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

[obiter dictum]

I have said it and i will say it again

 

This is a County Court judgement and does not set any sort of precedent over statute

 

If the Bailiff tries this in contravention of the existing CCA 1974 then he will be in breach of statutory duty

 

That is how it is in my opinion and according to statute, no matter how much people try and blow this up into something it is not

 

Sorry

[mch1991]

I have said it and i will say it again

 

This is a County Court judgement and does not set any sort of precedent over statute

 

If the Bailiff tries this in contravention of the existing CCA 1974 then he will be in breach of statutory duty

 

That is how it is in my opinion and according to statute, no matter how much people try and blow this up into something it is not

 

Sorry

 

+1!

[Peterbard]

Dodgeball, I'm sorry, what?

 

The vehicle is the possession and property of the finance company, the bailiff shouldn't be seizing it. This is contrary to the legislation passed by parliament over the past 50 years regarding hire purchase, consumer credit agreements, contractual law, enforcement agent legislation/taking control of goods legislation and the aims set down by parliament, regardless of what has been adjudged in the county court.

 

The bailiff can return the vehicle to the lender, however, if the hirer is up to date with all payments, then the lender can not sell the vehicle under any circumstances, as then they'll be in breach of their contract with the hirer. So effectively the bailiff is just wasting their money and time.

 

The finance company will most likely give the vehicle back to the hirer and invoice the costs involved to the bailiff.

 

It's clear that the proper protocol was not followed by the debtor, most likely annoying the court and making the judge feel as if the debtor is simply trying to avoid payment and making vexatious applications through the court.

 

I have already made al those points on previous posts. However the enforcement officers are saying that the account is being terminated via a breach in the contract under a contractual term. AS i am sure you know the contract may terminated in this way.

Once terminated the car would be the proerty of the lender, with no association wwith the debtor however the sums remainng on the contract would still be due.

 

 

They are also saying that the order of the court mentioned regarding protected goods is covered by the order they are enforcing under, now this may or may not be the case , but it is an argument.

 

Also may i say that we have managed to keep this thread civil so far it would be nice to keep it that way.

[Peterbard]

I also should add that i am usual am being manoeuvred into seeming to fight the bailiffs cause.

 

Personalty as I have stated many times in the past . I think that the requirements of the CCA must be observed, that the vehicle will have protected status under the act the term "interest in goods" does not apply to seizure in any case as it is about goods being bound.

 

I do however reserve the right to change my view as new evidence and informed opinion emerges, i am in good company in doing so.

[Peterbard]

I have said it and i will say it again

 

This is a County Court judgement and does not set any sort of precedent over statute

 

If the Bailiff tries this in contravention of the existing CCA 1974 then he will be in breach of statutory duty

 

That is how it is in my opinion and according to statute, no matter how much people try and blow this up into something it is not

 

Sorry

 

Unfortunately, this is a double edged sword. Yes the CC judgement carries little weight in other actions taken in court. However the bailiff is not in court he will b e stood on your driveway. The belief that he is acting within the confines of the TCE is enough for him to escape action being taken against him. A high court case would be welcome in this.

[brassnecked]

Unfortunately, this is a double edged sword. Yes the CC judgement carries little weight in other actions taken in court. However the bailiff is not in court he will b e stood on your driveway. The belief that he is acting within the confines of the TCE is enough for him to escape action being taken against him. A high court case would be welcome in this.

 

It would have to by a Finance Company with the funds to pursue action, the bailiff will probably get off with it anyway due to our perverse judicial system as he would rely on that County Court Judgment and his belief that the goods were available to take and sell as a result.

[obiter dictum]

What about "ignorance of the law" is no defence?

 

If it applies to one, it applies to all

[Peterbard]

What about "ignorance of the law" is no defence?

 

If it applies to one, it applies to all

 

(8)Sub-paragraph (5)(b) does not apply where the enforcement agent acted in the reasonable belief—

(a)that he was not breaching a provision of this Schedule, or

 

As said all they need is a reasonable belief,the judge has provided that

[obiter dictum]

Many thanks for the confirmation

 

This must need new case law from an appeal to end this ambiguity.

 

As you have stated, bailiffs will exploit this on the debtors ignorance

[ploddertom]

[quote=capquest worst knightmare;4784729

 

As you have stated, bailiffs will exploit this on the debtors ignorance

 

 

That is quite likely part of their objective. As we know Bailiffs don't particularly care about those they visit and some are only interested in heaping more misery on debtors. The chances are this will already be integrated into their Training schedules.

[Bailiff Advice]

In the first instance, I am perfectly satisfied that in the vast majority of cases a 'beneficial' interest would not be applicable.

