Vehicles on HP can be sold by a bailiff. Evidence must be provided that there is no 'beneficial' interest.

[lamma]

I must look into Fair Parking's point re applicability as if it holds then the EA is acting in a private capacity and could be in a world of hurt. Although the courts do protect their own..

 

To the issue:-

Was it slipshod draftsmanship ? Errata do occur...

or intentional (chaos) ?

 

Either way its deep waters.

e.g.

955. Hire purchase etc.

Goods let to a hirer on hire purchase remain the property of the owner1 but they are not thereby necessarily protected from distress2. Goods bailed under a hire purchase agreement3 or a consumer hire agreement4 or agreed to be sold under a conditional sale agreement5 are, where the relevant agreement has not been terminated6, excluded from the general protection to the goods of strangers given by the Law of Distress Amendment Act 19087, except during the period between the service of a default notice8 in respect of the goods and the date when the notice expires or is earlier complied with9. Goods comprised in an agreement made by the tenant's husband or wife are not excluded from protection10, but, if such an agreement is made by one of two joint tenants, the goods are excluded from protection11.

 

Goods comprised in a bill of sale are excluded from the general protection of the Law of Distress Amendment Act 1908 except during the period between service of a default notice12 in respect of goods subject to a regulated agreement13 under which a bill of sale is given by way of security and the date on which the notice expires or is earlier complied with14.

 

A creditor or owner is not entitled to enforce a term of a regulated agreement by recovering possession of any goods or treating any right conferred on the debtor or hirer as terminated, restricted or deferred except by or after giving the debtor or hirer not less than seven days' notice in a prescribed form of his intention to do so; similar notice is to be required of an intention to terminate a regulated agreement otherwise than on the ground of a breach by the debtor or hirer15.

 

Express provision is frequently made in hire purchase agreements for the automatic termination of the agreement if the landlord of the hirer levies or threatens to levy a distress. It seems that the operation of such a provision may be affected by the statutory restrictions on termination16. It has been held that at common law, even where an express provision for termination is made, the goods remain comprised in a hire purchase agreement if any contractual right or agreement still subsists after a purported termination17. Even if there is a termination, goods remaining in the possession of the hirer may be within the reputed ownership of the hirer and so liable to distress18.

 

Goods let on hire purchase may be exempted from distress by express agreement between the owner and the landlord19. Goods let on hire purchase may be protected from distress under provisions relating to goods delivered for the purpose of a public trade20, fixtures, goods in use21, wearing apparel, bedding and tools of trade22, agricultural machinery and breeding stock23, gas fittings24, water fittings25 and electricity fittings26.

 

 

 

1 See generally consumer credit vol 9(1) (Reissue) para 23 et seq.

 

 

2 Cf para 928 ante.

 

 

3 'Hire purchase agreement' means an agreement, other than a conditional sale agreement, under which: (1) goods are bailed in return for periodical payments by the person to whom they are bailed; and (2) the property in the goods will pass to that person if the terms of the agreement are complied with and one or more of the following occurs: (a) the exercise of an option to purchase by that person; (b) the doing of any other specified act by any party to the agreement; © the happening of any other specified event: Law of Distress Amendment Act 1908 s 4A(3) (s 4A added by the Consumer Credit Act 1974 s 192(3)(a), Sch 4 para 5); and see consumer credit vol 9(1) (Reissue) para 23 et seq.

 

 

4 A 'consumer hire agreement' is an agreement made by a person with an individual ('the hirer') for the bailment of goods to the hirer, being an agreement which: (1) is not a hire purchase agreement; (2) is capable of subsisting for more than three months; and (3) does not require the hirer to make payments exceeding £25,000: Consumer Credit Act 1974 s 15(1) (amended by the Consumer Credit (Increase of Monetary Limits) Order 1983, SI 1983/1874, art 4, Schedule Pt II; and the Consumer Credit (Increase of Monetary Limits) (Amendment) Order 1998, SI 1998/996, art 2); definition applied by the Law of Distress Amendment Act 1908 s 4A(3) (as added: see note 3 supra).The Consumer Credit Act 1974 s 15(1)© (as amended) (see head (3) supra) and the word 'and' preceding it are repealed by the Consumer Credit Act 2006 ss 2(2), 70, Sch 4 as from a day to be appointed under s 71(2). At the date at which this volume states the law no such day had been appointed. As to consumer hire agreements see consumer credit vol 9(1) (Reissue) para 82.

 

 

5 'Conditional sale agreement' means an agreement for the sale of goods under which the purchase price or part of it is payable by instalments, and the property in the goods is to remain in the seller (notwithstanding that the buyer is to be in possession of the goods) until such conditions as to the payment of instalments or otherwise as may be specified in the agreement are fulfilled: Law of Distress Amendment Act 1908 s 4A(3) (as added: see note 3 supra).

