Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
There are a number of companies operating on the basis of loans secured on property, for example cars. These loans are often provided for relatively small amounts of money, with very high rates of APR (often, over 100, and cases of APR’s over 200% are not uncommon).
In many cases, the results of even minor infractions of the rules on these agreements are severe; resulting in the repossession of the goods, and charges that can often amount to hundreds of pounds, while the debtor remains liable for more than the original cost of the loan.
However, in almost all cases due to technical mistakes by the creditor, the securities offered by these agreements are null and void even if the underlying debt is not.
What is a bill of sale?
The definition is so broad that it includes any security on private goods (other than a house or land), but do not include any agreement where the goods automatically pass to the lender.
But a bill of sale is not a pawnbroking agreement, where the debtor parts from possession of the goods, and redeems them at the end of the contract, or a “sale and buyback” scheme, where the customer sells the goods to the creditor (who then owns them, and gains possession of them), with the “debtor” having an option to purchase the goods back after a period of time), or a hire purchase scheme.
The statutory requirements for a bill of sale to be valid.
1. The bill of sale must be in the correct form and contain the prescribed information contained in the 1882 act.
2. The bill of sale must be registered.
If either requirement is not met, the bill of sale is void (that is, the security will not be enforceable, although the underlying debt may be).
Form and Content of a Bill of Sale.
The language for some of the wording is is archaic, which most ordinary people today wouldn’t understand. Nevertheless, if not in the prescribed form, it renders the bill of sale void.
It will be rendered void if it does not contain:
The date of the bill
The names and address of the parties
A statement of Consideration
An acknowledgement of the receipt of the advance
An assignment by way of security of particular goods, capable of description
Statements of the sum secured, the rate of interest, and the instalments by which repayments are made,
Agreed terms for the maintenance of security
A clause limiting the grounds of seizure to one of the following:
Default with the repayments or any covenant of the bill
Bankruptcy or seizure of the goods for rent, rates, or taxes.
If the granter fraudulently removes goods, or arranges for their removal
If execution has been levied against the goods
A schedule containing a description of the chattels
The consideration is the amount the borrower receives for the bill of sale; NOT the sum secured by the bill (which would include interest and costs). For example, if the agreement is regulated by a consumer credit agreement, it would have to use the amount that was advanced to the borrower BEFORE charges, costs and interest.
If a credit agreement regulated by the consumer credit act is secured on a bill of sale, and the bill of sale is void, the credit agreement may also void by virtue of the act, although the law on this is VERY unclear. I would recommend getting into contact with the national debt line on this issue.
So. You’ve got a copy of the bill of sale, and it is a rare bill of sale that complies in all respect with the acts.
Can it be enforced?
Registration
A bill of sale can only be enforced if it was properly registered. Since this is an expensive and difficult process, it is rare that this actually happens. However, failure to register the bill of sale renders it void, and so renders any security on goods void.
Consequently, before allowing any creditor to gain possession of your goods, ask to see a registered copy of the bill showing the supreme courts seal.
You can also call the national debt line, and ask them how to search the registry yourself.
Requirements of the consumer credit act
Most bills of sales are also regulated by the consumer credit act. Such a security will be no more valid than the consumer credit agreement. The requirements of the consumer credit act include:
A description of the security should be included/embodied in the credit agreement
The bills of sale must be presented to the debtor at the time the credit agreement was signed
The creditor will normally have to issue a default notice before calling in the debt.
The terms of the bills of sale must be consistent with the credit agreement.
The agreement must not be extortionate ( if made before 2007) or constitute an unfair relationship(after 2007)
All the other, normal requirements of the consumer credit act apply. It is also possible to apply for a time order to prevent the repossession of goods under the consumer credit act 1974.
Enforcement of Bills of sale
Before you are required to give up your property, they must (if you ask for it) provide a valid bill of sale exists, that bears the stamp of the Supreme Court.