 

For many years it has always been the case that vehicles that are subject to hire purchase could not be 'levied' upon and this was generally assumed to be the case under the new regulations. As confirmed by the above commentary, the change of wording from 'equitable' to 'beneficial' (interest) is a radical one and time alone will tell how this may affect bailiff enforcement.

 

Almost certainly it is no longer the case that debtors can simply assume that if they have a Hire Purchase agreement that it provides security against having their vehicles 'taken into control' by bailiffs. Furthermore, it will lessen the grounds for making a complaint (that the bailiff had taken control of a vehicle that is subject to hire purchase).

 

I have little doubt that what will now follow is that the enforcement agent will want to know (and require evidence) about any downpayment (or part exchange) and details of the term remaining under the Hire Purchase Agreement. If a debtor is faced with bailiff enforcement it would also be wise to get a valuation of the vehicle as well. It has always been the case (and this remains the position) that bailiffs do not actually want to take goods. Instead, they would prefer payment. This radical change in the definition of 'interest' provides the bailiff with grounds to 'threaten' that a vehicle subject to hire purchase can legally be taken into control.

 

On the other hand bailiffs also face difficulties if they take control and remove a vehicle that is subject to hire purchase given that there is a clause in most agreements terminating the agreement if vehicles have been seized by a bailiff. If this were to happen, it would be for the finance company to take legal action and I assume that in time this will likely be the case.

 

With over 1,100 viewings in just 24 hours, this thread is clearly of importance and as I have highlighted above, I really do not believe that in practice many vehicles subject to hire purchase will actually be sold. Nonetheless, (and as stated so well by Dodgeball yesterday) the effect of this judgment is that it could assist bailiffs to back up the threat of seizure of HP goods with some kind of authority.

 

With road traffic debts, the warrant passed to bailiffs will have upon it the vehicle registration number of the debtors vehicle. Before a visit is even made to the debtors property all bailiff companies run both an HPI check and a vehicle valuation check. This means that before a visit is even made the bailiff will have a rough value of the vehicle and should know whether or not the vehicle is subject to any finance. It is not my understanding (and please correct me if I am wrong) that the enforcement agent will know what type of finance agreement is involved or the amount left to pay.

 

It is therefore important that debtors facing bailiff enforcement should ensure that they:

 

Check whether the agreement is a Hire Purchase one or a Personal Contract Plan (PCP).

 

Check whether or not the agreement incorporates a clause terminating the agreement in cases of distress or execution by a bailiff.

 

Obtain an up to date statement from the finance company.

 

Lastly, we must not lose sight of the fact that the new regulations impose far greater responsibility on the enforcement agent to ensure that any goods that he may take into control actually belong to the debtor. This judgment (as regrettable as it is) could actually make for a lot of additional work for the bailiff/enforcement agent.

[brassnecked]

 

It is therefore important that debtors facing bailiff enforcement should ensure that they:

Check whether the agreement is a Hire Purchase one or a Personal Contract Plan (PCP).

 

Check whether or not the agreement incorporates a clause terminating the agreement in cases of distress or execution by a bailiff.

 

Obtain an up to date statement from the finance company.

Lastly, we must not lose sight of the fact that the new regulations impose far greater responsibility on the enforcement agent to ensure that any goods that he may take into control actually belong to the debtor. This judgment (as regrettable as it is) could actually make for a lot of additional work for the bailiff/enforcement agent.

 

Agree BA.

 

 

I feel that more if not all HP agreements in future will have a termination on bailiff attendance clause to protect the owners asset so that as soon as the bailiff attempts to take control, the agreement is in breach and the bailiff then cannot touch it without risk of the Finance Co using the TCE procedure or even legal action to get the motor away from the bailiff.

 

You and MM right about it being another way of piling on extra pressure on the debtor, and it is one factor that may push someone under stress over the edge.

[mikeymack2002]

I guess that we all should read the new thread here as it may help out those contributing to this thread please see here

 

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?439-Goods-ss.3-32 started by BF

[unclebulgaria67]

If i were a finance company manager owning vehicles, i would be sending out a windscreen sticker to be applied to all vehicles providing some sort of notice, that would be seen by an enforcement agent. It could just state vehicle reg, name of company and a telephone number. Then i would write to all enforcement companies advising them of this.

 

Now some people would not like having these on their windscreen, because they don't want others to know it is on finance, but the finance company could explain the reason they require this.

 

The finance companies are not going to allow the EA companies to regularly take control over their vehicles or attempt to sell them.

[mikeymack2002]

How about rather than doing that, why not like in Tunisia if you hire a specific car you have a blue number plate. Whilst the vehicle is subject to HP the plate stays blue once contract is finished then it reverts to yellow/white. This way it would show immediately that there is finance or a hire vehicle!!!

