What you should and should not do, if your car has been taken by a bailiff for somebody else’s debt? Discussion Thread

[Ruleoflaw]

The vehicle owner where he proves title has in law what is called legal ownership, whereas in the courts the enforcement agent may have what is called 'equitable ownership.' Legal ownership is watertight whereas equitable ownership is merely discretionary. So, ownership can be legal or equitable, ie where one has the legal the other may have the equitable interest.

[Bailiff Advice]

 

Title (legal ownership) to a vehicle whether the vehicle was acquired before or during enforcement does not alter the legal view of title - ownership is ownership, so the V5C were it to prove ownership should be a legally binding at the enforcement stage or the compliance stage.

 

I am sorry but I cannot agree with you on this and also, trying to secure the release of a vehicle using this argument will merely achieve a quick refusal of a 'Part 85' claim.

 

As I have said earlier, goods belonging to the debtor become 'bound' from the date of the Notice of Enforcement. Accordingly, any attempts to dispose of an asset will be challenged.

[Peterbard]

Yes indeed. It is the, "property in the goods" which is bound. The title remains with the debtor, or if the goods are sold in good faith, it transfers to the assignee.

 

4(1)For the purposes of any enforcement power, the property in all goods of the debtor, except goods that are exempt goods for the purposes of this Schedule or are protected under any other enactment, becomes bound in accordance with this paragraph.

 

It makes no difference if title passes, because the property is still bound, the bailiff can take control of goods due to the enforcment power bestowed on him and under the act.

 

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—

(a)is subject to that power, and

(b)does not affect the operation of this Schedule in relation to the goods, except as provided by paragraph 61 (application to assignee or transferee)

 

Where goods are sold in, "good faith" the act treats them as, "co-owned" goods.

 

(2)These apply as if the assignee or transferee were a co-owner of the goods with the debtor—

(a)paragraph 34 (inventory);

(b)paragraph 36 (valuation);

©paragraphs 39 to 41 (sale);

(d)paragraph 59(6) (remedies after payment of amount outstanding).

(3)If the interest of the assignee or transferee was acquired in good faith, for valuable consideration and without notice, paragraph 50(6) applies as if “co-owner” included the assignee or transferee.

 

This means that after sale, the co owner gets the first payment out of proceeds, pro rata to the total amount paid and the ammount owed.

 

(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

[Peterbard]

It follows that, if the goods have been bought for a realistic price, there would be no reason to seize. As after sale there would be no proceeds left to pay onto the creditor.

However if the goods were bought for a unrealistically low ammount , all the assignee(co owner) would get is that ammount back, the rest would be appositioned as per section 13 fees regs.

Also it means that the EA was correct in seizing the goods, even if from the assignee, and no action can be taken against him.

[Bailiff Advice]

I should also mention that if anyone's has their car taken, they should not be swayed into believing that submitting a Statutory Declaration to the enforcement company will suffice. It will not.

 

Last Monday I was contacted by an individual whose vehicle had been taken for the previous owners debts.

 

Unfortunately, the vehicle owner came across one of the many sites springing up on the net offering to draft a Statutory Declaration for the individual. He paid a fee of £175 for this 'draft'. Bizarrely, he was advised that enforcement companies accept these documents as sufficient evidence. NO THEY DO NOT!!!!! His claim was rejected. Fortunately, late on Friday, with my assistance, and a properly completed 'Part 85 Claim", his car was released.

 

I intend starting a new discussion thread on the subject of these Statutory Declarations later today.

[unclebulgaria67]

I thought that the new legislation was supposed to ensure that EC's agents only took goods belonging to debtors and that they should be making sufficient enquiries about ownership.

 

If insufficient checks are being made, perhaps the law needs to be tightened, so that EC's are required to pay a financial penalty, if they take goods owned by a third party and reasonable enquiries would have revealed this.

[Peterbard]

There are no errors here, the seizure of goods under these circumstances are permitted under the act. The act was also brought Into use to recover sums owed to thecreditor of course.

[unclebulgaria67]

There are no errors here, the seizure of goods under these circumstances are permitted under the act. The act was also brought Into use to recover sums owed to thecreditor of course.

