlord and the bailiff company under Paragraph 66 of Schedule 12.
Obviously had the possessions been with myself, they wouldn't have been able to levy with me being vulnerable.
Being a vulnerable person doesn't make you exempt from enforcement.
It only makes it harder for bailiffs to recover fees, and they cannot take control of goods of lone vulnerable people. I wouldn't play the vulnerable people card as you sole grounds of the claim. Only to augment an existing claim.
Also as I wasn't there there was no option to enter into a payment plan, no list of items taken, no discussion over ownership etc. After the items were levied they were taken to an auction house where the bailiff decided to ring me and informed me what had happened. I applied to the court to have the judgement set aside as I knew nothing of it. That was refused.
Did you get a statement of reasons? I'd like to see on what evidence the court relied upon to dismiss your application.
My mum lent me the £600 to pay the judgement on the understanding she was buying the items off me. This was documented in texts and a bank transfer shows the payment.
Anyway, after the money was paid to the court, the auction house then refused to let me collect the items unless I paid them a further £300 in storage fees and loss of earnings by them not having their storage space.
You can now sue the auction company because there is no contract with you and the auction company and there are no rights to use your goods as a lien to obtain a money transfer. The costs of the auction company are the responsibility of the bailiff company.
There is case law, but I don't want to give it here in the open forum because I was involved in developing the case and internet trolls lurking. I am happy to give the citation to a legal professional.
I explained how I was out of work due to illness and only living off ESA, he couldn't care less. A couple of weeks later, Marstons then levy on the items at the auction house.
That is another enforcement fail unless the bailiff obtained an order under paragraph 15 of Schedule of the TCEA 2007 specifying the address of the auction house. Without an order, you can sue for the replacement cost under section 3 of the Torts (Interference with Goods) Act 1977.
Again, unbeknownst to me, my landlord has filed another money order for unpaid rent, rushed it through the courts, and transferred to high court. Again with me having no clue as he's used wrong addresses.
You apply to the High Court with a form N244, a witness statement and evidence of your eviction from the enforcement address, and the court will stay the writ and transfer the claim back to the county court. Here is
how to apply to stay a writ of control.
I think the auction house was stalling on purpose to allow this to happen. It also later turns out that the court decided to use part of the £600 I paid to pay for storage costs, which I didn't know about, so the auction house no right to refuse me to collect.
The auction company cannot recover storage costs. Only the bailiff can, but those costs may be subject to a
detailed assessment hearing to see if the storage costs are actual and reasonable.
An example of failed storage costs at a detailed assessment hearing involved a bailiff company charging a debtor £48 a day to store a car for a month is £1488 a month and part thereof. It turned out the car had been stored in a scrapyard operated by an individual with a background for handling and receiving stolen goods and selling them for parts on eBay. The creditor (a local council) had to pay it all back plus interest, and a further hearing for damages to his car relieved the bailiff company a further sum.
So once again, items were levied without my knowing or being present. Everything I read about online states about not letting them into your home, if a vulnerable is the only one at home etc. I can't seem to find a straight answer anywhere about what right they have to go to an auction house that I clearly do not live at and levy.
Bailiffs cannot take control of goods at the auction house because the law says they may only take control of goods as a "relevant address" which is where you live or carry on a trade or business. Paragraph 14(6) of Schedule 12 of the TCEA. You can sue for the replacement cost and deprivation of their use by bringing an action under paragraph 66 of Schedule 12 of the TCEA.
Again no lists provided,
No inventory provided is a breach of paragraph 34 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.
no discussion over ownership, and no opportunity to sort anything out. I would have entered into a DRO had I known about this.
I managed to get the writ set aside last summer, and had a solicitor deal with things for me. He claimed he had gone to hearing where we argued the fact that most of the items were now owned by my mum etc. Turns out he was a fraud, not a solicitor and hadn't done a damn thing,
Only a solicitor can represent you at court.