 

 

6 See the text and notes 15-17 infra.

 

 

7 See paras 951 ante, 956 et seq post.

 

 

8 See note 15 infra.

 

 

9 Law of Distress Amendment Act 1908 s 4A(1) (as added: see note 3 supra).

 

 

10 Shenstone & Co v Freeman [1910] 2 KB 84, DC; Rogers, Eungblut & Co v Martin [1911] 1 KB 19, CA.

 

 

11 AW Gamage Ltd v Payne (1925) 134 LT 222, DC.

 

 

12 Ie under the Consumer Credit Act 1974: see generally consumer credit.

 

 

13 'Regulated agreement' means a consumer credit agreement, or consumer hire agreement, other than an exempt agreement: ibid s 189(1); definition applied by the Law of Distress Amendment Act 1908 s 4A(3) (as added: see note 3 supra). See consumer credit vol 9(1) (Reissue) para 2.

 

 

14 Ibid s 4A(2) (as added: see note 3 supra). As to bills of sale generally see financial services and institutions vol 50 (2008) para 1620 et seq.

 

 

15 See the Consumer Credit Act 1974 ss 76, 98; and consumer credit vol 9(1) (Reissue) paras 234, 262. As to default notices see ss 87-89 (s 88 as amended; prospectively amended); and consumer credit vol 9(1) (Reissue) para 263 et seq.

 

 

16 See the text and note 15 supra.

 

 

17 See eg Hackney Furnishing Co v Watts [1912] 3 KB 225, DC; Jay's Furnishing Co v Brand & Co [1915] 1 KB 458, CA; Smart Bros Ltd v Holt [1929] 2 KB 303; Drages Ltd v Owen (1935) 52 TLR 108; Times Furnishing Co Ltd v Hutchings [1938] 1 KB 775, [1938] 1 All ER 422.

 

 

18 Times Furnishing Co Ltd v Hutchings [1938] 1 KB 775, [1938] 1 All ER 422; cf para 654 note 4 ante. See further consumer credit vol 9(1) (Reissue) paras 23-44.

 

 

19 See note 2 supra.

 

 

20 See paras 932-936 ante.

 

 

21 See paras 937-938 ante.

 

 

22 See para 942 ante.

 

 

23 See para 943 ante.

 

 

24 See para 945 ante.

 

 

25 See para 946 ante.

 

 

26 See para 947 ante.

[Peterbard]

For a car on finance, they would have no idea what the interest would be and whether it would cover the amount involved. There is no official process for this.

 

There si a simple formula for working out the financial position of the agreement post termination, subject to storage /sale fees and the realisation of funds from sale. In fact there are several on the web.

[Peterbard]

I must look into Fair Parking's point re applicability as if it holds then the EA is acting in a private capacity and could be in a world of hurt. Although the courts do protect their own..

 

.

 

It doesn't, no one else recognises it and cases that have been brought using it have all failed. here is good reason for this contained in the legislation, if someone wants t start a new thread i will point them out.

[unclebulgaria67]

Indeed they do, but we are not talking about another hearing here, I wish we were, we have what we have at this point in time, and the EA's, as much as we may not like it are fully entitled to use the judgement as they see fit.

 

Why do i get the feeling that sometimes the CAG forum comes across as supporting EA company actions, rather than neutral observations, debate and practical help. You will know what is said elsewhere and some need to be careful of how they come across. We need to be able to put both sides of the argument, without driving those looking for advice to those internet sites we want them to avoid.

 

I have voiced this before. I don't believe there is any intention to be pro EA here, but it is how any neutral visitor to the site reads information that is important. We know that EA companies will want to create fear on internet forums and if information coming from them is being reported here, we need to think about it. What is the purpose of infornation coming from the EA industry ? Is it accurate ? How do we make sure those needing help with an EA problem receive best advice and are not driven to other advice sites who may make matters worse.

[brassnecked]

One hurdle that might well be insurmountable for the EA, is that control clause that stipulates debtor in breach, if goods taken by bailiff, at the point the bailiff either clamps or tows the car, the car is no longer of any beneficial interset as it has reverted to the Finance Co who can use the TCE third party claim to get their goods returned or if bailiff refuses, take legal action to recover them.

[Peterbard]

Why do i get the feeling that sometimes the CAG forum comes across as supporting EA company actions, rather than neutral observations, debate and practical help. You will know what is said elsewhere and some need to be careful of how they come across.

 

It s because some of us like to try and find the real position regarding an argument, and not happy to just slag bailifs off and resort to childish name calling, which helps no one.

 

There are some who will want the to engage n the latter for them there are other forums. Personally I like to understand the situation from a realistic aspect so that effective advice can be given.

