Vehicles on HP can be sold by a bailiff. Evidence must be provided that there is no 'beneficial' interest.

[Bailiff Advice]

A few months ago (May 2015) I started a thread on the forum regarding the outcome of a legal case. I had not known until today that the thread in question has been viewed over 8,000 times (link below). There has been a very recent update and given that the thread has already run to 10 pages I thought that it would be better if a new thread was started.

 

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

 

 

To save new visitors having to read through the old thread again, below is a copy of my opening post and relevant additional points of importance:

[Bailiff Advice]

Copy of my initial post on the above thread:

 

Sadly, yet another debtor was encouraged by internet sources to foolishly issue an injunction and not only lost in a London court this afternoon but worse still, his case will have very serious repercussions indeed for all debtors who consider that a vehicle subject to finance is supposedly 'exempt' from seizure.

 

The new regulations have only been in place for one year and it simply beggars belief that debtors are being led into court proceedings with new and untested regulations. In the first instance, it was unknown why the person advising the debtor to issue an injunction would have suggested such a risky course of action given that the debtor had already filed an Out of Time witness statement and accordingly, all enforcement was already on hold !!!

 

The debtor's vehicle (a sports car) was supposedly 'used' to transport a disabled person (not the debtor). This of course does NOT make the vehicle exempt (exemption only applies if the vehicle was 'displaying a valid Blue Badge' (which it was not).

 

The debtor claimed in his injunction that the vehicle should be 'exempt' as it was subject to finance and accordingly, was not considered by him to be 'goods of the debtor'. The judge disagreed and instead, referred the debtor to Regulation 3.(2) (a) (General Interpretations) of Schedule 12 which provides that in Schedule 12 of TCEA 2007, any references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest.

 

The implications of this judgment for all other debtors (and companies) is truly awful and this is evidenced by the various emails and calls that I have been receiving about this case since early evening. The bailiff industry are overjoyed with this result.

 

The debtor was ordered to pay the enforcement agencies costs of over £3,200. This was in addition to the court fees for the injunction of £395 and the fees paid to the individual who drafted his legal case (approx £1,000).

[Bailiff Advice]

Following the thread and the judgment, copies of the order were sent to John Kruse (an expert of bailiff law). His initial thoughts on the judgment (which he wrote about in his monthly newsletter a short while later) was that goods subject to hire purchase could not be sold.

 

Following that newsletter, John Kruse has been provided with further documentation and court papers etc and on Friday he confirmed that there is indeed a basis upon which enforcement agents may take control and dispose of goods that are subject to hire purchase.

 

He confirmed that the ‘beneficial interest’ in question would be the potential share in the value of the goods that the debtor had accrued. He stated that a 'beneficial interest' is likely to only be relevant in cases where, either:

 

A substantial deposit had been paid in advance (perhaps the part exchange value of a previous car)

 

or:

 

Where the agreement is within a couple of payments of being paid off.

 

 

The implication for the debtor:

 

Copies of John Kruse's newsletter have naturally reached bailiff companies and within the next couple of weeks I would assume that each company will update their own policies regarding the taking into control of vehicles subject to Hire Purchase.

 

The position now is that it can no longer be considered the case that vehicles subject to Hire Purchases cannot be taken and instead, the debtor needs to ensure that can establish whether or not there could be a 'beneficial interest' in their vehicle.

 

In the first instance, debtors need to carefully read the Hire Purchase agreement and the reason for saying this is because in the vast majority of cases that I have assisted with (for the return of the vehicle) it was clear that the vehicle in question was not actually subject to hire purchase at all and instead, was subject to a much newer type of agreement called a Personal Contract Plan (PCP). In such cases, the vehicle is only ever hired and there can be no basis whatsoever that the vehicle can be taken.

 

If the agreement is indeed a Hire Purchase agreement then the debtor will need to work out whether or not there could be a 'beneficial interest' and as stated above, this could certainly be the case if a substantial downpayment (or part exchange) had been made when the vehicle was first acquired.

