Repossession of my bike due to previous owner debt

[superoli]

On 7/0/08 I bought my Honda Fireblade (first registered 13/03/07 ) from a private seller (second owner).... he had bought the bike on 03/11/2007 from Honda Avondale

At 6:30 am 16/11 bailiffs arrive at my house saying they have come to repossess the bike as finance is outstanding from the first owner. I called the police who basically gave me the wrong advice and said if I stop them taking it, I would be arrested for a breach of peace. This in fact is wrong and once it’s not on the road ( it was in my garden) they had no right to take it. To end a long story short the bike has been taken and I now have no bike that I paid £6,100 for.

 

The bailiffs advised me that to recover the money I would need to take civil action against the person who sold me the bike even though he was not the person who has the finance outstanding and he would in turn need to take action against the first owner.

 

In addition they are parts on the bike that are mine that they would not let me take off (worth about £1,300) I have original standard parts

Now I am trying to sort what the hell to do !!!

I got the bill of sale from the finance company FONT]

1st owner 13/03/2007 buys from Avondale Honda

Bike is returned to Avondale (date to be confirmed) who say they are positive they did a HPI check and will get certificate to me.

2nd owner 03/11/2007 buys from Avondale Honda

3rd owner 03/08/2008 I buy from 2nd owner

The finance company is now trying to sell me my own bike back for £4,000...

Honda are getting the HPI certficate and will send it to me as they believe the 1st owner got the loan fraudently.

In addition from looking at the bill of sale it looks like the loan should have been registered by the 17th August but to me it looks like it got regiatered on 21st August.....am I correct ?

img-101119110600.pdf

[ST220]

Hi Superoli

 

You say the bike was taken on 16/11. Do you mean on Tuesday just gone? If so you need to be going to your local county court to get an emergency injuction to stop them selling the bike whilst it's all sorted out, and you need to do this today. There are instances of 3rd party victime getting their vehicles back, but you need to act fast as once the bike is sold at auction it complicates things.

[superoli]

yes 16/11/2010 ...they have the bike still as they called this morning 19/11 as they are trying to get me to buy the bike back. Sorry for my ignorance but how do I get an injunction ?

[ST220]

Go to your local county court and take whatever paperwork you have and see whoever is on the reception/information desk and explain your situation. They will get the ball rolling for you. Be advised though that there will be a charge for this. I'm not sure exactly how much but I don't think it's more than £50. You should then go before a judge where you will put your case across and hopefuly an injuction will be granted, and you will be given a date for a further hearing. If I was you I would get a few copies of the injuction and serve it on the loan company yourself. Once you have done this come back here and we can help you fight this further.

 

I can't stress how important it is to get this done today, as they won't hang on to the bike for too long and will probably sell it for peanuts at auction.

[superoli]

ok my girlfriend is getting all paperwork and heading to regents park county court now.

do I need to be in person for that ? or just when it goes before judge ?

[ST220]

You will need to be there in person. As it is an emergency ex parte order you will have to fill in the forms in person and you will be asked to sit and wait for an opening to see a judge so you won't be given an exact time.

[superoli]

Dam work arent going to be impressed...............

[ST220]

Dam work arent going to be impressed...............

 

I'm sure work would understand once you explain what has happened.

[superoli]

ok spoke to them off to the court in about 45mins

[ST220]

Brilliant.

 

Make sure you point out to the Judge the under the Bill of sale act once a vehicle is seized it must remain in situ and can't be legally removed for a period of 5 days. Therefore the removal on Tuesday was illegal.

 

13 - Chattels not to be removed or sold

 

All personal chattels seized or of which possession is taken, under or by vertue of any bill of sale (whether registered before of after the commencement of this act), shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were so seized or so taken possession of

 

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=bills+of+sale&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1055715&ActiveTextDocId=1055717&filesize=28540

Edited November 19, 2010 by ST220
Added link

[superoli]

Ok they are saying i need awitness statement and it needs to be written a certain way ?