 

Personally i do not care less how i "come across" to forums that do not have the combined ability to make any cogent argument, so have to resort to abuse.

Let us not forget that it is these forums that created the situation as described on this thread , through ignorance and greed.

[unclebulgaria67]

One hurdle that might well be insurmountable for the EA, is that control clause that stipulates debtor in breach, if goods taken by bailiff, at the point the bailiff either clamps or tows the car, the car is no longer of any beneficial interset as it has reverted to the Finance Co who can use the TCE third party claim to get their goods returned or if bailiff refuses, take legal action to recover them.

 

Surely there will still be some beneficial interest in some cases.

 

The point i have made here is that the interest cannot be known, until a process has been gone through. If there is no legislated process outside of a court, then i cannot see the point. Far too complicated and not a good use of an EA companies resources. The only reason they might bother is to create enough fear, that debtors and finance companies decide to make sure debts are dealt with, so it does not lead to vehcles being sold or legal processes being needed.

[mikeymack2002]

Beneficial interest is covered in many aspects of law, mostly family law, but even so many cases dealing with beneficial interest have reach the Appeal/Supreme Courts in the past, some have been dismissed and many have been held too, each case must be dealt with on its own merits regardless if the EA gets it right or wrong, ultimately it is the Courts that have the final word correct?

[unclebulgaria67]

It s because some of us like to try and find the real position regarding an argument, and not happy to just slag bailifs off and resort to childish name calling, which helps no one.

 

There are some who will want the to engage n the latter for them there are other forums. Personally I like to understand the situation from a realistic aspect so that effective advice can be given.

 

Personally i do not care less how i "come across" to forums that do not have the combined ability to make any cogent argument, so have to resort to abuse.

Let us not forget that it is these forums that created the situation as described on this thread , through ignorance and greed.

 

Agree. But all need to be careful that CAG is not used as a tool by EA companies. I have seen a number of threads with information that may have come from EA companies. These companies realise the power of internet forums to get information out and sometimes to create fear.

[brassnecked]

UB & MM both good points and correct, but where there is a clause in the agreement, it would not even have to go to any procedures you mention, as at the time of taking control, the agreement is breached,and any interest beneficial or otherwise will have been killed stone dead, the goods reverting that instant to the owner the FC. It would be the owner who then has to go trough the hoops to recover their property, That was the fundamental error by the badly advised debtor in that County Court case, the Finance Company should have been seeking the injunction not the debtor, and only if the correct TCE procedure had failed.

[mikeymack2002]

Adding more to the thread here.

 

 

Married couple are purchasing their home and doing well, they decide for a family, they now have two children, with this they decide to buy a car on finance (HP) as a joint account, all goes well for a 5th of the term, one moves out and then starts a divorce, things go from bad to worse the EA gets involved, the wife has possession of the car at a new address and the husband stays at the martial home, the debts pile up and a CCJ/fine and others see an EA get involved.

 

 

EA goes to the home of the debtors' and finds the same story, nothing of value inside the home, but as they are returning from the area they get a hit off of the ANPPR and locate the car that can be taken under control, nothing new here, but the EA is chasing just one of them for the debt what would happen in this case where both have a beneficial interest in the vehicle?

[brassnecked]

Adding more to the thread here.

 

 

Married couple are purchasing their home and doing well, they decide for a family, they now have two children, with this they decide to buy a car on finance (HP) as a joint account, all goes well for a 5th of the term, one moves out and then starts a divorce, things go from bad to worse the EA gets involved, the wife has possession of the car at a new address and the husband stays at the martial home, the debts pile up and a CCJ/fine and others see an EA get involved.

 

 

EA goes to the home of the debtors' and finds the same story, nothing of value inside the home, but as they are returning form the area they get a hit off of the ANPPR and locate the car that can be taken under control, nothing new here, but the EA is chasing just one of them for the debt what would happen in this case where both have a beneficial interest in the vehicle?

Joint ownership rules would apply, unless the HP agreement has a breach on loss of control clause imho the breach ending any beneficial or other interest to the joint hirers.

[mikeymack2002]

This is one crazy subject

[brassnecked]

This is one crazy subject

 

Definitely, but then UK law and it's interpretation often defies logic.

[unclebulgaria67]

This is one crazy subject

 

Yes it is. I don't believe EA companies want to seize financed vehicles from a practical point of view. They might try to ramp up the pressure to gain payment. They might seek to create fear on internet forums. But they are not going to waste time on a regular basis, when they could be using their time better to collect more debts. And there are other enforcement options open to them.

[Coughdrop]

Forgive me making this post, but if memory serves me correctly we've covered this ground several times before. What difference are we making to anything? Are we changing the practice of EA's? I suspect not. Are we improving our knowledge? I suspect not.

