KANAAL Z: TAKING A CLOSER LOOK AT THE Z-MEDIATION SERIES

Recently, I came across the new series Z-Mediation on Kanaal Z. My interest, being an employee of a debt collection agency, was immediately piqued. After all, amicable debt collection is our area of expertise. However, it was with some surprise that I noticed that the entire series was based on the work of bailiffs. I could not immediately link mediation with the work of bailiffs.

The episode ‘Amicable debt collection (13/09/21)‘ was introduced by Kanaal Z as follows: “In our country, various parties can collect debts in an amicable way. Bailiff Barbara Strobbe explains why it is best for private individuals as well as companies with unpaid invoices to approach a bailiff.” This sounds like good marketing from bailiffs, but I was nonetheless curious about Mrs. Strobbe’s argument.

Headwinds

In retrospect, I was not surprised by the rather negative connotation with which Mrs. Strobbe frames the debt collection sector; after all, we happen to be direct competitors of bailiffs who also wish to attract the amicable part towards them.
However, a critical note does seem to be missing in this argument, and we are happy to provide the necessary constructive headwinds/criticism on the points that Mrs. Strobbe has raised during this episode.

So what might these headwinds be?

Judicial or amicable?

As a first essential element, it should be possible to distinguish between the judicial and amicable work of a bailiff, if at all possible. Test-Achats/Test-Aankoop, among others, rightly asks whether “consumers will no longer be intimidated by the figure of the bailiff, whether they will no longer be confused by the fact that a bailiff can also recover debts in the context of a non-judicial procedure, whether it can be ensured that consumers do not experience any undue pressure as a result. (…) According to Test-Achats/Test-Aankoop, it is better to remove this possibility“.

The fact that this distinction is not that easy to make, even for bailiffs, is also clear from Mrs. Strobbe’s explanation. She cites the fact that collection agencies are biased and only work for creditors, for the party that engages them. But that is equally true for bailiffs, at least when they collect amicably and thus do not serve a summons or execute a judgment. However, I understand Mrs. Strobbe’s confusion. When she is working as a public and ministerial official, she must indeed be impartial and, in that capacity, may not accept an assignment from a creditor. But then we are not talking about amicable recovery either. In the case of amicable debt collection, they fulfil the same role as a collection agency.

Humane recovery

When questioned about the differences in approach, Mrs. Strobbe seems to insinuate that amicable debt collection through bailiffs is more humane. Contact, especially local contact, would be essential. At the same time, she admits that this is a big element that needs to worked on and that most complaints that the ombudsman’s office handles are about miscommunication? Test-Achats/Test-Aankoop reported on this earlier that “since the Amicable Recovery Act, the number of problems with collection agencies has decreased, but that the problems with bailiffs who perform amicable collection continue to exist and are even increasing.”

In addition, employees of debt collection agencies also go on site to visit debtors in order to gain a better insight into the situation and to mediate. Moreover, the solvency investigation via databases (e.g. NSSO, Central Database of Attachment Notices,…) that Mrs. Strobbe cites can only be carried out in the event of (an intention to) issue a writ of summons, so again outside the amicable procedure.

I also question the action of seizure and/or forced sale to which she refers fleetingly. Again, this is a judicial and certainly not an amicable action, and the proceeds are often not worth the effort as they go entirely to the bailiff to cover his costs. The creditor is left out in the cold, but this does not help the debtor either. His debts pile up and the money/properties he has are used up on legal costs.

The cost

Mrs. Strobbe also seems to insinuate that a collection procedure is more expensive for the debtor than a bailiff procedure. Among other things, she relates the following: “the cost of a collection agency is also borne by the debtor if it was so agreed”. We can learn a lot from Mrs. Strobbe when it comes to rhetoric; the above formulation is sublime. Legally, however, her statement is incorrect.

For B2C cases, I refer to “Art. 5.: It is forbidden to ask the consumer for any compensation, other than the agreed amounts in the underlying contract in case of non-compliance with the contractual commitments.” (DECEMBER 20, 2002. – Law on the amicable recovery of consumer debts). In simpler terms, a collection agency may not impose any additional costs for the collection of this type of debt, other than collecting the interests/costs stipulated in the contract.