[ST220]

Ok they are saying i need awitness statement and it needs to be written a certain way ?

 

 

This isn't my strong point but the statement needs to be something like this. Obviously you'll need to ammend it as you see fit and any other points you believe to be relevent.

 

 

Witness Statement of (Your Name)

 

 

1. I am (Your name)and I live at (Your address). I am the applicant in the case and I wish to apply for an injunction to stop the sale of a motorcycle, namely (Make, Model and Reg) from taking place by (Loan Company).

 

2. On 7/0/08 I bought a Honda Fireblade motorcycle (first registered 13/03/07 ) from (Name of seller) I used this motorcycle as my primary mode of transport and kept it insured and taxed.

 

3. On 16/11/2010 agents acting on behalf of (loan company) arrived at my home address stating that they had called to repossess the motorcycle on behalf of (Loan company) as the vehicle was subject to a bill of sale by way of a loan taken out by a previous owner.

 

4. I advised the agents that as the vehicle was situated on private property they had no power in law to remove the vehicle without a court order. This was ignored and the bike was subsequently removed by the agents.

 

5. I had no knowledge of said Bill of Sale or loan secured on the vehicle when I purchased the vehicle, and am in innocent 3rd party.

 

6. I ask the court to grant an injuction prohibiting the sale of said vehicle whilst I seek further legal advice.

 

7. I believe the facts stated in this witness statement to be true.

 

 

Signed Dated

 

Name

 

 

please let us know how you get on.

[superoli]

so went to the court and lined and got the forms and then filled them and then lined up again and reached the front at 3:30 at which point the woman tell me the judges are going and there is no chance of seeing one today

 

So I am going back first thing Monday morning.

PS Thanks for all your help ![/left]

Edited November 20, 2010 by superoli

[OBWanBenoni]

As the loan was suppossed to have ended in 2008 I would check that the person did not put any more Bills of Sale on the vehicle after he sold it. 2 years is a long time to wait before repossing the bike. If you contact the Supreme Court they can do a search on the persons name and address and see what other BOS he has taken out.

 

Be careful with how much info you put on the site, loan companies do read the posts.

[IdaInFife]

Hi Super

 

Some members can actually make out some of your personal details on the attachment so i have unapproved it.

 

If you save it to photobucket and then edit you can white over the details

 

Ida x

[Hip_Hop]

Hi Superoli,

 

Welcome to the Cag. Whilst I am not an expert on Bills of Sales and the best way to legally contest the Bill of Sale when they impact 3rd party victims such as yourself, there are many others like ST220 and Obwanbenoni that will be along to help you out.

 

There are a number of examples of other 3rd party victims like yourself that have got their vehicles back. You just have to strike fast as you are contemplating on doing again, on Monday.

 

Some cautionary beware advice Superoli that I wanted to pass on to you, that I have first hand experience of. It happened to me at the Central London County Court.

 

Much as it may surprise everyone,( it did me). They can not be relied upon not to lose paperwork etc. So, under all circumstances deliver everything by hand. Get receipts for everything (even that delivered by hand!).

As by way of extraordinary example. I queued up, to hand in my Allocation questionnaire at the counter within the date/ time required.

 

Whilst there, was told it was being put on the system, so no need for a receipt.(Even though I asked for one a couple of times whilst standing there!)

So was utterly amazed when I was issued with an order from the court, received 5 days later on the following Saturday, by post from hayward heath, (The administration centre for the courts).

Basically it stated, that as I had not fulfilled the requirement to file the AQ in time that, it would be struck out unless I lodged the AQ within the next 7 days!

 

I called the court on the ensuing monday (having spent the previous Saturday/Sunday fretting with my other half at the incompetence of our beloved institution).

It took a further 4 days to ascertain that they had indeed recieved it and it was now logged on their system. The administrator at HH only works part time and CLCC and HH don't have the ability to communicate directly, hence the reason for the 4 day delay? I'm not making this up.

