Beneficial interest on goods under a HP Agreement.

[unclebulgaria67]

BA

 

The point is that there should be a proper legal process that validates the actions of Enforcement companies to ensure that they are acting proportionally, the creditor has gone through a process of assessing options and the debtor has easy access to the courts to appeal without facing possible high costs awarded against them.

 

What is to stop Enforcement companies going after any assets bought with credit e.g mortgaged house. Where is the line drawn ? We are considering HP vehicles now, but in 2 years time, it might be people facing eviction from their homes. As the financial situation deteriorates, creditors will become more desperate to raise funds.

 

This three year review should look at each type of debt that is subject to enforcement and think about a fair process that might involve less work for Enforcement companies, but an active engagement between creditors and debtors.

[Bailiff Advice]

 

What if they can't pay to get the car back. The car might be used for work purposes and without it, they cannot earn a living.

 

Firstly, a debtor should never issue legal proceedings against an enforcement company whilst at the same time, his vehicle is clamped or has been removed. What he should do, is to pay the debt (including of course enforcement agent fees...which may include the £110 sale stage fee). In that way, he has not only avoided paying storage fees, but more importantly, he can continue with his employment.

 

Of course, if he cannot afford to pay....then he surely cannot afford to pay legal costs !!!!

 

Another point (and a most important one that seem to be overlooked, ) is that even if a vehicle is used for business purposes, it will only be considered 'exempt' if it's value is less than £1,350.

[Bailiff Advice]

BA

 

The point is that there should be a proper legal process that validates the actions of Enforcement companies to ensure that they are acting proportionally, the creditor has gone through a process of assessing options and the debtor has easy access to the courts to appeal without facing possible high costs awarded against them.

 

There is a proper legal process and it works perfectly well.

 

If an enforcement agent takes control of any goods (usually a motor vehicle) and the debtor considers that the vehicle should be exempt (from being taken) then the correct procedure as outlined in the regulations in to issue a simple 'Part 85' claim. There is no cost involved. I have stressed time and time again that this is the correct procedure.

 

This week alone, I have assisted in three such applications and in each case...the vehicle has been returned. In two of the cases, the cars were collected yesterday and in the third case, the release instructions arrived too late and the vehicle will be collected on Tuesday.

 

What is good about 'Part 85' claims is that if they are rejected (I have had two rejected myself) the local authority (via the enforcement agency) will provide a reason. In this way, the debtor will know in advance whether or not to risk having the matter decided by a Judge (and the risk that costs could be awarded).

[unclebulgaria67]

Firstly, a debtor should never issue legal proceedings against an enforcement company whilst at the same time, his vehicle is clamped or has been removed. What he should do, is to pay the debt (including of course enforcement agent fees...which may include the £110 sale stage fee). In that way, he has not only avoided paying storage fees, but more importantly, he can continue with his employment.

 

Of course, if he cannot afford to pay....then he surely cannot afford to pay legal costs !!!!

 

Another point (and a most important one that seem to be overlooked, ) is that even if a vehicle is used for business purposes, it will only be considered 'exempt' if it's value is less than £1,350.

 

If you ignore the recent silly case, where a daft person was directed down a route that made their situation worse.

 

Of course, if people can afford to settle debts to avoid an escalation that is sensible. They can then still look into the process and if possible take appropriate action.

 

But if you just look at the process, it is not a very good one and needs major surgery. You are going to get people who have their HP vehicles taken and they just don't have the money to get their vehicles back. They might rely on these vehicles for work or to access work. They are being forced into having their HP agreements cancelled, without a satisfactory legal process.

 

Not convinced by part 85 and perhaps the enforcement process needs to be better managed.

[Bailiff Advice]

 

If you ignore the recent silly case, where a daft person was directed down a route that made their situation worse.

 

If an individual issues an injunction, at the very least they must be told the following:

 

Given the importance of this case, (and it's significance for all debtors) if a judgment has been released, I will try to obtain permission from the enforcement company concerned to provide details on here. I will first be contacting the moderating team on this forum.

[unclebulgaria67]

If an individual issues an injunction, at the very least they must be told the following:

 

Given the importance of this case, (and it's significance for all debtors) if a judgment has been released, I will try to obtain permission from the enforcement company concerned to provide details on here. I will first be contacting the moderating team on this forum.