 

Of course there are errors and deliberate actions.

 

TCE makes specific reference to goods owned by the debtor, that can be sold.

 

They cannot knowlingly take control of goods owned by a third party, but in fairness i don't think you are saying this.

[Peterbard]

There may be, but none here.

 

If you read my piece above , it explains the mechanism. As for the point regarding debtors goods , this is defined as goods which the debtor has an interest in, of course section 2, and the interest in defined in the post above.

 

(2)In this Schedule—

(a)references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest, but

 

In addition the property in the goods is bound as also explained in that piece. As said in the very first sentence, the property in the goods is bound, and the assignment of that property does not effect the action of the schedule.

[Peterbard]

The point is here tht the property in goods is bound and can be pursued by the baiiff, and when located taken under control.

 

This is the point of binding goods. If the goods should lawfully belong to the third party, they will still be under control until they go back.

 

“controlled goods” means goods taken control of that—

(a)have not been sold or abandoned,

(b)if they have been removed, have not been returned to the debtor (unless subject to a controlled goods agreement), and

©if they are goods of another person, have not been returned to that person;

[Peterbard]

If however , as BA says the gods were sold before the binding, that is before the notice is issued or before the EA received the enforcement order.

 

Then full unfettered ownership will pass to the assignee.

 

 

This is the point covered in section 51 of the TCE which states that full title cannot pass to the buyer of the seized goods, if this is the case.

 

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.

[Peterbard]

Sorry missed this off , it is quite important

 

(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.

[Bailiff Advice]

I thought that the new legislation was supposed to ensure that EC's agents only took goods belonging to debtors and that they should be making sufficient enquiries about ownership.

 

Absolutely right. However this position is very much influenced by different debt types. For example, from my experience, most 'third party 'claims mainly relate to the enforcement of unpaid penalty charge notices. In this respect, the bailiff has something of a 'head start'. He will have in his possession a copy of the warrant. Upon it will be the VRM of the motor vehicle.

 

Accordingly, before even attempting to enforce the debt, he will know a lot of information about the vehicle. An HPI check would have been carried out to ascertain whether the vehicle is subject to finance or hire purchase. Because of the foolhardiness of one individual encouraging debtors to pursue hopeless legal proceedings, (which they lost), enforcement agents consider vehicles on finance/hire purchase to be fair game to seize.

 

The enforcement company would also know the make, model and value of the vehicle. If that same vehicle was parked in the area where the debtor lives then the enforcement agent can almost certainly be satisfied that the vehicle belongs to the debtor.

 

Where problems usually arises, is where the vehicle has been detected by ANPR on a public highway and has recently been purchased from the previous owner. In such cases, the regulations specifically provide that in order to 'take control' of the vehicle, it must be immobilised for a minimum period of two hours. Enquiries may then be made. If a DVLA search reveals that the debtor is still registered as the keeper, the enforcement agent should ask the new owner for evidence of purchase and supporting documentation. If it is not available, then the vehicle can be removed to the pound and a 'Part 85' Claim would need to be submitted.

 

If the new purchaser has a V5c in his name and the date of purchase was before the date of the Notice of Enforcement, then the bailiff should (at least in my opinion) remove the clamp and allow the vehicle owner to drive away.

 

If the vehicle has been detected by ANPR and immobilised and the owner does not return to his vehicle, then as long as a DVLA search reveals the vehicle as still being registered to the person named on the warrant, then he does not need to make any further enquiries and the vehicle can safely be removed to the pound.

[Bailiff Advice]

Another very common area of dispute is where somebody (usually a relative) claims that they, and not the 'keeper', own the vehicle. These 'claims' can be difficult to deal with at an 'enforcement agent visit' and are usually dealt with by way of 'Part 85' claims (usually after the vehicle has been removed).

 

The position in law is that the vehicle keeper is assumed to be the owner UNLESS evidence is provided to the contrary. The 'owner' would need to provide evidence of ownership to the enforcement company.

 

It is usually always the case, that a genuine purchaser, can usually provide genuine documentation.