Goods on HP - a Judge says they can be sold

[brassnecked]

Have to say I find this disgraceful, why would this judge assume tht the finance agreement could be settled and the debtor aquire an interest, you could say that about any goods whoever they belong to.

 

This is another case of a judge letting hi personal feelings interfere with his judgment.

There is a high liklihood that the sale would not garner sufficient income to pay the debt including fees, or even sufficient to pay off the Finance Company. agreed DB disgraceful. The gate has been opened for a bailiff/EA to take anything at random whether belonging to the debtor or not neighbour's H onda lawn mower debtor using it , leaves it in garden for a minute, EA has it away..

[Ori]

Interesting previous case. Although it is before the new legislation.

 

In my particular case, if the car was sold, then there would be negative equity and it would actually increase the debt. I do think that isn't relevant to the argument of "beneficial interest".

 

I will publish the judges ruling when it comes in.

 

I have looked up beneficial interest in the law dictionary and it just confused me even more! ;-)

[Ori]

I hope I am allowed to say, that I think it is a case of the wrong remedy being sought. If an appication would have been made under CPR the result would have been different, although the lender would have had to make it.

 

As it is the decision was if Ori had the right to injuct the EA from enforcment, a different thing and from the look of things the judge found that he did not.

 

I don't believe that is the case. From my recollection in court, he didn't dismiss my case saying I didn't have the right to seek the injunction, he ruled that I had an "interest" in the vehicle.

As I have said previously, a barrister friend of mine told me straight up that I have no beneficial interest in the vehicle as it is owned by the finance company.

 

I don't want to quote figures, but the final payment on this car is calculated on the approximate value it would have when returned to the lender at the end of the agreement. This figure is purely to clear off any finance on the vehicle and doesn't include any "profit" for me.

[Bailiff Advice]

Interesting previous case. Although it is before the new legislation.

 

In my particular case, if the car was sold, then there would be negative equity and it would actually increase the debt. I do think that isn't relevant to the argument of "beneficial interest".

 

I will publish the judges ruling when it comes in.

 

I have looked up beneficial interest in the law dictionary and it just confused me even more! ;-)

 

The case was in 2013 and therefore was a year before the new regulations but nonetheless, the section regarding Hire Purchase must still be valid as this concerns consumer law as opposed to bailiff regulations. This is almost certainly an extremely complicated subject and one that I fear could prove extremely costly if you are considering an appeal.

[Bailiff Advice]

Anyway I am away to sunnier climes for a week or so, I hope this all works out for you Ori.

 

Enjoy your hols xx

[Peterbard]

I don't believe that is the case. From my recollection in court, he didn't dismiss my case saying I didn't have the right to seek the injunction, he ruled that I had an "interest" in the vehicle.

As I have said previously, a barrister friend of mine told me straight up that I have no beneficial interest in the vehicle as it is owned by the finance company.

 

I don't want to quote figures, but the final payment on this car is calculated on the approximate value it would have when returned to the lender at the end of the agreement. This figure is purely to clear off any finance on the vehicle and doesn't include any "profit" for me.

 

The procedure for claiming third party goods is outlined here

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-85-claims-on-controlled-goods-and-executed-goods

 

SECTION IV PROCEDURE FOR MAKING A CLAIM AGAINST EXECUTED GOODS

Procedure for making a claim against executed goods

85.6

(1) A claimant to executed goods must, as soon as practicable but in any event within 7 days of the goods being removed by the enforcement officer, give notice in writing of their claim to the relevant enforcement officer (“the notice of claim to executed goods”) and must include in such notice—

 

There is no disputing that anyone can apply for an injunction under a variety of circumstances, but it is normally considered a last resort action, the CPR is specifically designed for your kind of case, I don,t think that there can be any argument that this should have been the course of action, and besides that it is free.

 

Anyway I must go, as said I hope you resolve this to your satisfaction and I look forward to seeing what has transpired when I get back next week.

[Ori]

The case was in 2013 and therefore was a year before the new regulations but nonetheless, the section regarding Hire Purchase must still be valid as this concerns consumer law as opposed to bailiff regulations. This is almost certainly an extremely complicated subject and one that I fear could prove extremely costly if you are considering an appeal.

 

Well, as I previously stated, it is not within my means to fund an appeal.

Does that ruling mean that they can sell the car without the finance company agreement? I doubt that very much as it would also mean the finance company is in breach of its agreement with the hirer.

[brassnecked]

Well, as I previously stated, it is not within my means to fund an appeal.

Does that ruling mean that they can sell the car without the finance company agreement? I doubt that very much as it would also mean the finance company is in breach of its agreement with the hirer.

If the Finance Company objected and the EA sold it regardless, then they may have a get out from the breach with the hirer per se, and an action against the EA/Creditor for wrongfully selling third party goods; but you would be correct and could allege breach if the Finance Company agree to the sale conditional on them being paid off from the proceeds of sale before the EA gets their cut. In reality all parties would lose out as the vehicle may fetch a pittance at auction that pays off nothing.

 

Really needs a Barristers opinion, and I wonder what John Kruse would say on these points?

[Bailiff Advice]

Well, as I previously stated, it is not within my means to fund an appeal.

Does that ruling mean that they can sell the car without the finance company agreement? I doubt that very much as it would also mean the finance company is in breach of its agreement with the hirer.

