Your rights with bailiffs
As rogue bailiffs hit the headlines, we look at your rights when dealing with debt collectors.
Bailiffs hit the news last week after the Ministry of Justice called for changes to laws governing bailiffs in England and Wales.
It’s down to the number of complaints about the way that ‘rogue’ bailiffs behave and the fact that those in debt don’t have enough protection against them or know their rights.
We’ve heard stories of cars being repossessed seemingly without warning, bailiffs gaining unlawful entry by pretending to be reading the meter and aggressive actions and threats. It even veers into the bizarre sometimes, with reports of seized welcome mats.
Debt collectors and bailiffs: what’s the difference?
A lot of people get confused about the differences between a debt collector and an actual bailiff. The rules governing their behaviour are not the same and a doorstep collector is no different from - and has no more power than - an agent phoning to collect debts.
These agents often use threatening tactics over the phone to scare people into making payments that they can’t afford. We’ve outlined before what to do if a creditor keeps calling you in an attempt to inform and educate people about their rights and what they should do.
Often threats of bailiffs are made over the phone and by letter, but it’s important to realise that only the courts have the power to send bailiffs.
If the bailiff is instructed to visit a property because of an unpaid county court judgment, a ‘warrant of execution’ will be sent to the person with the debt first. If the bailiff is there to collect unpaid council tax or fines, a ‘liability order’ will be issued by the magistrates’ court. (The latter is more serious and these bailiffs can be harder to negotiate with.)
Anyone sent on behalf of the creditor is just a debt collector, and while they can be very intimidating there’s no need to try negotiating with them on the doorstep as this can be done in writing or over the phone.
We always recommend seeking advice before it gets to the bailiff stage. They can easily be prevented if you come to an arrangement to repay the debt at a realistic rate.
However we understand that there are many reasons why bailiffs can get involved and it’s vital to get advice rather than let the problem escalate or, in the worst case scenario, see your goods taken away.
What can bailiffs do?
Ultimately bailiffs exist to recover debts that have been ignored or somehow got to this stage of the debt collection process. However, most bailiffs would agree that they’d prefer to come to a mutual payment agreement rather than remove goods to sell them at auctions. Especially as removed goods tend not realise much money at auction.
If you or someone you know has debts that have been passed on to a bailiff, you don’t have to let them into the property. It’s best to try to negotiate through the door or an open window.
They can’t break into the property unless they’ve gained ‘peaceful entry’ through an unlocked door or they’ve been invited in on a previous visit. This is called ‘walk in possession’ and once they have this they can use force to enter again in the future.
If a bailiff enters the property, they won’t take goods on the first visit. They’ll usually make a list of items of value which they can take further down the line. This is called a ‘levy’, but they’re not allowed to take items that don’t belong to you, are required for your trade or belong to children. Once they’ve listed items it’s an offence for you to remove or hide any of them.
There are always fees involved with bailiffs, depending on the type of debt that’s being collected. All bailiff fees (with the exception of magistrates' court bailiffs) can be examined by the county court to see if they are reasonable or excessive.
No matter what, if there’s a warning of bailiffs it’s definitely the time to get free debt help as soon as possible so that you’re aware of your rights and you don’t get bamboozled with the bailiff jargon.
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Once you have revoked debt collectors rights to entry on your property, if debt collector(s) do arrive, just phone the Police, say you are frightened/very frightened and that someone is persisting in trying to gain entry to your property and how soon can they send an Officer around. No need to mention debt collectors to the Police, and be sure to give the Police a good description if you can of the 'person' or 'persons' trying to unlawfully enter your property! Also, any forced entry in such circumstances amounts to burglary (reported as such!) if they take any of your belongings!
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Bailiffs acting on court orders ultimately cannot be refused entry, but if you have informed card companies or debt collection agencies that you retract any common law legal right to enter your property (Do this with a recorded delivery letter and keep copies!), then even entering an open window or door with or without you there or on any pretext amounts to trespass, with NO right to subsequent forced entry by debt collectors (as opposed to County Court bailiffs).. If County Court bailiffs arrive, ask to see the warrant, AND you can insist that they have a Police Officer with them before you let them in. This won't stop them getting in, but might at least give you a short breathing space before they can gain entry! Debt collectors on the other hand should not even be spoken to, except to just (and only!) state that you will continue to negotiate with the creditor in writing and that you refuse outright to speak or deal with their debt collectors face-to-face, at any time or in any circumstances. if they stay at or near your door stay put inside until they go away. If debt collectors become threatening, call the Police. If they trespass onto your property, again after you have revoked their common law right to enter your property or grounds, or persist in making attempts at entry by repeated knocking on the door, call the Police and explain the situation to them that you have debt collectors trying to trespass on or onto your property and have the letter revoking their debt collectors rights ready to show to the Police. Do not under any circumstances be intimidated by debt collectors or accede to their demands just to get rid of them. Once the Police arrive, debt collectors will leave in a hurry!
