jbw Clamped car on finance

[speedfreak]

Hoping for some advice.....

 

Had my car clamped this morning for an unpaid parking ticket.

 

The car itself is on finance, so when I told the bailiff this he said he was immobilising the car instead.

He's acknowledging that they can't remove or sell the car, but says immobilising it is fine. His paperwork states he has taken control of it, though he says that telling me he's changed that to just immobilising it is enough.

 

Surely he shouldn't have immobilised it in the first place, it's not my property, though it is the car mentioned in the paperwork for the PCN.

 

He's adamant I have to pay the clamping fees to get my car released - is he correct?

 

I'm of the opinion he should never have taken control of it in the first place, as it's on finance. He hadn't checked before he clamped it, he's admitted that - though he says he's still entitled to clamp it.

 

Any ideas?

[brassnecked]

What sort of Finqance,? HP PCP, Lease

[speedfreak]

What sort of Finqance,? HP PCP, Lease

 

Its on HP.

[speedfreak]

The fine element is £188 - he's charged an additional £75, and £235 enforcement fee.

 

He's saying he would have charged that whatever had happened, ie just for visiting.

 

If he hadn't clamped my car, would he be able to do that, ie are the fees for the visit, or clamping? That's what I'm also interested in.

 

Cheers

[dx100uk]

his fees are ok

the fact he's immobilised it is ok too [no fees]

 

bailiff advice has a info thread here on this .

 

when did you get the notice of enforcement?

[speedfreak]

Having read up, seems like I'll just have pay up, and look happy.

One to chalk down to experience!

[Bailiff Advice]

The fine element is £188 - he's charged an additional £75, and £235 enforcement fee.

 

He's saying he would have charged that whatever had happened, ie just for visiting.

 

If he hadn't clamped my car, would he be able to do that, ie are the fees for the visit, or clamping? That's what I'm also interested in.

 

Cheers

 

The fees are absolutely correct I'm afraid and would have been the same whether the car had been clamped or not. Any reason why you did not pay at the 'Compliance' stage when the bailiff fees were just £75?

 

http://www.legislation.gov.uk/uksi/2014/1/schedule/made?view=plain

[bazm]

No one going to comment about the car being on finance and what the EA will do if you refuse to pay? Just playing devils advocate.....

[mch1991]

No one going to comment about the car being on finance and what the EA will do if you refuse to pay? Just playing devils advocate.....

 

Seems uncertain, I believe there was a judgement supporting the bailiffs position to clamp/seize a car under hire purchase, something to do with "beneficial interest", I've also read a judgment (don't have it to hand) that supports such vehicles cannot be seized, I'm not aware of any case law though.

 

A lot of HP agreements include a clause that states you default/breach the agreement if the vehicle is seized by police, DVLA, or if they become controlled goods by an enforcement agent, so there could be ramifications under the HP agreement if a vehicle is seized and the finance company become aware.

[Bailiff Advice]

By the same token, most HP and Finance agreements also contain a clause that it will be a breach of the agreement if 'fines or penalties' are not paid.

Edited November 10, 2018 by dx100uk
quote

[speedfreak]

Thanks for all the helpful input folks.

 

My main concern is that the EA can't return and clamp a different car, as I have another registered to my name - hence why I wasn't too worried about one being clamped, from a transport point of view at least.

 

It's not worth over £1350, so I should be ok? I can't pay the full amount for 3 weeks.

[Will Goodfellow]

It's not worth over £1350, so I should be ok?

 

 

Only if it is essential for your employment otherwise it can be seized.

[Peterbard]

No one going to comment about the car being on finance and what the EA will do if you refuse to pay? Just playing devils advocate.....

 

Yes.

 

The facts are, that HP cars can be seized. The bailiffs decision is generally down to the creditor and if he will cooperate in any sale.

They in turn will make there decision based on policy, or just the amount of equity left on the agreement.

Most just leave it, but by no means all.

Sorry no yes or no answer.

[Very_Angry]

I am sorry you are completely wrong. Vehicle subject to undischarged finance cannot be seized, and cannot be clamped. This has already been decided. I think the advice you have given is your personal view and interpretation.

[Very_Angry]

D00CL916 NATHAN OKI- V- LONDON BOROUGH OF SOUTHWARK & LONDON BOROUGH OF CROYDON & NEWLYN PLC Case of HP by HHJ Wulwik costs against Newlyn Totaling 5k, with further sums to be assessed

[brassnecked]

The BailiffCo's were emboldened by a CC decision that a Judge ruled that there could be a Beneficial Interest in a vehicle similar to equity in a property, so many chanced their arm with cars on HP especially those where the Finance Co needed a court order to repossess. This thread from 2015 explores this concept https://www.consumeractiongroup.co.uk/forum/showthread.php?451273-Vehicles-on-HP-can-be-sold-by-a-bailiff-Evidence-must-be-provided-that-there-is-no-beneficial-interest

[Bailiff Advice]

A Circuit Court decision (which this case was), whilst persuasive, is not legally binding. Another point is that a vehicle subject to finance can still be 'taken into control'. There is no doubt about this at all.

 

Lastly, another point that seems to be overlooked is that if the vehicle were removed, it would be for the 'third party' (in other words, the finance company) to issue a Part 85 Claim. It should not be for the hirer to issue proceedings.