 

Just a word of warning Superoli, to keep alert as the courts are overworked and understaffed and that leads to mistakes that have an impact.

 

Basically, you can't take anything for granted. My advice is that you email the other side Monday AM Superoli, that you are applying for an emergency injunction against them, first thing from Central London Count Court and that you are putting them under notice not to dispose or sell your vehicle whilst the matter is under legal dispute.

Did the Agents tell you which, if any Auction place they were taking your bike to? I only ask as I sent (In my case),copy of unsealed claim to the car auction place that had my car, putting them under notice too.

It can't do any harm if all parties involved are put under notice so that all parties are informed.

 

FYI when I informed Log Book Loans of same when my car was seized, this stopped them in their tracks. After all, no judge would be appreciative if any company disposed of property that was under legal dispute and same company were made aware of this before hand and informed that an injunction had been applied for and still disposed of that property!

Generally most offer c 7 days to receive sealed (stamped) documents from the court. So empty threats that an emergency injunction has been applied for only stays action for a short time in most cases.

 

I appreciate that this will only buy you some time, but time is all that you need, to get your action plan in place.

 

BTW, Log Book Loans returned my car and compensation to boot too. so get in early Monday AM Superoli and get the emergency injunction granted and delivered pronto. I was able to get an order within half an hour from a circuit judge at CLCC

 

Personally,I wouldn't bother with Bills of sales registration in time point, as this is in my opinion a red herring in your circumstances. Judges have very little time and patience so don't waste the time being distracted by anything other than getting an emergency injunction.

Concentrate as you are, on the innocent 3rd party, property seized from private property with out a court order point, as you appear to be doing and the injunction should be granted.

 

Good luck.

Edited November 20, 2010 by Hip_Hop
clarity

[superoli]

hello,

so the developments so far.

I have to go back to county court tomorrow morning as the judge wanted some wording changed and also wanted me to check when the BOS was actually lodged at the high court. (by the way it cost £150 !!!)

1) The Bill of sale was signed on 10/08 and was actually lodged on 20/08 as confirmed by the high court and they have given me a copy showing this. (so outside the seven days)

2) The finance company did not register an interest in the bike until January this year according to Experian who are sending me a backdated certificate showing that at time of sale it was free of all finance. So there is no way I would have ever known there was finance no matter how many checks I did.

3) no court order was shown before bike was removed from private property

Hopefully injunction gets granted tomorrow morning

[ST220]

WOW!!! £150! Didn't think it would be that much.

 

It sounds like you have caught the Judges interest though, so good luck. Hopefuly he will grant the injunction tomorrow and given the other factors you will get your bike back soon!!

 

Keep us posted!

[Hip_Hop]

hello,

so the developments so far.

I have to go back to county court tomorrow morning as the judge wanted some wording changed and also wanted me to check when the BOS was actually lodged at the high court. (by the way it cost £150 !!!)

1) The Bill of sale was signed on 10/08 and was actually lodged on 20/08 as confirmed by the high court and they have given me a copy showing this. (so outside the seven days)

2) The finance company did not register an interest in the bike until January this year according to Experian who are sending me a backdated certificate showing that at time of sale it was free of all finance. So there is no way I would have ever known there was finance no matter how many checks I did.

3) no court order was shown before bike was removed from private property

Hopefully injunction gets granted tomorrow morning

 

 

Encouraging news Superoli. Did you let them know that you were applying for an injunction, so they are in no doubt that the matter is in legal dispute, just in case, so that they can't claim in ignorance, that they sold it in the interim, whilst you are awaiting the granting of the order?

 

That aside, your 3rd Party status, lack of court order for removing the security (bike), off of private property and distinct lack of evidence that they had registered any financial interest at the date that you purchased the bike in good faith. Puts you in a very good position for the Judge to simply grant the injunction, that you are looking to achieve tomorrow.

 

I wonder if you will get the same judge or another?

