Goods on HP - a Judge says they can be sold

[brassnecked]

MM and DB, I have to agree the situation is very complex, and the judge may have screwed up on several aspects, but as BA posted

 

"Schedule 2 states that an 'interest' is a 'beneficial interest'. Way outside of my limited training I'm afraid !!!"

 

And as you point out a beneficial interest is a debtor having the enjoyment or use of the goods but no title, then I can see a great many seizures and sale of HP goods, bu the usual suspects before this judgement is brought into disrepute.

 

This is wider than vehicles, so Brighthouse beware, your overpriced goods may be had away by Sharkstons or Snacobs.

[Peterbard]

MM and DB, I have to agree the situation is very complex, and the judge may have screwed up on several aspects, but as BA posted

 

"Schedule 2 states that an 'interest' is a 'beneficial interest'. Way outside of my limited training I'm afraid !!!"

 

And as you point out a beneficial interest is a debtor having the enjoyment or use of the goods but no title, then I can see a great many seizures and sale of HP goods, bu the usual suspects before this judgement is brought into disrepute.

 

This is wider than vehicles, so Brighthouse beware, your overpriced goods may be had away by Sharkstons or Snacobs.

 

Yes indeed, but in my opinion the judge got the relationship between the lender and the hirer wrong in regard to a HP agreement. In addition there is also as said the contract that exists between the lender and the hirer, before the goods became available for sale this would have to be terminated.

 

Those of us who have been in litigation of any kind are aware of the "judge lottery" and as I said before i think that the person here fell foul in this regard.

[Ori]

I have posted this on other forums and would like to post it here too.

Some of it doesn't apply to the people posting on this thread.

 

 

For additional information, the HP agreement on the car is 6 months old.

Selling the car in auction would actually increase the debt not decrease it as there would be a shortfall to the finance company.

 

I have been reading comments on this with great interest and I think that it is time that I made a few matters clear.

 

Seeing as I was the person there, I believe I am in a good position to say what happened.

 

Firstly, lets start with the judges ruling which I haven't got a copy, but heard him read it out.

 

He ordered that the bailiffs can continue with their action as I had an "interest" in the vehicle.

He even missed out the word "beneficial" in his reading of the guidelines.

 

I have sought legal council in this matter.

Both solicitors and barristers.

 

 

Admittedly, the barrister is a barrister in the family court,

but he was excellently placed to tell me what is and isn't a "beneficial interest" in the legal world

as he deals with it on a daily basis in pretty much every single divorce case financial battle.

 

The simple answer is, the judge is wrong.

 

 

The car is not of "beneficial interest" to me in any way shape or form.

This is the opinion of qualified professionals.

I effectively hire the car and I pay for usage.

If I cease paying for the car then I lose that usage with no financial reward and only penalties.

The car does no belong to me until I make the final payment on it.

The citizens advice gave me exactly the same advice.

 

Everyone is baffled by this ruling and all my council have said to me that an appeal has an extremely high likelihood to succeed.

Which is pretty much as much as any brief is willing to commit to ANY court proceedings.

 

Regardless, I have a life to live, and a child to support. I will be sorting out the PCN's in order stop action against me.

 

It is all very easy for people on here to tell me to appeal,

however I do not have the funds to push this for an appeal.

Lodgement fees everywhere.

Draft Fees, and of course professional legal fees and council to represent me on the day.

 

Then there is the other side of the equation which is there is always a chance (However unlikely),

that I will lose and face legal costs that I simply do not have.

 

 

So unless one of you wants to fund it, please do not tell me to appeal,

as it is not you that will face £10,000 and upwards worth of costs.

 

Action I have taken:

 

- spoken to my finance company and I am waiting for their legal team to get in touch with me next week.

- Arranged to pay off the PCN's

- Consulted council (Purely out of interest)

 

I do not think anyone here knows the strain I have been under these last few days and I just want to enjoy whats left of this bank holiday with my son.

 

Thank you all.

 

Ori.