[obiter dictum]

Do hire purchase agreements not have a clause now, the same as payments for state benefit that any capital cannot be assigned to a third party as security?

 

What about hire purchase secured through a Bill of Sale??

[lookinforinfo]

I guess it would need a Court Order to sell the car otherwise the hirer could sue the Finance company for breach of contract.

 

However there will need to be a substantial beneficial interest in the vehicle as hire purchase agreements are notoriously weighted in favour of the Finance companies and much, if not all the interest will be swallowed up by the Finance Company before the auctioneers, bailiffs etc get their hands on any money. It will be another string in the bailiffs bow and no doubt it will be heavily used [and abused too] but I doubt that many Court orders will actually go through once the sums are done.

[Conniff]

Do hire purchase agreements not have a clause now, the same as payments for state benefit that any capital cannot be assigned to a third party as security?

 

What about hire purchase secured through a Bill of Sale??

 

BOS if not the same as HP, the only comparison is payment by installments. There isn't a lot of protection with BOS as there is in HP.

[obiter dictum]

Especially S.90-92 CCA 1974

 

That is why i asked the question (Protected Goods)

[Peterbard]

We must thank for this a certain individual who started an action based on a flawed understanding of the law and in the process caused this to be brought into the arena. Bailiff help, yes indeed.

 

On a termination brought about by a breach of a regulated HP agreement the debtor must send a default notice which gives the debtor time to remedy the breach, only after this can a lender seek an order of the court and take the vehicle. This means under the above scenario bailiffs would not be able to take a car on HP.

 

The scenario envisaged here is one where the agreement is terminated under a term of the agreement. This would have to say that it can be terminated if any action by a bailiff is taken on the goods.

 

The article says that these terms are common, I personally have never come across them although I have seen similar ones in case of bankruptcy procedures.

 

As said this is ."prospective interest" so there would be no interest at the time of seizure, as goods would still be on hire.

 

A problem with this is that when the vehicle is seized the car would be on hire and owned by a third party( the lender). As John says once terminated the car would be unquestionably third party goods and the property of the lender. This could result in an action being taken by them against the bailiff for immediate return of the goods which the EA would have no option but to comply with.

 

The procedure when a car is terminated and repossessed by a contractual breach or under a contractual term, is that the car is sold by the lender(usual at auction) and the sum raised is deducted from whatever is outstanding under the HP agreement.

This generally results in a shortfall which the lender has to pay, so in these cases there is no equity.

 

The exception to this is when the agreement is nearing the end of its term and there is still some value in the vehicle.

This can happen as said if there is a large deposit made, so there is very little to pay under the agreement. or it is reaching its term.

In these cases there may be surplus sums after the sale of the car which would be returned to the debtor and form the equity referred to.

 

Given the restrictive nature and unlikely circumstances I cannot see any real prospect of the EA raising money using this, however it does introduce doubt, which is all that is needed for bailiffs to take goods.

[obiter dictum]

This is the confusion

 

One one hand you have Case law saying one thing

 

On the other you have statute and statutory duty

 

Judges cannot make statute law , only interpret it and amend through case law

 

This judgement has to be flawed and can only be beneficial to the enforcement industry through ambiguity of statute

[Peterbard]

Especially S.90-92 CCA 1974

 

That is why i asked the question (Protected Goods)

 

This is a good question and one i rasied on here sme months ago and was also raised By JK in ne of s previous letters.

 

Protected goods are those under an agreement which has had at least one third of the total amount due paid. The CCA says that these goods are protected from seizure by the lender without an order of the court, this would certainly apply to any kind of seizure.

 

What I have heard said is that the warrant or order can be regarded as the court order, I am not so sure of this, I would have thought the intention would be an order under the rules of the CCA.

[Peterbard]

I do worry also about the use of the term "prospective beneficial interest" as opposed to just beneficial interest.

 

The two things are quite different and i cannot find any mention of "prospective" in the act. HP goods endow the debtor with no actual beneficial interest at the moment of seizure.

 

I can think of a number of occasions where goods could be held to have a future beneficial interest, but do not at the moment of seizure.

