Test of reasonableness

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Pote Snitkin
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#71 Re: Test of reasonableness

Post by Pote Snitkin » 15 Sep 2016 17:10

stopbailiff wrote: If a bailiff uses a law, ie section 62, TEA 2007, I believe that makes him a statutory authority. So a company or individual under public law could be public, private or even hybrid: ie both public and private function.
By your reckoning then, anyone using a law would become a public official. What about a buyer using the CRA?
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#72 Re: Test of reasonableness

Post by stopbailiff » 15 Sep 2016 17:12

jasonDWB wrote:What are peoples feelings about using consumer law in a bailiff/debtor redress?

Is there a claim by inferring a debtor is a 'consumer' in the meaning of his obligation to pay the debt, or a 'comsumer' exposed to a loss greater than he would otherwise if the bailiff was reasonable by excising condition (d) instead of (b).

I can see a defendant solicitor vigourously arguing there is no contract, when I have to try an infer that it was created when the bailiff refused to accept money when he chose to take an enforcement step.

There is only a contract if the offer were accepted, in this case there is no offer and acceptance, so there is definitely no contract. A consumer is someone who benefits from the others goods or services. There is no contract of goods or services. There is at best merely a tort.

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Michelle
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#73 Re: Test of reasonableness

Post by Michelle » 15 Sep 2016 17:54

jasonDWB wrote:What are peoples feelings about using consumer law in a bailiff/debtor redress?

Is there a claim by inferring a debtor is a 'consumer' in the meaning of his obligation to pay the debt, or a 'comsumer' exposed to a loss greater than he would otherwise if the bailiff was reasonable by excising condition (d) instead of (b).
The debt arose from parking penalties, didn't it? i.e. from doing something wrong as opposed as from buying goods or services which would make him a consumer. Look at the CRA 2015, "reasonableness" has been changed to "fairness" which is covered by the Act but only in relation to a contract or notice as defined in s.61: http://www.legislation.gov.uk/ukpga/2015/15/section/61
jasonDWB wrote:I can see a defendant solicitor vigourously arguing there is no contract, when I have to try an infer that it was created when the bailiff refused to accept money when he chose to take an enforcement step.
So can I! If you wanted to take it down to basic contract 101 stuff, you have an offer (money) but no acceptance, the offer was rejected so no contract could have been formed.
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Michelle
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#74 Re: Test of reasonableness

Post by Michelle » 15 Sep 2016 18:03

Tuco wrote:The bottom line is that the creditor is responsible for the actions of it's agents. It is the creditor who determines whether a CGA can be accepted. The National standards state:

"Where a creditor has indicated they will accept a reasonable repayment offer, enforcement agents must refer such offers onto the creditor."
Had the creditor given such an indication in this case?
Tuco wrote: We see it all the time in HCEO cases where the agent state that a creditor won't accept a CGA. This because they want to escalate to the 2nd enforcement stage.
Given the level of HCEO fees, :o it's hardly surprising. :(
Tuco wrote: There is no obligation to accept a CGA. It should be remembered that the reason that creditors use Schedule 12 is to take control of goods to sell them, in order to recover a sum of money. If anything, I think the stronger argument is when bailiffs take control of goods that they have no intention of selling because the value is so low,

There may be a sting in the tail on this one. The removed car must be able to fetch something towards the outstanding debt. 5 x £75 must be paid to the bailiff first as well as all auction fees. If it's not roadworthy and has no key, I doubt it will fetch much at auction.
Wouldn't this be an issue between the creditor and the enforcement agent? If I was a creditor trying to recover what's owed to me and I'd missed out on an opportunity to recover the full amount owed to me within a few months (as opposed to, say, £5/month for five years) because the EA I'd hired decided to turn down the offer and seize a worthless car instead, leaving me out of pocket, I'd be looking at a claim for damages, especially if the EA never gave me (his client) the option to accept the alternative.
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#75 Re: Test of reasonableness

Post by Justanotherperson » 15 Sep 2016 18:19

If you are going down the fairness test in the CRA you'd have to argue that the writ impliedly created a contract between the debtor and the bailiffs amounting to the fees created by statute for recovery of the original sums and the resulting actions by the bailiff imposed additional charges which are considered unfair

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#76 Re: Test of reasonableness

Post by Tuco » 15 Sep 2016 18:30

Michelle wrote:
Tuco wrote:The bottom line is that the creditor is responsible for the actions of it's agents. It is the creditor who determines whether a CGA can be accepted. The National standards state:

"Where a creditor has indicated they will accept a reasonable repayment offer, enforcement agents must refer such offers onto the creditor."
Had the creditor given such an indication in this case?
Tuco wrote: We see it all the time in HCEO cases where the agent state that a creditor won't accept a CGA. This because they want to escalate to the 2nd enforcement stage.
Given the level of HCEO fees, :o it's hardly surprising. :(
Tuco wrote: There is no obligation to accept a CGA. It should be remembered that the reason that creditors use Schedule 12 is to take control of goods to sell them, in order to recover a sum of money. If anything, I think the stronger argument is when bailiffs take control of goods that they have no intention of selling because the value is so low,

There may be a sting in the tail on this one. The removed car must be able to fetch something towards the outstanding debt. 5 x £75 must be paid to the bailiff first as well as all auction fees. If it's not roadworthy and has no key, I doubt it will fetch much at auction.
Wouldn't this be an issue between the creditor and the enforcement agent? If I was a creditor trying to recover what's owed to me and I'd missed out on an opportunity to recover the full amount owed to me within a few months (as opposed to, say, £5/month for five years) because the EA I'd hired decided to turn down the offer and seize a worthless car instead, leaving me out of pocket, I'd be looking at a claim for damages, especially if the EA never gave me (his client) the option to accept the alternative.
Firstly, you have to understand that councils back their bailiffs 100%. Neither give a shit about the debtor but the council have to be seen to be doing so. For PCN's, they generally want full payment and leave it to the discretion of the bailiff. Council tax is a little less rigid. However, you have to battle to get the instalments down. The "Polly" case (currently in members" is an example of how they dropped from demands of £60/£70 a month to offering to accept £20 per month. I would suspect that in this case, the council will have stated that they want the sum in full.

In cases where enforcement is used for PCN's, a contract is agreed. It is pre-determined how offers of repayments are handled. My personal feeling, based on experience of dealing with and speaking with councils is that they look down their noses at bailiffs as scum, much like people look at builders or dustmen. They do however turn a blind eye at the bending and fracturing of legislation, if it results in the debt being recovered. If a car does not fetch a certain amount, then the argument will be that 9 times out of 10, the threat of sale provokes payment.

As 100's of debts are chased, it will be accepted that a percentage are not recovered.

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