For B2B cases, we read the following in “Art. 6.[1 If default interest is due in accordance with the provisions of this law, the creditor is entitled, ipso jure and without notice of default, to the payment of a fixed fee of 40 euros for its own recovery costs. In addition to this fixed amount, the creditor shall be entitled to reasonable compensation for all other recovery costs that exceed this fixed amount and that have arisen from the late payment, including the judicial compensation in accordance with the provisions of the Judicial Code.]1” (2 AUGUST 2002. – Law on combating late payment in commercial transactions).

So theoretically it would be allowed for these cases, but in practice it is hardly done or not done at all. In reality, it is therefore almost never agreed upon. TCM Belgium also does not claim any collection costs from a debtor, only the costs and interests in accordance with contractual or legal conditions are claimed. It also often happens that costs and/or interests are waived by the creditor.

Bailiff fees in a judicial bailiff procedure are, however, always charged, both in B2B and B2C cases. In addition to the costs and interests, these costs are always payable by the debtor, and always go first to the bailiff, and are not calculated as a lump sum (in percentages). For small debts (often B2C debts), this fixed amount is on the high side. It also often happens that seizures are made or sales arranged for goods with a low market value and which are therefore sold for quite a small amount. This certainly does not solve the debt.

Equal?

The FPS Economy monitors debt collection agencies, but they do not (yet) have any authority to monitor bailiffs who perform amicable debt collection. That this is really necessary in practice is shown by the bill that Mrs. Strobbe herself quotes in her argument. That bill (amending the Act of 20 December 2002 on the amicable recovery of consumer debts, in order to combat abuses) does indeed provide for the capping of recovery costs, but also provides for an adjustment to the monitoring of lawyers and bailiffs who perform amicable recovery. This control would also be assigned to the FPS Economy, so that all parties involved in amicable debt collection would be monitored by the same control body. However, the bailiffs are quite opposed to this measure.

Conclusion

In general, what strikes me most is that this episode is hardly about amicable debt collection, which is the title of the episode, but rather about the activities of the judicial officers. In fact, it is actually not really about their amicable but rather judicial actions.

For more information on the similarities and differences between the operations of a debt collection agency, a lawyer, and a bailiff, I refer to the following article.

28/10/2021

KANAAL Z: TAKING A CLOSER LOOK AT THE Z-MEDIATION SERIES

Recently, I came across the new series Z-Mediation on Kanaal Z. My interest, being an employee of a debt collection agency, was immediately piqued. After all, amicable debt collection is our area of expertise. However, it was with some surprise that I noticed that the entire series was based on the work of bailiffs. I could not immediately link mediation with the work of bailiffs.

The episode ‘Amicable debt collection (13/09/21)‘ was introduced by Kanaal Z as follows: “In our country, various parties can collect debts in an amicable way. Bailiff Barbara Strobbe explains why it is best for private individuals as well as companies with unpaid invoices to approach a bailiff.” This sounds like good marketing from bailiffs, but I was nonetheless curious about Mrs. Strobbe’s argument.

Headwinds

In retrospect, I was not surprised by the rather negative connotation with which Mrs. Strobbe frames the debt collection sector; after all, we happen to be direct competitors of bailiffs who also wish to attract the amicable part towards them.
However, a critical note does seem to be missing in this argument, and we are happy to provide the necessary constructive headwinds/criticism on the points that Mrs. Strobbe has raised during this episode.

So what might these headwinds be?

Judicial or amicable?

As a first essential element, it should be possible to distinguish between the judicial and amicable work of a bailiff, if at all possible. Test-Achats/Test-Aankoop, among others, rightly asks whether “consumers will no longer be intimidated by the figure of the bailiff, whether they will no longer be confused by the fact that a bailiff can also recover debts in the context of a non-judicial procedure, whether it can be ensured that consumers do not experience any undue pressure as a result. (…) According to Test-Achats/Test-Aankoop, it is better to remove this possibility“.

The fact that this distinction is not that easy to make, even for bailiffs, is also clear from Mrs. Strobbe’s explanation. She cites the fact that collection agencies are biased and only work for creditors, for the party that engages them. But that is equally true for bailiffs, at least when they collect amicably and thus do not serve a summons or execute a judgment. However, I understand Mrs. Strobbe’s confusion. When she is working as a public and ministerial official, she must indeed be impartial and, in that capacity, may not accept an assignment from a creditor. But then we are not talking about amicable recovery either. In the case of amicable debt collection, they fulfil the same role as a collection agency.

