Are Hire Purchase goods exempt from seizure

[Peterbard]

It is an important question, and one which needs resolving one way or the other. I should say at the onset that IMO the only definitive answer will have to be passed down in a court case, in the mean time I suspect the EA community will have their own interpretation others may differ.

 

I suspect the problem is the result of yet more unintended consequences of the TCE, the definition of goods of the debtor includes interest in goods, the point that needs clarifying is, if goods on HP can ever bestow an interest before the last payment on the agreement.

 

From my understanding of HP the hirer has no interest in goods until the transfer of title(which is the last payment) until this time the goods are on hire, and the property of the lender.

So if the EA seeks to sell the vehicle he must have permission of the lender.

 

It is well documented that a consumer credit agreement(or hp) cannot be terminated until a default notice is served and the hirer has time to remedy, and until this time the lender has no right in law to seize the vehicle. (after one third of the agreement price has been paid).

However within most agreements is a clause which states that the vehicle must at all time remain in possession of the debtor/hirer, so when the vehicle is removed it could be said that the hirer was in breach, and after issuance of the default notice could re-possess the vehicle and allow the EA to sell.

The matter of, if this would be worth the EAs time would depend on the amount of money which would be left after the car had been repossessed, sold and the agreement settled.

 

The interesting point about this, is that neither A term of the agreement nor the TCE can not allow seizure.

Once the car is in the EAs possession there may be an argument for sale but there is, as far as I can see, no argument for taking control. The car is after all third party goods at that point.

[honeybee13]

Have we discussed this already or is it a subtle variation of a previous thread?

[Peterbard]

Have we discussed this already or is it a subtle variation of a previous thread?

 

Dont think so at least I am not aware of it, at least not in the legal context.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?445251-Goods-on-HP-a-Judge-says-they-can-be-sold

 

It looks like a judge in the above has said they can be seized and sold ^^^

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?444443-Bailiff-enforcement......if-a-vehicle-is-considered-to-be-exempt-should-the-debtor-issue-an-injunction

[Peterbard]

http://www.consumeractiongroup.co.uk/forum/showthread.php?445251-Goods-on-HP-a-Judge-says-they-can-be-sold

 

It looks like a judge in the above has said they can be seized and sold ^^^

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?444443-Bailiff-enforcement......if-a-vehicle-is-considered-to-be-exempt-should-the-debtor-issue-an-injunction

 

I think the judge in that case was deciding on if an injunction could be granted, goods had already been seized.

 

Really we need to know what debtors can do to avoid seizure of HP goods and in particular what would have happened if the correct procedure had been used re third party goods

[Peterbard]

To be clear this thread has nothing to do with injunctions.

 

Personally I think that that case has no relevance on seizure of HP goods at all, it turned on its own evidence.

 

Far more useful to examine the law in relation to the seizure in the context of the legislation.

[citizenB]

My apologies, I hope I haven't caused any problems..

[Peterbard]

My apologies, I hope I haven't caused any problems..

 

No apology needed, I should have made that clear t the outset.

 

The fact is that the situation regarding HP goods has not changed, legally at least, people should still say that the car is exempt if it is HP and offer proof, I think it is unlikely that the EA will quote any authority which says otherwise.

 

The thing is with bailiffs is that you have to be sure of your ground because as we know they will claim to be able to do what they legally cannot in any case.

[brassnecked]

Have to agree DB, at the moment as a result of that injunction case that turned and was decided on its own facts, bailiffs probably have been emboldened to take control of third party goods relying on that judgment.

 

However there are the inherent problems with CCA and Contract law that seem to be usurped by this Interest in Goods argument, the main one being that the bailiffs are riding roughshod over any third party rights, notwithstanding the Schedule 12 procedure for claiming the goods back by the owner, and might be pressuring HP companies to allow sales, regardless of any implications that might put them in breach of their contract with the debtor, especially if the In Control argument is seen as unfair to a debtor.

 

Interesting times DB.

[Peterbard]

Have to agree DB, at the moment as a result of that injunction case that turned and was decided on its own facts, bailiffs probably have been emboldened to take control of third party goods relying on that judgment.