 

Personally I think that the beneficial interest referred to in the act refers to bound goods. Not goods that are taken under control.

 

section 5 says

Effect of property in goods being bound

 

5(1)An assignment or transfer of any interest of the debtor's in goods while the property in them is bound for the purposes of an enforcement power—

 

This restricts the debtor from transferring any interest in bound goods and thus reducing their value, this could be done by raising a charge or by securing finance like a log book loan on a car for instance.

[Conniff]

HP goods endow the debtor with no actual beneficial interest at the moment of seizure.

 

That is true even if there are only a few payments left to be made, it is still of no benefit to him, only benefit is to the bailiffs.

[Peterbard]

Just looking for any mention of interst in goods in regards to taking control, I cant find any, probably missed it, it isn't here :

 

Goods which may be taken

 

9An enforcement agent may take control of goods only if they are—

(a)on premises that he has power to enter under this Schedule, or

(b)on a highway.

10An enforcement agent may take control of goods only if they are goods of the debtor.

11(1)Subject to paragraphs 9 and 10 and to any other enactment under which goods are protected, an enforcement agent—

(a)may take control of goods anywhere in England and Wales;

(b)may take control of any goods that are not exempt.

(2)Regulations may authorise him to take control of exempt goods in prescribed circumstances, if he provides the debtor with replacements in accordance with the regulations

[brassnecked]

10 An enforcement agent may take control of goods only if they are goods of the debtor.

 

That would mean the judge has overruled 10. problem for bailiffs if they mistake Contract Hire for HP, as the goods are never the debtors, or one with a large balloon at the end.

[Peterbard]

Yes indeed and notice 10 does not even say "if the debtor has an interest in the goods ?"

 

There cant be an interest in personal contract agreements because of the balloon at the end, as you say. the value of the car would never be enough to settle the loan amount including the last payment and interest, in these cases.

[brassnecked]

Yes indeed and notice 10 does not even say "if the debtor has an interest in the goods ?"

 

There cant be an interest in personal contract agreements because of the balloon at the end, as you say. the value of the car would never be enough to settle the loan amount including the last payment and interest, in these cases.

 

I'm just waiting for a greedy bailiff to kill his own pig and end up in court being sued by the Finance Company due to seizing and selling a car on Contract lease with a £5 to 8k balloon, or even a guaranteed future value as settlement to purchase, the car fetching £2K not even enough to clear half the balloon let alone fees storage and part of the debt. Woe betide any council that permits their agents to do this. Which bailiffco will be first, to flog a Contract Lease vehicle relying on this dodgy judgment Equita, Bristols & Stupor, Rundles, or Marstons?

[Bailiff Advice]

I'm just waiting for a greedy bailiff to kill his own pig and end up in court being sued by the Finance Company due to seizing and selling a car on Contract lease with a £5 to 8k balloon, or even a guaranteed future value as settlement to purchase, the car fetching £2K not even enough to clear half the balloon let alone fees storage and part of the debt. Woe betide any council that permits their agents to do this. Which bailiffco will be first, to flog a Contract Lease vehicle relying on this dodgy judgment Equita, Bristols & Stupor, Rundles, or Marstons?

 

It is abundantly clear (and ell enforcement companies knows it) that vehicles subject to Personal Contract Plan (PCP) are completely untouchable. They are exempt from seizure. It would seem that the position regarding hire purchase vehicles (and the relevance to a 'beneficial interest' may well be an unitended consequence of the new regulation and for this reason, will hopefully be considered by the analysts overseeing the 'One Year Review'.

[Bailiff Advice]

On my initial thread I provided details of another judgment from March 2013. The judgment followed a 'Form 4' Complaint hearing by a debtor called Mr S against a bailiff 'Mr H' 3 months earlier. Despite the finding, the judgment proves once again that debtors should be very cautious indeed about taking any legal proceedings and if they intend to do so.....they MUST ensure that they take proper legal advice beforehand.

 

I do have permission to publish full details of the judgment and will do so once I return back to work next week.