Humane recovery

When questioned about the differences in approach, Mrs. Strobbe seems to insinuate that amicable debt collection through bailiffs is more humane. Contact, especially local contact, would be essential. At the same time, she admits that this is a big element that needs to worked on and that most complaints that the ombudsman’s office handles are about miscommunication? Test-Achats/Test-Aankoop reported on this earlier that “since the Amicable Recovery Act, the number of problems with collection agencies has decreased, but that the problems with bailiffs who perform amicable collection continue to exist and are even increasing.”

In addition, employees of debt collection agencies also go on site to visit debtors in order to gain a better insight into the situation and to mediate. Moreover, the solvency investigation via databases (e.g. NSSO, Central Database of Attachment Notices,…) that Mrs. Strobbe cites can only be carried out in the event of (an intention to) issue a writ of summons, so again outside the amicable procedure.

I also question the action of seizure and/or forced sale to which she refers fleetingly. Again, this is a judicial and certainly not an amicable action, and the proceeds are often not worth the effort as they go entirely to the bailiff to cover his costs. The creditor is left out in the cold, but this does not help the debtor either. His debts pile up and the money/properties he has are used up on legal costs.

The cost

Mrs. Strobbe also seems to insinuate that a collection procedure is more expensive for the debtor than a bailiff procedure. Among other things, she relates the following: “the cost of a collection agency is also borne by the debtor if it was so agreed”. We can learn a lot from Mrs. Strobbe when it comes to rhetoric; the above formulation is sublime. Legally, however, her statement is incorrect.

For B2C cases, I refer to “Art. 5.: It is forbidden to ask the consumer for any compensation, other than the agreed amounts in the underlying contract in case of non-compliance with the contractual commitments.” (DECEMBER 20, 2002. – Law on the amicable recovery of consumer debts). In simpler terms, a collection agency may not impose any additional costs for the collection of this type of debt, other than collecting the interests/costs stipulated in the contract.

For B2B cases, we read the following in “Art. 6.[1 If default interest is due in accordance with the provisions of this law, the creditor is entitled, ipso jure and without notice of default, to the payment of a fixed fee of 40 euros for its own recovery costs. In addition to this fixed amount, the creditor shall be entitled to reasonable compensation for all other recovery costs that exceed this fixed amount and that have arisen from the late payment, including the judicial compensation in accordance with the provisions of the Judicial Code.]1” (2 AUGUST 2002. – Law on combating late payment in commercial transactions).

So theoretically it would be allowed for these cases, but in practice it is hardly done or not done at all. In reality, it is therefore almost never agreed upon. TCM Belgium also does not claim any collection costs from a debtor, only the costs and interests in accordance with contractual or legal conditions are claimed. It also often happens that costs and/or interests are waived by the creditor.

Bailiff fees in a judicial bailiff procedure are, however, always charged, both in B2B and B2C cases. In addition to the costs and interests, these costs are always payable by the debtor, and always go first to the bailiff, and are not calculated as a lump sum (in percentages). For small debts (often B2C debts), this fixed amount is on the high side. It also often happens that seizures are made or sales arranged for goods with a low market value and which are therefore sold for quite a small amount. This certainly does not solve the debt.

Equal?

The FPS Economy monitors debt collection agencies, but they do not (yet) have any authority to monitor bailiffs who perform amicable debt collection. That this is really necessary in practice is shown by the bill that Mrs. Strobbe herself quotes in her argument. That bill (amending the Act of 20 December 2002 on the amicable recovery of consumer debts, in order to combat abuses) does indeed provide for the capping of recovery costs, but also provides for an adjustment to the monitoring of lawyers and bailiffs who perform amicable recovery. This control would also be assigned to the FPS Economy, so that all parties involved in amicable debt collection would be monitored by the same control body. However, the bailiffs are quite opposed to this measure.

Conclusion

In general, what strikes me most is that this episode is hardly about amicable debt collection, which is the title of the episode, but rather about the activities of the judicial officers. In fact, it is actually not really about their amicable but rather judicial actions.

For more information on the similarities and differences between the operations of a debt collection agency, a lawyer, and a bailiff, I refer to the following article.

28/10/2021