 

I thought this was a county court case, therefore no precedence set. I am not sure how they can be applying this one case to other enforcement actions, unless they are trying to deceive.

[Bailiff Advice]

I thought this was a county court case, therefore no precedence set. I am not sure how they can be applying this one case to other enforcement actions, unless they are trying to deceive.

 

Indeed, no precedence has been set (although Judges's have made the same decision in at least 3 cases).

 

The reason for publicising details of the case (possibly on here if permission is granted, or elsewhere if not) will be to highlight to debtors what they should not do if a vehicle has been taken into control.

 

It is also important to ensure that accurate details are given to the public !!

[Peterbard]

Hi

 

Regarding business exemption. Apart from the requirements of the act and regulations there is a ton of case law on this , which is still applicable.

 

The complete description includes the line. the business exemption applies to goods which are essential in order for the debtor to conduct his present trade or profession. So for instance perhaps an old taxi which is not used currently is not so.

 

So goods he uses at work may not be exempt at all if there is an alternative or if they are not essential.

 

Also whist it is true that lower courts provide no formal precedent, they are nerveless "persuasive" in other lower court hearings, just how persuasive depends on the level and reputation of the judge in question. Three judgments are very persuasive I would suggest.

 

UB real property is exempt.

[Peterbard]

What happens after seizure ?

 

Firstly it should be said that the bailiff cannot just sell the goods as soon as the debtor is in breach of the agrement, it has to be terminated. Until it is, the debtor is entitled to pay the installments and have possession of the car(as far as the cca is concerned).

 

When this happens these rights and duties under the agrement no longer apply.

 

In these cases the ammount of value in the car will exceed the ammount left to be paid on the agrement, so since there are no further liabilities under the contract, this too will end.

 

The car will still be in possession of the bailiff as their rights to the interest in the goods still stands. At this point the dealer could start a third party claim but since they know what is happening and that it will facilitate the sale of the car and repayment of the sums due, they dont.

 

There is no need to transfer anything under the LOPA because the contract with the debtor will be at an end and there will be nothing due under it. Nor any requirement for the bailiff to put his hand in his pocket and purchase the car LOL.

 

The excellent point regarding sectin 51 sf the TCEA was brought up, here is the section :

 

51(1)A purchaser of controlled goods acquires good title, with two exceptions.

(2)The exceptions apply only if the goods are not the debtor's at the time of sale.

(3)The first exception is where the purchaser, the creditor, the enforcement agent or a related party has notice that the goods are not the debtor's.

(4)The second exception is where a lawful claimant has already made an application to the court claiming an interest in the goods.

(5)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale, other than an interest that was assigned or transferred to him while the property in the goods was bound for the purposes of the enforcement power.

(6)A related party is any person who acts in exercise of an enforcement power, other than the creditor or enforcement agent.

(7)“The court” has the same meaning as in paragraph 60.

 

ss (2) Quite understandably would make you think that unless the goods were the debtors proerty the full title cannot be transferred

 

However SS 3 and 4, state in particular how these sections apply.

 

The first, is when the goods are not the property of the debtor, unfortunately, that brings up the beneficial interest argument because reference to goods includes (interest in goods) and interest means beneficial interest as per shed 12.

 

The second relies on the third party making a complaint, which as said they will not.

 

So good title will be passed under the auction (sale) process.

 

The finance co. will be the co-owner of the goods and get first payout after the auction the balance will go to the creditor after costs as per :

 

50(6)If there is a co-owner of any of the goods, the enforcement agent must—

(a)first pay the co-owner a share of the proceeds of those goods proportionate to his interest;

(b)then deal with the rest of the proceeds under sub-paragraphs (1) to (5

[Peterbard]

It seems that CAB etc. are still saying HP items are exempt without a qualification

[unclebulgaria67]

It seems that CAB etc. are still saying HP items are exempt

 

I suspect it is because that is still the official position i.e there is no case precedence or legislation. Yes 3 county court cases, but not binding on any other Judge to accept.

 

While i can see the argument that HP vehicles could be seized and sold with a HP companies consent to release money to creditors, i am not comfortable with the process of what is happening. I can there being a successful argument made that it is not a lawful practice.