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If you have credit card debts you cannot afford to pay at the company's agreed rate, you have two options, depending on whether there is equity in a house/spouse or partner earning over £15K pa, or not. If neither apply, then a free charity such as CCCS will negotiate a single monthly payment with all your card creditors and get interest and charges stopped if you genuinely can't afford these. If there is equity in a house or spouse/partner earning over 15K, write to each creditor asking that they suspend interest and charges and agree to accept a monthly payment that you can afford. You'll need to support this request for a voluntary payment plan with Budget and Income figures, income proofs and a suitable letter of request all of which can be sorted online free through CCCS, though you'll need to be able to print these, or copy them out onto paper. Then cancel direct debits and set up a monthly standing order to each card company set at what YOU can afford. You might need to phone their customer service to get the relevant payment account details. The important thing in all cases is to contact card companies informing them of your financial difficulties BEFORE you default on any payments. Most are reasonable provided you pursue obtaining a voluntary payment plan sufficiently rigorously. Some companies may give you quite a hard ride on the way, but legally they CANNOT force you to pay more than YOU can afford each month. Resend financial details every 6 months as long as you are paying less than their 'required' monthly payments. If you are on an agreed payment plan, even if only £1 per month, they are usually unlikely to pursue matters through the County Courts, at least in the short to medium term, as a county court would not enforce payments above the rate you can afford, and the courts might well consider court action by the creditor company as amounting to immoral and predatory action against someone already suffering severe financial difficulty where a voluntary payment plan has been agreed by the creditor. If on the other hand you stop making payments altogether, then a County Court order and CCJs ARE very likely within 6 months or so. Being in debt is not a crime and you can get free debt help through CCCS or the Citizens Advice Bureau. Hire purchase debts or bank as opposed to card debts are much more of a problem and your only recourse then is to try to negotiate with the bank or hire purchase company. Hire Purchase companies may repossess goods, cars etc, and banks have the right to take any and all money owed directly from your current account at any time after you default on payments, without even asking you first. This also applies to credit cards issued by a bank where you also hold a current or deposit account. I would try to do balance transfers while you can away from these sorts of loans or your own bank's credit card while you are able, before going into default with other credit card accounts. It is possible to default and make voluntary payments to other card companies while maintaining 'minimum or agreed payments on bank accounts or your bank's card, if you can afford to do this. Similarly if you hold cards issued by your mortgage company you must not default on these as the mortgage company can legally just add your mortgage company card debt to your mortgage, making repossession more likely. The best advice in the first place is to never take out a credit card with your current bank or mortgage company! If you get pestered by phone calls, write and say you are only prepared to deal with any creditors in writing. You can also rebuke any legal right of debt collectors or their representatives to enter onto your property as constituting trespass. You will get letters some of which can appear frightening as card companies try to get you to increase payments, and statements show a seriously mounting missed minimum payment. But remember they can ASK for extra payments or repayment, even worded quite strongly but they CANNOT insist without a court order. If their request seems to border on a DEMAND, complain very strongly that they are exceeding their legal rights, Courts can make demands (normally in any case based on what you can afford), but card companies themselves can only insist on the amount you can afford each month. Some card companies resort to a series of tricks to try to scam you into paying more. They have their own in-house debt collection differently named companies - just Google if not sure. Should the debt actually be passed to an external company, your rights remain the same, but you would need to re-negotiate a voluntary payment plan with the new creditor, though if you are on a single monthly payment plan through CCCS they will do this for you. It is possible the debt might increase through selling-on fees, but your payment should stay the same, based on what YOU can afford. You should again rebuke any right to enter onto your property to keep debt collectors out of your home. Direct and honest communication early on, preferably in writing with card companies will go quite some way to making it easier to get payment plans in place at a later stage! But you may need to write several letters and persist in getting the card companies to co-operate!
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01 March 2012