 

However there are the inherent problems with CCA and Contract law that seem to be usurped by this Interest in Goods argument, the main one being that the bailiffs are riding roughshod over any third party rights, notwithstanding the Schedule 12 procedure for claiming the goods back by the owner, and might be pressuring HP companies to allow sales, regardless of any implications that might put them in breach of their contract with the debtor, especially if the In Control argument is seen as unfair to a debtor.

 

Interesting times DB.

 

Yes indeed, and dont forget that if the creditor terminates the contract and permits the sale without an order of the court the debtor can reclaim every penny he has paid them under section 91 of the CCA.

[Bailiff Advice]

An interesting development on this subject came to my attention today following a query on Friday from a debtor whose vehicle was clamped at midday on Friday in relation to four warrants for unpaid parking charge notices.

 

In this particular case, the debtor contacted the hire purchase provider and was surprised to be told by them that by not paying parking tickets the debtor had put himself in a position whereby the vehicle was no longer in 'his control' and accordingly, he was in DEFAULT of his agreement !!! Whoops....

[Peterbard]

An interesting development on this subject came to my attention today following a query on Friday from a debtor whose vehicle was clamped at midday on Friday in relation to four warrants for unpaid parking charge notices.

 

In this particular case, the debtor contacted the hire purchase provider and was surprised to be told by them that by not paying parking tickets the debtor had put himself in a position whereby the vehicle was no longer in 'his control' and accordingly, he was in DEFAULT of his agreement !!! Whoops....

 

Seems like a bit of a leap, how do you go from a parking ticket to a breach of a CCA agreement, do you have more detail ?

[Peterbard]

There are consequences here for the finance company. If the vehicle is portected goods(over one third of the agreement price has been paid) adnd the finance compnay conspire to deprive the hirer the use of his vehicle they could be liable under section 91 of the CCA

 

http://www.legislation.gov.uk/ukpga/1974/39/section/91

 

91 Consequences of breach of s. 90.

 

If goods are recovered by the creditor in contravention of section 90—

(a)the regulated agreement, if not previous terminated, shall terminate, and

(b)the debtor shall be released from all liability under the agreement, and shall be entitled to recover from the creditor all sums paid by the debtor under the agreement.

[mikeymack2002]

That DB is in nearly all T&C's of a credit agreement you must not sell or dispose of the goods unless you have the permission of the creditor.... Also you may not as a debtor sell the items you have purchased under that agreement without express agreement of that creditor.

 

 

Look at the new mobile contracts now i.e. they now nearly always have part of that agreement as a "loan" for the handset making it the property of the service provider. In reality you cannot sell the new handset on before it is paid for by you the person signing the upgrade agreement. Google most of the big service providers.

 

 

Which brings the question to the surface have you as a poster contacted any of the relevant bodies regarding the topic of your post and if not will you be doing so? By means of a FOI request? If not then why do you feel that goods on HP or exempt from the EA as the debtor has an interest in the goods and can therefore be seen as goods subject to enforcement?

 

 

As an observer it surprises me that we have not heard from you and any results from your own enquiries in to this matter? If as this thread shows yes it is an important question can you tell us what you have done thus far to obtain an precise and definitive reply from those bodies?

 

 

Does schedule 12 p50(6)(a)+(b) apply to the creditor as they are co owner until the goods are paid for in full? What about shed 12 50+51

[lookinforinfo]

An interesting development on this subject came to my attention today following a query on Friday from a debtor whose vehicle was clamped at midday on Friday in relation to four warrants for unpaid parking charge notices.

 

In this particular case, the debtor contacted the hire purchase provider and was surprised to be told by them that by not paying parking tickets the debtor had put himself in a position whereby the vehicle was no longer in 'his control' and accordingly, he was in DEFAULT of his agreement !!! Whoops....

 

BA was this perhaps a Mobility contract where there is a stipulation by the creditor warning that in the event of unpaid motoring fines the car could be liable to

repossession by the finance company as failure tp pay outstanding motoring fines could be a breach of their contract.

[Peterbard]

That DB is in nearly all T&C's of a credit agreement you must not sell or dispose of the goods unless you have the permission of the creditor.... Also you may not as a debtor sell the items you have purchased under that agreement without express agreement of that creditor.