However, repossession does not need to be carried out by a certified or professional “enforcement officer” given this, the professional conduct of those actually repossessing goods is of serious question, AND I ADVISE ANYBODY when presented by a bill of sale to call the police immediately, informing them that you are afraid of a breach of the peace and asking for their attendance.
Hi, I saw your post and thought it offered quite a lot of information but had a few questions. I have a car by Bill of Sale since November 2004 with the Funding Corporation. I moved house last June i.e. June 07 and wrote to all creditors informing them of my new address. I also wrote to TFC informing them that I wanted to surrender the vehicle as I have paid more than 50% of the agreement. They responded saying that it was a Bil of Sale and not a credit agreement and that I could not surrender. I took some free legal advice by phone and the solicitor was sue that I was able to surrender if I wanted to. Nevetheless, I left it an continued to make my payments. I was then made redundant in October 07 but kept up all of my payments. More recently in Feb this year I took the advice of a debt management company and put a dept management plan into action with a company called Churchwood Financial, ever since I have been getting calls from TFC, all other creditors seem ok with the debt management plan but not TFC.
Today I got a call from someone claiming to be a bailiff, he indicated that I was in arrears by two payments and that he was under instruction to reposess the vehicle. I told him of the arrangement that I had out in place and provided the necessary details. He then went on to say that he had visited my address and the I don't live there anymore, so I told him that wheh I moved I informed TFC in writing of my new address and that they should provide him with that information, he then said that he would egister the vehicle as a stolen vehicle as I have failed to provide my address. I told him that I was ure that he needed a court order under the credit consumer act 1974 which the agreement is regulated by, he said that he did not. I also told him that i believed his claims that he had powers to reposess the vehicle to be a misrepresentation and I aim to contact the office of fair trading as he may be in breach of the standards set out in there debt collection guidance.
Can he take the vehicle without a court order?
Was I right?
Yes, I do I a copy of the letter as well as a copies of other change of address letters which was sent to other creditors around the same time the only difference is they all acknowledged my change of address apart from TFC. Also, the change of address is registered with DVLA and I have a new log book showing my new address.
Can I apply for a time order as the agreement is a bill of sale regulated by the consumer credit act 1974?
If I can apply what form should I use? Is it the N1 or the N44?
These 'bailiff's use the 'we'll have to report the car as stolen' card a lot in order to get what they want - it's a lie. In the meantime, keep the car hidden until this is sorted as they will mercilessly seek it out and take it wherever they may find it - your main hope lies in civil litigation which may cost less than you think. PM me for more details.
Hi, I saw your post and thought it offered quite a lot of information but had a few questions. I have a car by Bill of Sale since November 2004 with the Funding Corporation. I moved house last June i.e. June 07 and wrote to all creditors informing them of my new address. I also wrote to TFC informing them that I wanted to surrender the vehicle as I have paid more than 50% of the agreement. They responded saying that it was a Bil of Sale and not a credit agreement and that I could not surrender. I took some free legal advice by phone and the solicitor was sue that I was able to surrender if I wanted to. Nevetheless, I left it an continued to make my payments. I was then made redundant in October 07 but kept up all of my payments. More recently in Feb this year I took the advice of a debt management company and put a dept management plan into action with a company called Churchwood Financial, ever since I have been getting calls from TFC, all other creditors seem ok with the debt management plan but not TFC.
Today I got a call from someone claiming to be a bailiff, he indicated that I was in arrears by two payments and that he was under instruction to reposess the vehicle. I told him of the arrangement that I had out in place and provided the necessary details. He then went on to say that he had visited my address and the I don't live there anymore, so I told him that wheh I moved I informed TFC in writing of my new address and that they should provide him with that information, he then said that he would egister the vehicle as a stolen vehicle as I have failed to provide my address. I told him that I was ure that he needed a court order under the credit consumer act 1974 which the agreement is regulated by, he said that he did not. I also told him that i believed his claims that he had powers to reposess the vehicle to be a misrepresentation and I aim to contact the office of fair trading as he may be in breach of the standards set out in there debt collection guidance.