 

 

The Judgment is very long (running to 20 pages) and the case was heard by a very experienced Judge (a QC). The following is copied from the judgment:

 

"On the drive of the property. it is common ground, was a Saab saloon vehicle, registration number xxxx. This vehicle belonged to Mr S subject to the interest of the finance company — the vehicle having been secured on hire purchase ("HP"). The vehicle against which Mr H was threatening to levy distraint, was therefore the subject of an HP agreement. In fact, Mr H did not have the véhicle recovered — instead, he clamped the Saab vehicle and placed a notice on the window to confirm he had levied on the vehicle.

 

However, I cannot accept as a matter of law that the fact of an HP agreement per se prohibits a bailiff levying on the vehicle. It will often be the case that the finance company's interest is easily purchased leaving real value to the hirer, who then takes ownership on the discharge of the finance. This is a common matter in relation to excavation equipment, taken out under lease purchase arrangements, where there are agents specialising in arranging finance on such equipment, after the initial finance agreement is bought out. I have tried a number of these cases in the last 12 months in this context.

 

In principle, I can see no reason to distinguish that type of situation from this.

 

It is entirely possible, if Mr S had had the lease finance or HP agreement over a period of time, that he would have some real value in the vehicle — there is no reason why the vehicle could have not been levied against, recovered and potentially sold, subject always to the owner, the finance company, having tirst call on any proceeds.

 

As I say the likelihood is that the owner would have had its interest bought out before any sale was effected.

 

(e) As a precaution, and a wise one. Mr H did make a check before he had the Saab removed — having been alerted to the finance issues, he decided not to remove it. However, had he done so, I cannot see any reason in law why it could not lawfully have been done. I cannot find that any ground of complaint can be made out against the actions of Mr H in initially clamping this vehicle. once he had decided to levy against it".

[lookinforinfo]

However, I cannot accept as a matter of law that the fact of an HP agreement per se prohibits a bailiff levying on the vehicle. It will often be the case that the finance company's interest is easily purchased leaving real value to the hirer, who then takes ownership on the discharge of the finance. This is a common matter in relation to excavation equipment, taken out under lease purchase arrangements, where there are agents specialising in arranging finance on such equipment, after the initial finance agreement is bought out. I have tried a number of these cases in the last 12 months in this context.

 

In principle, I can see no reason to distinguish that type of situation from this.

 

It is entirely possible, if Mr S had had the lease finance or HP agreement over a period of time, that he would have some real value in the vehicle — there is no reason why the vehicle could have not been levied against, recovered and potentially sold, subject always to the owner, the finance company, having tirst call on any proceeds.

 

As I say the likelihood is that the owner would have had its interest bought out before any sale was effected.

]

 

I take it that excavation equipment would not be covered by the CCA as most car finance would be.

[mch1991]

I don't buy for one second that this could be seriously implemented in practice. A judge sitting in the county court hardly creates a legally binding precedent (merely a persuasive force of law).

 

What's suggested here, is that contrary to legislation regulating hire purchase, consumer credit agreements, personal property ownership, contractual law and of course law surrounding the taking control of goods and parliaments very own intentions can simply be overturned by a county court judge.

 

I'm interested in how a judge can seriously consider "hired goods" belonging to a third party with no knowledge of the matter between the debtor and enforcement agent can be seized and sold for a debt belonging to the debtor.

 

I've only ever really heard of "beneficial interest" in regards to housing property ownership, it's not something I've ever heard of for hired goods relating to car finance.

 

It's concerning that a finance company can pay a car dealership, and then rent that vehicle to the "hirer" under the HP agreement for a set duration in which the vehicle remains the property of the finance company as is expressively implied and stated under the agreement until the final payment, and loose that asset because some county court judge decides that the debtor has an interest in the goods.

 

P.s why are bailiff companies going crazy over this judgement? How can they implement it in their internal procedures? It's merely a county court judgement, persuasive force of law at most. There are still various peices of legislation passed through parliament over the last 50 years that supports the point of view that hired goods are exempt from being used to cover the "hirer's" debt.