Setting aside a writ is a simple process and doesn't need a solicitor. I see people going into the High Court with papers and they are done in a 5 minute hearing before a master. Many get costs over £2000 for their time putting the paperwork together.
except from lose me months in time and now the court refuses to let me have any more hearings as previous ones went unattended. Oh and lost my disabled mum £1900 that she had to pay in solicitor fees for the other side!
There is a complaints procedure for this. You start by asking for the money back if you feel the solicitor did not do the work charged.
Make sure you have ducks in a row before firing off complaints. Things can be messy if the complaint is found to be malicious or vexatious. One individual on the internet made a malicious complaint about a solicitor and exposed herself as a long-term benefits cheat for undeclared income, and on came an investigation into her financial background going back more than 20 years. It is ongoing.
I reported him to ActionFraud and there are others who also had dealings with him.
Anyway, last summer the auction went ahead. I was out of options. I went to it and bid on what I wanted to keep and paid the 25% deposit. Trying to buy more time to get this sorted. The landlord was there and purposefully bidding on things to push the prices up
If you can prove the landlord was shill bidding on your goods, then its a
criminal offence.
A year on, and the stuff is still at the auction house, I can't find anyone who can advice me properly, and now Marston's are on the warpath again.
You need to identify the enforcement power Marston is acting on and decide whether to pay it or
apply to vary or stay it.
Does anyone know if I entered into a DRO, what happens to the possessions that are in some kind of limbo?!
You might need to speak to a DRO expert, but as far as I know, no material assets except property and vehicles are counted.
If you enter bankruptcy then the goods pass to the bankruptcy trustee and the bailiff must cede the goods to the trustee. After that, the trustee might give notice to the bailiff they have no interest in the goods because they have no material value, and the bailiffs can sell them.
What about the fact of vulnerability,
It's a card, but you must play it correctly by having your doctor complete a
MALG evidence form.
wrong addresses,
This is your best card.
Get the writ stayed and that revokes all the enforcement and the bailiff's fees in one sitting. Here is how to
stay a writ and set aside a judgment.
no chance to enter into payment plans etc?
You can apply to
stay the writ and vary the judgment. Again, it revokes all the enforcement and the fees.
Because the landlord deliberately used an address he knew he had previously evicted you from, you will be awarded costs against the landlord. Ask your legal professional to complete a form N260 with your application.
I should also point out that Marstons have been to my neighbours and told them I owe thousands of pounds. Gone to what was my current landlord's house and told them I owe thousands, which consequently lead to another section 21 even though there had been no problems.
If this happened after May 21 this year, you can sue under the GDPR. Article 82 gives you new powers to claim compensation even if you have not suffered any loss. You bring the claim under Section 168 of the Data Protection Act 2018.
If it happened before May 20 this year, the previous Data Protection Act applies, which is very dumbed down compared to the GDPR. It only provides for "actual and reasonable loss" and your loss is the cost of moving home arising from a section 21 eviction after a bailiff told him you owe money.
There's also now around £2500 in Marstons fees.
Stay the writ, and all the fees disappear.
Otherwise, have a detailed assessment hearing to ask the court to scrutinise them. It usually lands the bailiff company a big bill for the costs of the application and preparation of the statement of the case.
Many bailiffs and creditors see no change of £5K for a detailed assessment finding against them. these types of costs are called "indemnity costs" and the creditor can choose to recover them from the bailiff company's indemnity insurance policy.
They ring daily
If they are calling you excessively, then using your Android phone, report the caller's number and the caller's number is blocked on all Android users opted into the shared call-barring service (Android 7.0 and newer). It can render their SIM card or landline number totally useless for making calls.
when I've asked them to stick to email as they are making my diagnosed anxiety & depression worse but they basically said tough.
You might have a remedy under the
Protection from Harassment Act 1997 and section 2 specifies the criminal offence of harassment.
The enforcement regulations do not require bailiffs to telephone debtors, so you might have some mileage.
If the police say it is a
civil matter or say they will not apprehend the suspect, then you can approach a law firm specialising in police corruption and raise a charge under
section 26(5) of the Criminal Justice Act 2015.
It's a neat way to get the police force chequebook open.
