Marstons baliffs threatening locksmith action

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JENJENN27
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#1 Marstons baliffs threatening locksmith action

Post by JENJENN27 » 19 Apr 2017 12:35

Hello,
In need of some advice, my partner has an outstanding magistrates fine which has been passed over to marstons bailiffs for collection. They have a warrant of control for the fine outstanding, this is now at £665 including there charges. My partner is not working at the moment due to Health issues, he isn't claiming any benefit due to me working full time so isn't entitled to ESA. He has no financial income other than my sole income every month from work. This was told to the magistrate when he attended court, the magistrate set up a payment plan of £10 a week, due to financial issues some payments were missed and this has now been passed to marstons.

Marstons are now threatening to send a locksmith and have said they do not need further paperwork from the court for them to use a locksmith to gain access. Firstly is this correct? Can they use a locksmith without the courts permission?

I have used the magistrates checklist on the site to see if there was anything we could do to get the fine passed back to the magistrates and sent the letter template to the court advising he wasn't means tested. As how can he be means tested without any income?
The court responded stating they can't advise on the points made out in the letter as they are not legally trained, and copied a load of information regarding what the baliffs are allowed to do.

My partner currently has medical certificates from the doctors stating he is unfit for work due to health issues. Can this help to get the fine passed back to the court?

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jasonDWB
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#2 Re: Marstons baliffs threatening locksmith action

Post by jasonDWB » 19 Apr 2017 13:00

If the debtor is vulnerable then this article explains how to deal with it:

http://www.dealingwithbailiffs.co.uk/Ba ... eholds.htm

Ministry of Justice own advice should be followed:

Paragraph 16 of the Taking Control of Goods: National Standards 2014 (Published by the Ministry of Justice) states;
  • Should a debtor be identified as vulnerable, creditors should be prepared to take control of the case, at any time, if necessary.
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JENJENN27
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#3 Re: Marstons baliffs threatening locksmith action

Post by JENJENN27 » 19 Apr 2017 13:30

Thank you for your quick response.
I have read though the link and still have some questions I hope you can clarify.
Firstly with my partner getting sign off by the doctor as unfit to work because of joint problems and unemployed dose this make him vulnerable? Will this mean the court will have to take it back?

And also regarding the baliffs threatening using a locksmith, can they use one without getting further paperwork/authorisation from the court?

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jasonDWB
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#4 Re: Marstons baliffs threatening locksmith action

Post by jasonDWB » 19 Apr 2017 13:38

JENJENN27 wrote:
19 Apr 2017 13:30
Thank you for your quick response.
I have read through the link and still have some questions I hope you can clarify.
Firstly with my partner getting sign off by the doctor as unfit to work because of joint problems and unemployed does this make him vulnerable? Will this mean the court will have to take it back?

And also regarding the bailiffs threatening using a locksmith, can they use one without getting further paperwork/authorisation from the court?
They are supposed to get permission with a warrant of entry, but Marston doesn't. It ends up with months of litigation which must be costing somebody a lot of money defending them all.

Get your doctor to complete a MALG evidence form and send a copy to the court address on the bailiff's documents and a copy to the bailiff company. That way you can sue for damages if a bailiff breaks in.

Apart from that, I have no magic wand to make the problem go away. I need something to throw at them to get the action stopped.

See if any of these apply to you: http://www.dealingwithbailiffs.co.uk/St ... -Fines.htm
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JENJENN27
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#5 Re: Marstons baliffs threatening locksmith action

Post by JENJENN27 » 19 Apr 2017 14:20

Ok thanks again for getting back to me. The MALG form seems to be for mental health rather than physical health though. Is there a different form for this I should ask my doctor for?

JENJENN27
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#6 Re: Marstons baliffs threatening locksmith action

Post by JENJENN27 » 19 Apr 2017 14:35

also if they come with a locksmith can my partner be arrested for stopping them getting in

JENJENN27
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#7 Re: Marstons baliffs threatening locksmith action

Post by JENJENN27 » 19 Apr 2017 14:41

This is the response received from the court when my partner sent your template stating he wasn't means tested.

Dear Mr S


Reference No.

