writ stayed and further enforcement set aside

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billie1
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#1 writ stayed and further enforcement set aside

Post by billie1 » 09 Aug 2015 14:55

in 2012 i was granted a stay of writ and all writ/fifas after 2012 be set aside due to irregularities. i gave a copy to the hceo at the time and that was that but now i have received another (3 years later) for the same claim reference but a different high court enforcement agency. does my original stayed writ still stand?

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Schedule 12
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#2 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 09 Aug 2015 16:56

Once the writ is stayed, enforcement ceases. That's it.

It might be another proceeding has been made without you knowing. Ask to see the writ and get it set aside. If they resize to show tge writ then there is probably no writ.

Make him produce. Paragraph 26(1) of Schedule 12 of the Tribunals, Courts and Enforcement's Act 2007 says the enforcement agent must show on demand evidence of his identity (his bailiffs certificate) and his authority to enter the premises (the warrant of control). Make him to produce them.

While you are at it, use Regulation 7(e) of the Taking Control of Goods Regulations 2013 and make him explain the debt and his fees, then have him truthfully confirm they are complaint with regulations. Here is a template . It can be given by post, by email and handed to the bailiff in person.
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billie1
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#3 Re: writ stayed and further enforcement set aside

Post by billie1 » 09 Aug 2015 17:18

i have both the original writ and the new writ and they are both for the same judgement,same date and also same county court claim number it's only the enforcement company that has changed and of course the issue date.

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#4 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 09 Aug 2015 17:32

I'm not sure if the same judgment can be transferred more than once. Do a stay of execution and a variation.
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billie1
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#5 Re: writ stayed and further enforcement set aside

Post by billie1 » 09 Aug 2015 18:15

ah ok thanks. the original order i received stated the writ of fifa stayed and said paragraph 2 of the court order to remain in place which said any writ of fifa issued after 26th june 2012 be set aside for irregularity as pending enforcement in county court. the orginal debt amount 22nd june 2012

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#6 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 09 Aug 2015 18:51

It could be the creditor did not tell the 2nd HCEO it had already been transferred up.

It it's the same writ from 2012 then it's out of time. A writ only has a service life of 12 months.
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billie1
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#7 Re: writ stayed and further enforcement set aside

Post by billie1 » 09 Aug 2015 19:11

i have been through all the papers again (luckily i have the originals from 2012). the county court claim number is the same on both the original writ and the new one and my stay of writ/set aside forms also have the same claim number on them. it does look like the creditor has tried with one hceo failed left it three years then tried again with a different hceo. i was just thinking maybe there had been new action cancelling my stay that i hadn't been informed about after my original hearing.

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#8 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 09 Aug 2015 19:45

If the stay was lifted without you knowing then you can get it re stayed.
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billie1
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#9 Re: writ stayed and further enforcement set aside

Post by billie1 » 10 Aug 2015 14:08

*UPDATE* phoned around everywhere including court and haven't managed to get any real answers that make much sense. emailed a copy of the order i got in 2012 to the bailiff office but they won't tell me anything apart from i will hear via post once they have forwarded my stay to the claimants solicitor which they said isn't instantaneous. i phoned the high court and the lady i spoke to seems to think my stay was only valid for 12 months and although the order stated any writ after june 2012 be set aside she doesn't "think" the judge meant it it to be permanent.

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#10 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 10 Aug 2015 15:10

The stay applies until a further order is made.

It is the writ that has a service life of 12 months.

It would apear the writ is now well out of time and cannot be enforced.
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#11 Re: writ stayed and further enforcement set aside

Post by billie1 » 10 Aug 2015 16:22

it is a new writ it's just the judgment that's the same. they don't make it very it to follow but the lady at the high court told me there is nothing stopping a claimant applying again 3 years later.

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#12 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 10 Aug 2015 17:20

She might be right, a judgment is live for six years.

You need to decide what you want to do about it

1. pay it - apply for a variation to pay monthly
2. dispute it, spply for a set aside
3. Don't pay it, stick it out until the bailiff gives up - like the last one.
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billie1
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#13 Re: writ stayed and further enforcement set aside

Post by billie1 » 12 Aug 2015 22:05

the enforcement company have just sent and email stating my stay isn't valid so have filled in the forms again but not sure i will hear back before the date they are due to attend. long shot i know but the house number is missing off the writ and theres two of us with the same house name so does this make any difference until i get my hearing?

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#14 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 12 Aug 2015 22:22

It is not up the HCEO to decide the outcome of your application for a stay.

If your address on the writ is wrong then, legally, the writ is not worth the paper because it can only be executed at the address on the writ. Paragraph 37 of the judgment of Huntress Search Limited (Claimant) v Canapeum Limited (Defendant) and DSI Foods Limited (Interpleader Claimant) [2010] EWHC 1270

Section 7 of the Interpretation Act 1978 says;
Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The "evidence to the contrary" in your case is the address on the writ is wrong which proves by law, it cannot be executed.

In any event, you must be served with a Notice of Enforcement, and with a wrong address on the writ is compelling evidence you have not been given that notice. Paragraph 7(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007)

If any enforcement action takes place hereforward, then it is unlawful and exposes the creditor to a lot of money changing hands. The HCEO is well aware of the risks, but it up to him whether he chooses to take the gamble.
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billie1
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#15 Re: writ stayed and further enforcement set aside

Post by billie1 » 10 Oct 2015 17:43

The hceo turned up and took control of goods anyway, blocked the car in knowing i had kids to collect from school. i pointed out that the address on the writ was wrong and he just told me to sue him as he had the right to attend any address in England and Wales and the writ address made no difference. I had no choice to give him £10 and sign a form. i told him i wouldn't sign for taking control of goods but after i signed the form i noticed on the page behind my signature was a list of goods.(he went through the house also)

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#16 Re: writ stayed and further enforcement set aside

Post by Schedule 12 » 10 Oct 2015 21:10

You never sue an HCEO. You always go after the creditor. This article gives a summary of the procedure for bringing a claim in the small claims court.

He was being dishonest saying he can execute a writ anywhere other than at the address on the writ. You can invite the court to take into consideration the attitude of the enforcement agent.
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