[Peterbard]

On my initial thread I provided details of another judgment from March 2013. The judgment followed a 'Form 4' Complaint hearing by a debtor called Mr S against a bailiff 'Mr H' 3 months earlier. Despite the finding, the judgment proves once again that debtors should be very cautious indeed about taking any legal proceedings and if they intend to do so.....they MUST ensure that they take proper legal advice beforehand.

 

I do have permission to publish full details of the judgment and will do so once I return back to work next week.

 

 

The Judgment is very long (running to 20 pages) and the case was heard by a very experienced Judge (a QC). The following is copied from the judgment:

 

"On the drive of the property. it is common ground, was a Saab saloon vehicle, registration number xxxx. This vehicle belonged to Mr S subject to the interest of the finance company — the vehicle having been secured on hire purchase ("HP"). The vehicle against which Mr H was threatening to levy distraint, was therefore the subject of an HP agreement. In fact, Mr H did not have the véhicle recovered — instead, he clamped the Saab vehicle and placed a notice on the window to confirm he had levied on the vehicle.

.

 

This may be a QCs comments but he is unquestionably wrong. The vehicle is not the property of the debtor and the finance company has an interest, it is in fact the other way around.

[Bailiff Advice]

I take it that excavation equipment would not be covered by the CCA as most car finance would be.

 

I would have thought that it would be but the expert on CCA is Dodgeball and no doubt he will correct me if I am wrong.

 

Interestingly, yesterday I had lunch with a group of friends (one of whom is a dairy farmer) and he was talking about a brand new tractor that he has just taken delivery off and interestingly he was saying that the interest rate for his HP agreement was exceptionally low but that he had to make a down payment of £30,000. The purchase price being £92,000. Taking his case into consideration it could conceivably be the case that even on day one, there is already a 'beneficial' interest in the machine.

[Peterbard]

It is abundantly clear (and ell enforcement companies knows it) that vehicles subject to Personal Contract Plan (PCP) are completely untouchable. They are exempt from seizure. It would seem that the position regarding hire purchase vehicles (and the relevance to a 'beneficial interest' may well be an unitended consequence of the new regulation and for this reason, will hopefully be considered by the analysts overseeing the 'One Year Review'.

 

BA could you find for me the reference to interest in the taking control of goods section of the TCE, because I cannot find one, I am sure there must be one.

[Peterbard]

I don't buy for one second that this could be seriously implemented in practice. A judge sitting in the county court hardly creates a legally binding precedent (merely a persuasive force of law).

 

What's suggested here, is that contrary to legislation regulating hire purchase, consumer credit agreements, personal property ownership, contractual law and of course law surrounding the taking control of goods and parliaments very own intentions can simply be overturned by a county court judge.

 

I'm interested in how a judge can seriously consider "hired goods" belonging to a third party with no knowledge of the matter between the debtor and enforcement agent can be seized and sold for a debt belonging to the debtor.

 

I've only ever really heard of "beneficial interest" in regards to housing property ownership, it's not something I've ever heard of for hired goods relating to car finance.

 

It's concerning that a finance company can pay a car dealership, and then rent that vehicle to the "hirer" under the HP agreement for a set duration in which the vehicle remains the property of the finance company as is expressively implied and stated under the agreement until the final payment, and loose that asset because some county court judge decides that the debtor has an interest in the goods.

 

P.s why are bailiff companies going crazy over this judgement? How can they implement it in their internal procedures? It's merely a county court judgement, persuasive force of law at most. There are still various peices of legislation passed through parliament over the last 50 years that supports the point of view that hired goods are exempt from being used to cover the "hirer's" debt.

 

I agree entirely and it is not even an interest now it seems it only has to be a prospective beneficial interest, so there does not have to be any at the time of seizure.

[Peterbard]

Regarding your comment about beneficial interest, you are right also about housing and it is usually when a charge is being raised. The same could apply to goods. This is why I believe the reference relates to the binding of the goods, in order to stop the debtor from depleting their value before seizure is considered, rather than the actual seizure itself.