What is Seized Goods Letter and How to Apply for it?

Shergroup

3 years ago

Seized Goods Letter

If you have a customer who’s fallen behind in his payments and does not have the means to pay your dues, you will have to go to court and request a ‘seizure of goods’ permission. The court will first rule out a judgment ordering your debtor to pay but if your debtor ignores that then it will be followed by the seizure of the notice of the good.

If the court considers your request, it will ask you to serve a notice to your debtor that enforcement agents will be visiting his property to list the goods and if he still doesn’t make the payment then the goods equal to the value of the debt will be seized by the agents.

What Seizure of Goods Notice is About?

This notice gives important advice and information to the debtor about what to do if you have had something seized by HMRC or Border Force. It applies to the seizure of things, such as goods and vehicles, under section 139 of the Customs and Excise Management Act 1979. It does not apply to seizures carried out under any other law.

Details of the things seized from the debtor will be listed on one of the following |

a seizure information notice handed to the debtor or his agent if the thing was seized in their presence – the reason for the seizure is explained to the person present at the time of seizure
a notice of seizure is sent to the debtor if he or his agent is not present when the things are seized

The information in this notice covers seizures by HMRC and Border Force because the process is the same even though they are separate government organisations. However, it gives different contact details for HMRC and Border Force. If the debtor wants to stop the seizure of his goods then they must contact the correct organisation, depending on who seized from them, so their case can be dealt with promptly.

Seizures of cash under the Proceeds of Crime Act 2002 and seizures made under section 19 of the Police and Criminal Evidence Act 1984 (PACE) are not covered by the information in this notice.

Challenging The Seizure of Goods

If your debtor doesn’t agree with the seizure of goods by HMRC or Border Force and wants to challenge the legality of their actions they can do so within one calendar month of the seizure date.

The debtor will need to complete a Notice of Claim detailing the items concerned, why he’s making a challenge, and if a vehicle was seized, he needs to provide proof that he’s the owner.

Once the Notice of Claim has been received, the body concerned begins ‘condemnation proceedings in court. Here it is decided whether or not their actions were legal – it is not action taken against the debtor as the owner of the goods but does require their attendance at the court hearing.

The debtor needs to swear on oath that he owns these goods and explain why he thinks it was wrong to seize them. The authority concerned presents their evidence, and a decision is then made by the court.

Warrant of Seizure and Sale

An enforcement officer with a warrant of seizure and sale can enter private property and confiscate and sell the debtor’s real and personal property at a public auction. The proceeds of the auction are used to pay off the judgment debt and related expenses, less any existing mortgage or charge.

The court or the registrar at the courthouse where the judgment was given, ordered, or lodged issues the warrant.

As a creditor, you can ask for a warrant without having to notify anyone else.

When to Apply?

If you find that the enforcement debtor has a legal or beneficial interest in things, goods, chattels, or real property that is likely to attract interest at a public auction, you can apply for this warrant.

Before requesting a warrant, you should hold an enforcement hearing to determine which of the debtor’s assets are appropriate for seizure.

The worth and condition of the debtor’s property, chattels, or real estate, as well as the interest they generate at the auction, will determine your success.

What the Bailiff or Enforcement Officers Can Seize?

A bailiff or enforcement officer can seize only certain goods. For example, they can’t take tools of the trade (up to a certain value) or a car (up to a certain value) if the debtor needs them to make a living.

The bailiff can seize any items, goods, chattels or real property that |

the enforcement debtor has a legal or beneficial interest in
is specified in the enforcement warrant
is not exempt under the bankruptcy legislation.

Exempt Property

Any property exempt from seizure and sale is listed in r. 6.03 of Bankruptcy Regulations 1966 (Cwth) and s. 116 of Bankruptcy Act 1966 (Cwth). Property that can’t be divided among the parties who have a claim to it is also exempt.

How to Apply

Generally, you must apply for a seizure and sale warrant within six years of the date the judgment was made. After six years, but within another year, you must apply to the court before enforcement can occur.

File Form 75 – Enforcement warrant (seizure and sale) (DOC, 33.0 KB) (two copies: one for filing and one for the creditor) and Form 9 – Application (UCPR) (DOC, 45.5 KB) at the court registry.

Also, file Form 74 – Statement in support (UCPR) (DOC, 31.5 KB)—sworn no more than two business days before the date of filing—disclosing:

the date and amount of the money order
the date and amount of any payment made under the order
the costs incurred in previous enforcement proceedings
any interest due on the date the statement is sworn and daily amount accruing after
any other details necessary to calculate the amount payable under the order on the date the statement is sworn and show how the amount is calculated

Before taking action, the enforcement officer also needs a letter of instruction stating whether the warrant is to be executed and providing a contact person’s name and phone number.

If you’re requesting action, the court registry must have:
a security deposit (check with the court registry)
a clear copy of a current title search showing all encumbrances, including the date of the registration of warrant on the title deed
the debtor’s last known address
the full residential address of the property and the name and address of the owner/s (Queensland Valuation and Sales property search)
the payout figure from financial institution/s
(For real property) an independent valuation of the property conducted by a licensed valuer
Certified copies of the warrant may be ordered if required

Time Frame

Enforcement warrants are usually processed within one week and can usually be enforced for up to one year.

Costs

There are no court filing fees, but execution and auction expenses will be incurred, including:

seizure expenses, e.g. tow truck, removalists
storage
advertising and auction expenses
the bailiff’s execution fees and expenses, e.g. phone, travel and time. Security covers any expenses incurred by the bailiff while executing the warrant

Remember you have to provide a security deposit to cover the enforcement officer’s expenses before the seizure. However, other expenses can be deducted from the auction proceeds. The registrar will receive the proceeds and pay:

the enforcement officer’s costs
advertising expenses
court fees
the amount owing to the creditor (or solicitor or agent)
any balance to the debtor.

Auctioning a Motor Vehicle

If you need this warrant to auction the debtor’s motor vehicle, you need a red book valuation and evidence that the vehicle is not encumbered. This is not court staff or enforcement officer responsibility.

Auctioning Land

A copy of the warrant noted on the title deed is required if you need this warrant to auction the debtor’s land. This is not the responsibility of the court officials or law enforcement officers.

Request a copy of the warrant in writing, pay the appropriate fee, and have the warrant registered on the title.

Provide a current title search, property assessment, local government rate information, and mortgage payout information (if any).

Although there is no set rule for which bid the bailiff should accept at the auction, the bailiff can ask the registrar for guidance. A reserve price will be set before the auction, based on the property’s appraisal and market fluctuations. Before the auction, neither you nor any other bidder will be informed of the reserve price.

Summing-Up

If you’re stuck with a non-paying debtor and you want to go to the next stage to seize his goods and recover your money, reach out to Shergroup. We are enforcement specialists and can help you transfer your judgment to the High Court and serve notice to your debtor on your behalf to make the payment. If you have the court’s permission to seize the goods and sell them at a public auction, then we can execute the process for you. All you need to do is instruct us and pay our upfront fee to get started. If you want to get on a call with us before you proceed to buy, call one of our business solutions advisors and they’d be happy to help you.