[unclebulgaria67]

How about rather than doing that, why not like in Tunisia if you hire a specific car you have a blue number plate. Whilst the vehicle is subject to HP the plate stays blue once contract is finished then it reverts to yellow/white. This way it would show immediately that there is finance or a hire vehicle!!!

 

Colour of number plates is covered by legislation and no doubt there would have to be some civil service project looking at this, before legislation was amended. Windscreen sticker is easier and can be implemented quickly.

 

The other possibility is that HP companies start adding a new type of Insurance to new loans, that cover them if they suffer any loss caused by the actions of an EA company. Would not be surprised if they were looking at this. The person taking out the loan would pay for the Insurance to cover any loss that might be suffered by the finance company. The finance company makes money selling an additional insurance.

[madmatt101]

surely the easiest way for a finance company to protect it's vehicles would be use use black box technology where they can remotely disable the vehicle during the term of HP, if the vehicle is disabled it is of no value.

 

Although another interesting thing would be in the HP agreement of VT.

 

What would the implications be if a bailiff took control of a vehicle subject to HP and the debtor immediately rang the finance company to VT the agreement. The debtor has no interest at all in the vehicle.

 

Having said that even the debtor threatening to VT the vehicle as soon as it is taken into control would render there being no beneficial interest in the vehicle

[Conniff]

surely the easiest way for a finance company to protect it's vehicles would be use use black box technology where they can remotely disable the vehicle during the term of HP, if the vehicle is disabled it is of no value.

 

Although another interesting thing would be in the HP agreement of VT.

 

What would the implications be if a bailiff took control of a vehicle subject to HP and the debtor immediately rang the finance company to VT the agreement. The debtor has no interest at all in the vehicle.

 

Having said that even the debtor threatening to VT the vehicle as soon as it is taken into control would render there being no beneficial interest in the vehicle

 

And going down the other road, maybe the finance houses won't be interested, maybe as long as they get their money they will just bow down and say ok.

[Peterbard]

Unfortunately you cannot VT an agreement which has already been terminated.

[madmatt101]

if it has not been terminated and is threatened by bailiffs

[Peterbard]

You would have to terminate it before the bailiff bound the goods, After the notice had been issued you couldn't because the property in the goods would be bound.(section 4 TCE)

After the goods had been taken they would be terminated by the clause in the agreement. You cannot terminate an agreement twice.

[Bailiff Advice]

You would have to terminate it before the bailiff bound the goods, After the notice had been issued you couldn't because the property in the goods would be bound.(section 4 TCE)

 

After the goods had been taken they would be terminated by the clause in the agreement. You cannot terminate an agreement twice.

 

Goods become 'bound' from the date of the Notice of Enforcement and as you have quite rightly stated above, most Hire Purchase agreements incorporate a clause within them terminating the agreement if goods have been seized by a bailiff. Accordingly, if a bailiff were to 'take control' of a vehicle this could cause immense problems to bailiffs..and more importantly, to the finance company as they would then become the 'third party owner' and and such....they should be the one to initiate a claim.

[brassnecked]

Goods become 'bound' from the date of the Notice of Enforcement and as you have quite rightly stated above, most Hire Purchase agreements incorporate a clause within them terminating the agreement if goods have been seized by a bailiff. Accordingly, if a bailiff were to 'take control' of a vehicle this could cause immense problems to bailiffs..and more importantly, to the finance company as they would then become the 'third party owner' and and such....they should be the one to initiate a claim.

Exactly my point, the bailiff would have to rely on his protection under TCE of "reasonable belief" and that dodgy CC judgment, so possibly one will be sued by a Finance Co to put that judgment to bed. In that case it was the wrong party who brought tha action. The debtor was the architect of his own misery, as the Finance Co should have used the provisions in TCE to claim their goods, and the debtor do squat.

[Fair-Parking]

Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 doesn't apply to parking and minor traffic contravention enforcement and thus it really doesn't matter who owns the vehicle or whether it is on finance.

 

Just read it a little more closely

[unclebulgaria67]

Exactly my point, the bailiff would have to rely on his protection under TCE of "reasonable belief" and that dodgy CC judgment, so possibly one will be sued by a Finance Co to put that judgment to bed. In that case it was the wrong party who brought tha action. The debtor was the architect of his own misery, as the Finance Co should have used the provisions in TCE to claim their goods, and the debtor do squat.

 

What if the debtor advises the EA a vehicle is owned by a third party finance company and they don't bother checking. They cannot use 'reasonable belief' in that situation. No doubt any body worn camera recording would get deleted quickly.