Debt Recovery: Be careful who you pay!

As the effects of Covid-19 continue to have an adverse effect on the economy, unfortunately this means more scammers are using this opportunity to take advantage of vulnerable people faced with financial difficulties.

We have recently seen an increase in new enquiries from debtors who have received telephone calls from an unknown source, pretending to be High Court Enforcement Agents, or County Court Bailiffs and telling the caller that they need to make prompt payment to them, in order to avoid enforcement action proceeding and assets being seized. Payments have been made in some cases, with it later transpiring that the caller was not an authorised enforcement agent.

In such cases, it is often very difficult to recover the funds, as the fraudster will use methods that mean the funds are untraceable and as a result, banks are often unable to assist in recovering the payments made.

What is the enforcement process?

On 6 April 2014, Part 3 and Sch 12 of the Tribunals, Courts and Enforcement Act 2007 came into force, along with the Taking Control of Goods Regulations 2013 and Taking Control of Goods (Fees) Regulations 2014. This legislation sets out the process that judgment creditors seeking to enforce a judgment debt via an enforcement agent must follow when looking to seize goods to sell, in order to satisfy a judgment debt.

Only an authorised enforcement agent will have authority to attend a debtor’s premises to take control of goods. To facilitate this process, the judgment creditor will be required to obtain a High Court Writ or Warrant of Control and they must have instructed the enforcement agent to execute this.

Prior to attending the debtor’s premises, an enforcement agent is required to give 7 clear days written notice that they intend to enforce the Writ to the debtor. There is prescribed information required under the TCEA 2007 (Sch 12) that confirms the notice must include key information such as:

• The debtor’s name and address;
• A reference number;
• The date of the notice;
• Details about the debt such as the balance including interest and enforcement costs;
• Details of the judgment (such as a claim number) or power that is given to the agent to enable them to enforce the judgment;
• How to make payment;
• Contact details for the enforcement agent and times they can be contacted; and
• The deadline for which payment must be received.

It is essential that the notice is sent to the debtor by post or hand delivery, fax, email or fixed to a place where it is likely to come to the debtor’s attention.

In the absence of any response to the notice, the agent can commence the process to enforce the judgment by attending the debtor’s address. They will look to remove goods of value to satisfy the judgment debt, but some assets are excluded and protected.

Points to note

If you have a debt owed to a creditor and receive any correspondence, make sure you:

1. Check the debt is legitimately owed before committing to making any payments. Check your paperwork. Is this a debt that you know you owe to a creditor?

2. Make sure the correspondence matches earlier letters you have received. If the correspondence is from someone new, don’t be afraid to ask them to provide evidence that they have authority to deal with the matter on behalf of the judgment creditor.

3. If you receive a call from an unknown source, don’t be afraid to challenge the caller to provide evidence of where they are calling from, who they are instructed by and if in doubt, ask them to send you some paperwork first, as evidence of their authority to act on behalf of a third party, before committing to making any payments.

4. Don’t provide an unexpected or unsolicited call with your personal data such as bank details or your name or address, without being satisfied that the call is legitimate.

If you have already fallen victim to a scam like this, report it to Action Fraud and your bank. Your bank may be able to assist you in attempting to claw back the funds on your behalf.

Useful links and guidance

The National Crime Agency have issued some useful guidance on dealing with fraudulent scams during the Covid-19 pandemic and generally in this article.

Which? also provide guidance on how to get your money back after falling victim to a scam.

How can Ellis Jones help you?

Aside from reporting the matter to your bank and Action Fraud, you may be able to bring a claim against the person you paid the funds to by way of an action in restitution, for unjust enrichment. This type of claim arises where a party has benefitted from receiving monies that they were not entitled to receive in the first place. A claim in restitution serves to correct that position, by returning the funds paid to its rightful owner. Ellis Jones Solicitors can provide specialist advice on how to pursue such a claim.

Alternatively, if you are a debtor faced with an aggressive creditor and require assistance with responding to them, or, you are a creditor that has a debt owed to you and you want to make sure you pursue the debt in the correct way, we would be happy to discuss your case and see if we are able to assist. Should you wish to discuss this further, please do not hesitate to contact our specialist Dispute Resolution team on 01202 525333.