Can he take the vehicle without a court order?
Was I right?
PLEASE HELP
There were aspects where he is right, and aspect where he is wrong.
Firstly, your loan is regulated under the consumer credit act 1974. You have the right to send a consumer credit agreement request, and if the loan is improperly executed then no further action can be taken without a court order.
A debt secured under a Bill of Sale is NOT a hire purchase agreement, and can't be redeemed.
legally, if you are in default of a debt secured by a bill of sale, then your car can be reposessed without a court order. But before allowing someone to take your car, you ARE entitled to ask for a copy of the registered bill of sale from the person attempting to reposess the car. If they can't provide a registered copy... i.e. one with the seal of the supreme court (i.e. the high court in this case) then they are not entitled to collect.
Given the length of this agreement it is HIGHLY unlikely that such a document exists... lenders simply don't register and renew Bill of Sales since it is expensive.
If such a document DOES exist, you should check that it contains EXACTLY the form of wording in the act. if not in the prescribed form, then reposessing the car would be an act of theft. And the good new is very, very few agreements are in the correct form.
This is an archaic piece of legislation, and the wording used in the act sounds more or less like you are selling yourself into slavery to the modern reader. therefore, people use more modern language... and, the bill of sale is then worthless.
so what you need to do is:
1. send a consumer credit agreement request, with £1, unsigned explicitly asking for a copy of any document included in the agreement.
2. Print out a copy of the bill of sale act (i provide the link above) and ask them to show you the registered bill of sale.
Explain to him that if he attempts to take the car without providing the document you will contact the police on suspicion of theft, and if it turns out there is no enforceable bill of sale, you will press charges for theft
If he provides the bill of sale, then compare its content to the act. If it has ANY language that is different to the prescribed form, it is unenforceable. Point this out to the baliff, and inform him any attempt to reposses the car would be considered theft by the criminal courts, and you would lodge charges.
Thank you very much for all the advice thus far, fro the information you have provided, I can tell you the following;
1) The credit agreement is signed and dated 23/11/04
2) The Bill os sale says "This Bill of sale is made on the 20th day of November2004".
3) The satement in the form provided by the act thaty you mentioned is no way to be found on the supposed Bill of Sale.
4) The agent who sold me the vehicle in the first place and who also acted on behalf of the creditor is also the withness on the Bill of Sale.
What confuses me is how I could have signed on two diffrent days when I only visited the compound once. Also, The first time I ever saw a copy of the Bill of Sale was when I tried to terminate the agreement.
Could you please scan and post up both the bill of sale and the credit agreement, minus personal details. P.S. if your third statement is correct, then the bill of sale can only be used as toilet paper, 'cause it has no other worth. It is unlawful.
if a vehicle is taken by the finance company
the finance company sells the debt to a DCA
if the bill of sale is crap, can the dca default you or take you to court
and if the oc has defaulted you, can you insist it be removed
thanks tomterm8
just
educating my self to something new
one more question
again if the bill of sale is crap,
how would a DCA try to enforce the agreement through the courts if the agreement is worthless
For a regulated agreement (by the CCA 1974), the agreement could be enforced like a unsecured loan (assuming the credit agreement itself is enforceable)... the bill of sale would not secure the agreement, but not invalidate it either.
if it is a pure bill of sale agreement, then of course it could not be directly enforced.
However I will take issue with you on one point & that is that lenders DO register the BOS within the required 7 days & that is certainly the case with LBL
Although not that important, unless they haven't done it, that to accompany the BoS must be a sworn affidavit confirming the validity of the BoS. Also this affidavit can only be sworn by a solicitor or other officer of the court
Not a court 'official' but a court 'officer'............which is different. A court official works day to day within the court......an officer does not
Bill Of Sales and repossession of goods
, and the instalments by which repayments are made,
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Originally Posted by Confidential