[Ori]

There is also the problem of section 90 of the Consumer credit act to consider, which says that goods under a hire purchase agreement, once over one third of he contractual payment have been made become"protected goods".

 

This means that they cannot be reclaimed by the lender without an order form the court. The act goes on to say that should the lender ignore this and reclaim the car in any case he will have to reimburse the lender all payment made on the contract up until that date.

 

There is case law which states that the status of protected goods also permits action for the commencement of proceedings under the tort of conversion should the goods be removed from the hirer.

 

I will tell you now, that the judge in this case had no knowledge of consumer credit law nor did he care.

He just decided that I had an "interest" in the car.

 

 

He had no idea of the repercussions on the finance world and thought he was just dealing with someone avoiding a parking fine.

 

The councils solicitors argument changed during the hearing.

He initially argued that it was not my case to bring to court, and before the break the judge pointed out that the guidelines stated

"goods not belonging to the debtor" line.

 

 

After the break, the judge turned the case when he focused on "interest" in the car.

 

In hindsight,

I wish I had a brief with me on the day,

but even then without proper preparation of consumer law there would have been a problem.

 

 

The reality is, that an appeal would actually be the best place to take this a

s a good barrister would be prepped properly as he knows in advance the issues that will be raised

and what to focus on.

 

 

Unfortunately, I am not in a position to do this (see my previous post)

Edited May 2, 2015 by Ori

[Bailiff Advice]

Ori,

 

I am sure that I speak for all regular posters on here by saying a big thank you for posting your above comments on the forum. As we discussed today, litigation is not to be taken lightly and in particular so when dealing with an enforcement company and new regulations that have not been tested in courts.

 

Whilst I share your view that an appeal has a high chance of success I also agree that such an action is not without it risks. These past few weeks must have been a dreadful strain on you and enjoy the rest of the weekend. Please do post back with any response from the finance company as this subject is certainly one of interest.

 

Once again, thank you.....

[Ori]

Ori,

 

I am sure that I speak for all regular posters on here by saying a big thank you for posting your above comments on the forum. As we discussed today, litigation is not to be taken lightly and in particular so when dealing with an enforcement company and new regulations that have not been tested in courts.

 

Whilst I share your view that an appeal has a high chance of success I also agree that such an action is not without it risks. These past few weeks must have been a dreadful strain on you and enjoy the rest of the weekend. Please do post back with any response from the finance company as this subject is certainly one of interest.

 

Once again, thank you.....

 

This is the problem I am having. I genuinely believe that the success on appeal is a high probability, but to fund such a case is not simple.

 

I will keep you and the forums informed with any information as it arises.

[brassnecked]

I feel the CAB and other Agencies will be similarly appalled at this judgment as we are so there may be a way to get an appeal via an advice Agency. The effect is so wide ranging, as it potentially puts a neighbours car at risk if they let a debtor use the car on a regular basis,

[Peterbard]

Yes as BA says thank you for coming here and giving us the factual information regarding the case.

 

As you correctly say, it sounds like the judge had little or no knowledge of consumer law in relating to hire purchase and less in regard to common practice even, in bailiff law.

 

As you also said most people who buy on HP will be in negative equity until right at the end of their agreement so seizing the car makes no sense even from a purely fiscal point of view, then there is the matter of the seizure, which in fact was not legal as you say.

 

The wider consequences of this decision are that, with this being is a lower court case it carries no precedent for other similar actions, however EAs are likely to use it as being persuasive, the danger being that the case could be quoted on the doorstep in order to pressure debtors to engage in payment arrangement which they cannot afford.

 

My hope is that this judgment will attract such negative reports form the acknowledged professionals in both bailiff and consumer law that it will shortly carry no weight and be ignored, this has happened in many consumer cases I am aware of.

 

All this does not help you of course and i do hope that this whole issue is somehow resolved in the least costly way.

[Peterbard]

Just to clarify the situation regarding hire purchase and early terminatin of an agreement.

 

The hirer is entitled to voluntarily terminate an agreement at any time before the last payment, they are also entitled to voluntarily surrender the vehicle.