Thank you for your email of complaint dated 17th March 2017 regarding the issue of a warrant of control and the document you have received from Marston Group

I am not able to provide advice or comment on any legal points you have raised as I am not legally trained to do so. I suggest you seek legal advice. If you have not already done so, you may wish to consider seeking independent advice. Any Citizens Advice Bureau provides free, confidential and impartial advice on a range of matters. Their contact details can be found in the telephone directory or on their website at www.citizensadvice.org.uk. You could also contact Civil Legal Advice on their telephone helpline on 0845 345 4345 or find more about the service they provide at www.gov.uk/civil-legal-advice.

However I can refer you to relevant current legislation, the following links will take you to the Tribunals, Courts and Enforcement Act 2007 and Statutory instruments: -

http://www.legislation.gov.uk/all?title ... t%20Act%20

http://www.legislation.gov.uk/all?title ... of%20Goods

It may be helpful if I describe the provisions in the Tribunals, Courts and Enforcement Act 2007 and underpinning regulations that apply to enforcement agents which may address you’re the points in your letter.

The issue arises in a case where a person (“the debtor”) is ordered to pay a fine but there is delay in payment of the fine to the point that a warrant of control is issued, and after the issue of the warrant, the amount of the fine is paid direct to HMCTS; and it is as I understand it suggested that the fees chargeable for enforcement action by the enforcement agent to whom the warrant is addressed may not thereafter be recovered from the debtor.

In such a case, the fees are still payable, and the enforcement agent may take further action to recover them, since they are part of the “amount outstanding” within the meaning of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007.

The “amount outstanding” is defined in paragraph 50(3) of Schedule 12 to the 2007 Act as:

“the sum of these—
(a) the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);
(b) any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).”

In the case of fine enforcement, the fine is the debt. If there are any amounts recoverable out of proceeds in accordance with regulations, payment of the fine alone will not fully discharge the “amount outstanding”.

Paragraph 62(1) and (2) of Schedule 12 to the 2007 Act provide that:

“(1) Regulations may make provision for the recovery by any person from the debtor of amounts in respect of costs of enforcement-related activities.

(2) The regulations may provide for recovery to be out of proceeds or otherwise.”

Paragraph 62(4) defines “enforcement-related services” as:

“anything done under or in connection with an enforcement power, or in connection with obtaining an enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.”

The Taking Control of Goods (Fees) Regulations 2014 (S.I. 2014/1) were made pursuant to the power in paragraph 62 of Schedule 12 to the 2007 Act. Regulation 4 provides in paragraph (1) that the enforcement agent may recover from the debtor the fees indicated in the Schedule to the Regulations, “by reference to the stage, or stages, of enforcement for which enforcement-related services have been supplied”, and in paragraph (2) that “The fees referred to in paragraph (1) may be recovered out of proceeds.”. Regulation 4(3) provides that:

“(3) The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.”

Regulation 5(1) specifies the stages of enforcement for this purpose, in particular:

“(a) the compliance stage, which comprises all activities relating to enforcement from the receipt by the enforcement agent of instructions to use that procedure in relation to a sum to be recovered up to but not including the commencement of the enforcement stage;

(b) the enforcement stage, which comprises all activities relating to enforcement from the first attendance at the premises in relation to the instructions up to but not including the commencement of the sale or disposal stage”.

Where a warrant of control has been issued in respect of an outstanding fine and the compliance stage has begun before the outstanding fine is paid, the fee for the compliance stage forms part of the “amount outstanding” (defined in regulation 2 of the 2014 Regulations, which references paragraph 50(3) of Schedule 12) and may be recovered by the enforcement agent using the Schedule 12 procedure. If enforcement proceeds to a subsequent stage, the fee for the subsequent stage will also be recoverable as part of the “amount outstanding”.

A warrant of control instructs the enforcement agent to take goods (which includes money) belonging to the debtor to the value of the debt owed and any amounts in respect of costs of enforcement-related services which are recoverable in accordance with regulations made under paragraph 62 of Schedule 12 to the 2007 Act. The warrant is accordingly explicitly not limited to recovering the amount of the debt, but extends to the costs of enforcement-related services recoverable under the Taking Control of Goods (Fees) Regulations 2014; and payment of the amount of the debt alone does not discharge the warrant. In the context of a fine in respect of which a warrant of control has been issued, even if a payment of the whole of the amount or remaining amount of the fine were accepted, this would not discharge the warrant and would not remove any liability for the costs of enforcement-related services, which would remain enforceable under the warrant.

