Enforcement Rules from 2014

Transcription

1 Enforcement Rules from 2014 Presenter:- Bill Lovell IRRV (Hons) Enforcement Agents Certification of Enforcement Agents Regulations 2014 Taking Control of Goods Regulations 2013 Taking Control of Goods (Fees) Regulations 2014 National Standards for Enforcement Agents Complaints procedures

2 Enforcement Agents 2 The term has gradually been replacing the 4tle of Bailiff Exempt from cer4fica4on are: Enforcement officers working for High Court Sheriffs Enforcement officers employed by the County Court Enforcement officers employed by magistrates courts Debt Management Officers employed by HMRC or other Govt Depts. Agents not directly employed by Government or the Courts must be personally cer4ficated to have any legal powers. Term Bailiff no longer has any legal standing but may remain in public use

3 Certificated Enforcement Agents 3 Powers of an Enforcement Agent To enforce debt by ac4on against goods and possessions of the debtor Lawful process contained in the Sch.12, TCE Act 2007 and in regula4ons Which Agents require a cer4ficate? Agents employed by Enforcement Agent firms or companies Enforcement staff employed by local authori4es Self- employed enforcement agents in private prac4ce Need to dis4nguish term Cer4ficated Enforcement Agent from civil enforcement officers which is current term for traffic wardens.

4 Certification Legal requirement 4 Other than certain officials employed by Government or the Courts, an individual may only act as an enforcement agent if ac4ng under a cer4ficate under s.64 TCE Act. Exis4ng cer4ficates remain valid but new cer4ficates are required before expiry dates to avoid a cer4fica4on gap Governing regula4ons are: Cer4fica4on of Enforcement Agents Regula4ons 2014 Statutory applica4on form Inten4on to apply for cer4fica4on must be published in advance on the County Court website invi4ng reasons for objec4on Transi4on period before new training requirements implemented

5 Certification application 5 All applica4ons to County Court Business Centre in Northampton on Form EAC1. Applica4on form requires personal informa4on including: Personal details Criminal convic4ons, subject to Rehabilita4on of Offenders Act Enquiry whether any judgments for debt in past 6 years Experience and any qualifica4ons Past and present employment details Names of two referees including employer where appropriate Details of Security Bond of 10,000 Copies of statutory forms agent will use

6 Application process 6 Applica4ons are heard before a County Court judge at a County Court Hearing Centre Hearing centre is chosen by applicant and those available are listed on Form EA1 Judge will examine the applicant in person Judge must be sa4sfied that the applicant: Is a fit and proper person to hold a cer4ficate That any objec4ons to the contrary are not well- founded Holds sufficient knowledge of the law and procedures rela4ng to:- 1. the Taking Control of Goods 2. Commercial Rent Arrears Recovery (CRAR process) Cer4ficates will not be issued to an applicant involved in the business of buying debts

7 7 Taking Control of Goods Regula4ons 2013 Taking Control of Goods (Fees) Regula4ons 2014

8 Government policy driving the change The Government is commi/ed to strengthening protec3ons against rogue bailiffs and the unsound unsafe or unfair methods that they use, while at the same 3me making sure that debts can s3ll be collected fairly 8

9 9 Taking control of goods - Notice No4ce of Enforcement for ALL debts must be given not less than 7 days before any steps to take control of goods Permission of the Court can be sought for a shorter period (if it is likely that goods may be removed to avoid ac4on) No4ce must be given by the enforcement agent or the enforcement agent s office by specified methods No4ce provides a period of 12 months in which to act The court can extend the period once for a further 12 months if the Enforcement Agent has reasonable grounds for not taking control of goods during the ini4al 12 months

10 Enforcement Notice 10 Content of no4ce is prescribed and must include how and when payment may be made, contact number, date and 4me by which payment must be made Statutory form provided by the Cer4fica4on Regula4ons. Addi4onal informa4on added to the form would not invalidate The 12 month period is extended if the debtor enters into an arrangement, in which case, 12 months period runs from the date the arrangement defaults

11 11 Hours of Entry May enter, re- enter or remain on premises acer 6.00am or before 9.00pm on any day (including Sunday s). May stay on acer 9.00pm to complete Where premises are used for trade or business entry may be during any hours where the premises are open for business Note: Entry on to premises Entry must be by normal means (door) Reasonable force to enter may only be used where permieed by the TCE Act or with a warrant from the court If debtor is a vulnerable person opportunity must be given for assistance to be obtained, or fee may not be payable. Agent may not enter if only person present is a child (under 16)

12 Securing Goods 12 Property in goods transfers from the debtor to the control of the law Goods may be secured in a cupboard, room or outbuilding Secured goods are under the protec4on of the court Other than on residen4al premises an enforcement agent may remain on the premises to guard secured goods Goods may be secured by securing the whole of the premises, other than any part used for residen4al purposes Where goods are removed to be secured, that should be to a nearby place.