 

Personally, I am of the opinion that the judge will be loathed to make any order in respect of late registration of a Bill of Sale by making the Bill of Sale void, as they don't like to upset the applecart if the opposite party is not there to defend its position, despite it being registered outside of 7 days. Judges tend not to act unilaterally, (I know there are always the exceptions).I believe he will simply grant the injunction.

 

On a separate point, I don't know if you can request the judge to also grant a return of the goods too, as you are reliant on the bike, for work and other such priorities?

 

I mention this, as otherwise, you may be put in to limbo, where they can't dispose of the bike because of the served injunction, (fingers crossed), but they hold on to bike in the interim.You have to make a separate claim, include Particulars of claim etc to get it back.

This incurs further costs, and a wait for a further hearing date to be set, before you can attempt to get a judgment and an order granted for the bike to be returned.

 

I make the above points as I intentionally, missed out the injunction part altogether, electing to go fora straight lodging of claim, simultaneously putting all parties under notice. This was in order to get a hearing date as early as possible from the court.I did want my car back ASAP! It still took just under 8 weeks before my hearing took place from the date of lodging my initial claim.

If they had wanted to play delay/defer game, it could have been stretched out longer.

 

So, if you can get the judge to see fit to grant a return goods order as well, that would save you a lot of hassle and cost.

 

Just my penny's worth as the saying goes.

 

In any event good luck for tomorrow.

Edited November 23, 2010 by Hip_Hop

[superoli]

by the way is it legal for a finance company to register an interest in a vehicle two years and three months after the loan was taken out ?

this means no matter how many checks I did it would always come back clear.

[Hip_Hop]

I may be wrong? But I don't think it is illegal for a lender to register an interest at any stage whilst the lender still has any outstanding finance on a loan that it has provided to the borrower.

Whether they can than rely, that they did all that was possible to mitigate, that their interests has priority status when that interest was was not registered when you purchased the bike is something for the judge to consider when making the decision to grant an injunction or not.

That is where the legal argument is substantiated for an injunction being made, that under all circumstances, you would never have been aware, that there was any interest in the bike when you purchased it, because there was no registered interest at the time of purchase.

by the way is it legal for a finance company to register an interest in a vehicle two years and three months after the loan was taken out ?

this means no matter how many checks I did it would always come back clear.

Edited November 23, 2010 by Hip_Hop
clarity

[superoli]

Thanks for that and one more question, does the seven days to register a bill of sale from the date when it is signed ?

[Hip_Hop]

Yes, the seven days starts from the date it is signed by the borrower and the lender (agent). It is then sworn by the agent in front of a solicitor/commissioner of Oaths and registered with the high court.

Mine was registered outside of the seven days but was of no importance. See OBWAN's previous posts on the subject of late registrations. He refers to seeing BOS's at the High Court ledger that were registered in some cases, many weeks late.

 

I say again, I haven't found one post on the forum that confirms that a Judge has made a BOS void for being registered late. I got my car back and compensation for seizure and I was a direct borrower not a 3rd party victim like you Superoli and no late registration of a BOS came in to play. So don't rely on it. Nor get side tracked. Judges are not generally looking to make precedent case law when the other side isn't present.

 

As I have alluded too previously, the judge has limited time and in certain circumstances patience too, even if you are the 3rd party victim.

Edited November 23, 2010 by Hip_Hop

[Hip_Hop]

Superoli,

 

Good luck and keep us posted when you are able.

Edited November 23, 2010 by Hip_Hop

[superoli]

The finance company is now debating that seven days does not include weekends and the date of executionnd so as bill was signed on Friday 10th August then lodged at high court on 20th August it falls on the sixth day.

This is what I believe:

"It is clearly accepted that 'clear days' as opposed to 'days' includes all days with the exclusion of the day of execution and the day of registration but you cannot imply into this definition that clear days means clear working days. The two expressions are completely separate and the wording of the Act makes no mention the exclusion of weekends or to the relevant days only being business or working days "