While the warrant is in force, it is the duty of the enforcement agent to take goods to the amount of the amount outstanding, and to apply proceeds from the exercise of the power to pay the amount outstanding in accordance with regulations under paragraph 62 of Schedule 12 to the 2007 Act. Regulation 13 of the Taking Control of Goods (Fees) Regulations 2014 requires proceeds from the exercise of the power, where less than the amount outstanding, to be applied first to pay any auctioneer’s fees if goods were sold, then to pay the fee for the compliance stage, then pro rata in payment of the debt and any other fees recoverable in accordance with the Regulations.

For the purposes of the enforcement power conferred by the warrant, the property in the debtor’s goods is bound from the receipt by the enforcement agent of the warrant (see paragraph 4 of Schedule 12 to the 2007 Act). The effect of property being bound is (see paragraph 5 of Schedule 12) that it, and any transfer of it, is subject to the enforcement power, and it does not cease to be bound (see paragraph 6 of Schedule 12) until the amount outstanding (not just the debt) is paid; or the instrument under which the power is exercisable ceases to have effect; or the power ceases to be exercisable for any other reason.

HMCTS is unable (in the light of R. v. Hereford and Worcester Magistrates’ Court, ex parte McRae [1998] 163 JP p. 433) to withdraw or recall a warrant of control issued in respect of an unpaid fine unless the fine to which the warrant relates becomes subject to an appeal or Statutory Declaration or the exercise of the court’s power under section 142 of the Magistrates’ Courts Act 1980. The property in the debtor’s goods remains bound and any transfer subject to the enforcement power until the full amount outstanding is paid or the warrant is otherwise discharged, and in those circumstances HMCTS will not accept any payment tendered other than to the enforcement agent, and where it is unable to refuse receipt of payment will transfer it to the enforcement agent.

I appreciate this isn’t the response that you want but unfortunately I am unable to assist in this instance. You should therefore contact Marston Group on 08450 743749 as soon as possible.

Can you clarify if they have breached anything within this letter?

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jasonDWB
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#8 Re: Marstons baliffs threatening locksmith action

Post by jasonDWB » 19 Apr 2017 14:53

That letter is a copy/paste. I've seen it many times before. Its quite an old one and I am surprised Court Service hasn't updated it. It mentions R. v. Hereford and Worcester Magistrates’ Court, ex parte McRae [1998] 163 JP p. 433. We call it the "Hereford Template": http://www.dealingwithbailiffs.co.uk/he ... etter.html

The legal advice given is misleading to make you think the fees are recoverable from money paid into court. The law actually says the fine and the expenses in connection with taking and selling goods may be recovered.

It's irrelevant because your complaint is about a change of circumstances. Not about fees.

You need to ask them to answer your complaint and comply with Section 85 of the Magistrates' Court Act 1980.

If an arrest is made or threatened, then contact me. I know a law firm that can cut a deal with police forces involving a sum of money quietly changing hands.

Get it all on video. Here are some further steps to protect yourself: http://www.dealingwithbailiffs.co.uk/Ex ... liffs.html

I mostly deal with post-enforcement redress. So far, no enforcement action has been taken. I can't bring anyone into court and pull his pants down in front of the judge. Until then, your ally is your MP who can go in there and question why Court staff are circumventing section 85.
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JENJENN27
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#9 Re: Marstons baliffs threatening locksmith action

Post by JENJENN27 » 19 Apr 2017 15:21

Ok I will send a further letter requesting them to respond and comply with section 85.
Can you clarify if my partner is classed as vulnerable? As you mentioned previously, to get his doctors to complete a MALG form, that seems to be for mental health, as his situation is physical would the doctors need to fill out a different form?
Also on my door I have 3 bolt locks that are always locked, if a locksmith attended my property to gain access, and these were locked, would my partner have to undo these locks?

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jasonDWB
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#10 Re: Marstons baliffs threatening locksmith action

Post by jasonDWB » 19 Apr 2017 16:03

Your partner doesn't have to undo any bolts on the door.

You can plead a vulnerable debtor, but court staff rarely complies with it. If you plead direct to a magistrate sitting at court, you will have a far better chance of getting the fine remitted.

Court staff might mess you about getting before a magistrate. You may have to ask a solicitor to intervene and ask for your costs.
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