 

 

Look at the new mobile contracts now i.e. they now nearly always have part of that agreement as a "loan" for the handset making it the property of the service provider. In reality you cannot sell the new handset on before it is paid for by you the person signing the upgrade agreement. Google most of the big service providers.

 

 

Which brings the question to the surface have you as a poster contacted any of the relevant bodies regarding the topic of your post and if not will you be doing so? By means of a FOI request? If not then why do you feel that goods on HP or exempt from the EA as the debtor has an interest in the goods and can therefore be seen as goods subject to enforcement?

 

 

As an observer it surprises me that we have not heard from you and any results from your own enquiries in to this matter? If as this thread shows yes it is an important question can you tell us what you have done thus far to obtain an precise and definitive reply from those bodies?

 

 

Does schedule 12 p50(6)(a)+(b) apply to the creditor as they are co owner until the goods are paid for in full? What about shed 12 50+51

 

MM. Not sure what it is yuo are trying ot say here.

I have worked with the consumer credit act for a long time and been involved in many actions involving sections 90 and 91, it is nothing do with FOI or the other things you mention.

[Peterbard]

It does not matter what is in there contract, even if the parking ticket was a breach the creditor would have to issue a default notice under section 87 of the cca before he could could commence proceedings to gain a court order which would allow the car to be collected.

 

There is no shortcut and no term in a contract can override statue.

[mikeymack2002]

Fortunately I do not have a current credit agreement, having one to hand would be handy, if you have one can you check the contents of the T&C's in relationship to ownership or passing of the title at completion of that agreement? The reason being the goods although used by the signee the creditor owns the goods until the final payment is made, but they can if they wish release you from your contract early by paying any outstanding balance.

 

 

But you as the signee can face criminal proceedings if you sell something on credit without the creditors authority. But if you allow it to be taken out of your control then you as signee are in breach of contract with them. Either way a lose situation for the signee do you not agree?

 

 

Your second query relates to application of proceeds and title I'll let you look that one up

[Peterbard]

I understand many of the peole on this forum are not familliar with the conosumer credit act, but it is really quite clear and there is a ton of common law to suppost it.

 

Say the parking ticket thing was breach of a term in a contract, section87 kicks in.

87 Need for default notice.

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

this gives the debtor 14 days before a court action can be taken only after this takes place AND AN ORDER IS ISSUED can the car be recovered.

 

DURING THIS PERIOD THE CAR IS PROTECTED GOODS AS EXPLAINED EARLIER.

[mikeymack2002]

DB if you breach your agreement the creditor does not have to issue you a default notice they can sue you for the breach of the contract you signed and then show a loss and recover it from you that way.... Surely you remember the basics in the PPC section of CAG you agreed to the terms the creditor is entitled to sue for loss. (Breach)

[Peterbard]

MM, The passing of title at the end of a HP or conditional sale agreement is a matter of statute not contract.

The hirer can terminate the agreement at any time before the last payment by paying the amounts due under the contract, although what this has to do with this thread is a mystery.

YOu cannot sell goods on HP because they do not belong to you, again nothing to do with this thread.

 

Sorry no idea what it is you want me to look up.

[Peterbard]

DB if you breach your agreement the creditor does not have to issue you a default notice they can sue you for the breach of the contract you signed and then show a loss and recover it from you that way.... Surely you remember the basics in the PPC section of CAG you agreed to the terms the creditor is entitled to sue for loss. (Breach)

 

read section 87 above on a consumer credit agreement, if there is a breach the debtor must be issued a default notice and be given 14 days to remedy, if he does not he is not entitled to terminate the agreement.

[Peterbard]

A HP agreement is a regulated agreement MM, there are special rules for regulated agreements, which over rule common law.

[mikeymack2002]

Please don think I am trying to cause issues here but looking at this from a contract point of view, then this should be added in to the party here don't you agree? This side of things makes it very hard for a party to the contract to fight a losing battle. EA's on one side creditor on the other, no wonder this will cause a good discussion!

[mikeymack2002]

I too have in the past written many credit agreements loans and the such, a creditor may lose goods for a while but they have the ability to sue for loss and breach of contract, therefore forcing the signee to still pay for the goods they agreed to pay under that agreement. Can you see the point I am trying to make here?