 

What, then, is the point of discussing it all again?

[brassnecked]

Yes it is. I don't believe EA companies want to seize financed vehicles from a practical point of view. They might try to ramp up the pressure to gain payment. They might seek to create fear on internet forums. But they are not going to waste time on a regular basis, when they could be using their time better to collect more debts. And there are other enforcement options open to them.

You are correct, it is the use of fear and undue pressure and the threat that works as well as actually taking stuff, as the EA often doesn't want the world of pain on themselves if they get it badly wrong haying gone to Acacia Ave and emptied No 2 when they should have gone to Acacia Street..

[Peterbard]

UB & MM both good points and correct, but where there is a clause in the agreement, it would not even have to go to any procedures you mention, as at the time of taking control, the agreement is breached,and any interest beneficial or otherwise will have been killed stone dead, the goods reverting that instant to the owner the FC. It would be the owner who then has to go trough the hoobeing realised and as far as the EA is concerned the interst in the goods.ps to recover their property, That was the fundamental error by the badly advised debtor in that County Court case, the Finance Company should have been seeking the injunction not the debtor, and only if the correct TCE procedure had failed.

 

When an agreement is terminated the interst (if any) is not killed.

 

The car is sold and any sum remaining is allocated to repay the amount remaining under the contract, anything leftover will go to the debtor, tis is the equity and the debtors interst in the goods.

 

More usually the sum raised will not cover the sum still owed and the debtor will be billed for the difference.

 

If the issue was third party seizure then CPR 85 should be used.

[Fair-Parking]

Dodgeball - whilst you are perfectly entitled to your own beliefs - do not attempt to denigrate the strength of my argument as you have nothing to back up that assertion - particularly the one that links it to failed cases that never included the legal standing of Schedule 12 in relation to parking and minor traffic contraventions.

 

You can quote the history of parking and minor traffic contraventions for as long as you like, but Schedule 12 doesn't apply because how it is worded and who it concerns. The previous history has no relevance and does not assist your point.

 

You brought this matter back into the frame. I have said all I need to say about Schedule 12

[Peterbard]

Forgive me making this post, but if memory serves me correctly we've covered this ground several times before. What difference are we making to anything? Are we changing the practice of EA's? I suspect not. Are we improving our knowledge? I suspect not.

 

What, then, is the point of discussing it all again?

 

Hi CD nice to see yuo posting on here again. You are right of course, we are going over the same old ground, BA recognised it 50 odd post ago, as usual I am a but slow on the uptake

[Peterbard]

Dodgeball - whilst you are perfectly entitled to your own beliefs - do not attempt to denigrate the strength of my argument as you have nothing to back up that assertion - particularly the one that links it to failed cases that never included the legal standing of Schedule 12 in relation to parking and minor traffic contraventions.

 

You can quote the history of parking and minor traffic contraventions for as long as you like, but Schedule 12 doesn't apply because how it is worded and who it concerns. The previous history has no relevance and does not assist your point.

 

You brought this matter back into the frame. I have said all I need to say about Schedule 12

 

I am not denigrating anything FP i am just saying that your arguments are wrong. Simple as that, if you want me to show you why, you are going to have to start another thread.

[brassnecked]

When an agreement is terminated the interst (if any) is not killed.

 

The car is sold and any sum remaining is allocated to repay the amount remaining under the contract, anything leftover will go to the debtor, tis is the equity and the debtors interst in the goods.

 

More usually the sum raised will not cover the sum still owed and the debtor will be billed for the difference.

 

If the issue was third party seizure then CPR 85 should be used.

 

Yes that would be the position, unless there was an express term in the agreement that terminated it and extinguished any right on seizure that would be my take. Whether such a clause falls foul of CCA or UCTA is another issue.

[Fair-Parking]

DB - you are not reading my posts closely enough.

 

Nobody has used my penscript in court, though it has been sent to a number of local authorities and bailiff companies who have been unable to come up with any counter point of view

[Peterbard]

Yes that would be the position, unless there was an express term in the agreement that terminated it and extinguished any right on seizure that would be my take. Whether such a clause falls foul of CCA or UCTA is another issue.

 

No the agreement term would terminate the agreement, on termination all outstanding sums become due. Of course if the debtor has paid more than is due this is refundable.

[Peterbard]

DB - you are not reading my posts closely enough.

 

Nobody has used my penscript in court, though it has been sent to a number of local authorities and bailiff companies who have been unable to come up with any counter point of view

 

You surprise me FP because there is a very simple one relating to the use of schedule 12 on minor motor offences.

 

I eould be interested to see any document you have sent to the bailiffs.

 

But as said it would have to be on another thread, otherwise we will both get told off.