[Peterbard]

If that is the case they are doing a disservice,as vehicles are being taken when under HP whatever anyone thinks of the legal position.

 

The fact is ,whilst you are right in saying there is no legal precident saying goods can be taken,equally there is none to say they cannot. The failed claims provide the only guidance.

 

Examining the legislation there is at least good cause to support the claim that these goods can be taken, that is all that is needed.

[unclebulgaria67]

If that is the case they are doing a disservice,as vehicles are being taken when under HP whatever anyone thinks of the legal position.

 

 

I have no relationship with CAB, but from what i understand it is not their policy to alter their written advice, based on what has happened in a few County Court cases. They can't possibly keep an eye on all the different issues that CAB covers, what County Court decisions have been made and then start giving out different advice to people. Each case is going to be different. They will wait until there is a higher court precedence set or new legislation.

[Peterbard]

I have no relationship with CAB, but from what i understand it is not their policy to alter their written advice, based on what has happened in a few County Court cases. They can't possibly keep an eye on all the different issues that CAB covers, what County Court decisions have been made and then start giving out different advice to people. Each case is going to be different. They will wait until there is a higher court precedence set or new legislation.

 

I would think they want to protect their clients.

[Peterbard]

Have to say that there sees to be a growing.missconseption that every act or regulation requires a court precident in order to be enforced, it doesn't of course.

[unclebulgaria67]

Have to say that there sees to be a growing.missconseption that every act or regulation requires a court precident in order to be enforced, it doesn't of course.

 

Enforcement companies will proceed based on the advice they have received, of how they can apply the legislation that applies to their work. Of course their actions can be challenged in court.

 

I think you know that Judges only deal with the applications in front of them, they weigh up the arguments against, decide whether there has been adherence with court procedures and make a decision based on their understanding of the principles of the law that exists.

 

We don't know all of the details of these 3 cases.

 

Hopefully BA will get clearance from site admin to post up more information. The Enforcement companies will no doubt have obtained transcripts for these cases and they might be available.

[Peterbard]

Yes it will be interesting although I doubt it will contain anything new.

 

The problem is that bailiffs can currently take these goods,most of the time there is no intention to sell In any case

 

I think advice must be given on the situation as is.

[Peterbard]

In regards to taking proceedings. Yes you are right anyone can take anyone to court.

[Peterbard]

The point of this thread is to clarify the argument's my personal view is that the term was never intended to permit these seizures of goods. In fact if it were not for the someone exercising their right to go to law, nothing would have changed.

[Peterbard]

I hope at least what has been said on here has shown how goods, even though in the continued possession of another can still encompass legal interests from other parties.

It is of no use throwing your hands up and saying the the property In goods remain in possession, because there may be numerous interests contained within them waiting to be released.

[brassnecked]

The whole Beneficial Interest conundrum needs a Supreme Court hearing imho, as it seems to trump the law of Contract and cut across Equity, depending on how you look at the interpretations.

 

Can't wait for as bailiff to try it on with a Finance Co where it is a PCP as in legally a long term rental, so no BI can accrue, it's only a matter of time before one is silly enough, wonder if it will be DCBL ?

[Demitri]

Thank you for this story but no, it has no relevance to the case that this thread concerns and it doesn't help either.

 

For clarity, what is the relevant case that this thread concerns?

 

I read posts of yours previously claiming that a debtor had changed ownership of a car but the two old ladies in front of me were adamant that you cannot change ownership when you are only hiring a vehicle

[Peterbard]

For clarity, what is the relevant case that this thread concerns?

 

I read posts of yours previously claiming that a debtor had changed ownership of a car but the two old ladies in front of me were adamant that you cannot change ownership when you are only hiring a vehicle

 

 

 

For clarity, this thread does not depend on a specific case. Any case which examines the subject of the thread is welcome.

[Peterbard]

i have just requested that the team remove some off topic posts. edit even some of mine.

 

I also request that people only reply to posts which are about the subject in the title, and ignore or report anything else, no matter who it is from, (even if it is me:).

 

Lets see if we can keep this thread open.

[Peterbard]

A transcript would greatly assist but that is not an option at present. Therefore, the second best option must surely be to rely upon the detailed notes that would have been taken by the person present in court.

 

I think you said it was "not an option".