13 Goods that cannot be taken into 13 control Exempt Goods (as specified in the regula4ons) Tools of the trade up to 1,350 (exemp4on does not apply for NDR) essen4al household and personal items Items required for a child or a disabled person Other restricted Goods Goods found on a highway, including the contents of a vehicle, may not be taken if to do so would pose a risk to public health Restricted goods include: Livestock such as caele, sheep, pigs, horses and poultry Hazardous goods that may be contaminated chemically or radioac4vely A vehicle containing such goods may not be taken.

14 Controlled Goods Agreements 14 Controlled goods agreement may be entered into by Debtor (not child under the age of 16) Any person over 18 authorised by the debtor Person in charge or deemed to be in charge Allows debtor to retain use of goods subject to payment as agreed Controlled goods inventory must: ID the manufacturer, model, serial number of goods Vehicle manufacturer, model colour, registra4on mark Securing goods On the premises goods may be secured un4l un4l removal Vehicle, by fikng an immobilisa4on device, with no4ce displayed Vehicle on highway must remain immobilised for at least 2 hours before removal

15 15 Methods of sale Public auc4on Private contract Sealed bids Sale of Controlled Goods On- line internet auc4on site Adver4sement Such other method as the court agrees is appropriate Proceeds of sale payment of sums due to the auc4oneer The enforcement agent and the creditor (if insufficient, shared in propor4on to amounts due)

16 16 Abandonment of goods Different meaning formerly used to refer to an abandoned distraint; Abandonment now refers to goods no longer under control because the debt has been cleared; Wrieen no4ce of abandonment must be given to the debtor lis4ng the goods abandoned clearly iden4fying them; Debtor has 28 days to arrange collec4on of the goods; If goods are uncollected, the Enforcement Agent must make ask the court to determine how abandoned goods are to be disposed of; Court may order an extension of the 4me, or the goods be given to a charitable organisa4on, or The goods be destroyed

17 17 Commercial Rent Arrears Recovery (CRAR) Taking Control of Goods not available for domes4c rent Rent, payable under a lease must be at least 7 days in arrears Landlord may give wrieen no4ce to an Enforcement Agent Authorisa4on must include date date of authorisa4on, name and address of landlord and tenant details Enforcement Agent must issue an Enforcement No4ce prior to ac4on to take control of goods Tenant has a right of appeal to the county court

18 Fees previous structure replaced 18 Fees for local authority debts that were prescribed by regula4ons (Ctax; NDR; Road Traffic Debt) no longer apply Reasonable costs including van charges, no longer apply Specified fees now apply based on the amount of the debt, NOT on the amount of work involved. Disbursements recoverable from the debtor are specified and limited

19 New fee structure in 3 stages 19 Stage 1 - ADMINISTRATION STAGE Stage 2 - ENFORCEMENT STAGE Stage 3 - SALE STAGE Fixed Fee for each stage PLUS % of debt (if over 1,500) for Stages 2 & 3 Slightly different version for High Court enforcement

20 Fees set in FEE STAGE Fixed Fee Percentage Fees Above fees to apply to local authority debts and all debts other than enforcement under High Court writ A different scale applies to High Court debts and includes TWO enforcement stages Fees are collectable from the debtor 0-1,500 Over 1,500 Administra4on % 0% Enforcement % 7.5% Sale % 7.5% 24

21 Disbursements 21 The following may be charged to the debtor:- Court costs for seeking special approvals Cost of a locksmith to enter by force public auc4on costs incurred and reasonable expenses Sale by internet auc4on costs incurred Excep4onal disposals, eg large or difficult items Applica4on can be made to the Court for addi4onal fees to meet the scale of the work involved Mul4ple Warrants administra4on fee in respect of each warrant Fee for Enforcement/Sale stages applies only once 25

22 National Standards for 22 Enforcement Agents Na4onal Standards for Taking Control of Goods are being published by the Ministry of Jus4ce Drac document was issued for consulta4on responses by 1 st April 2014 These standards are intended for use by all enforcement agents, public and private Na4onal guidance does not replace local agreements, but should be seen as minimum standards The Standards document runs to 7 pages Local agreements should be revised as necessary

23 Complaints provision 23 The TCE Act provides that to resolve disputes, applica4ons may be made to the Court by the creditor, the enforcement agent and debtor. The TCE Act gives remedies for dealing with disputed goods and problems with the applica4on and amount of costs. Complaints may include issues rela4ng to the bailiff s conduct. Complaints will be filtered by county court officials before a case goes before a Judge in order to weed out vexa4ous complaints Limit applies to the costs that may be awarded against a complainant. 20

24 QUESTIONS or DISCUSSION 26

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