 

If the vehicle is voluntarily terminated the amount due after termination would be equal to one half of the total agreement price less any amount already paid and plus any arrears, so if over one half had been paid and there was no arrears then nothing more would be due.

 

However if the car is voluntarily surrendered the car is sold by the finance company and the sum raised is subtracted from the outstanding sum due under the agreement(less any early settlement rebate), any shortfall would then be billed to the hirer. If however there is any surfeit or money left over after the sale this is sent to the hirer.

 

So particularly towards the end of an agreement there is, in theory at least a financial interest in the vehicle, in practice this seldom works out as the car is sold off at auction and seldom even makes the costs involved.

[Ori]

I feel the CAB and other Agencies will be similarly appalled at this judgment as we are so there may be a way to get an appeal via an advice Agency. The effect is so wide ranging, as it potentially puts a neighbours car at risk if they let a debtor use the car on a regular basis,

 

If you know of an agency that wants to do this then let me know! ;-)

[ploddertom]

I have unapproved 1 post as this thread is solely to do with the problems surrounding Hire Purchase. It is not for us here to speculate on the rights & wrongs of any advice offered from elsewhere.

[ploddertom]

If you know of an agency that wants to do this then let me know! ;-)

 

Have a look at the following:

 

http://www.lawworks.org.uk

 

http://www.barprobono.org.uk

 

Not saying they can help but may be worth speaking to as may be able to give some guidance

[mikeymack2002]

With credit agreements the person taking out the HP can at any time after they have paid xxx.xx they can cancel the agreement providing that they have taken care of the goods. What it doesn't say is that you personally do not have to return them. They can be collected by the finance company if they know where they are

[mikeymack2002]

Lets take this a step further shall we, in regards to the taking control of goods that are on "credit" this will open a huge can of worms IMO

 

 

I will explain, if the debtor has an "interest" in goods then the EA can simply take control of those goods, will this allow them to take control of anything that is subject to "credit" in any form now? like the following

 

 

1. Credit cards (single and joint accounts)

2. HP

3. Mobile phones

4. Major property purchases like a house, boat, motorcycle, and so on

 

 

The list is endless this judgement can have serious financial implications to your wealth do not ignore. If you have an INTEREST in anything of value it "appears" now it is fair game for the EA !!!

[DragonFly1967]

Whilst I'm speculating here... I wouldn't be at all surprised if someone like the finance company involved decided to take an action (whether appeal or a fresh case) to get this matter sorted out once and for all. I'm sure their legal team will look at all the options.

 

They, and their industry, would stand to lose millions if this case were to become persuasive in other cases, and I'd wager they wouldn't want that to happen.

[Peterbard]

I have unapproved 1 post as this thread is solely to do with the problems surrounding Hire Purchase. It is not for us here to speculate on the rights & wrongs of any advice offered from elsewhere.

 

OK fair enough I will rephrase.

 

In my opinion this case will not have further implications on HP exemptions, because further incidents of HP exemptions would be challenged using the correct procedure, hopefully.

And in further cases of HP exemptions the bailiff should be made aware that the debtor is fully aware of the correct procedure required regarding HP exemptions.

 

 

 

Hopefully this i on topic regarding HP exemptions.

[lookinforinfo]

It is quite illuminating that throughout this thread we have had no input from any of the bailiff fraternity. They above all should be aware that goods on HP are untouchable since they do not belong to the debtor.

 

They are exempt goods and once the bailiff company had been appraised of this fact they know they had no legal grounds for retaining the vehicle.

 

As they have not done so, they are supposed to inform the Finance Company how to reclaim the vehicle re Taking Control of Goods-National Standards

 

67. Enforcement agents should not take control or remove goods clearly belonging solely to a third party not responsible for the debt. Where a claim is made, the third party should be given clear instructions on the process required to recover their goods.