 

I am aware that you cannot afford to appeal. The previous judgment (from 2013) re-inforces my point that this is a subject that is complicated. It is my understanding that most bailiff companies are fully aware of the 2013 Judgment and now that we have yours as well I really do think that the Ministry of Justice needs to consider this matter in their 'one year' review as otherwise all debtors could suffer the same fate as you.

 

On the question about whether the car can be sold, the 'expert' in consumer law is Dodgeball but on a personal basis, I would not think that a local authority would find this an attractive option.

[Ori]

I can't see how the lender can authorise a sale. I just can't see it.

So many issues there.

Any legal people on here?

[brassnecked]

I can't see how the lender can authorise a sale. I just can't see it.

So many issues there.

Any legal people on here?

 

Neither can I.In theory, the lender if they agree to let the EA sell the goods, then they are in breach with you, and potentially as a consequence may have to refund all your payments made under the agreement however long left to run, a year a week or a day even. The problem is that it is more complex than your judge thinks as Contract Law is quite specific, and he is making presumptions on the fly without considering all aspects and other areas of law impacting on the circumstances and effect on third parties.

 

If the Finance Company were to report the vehicle stolen if it is removed for sale, when they disagreed that might put a spanner in the works, but the police will believe the bailiff rather than the FC.

[mikeymack2002]

Can you please post up a redacted copy of the credit agreement? with the terms and condition's as well?

[mikeymack2002]

Found this so far

 

 

*Provided you have made all of the necessary payments due under your agreement, including an option to purchase fee at the end. Please note, we remain the owner of the vehicle during the agreement and we may become entitled to recover the vehicle if you do not keep up your repayments.

[Ori]

Sure. I've got a scanned copy. Just got to figure out how to edit the pdf to hide things on it.

[ploddertom]

 

I don't want to quote figures, but the final payment on this car is calculated on the approximate value it would have when returned to the lender at the end of the agreement. This figure is purely to clear off any finance on the vehicle and doesn't include any "profit" for me.

 

 

I may be misinterpreting this but this does not sound like a Hire Purchase Agreement to me - more like a Lease Purchase with a Balloon Payment at the end of the term.

[mikeymack2002]

Use MSPAINT for that

[Ori]

I use a Mac.

[Bailiff Advice]

Well, as I previously stated, it is not within my means to fund an appeal.

 

 

Ori,

 

I wish to make clear that I would love to have this judgment overturned as I am very worried that it will now be used by all bailiff companies and other debtors could now suffer as a result and I certainly do not wish to frighten you into not appealing.

 

However, yours is only one of many injunctions 'in the pipeline' (I am aware of 6 others) and I really do worry that in a very short period of time we will see other judgments that are as unfavorable as yours (one in particular worrying one could have serious repercussions for all debtors claiming that a vehicle was considered a 'tool of the trade').

 

What I was trying to demonstrate with the 2013 judgment is that it is not only the Judge in your case who considers that a debtor could have an 'interest' in a vehicle that is subject to Hire Purchase and accordingly, this is a complicated subject that could prove costly (if you were able to afford to take the case further). I just wanted to make this clear.

[mikeymack2002]

I cheat I use word and screen shot add each section as normal then add a blank square to cover the personals save as word the save again as PDF or the free tool here http://en.softonic.com/s/pdf-editor:mac

[Ori]

I will put it on later. Just with my boy today.

[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.

 

There you go mark

[Ori]

Here you go. Copy of finance agreement.

Edited May 4, 2015 by Ori

[brassnecked]

Looks like HP with balloon payment, apart from the heading Hire Purchase, this looks more like Contract lease where the vehicle is returned at the end of the term if the balloon isn't paid, very dangerous for the Finance company if EA's do start to remove and sell vehicles on one of these agreements. if the creditor and EA were to sell it I fear they would not fetch enough to cover any payments and the remaining balloon. These judgments putting goods not owned by the debtor into the reach of the bailiffs is extremely worrying imho.

[Ori]

Looks like HP with balloon payment., if the creditor and EA were to sell it I fear they would not fetch enough to cover any payments and the remaining balloon. These judgments putting goods not owned by the debtor into the reach of the bailiffs is extremely worrying imho.

 

Correct, however I fear that EA would not play with a straight bat and maybe even bid on the car collecting just enough to pay off the finance company purely out of spite. It would cost them a lot to do that though. Probably in the realms of 10k.

Remember auction prices are way lower than book price.

 

As I said before. I will be extremely curious to hear what the finance company relay to me.

 

But going back on point. The points clearly state that the car does not belong to me unless I make that final payment.

[brassnecked]

Correct, however I fear that EA would not play with a straight bat and maybe even bid on the car collecting just enough to pay off the finance company purely out of spite. It would cost them a lot to do that though. Probably in the realms of 10k.

Remember auction prices are way lower than book price.

 

As I said before. I will be extremely curious to hear what the finance company relay to me.

 

But going back on point. The points clearly state that the car does not belong to me unless I make that final payment.

 

No it doesn't but the judge made the point in the judgement that your interest in the vehicle as hirer and user makes it available for the EA to take, nothing to stop the HP company from making a Third Party claim or interpleader under the Regulations though, as to auctions of seized items, they often only fetch 10% of book value, so a £10K BMW might go under the hammer for a grand or £1,500 or so, clearly in that case all parties including the EA and HP company loose out megastyle.