 

This was disgraceful behaviour by the EA and the bailiff company since they are well aware of the Law relating to goods on HP. The fact that they got lucky with a Judge so ignorant of the Law relating to HP and bailiiff law is immaterial. The case should have been resolved before it had reached the Court. If the bailiff company had any scruples whatever they would reimburse Ori the Court fees as a minimum.

 

I doubt that will happen and the whole episode only goes to reinforce most people's opinion of the bailiff industry. In time I hope that the bailiff company will be forced to admit it was wrong not to return the vehicle and to come to a settlement with Ori.

Edited May 3, 2015 by citizenB
tidying up format

[Ori]

It is quite illuminating that throughout this thread we have had no input from any of the bailiff fraternity. They above all should be aware that goods on HP are untouchable since they do not belong to the debtor.

 

They are exempt goods and once the bailiff company had been appraised of this fact they know they had no legal grounds for retaining the vehicle.

 

As they have not done so, they are supposed to inform the Finance Company how to reclaim the vehicle re Taking Control of Goods-National Standards

 

67. Enforcement agents should not take control or remove goods clearly belonging solely to a third party not responsible for the debt. Where a claim is made, the third party should be given clear instructions on the process required to recover their goods.

 

This was disgraceful behaviour by the EA and the bailiff company since they are well aware of the Law relating to goods on HP. The fact that they got lucky with a Judge so ignorant of the Law relating to HP and bailiiff law is immaterial. The case should have been resolved before it had reached the Court. If the bailiff company had any scruples whatever they would reimburse Ori the Court fees as a minimum.

 

I doubt that will happen and the whole episode only goes to reinforce most people's opinion of the bailiff industry. In time I hope that the bailiff company will be forced to admit it was wrong not to return the vehicle and to come to a settlement with Ori.

 

Interesting what you wrote there. I know the bailiff in question did not contact the finance company. I also have text messages where he clearly told me that he can take and sell the vehicle as there is a clause in my contract (which there isn't) that he could sell it.

 

I await to hear what BMW finance say when they speak to me. I believe they will do nothing except maybe issue a letter to the bailiff company and council saying that they do no give permission for the car to be seized or clamped as it belongs to them.

While I will be sorting out the PCN's, part of me thinks I should let the car be seized and force the finance company to deal with it. That would be interesting.

Edited May 3, 2015 by Ori

[Peterbard]

Interesting what you wrote there. I know the bailiff in question did not contact the finance company. I also have text messages where he clearly told me that he can take and sell the vehicle as there is a clause in my contract (which there isn't) that he could sell it.

 

I await to hear what BMW finance say when they speak to me. I believe they will do nothing except maybe issue a letter to the bailiff company and council saying that they do no give permission for the car to be seized or clamped as it belongs to them.

While I will be sorting out the PCN's, part of me thinks I should let the car be seized and force the finance company to deal with it. That would be interesting.

 

The lender cannot give permission to clamp or remove the vehicle, it would be breech of contract, and also a breach of the consumer credit act. Even if you were in arrears they would have to get a court order first.

[Ori]

The lender cannot give permission to clamp or remove the vehicle, it would be breech of contract, and also a breach of the consumer credit act. Even if you were in arrears they would have to get a court order first.

 

I realise that they can not give permission, but I am not 1/3 of the way through the contract. My payments are up to date and have always been on time. I have not broken the terms of the agreement and hence they can not sell the vehicle without my permission.

 

So my actual question is this. What will happen if they seize the car? What will BMWFS do? I guess I won't know until I speak to their legal team.

[Peterbard]

I understand that you paid a large deposit ?

[Ori]

Nope. Very small deposit. Less than 10%.

[Ori]

I have tried to reply to a private message, but it says I can not do it as I have less than 30 posts. If the person who sent it, could send me their phone number then I will give them a quick call.

[Peterbard]

Oh I see and even with this you have not paid one third of the total amount payable under the agreement ?

 

They would still need a reason to terminate the contract, although they could do so without an order of the court.

If for instance there was arrears or there was some term in the contract. Usually relating to bankruptcy.

[Ori]

Well, I'm not in arrears or bankrupt. As previously stated, up to date and not a single late payment!