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

[brassnecked]

What if the debtor advises the EA a vehicle is owned by a third party finance company and they don't bother checking. They cannot use 'reasonable belief' in that situation. No doubt any body worn camera recording would get deleted quickly.

No they can't as they were given information at the time of attenance so that defence is not available to them. As to BWC footage, sunspots will have caused an electromagnetic pulsee that wiped the footage, or so they might claim.

[brassnecked]

Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 doesn't apply to parking and minor traffic contravention enforcement and thus it really doesn't matter who owns the vehicle or whether it is on finance.

 

Just read it a little more closely

So the Finance Company would have to go after the bailiff then.

[Fair-Parking]

As Schedule 12 doesn't apply there can be no enforcement for parking and minor traffic contraventions even though the new 'warrant of control' quotes Schedule 12 as its authority. It thus follows that CPR 85 as no validity either as it too is reliant on powers described in Schedule 12.

[Bailiff Advice]

As Schedule 12 doesn't apply there can be no enforcement for parking and minor traffic contraventions even though the new 'warrant of control' quotes Schedule 12 as its authority. It thus follows that CPR 85 as no validity either as it too is reliant on powers described in Schedule 12.

 

This is a subject that you and I have discussed a number of times and is one that really ought to be on a separate thread so that others can debate.

[Fair-Parking]

Post 1 - 'The judge disagreed and instead, referred the debtor to Regulation 3.(2) (a) (General Interpretations) of Schedule 12 which provides that in Schedule 12 of TCEA 2007, any references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest'.

 

My reference to Schedule 12 was not separate as the judgment which prompted the thread was at its heart.

[Peterbard]

As Schedule 12 doesn't apply there can be no enforcement for parking and minor traffic contraventions even though the new 'warrant of control' quotes Schedule 12 as its authority. It thus follows that CPR 85 as no validity either as it too is reliant on powers described in Schedule 12.

 

There is a direct legislative path which tranfer the enforcement powers under the 1991 traffic Act to the TCE schedule 12, if you want me to show you start a new thread.

[Fair-Parking]

I've said my piece - you either accept or you don't

[Peterbard]

Anyway back n track.

I have just had the disturbing news that some of the bailiff firms have approached several lenders with the intent of coming to an arrangement based on the case in question. Presumably with the intention of letting them process the sale of the vehicle once taken.

[unclebulgaria67]

Anyway back n track.

I have just had the disturbing news that some of the bailiff firms have approached several lenders with the intent of coming to an arrangement based on the case in question. Presumably with the intention of letting them process the sale of the vehicle once taken.

 

That does not make any sense. It will be each case on its own merits. The County Court case does not set any legal precedence and should have no impact on any other case. But of course the publicity about the case has been created and interested parties will no doubt use it to say how one Judge interpreted the legislation in one specific case.

 

No finance company will come to any agreement. They will tell EA companies to follow the correct legal process and if necessary it will be up to a court to decide. For reasons of Data Protection and the rights of the debtor under contract, the finance company would not disclose details of beneficial interest available, unless a valid legal request was made for this.

 

Is there any legislated process for finance companies to disclose beneficial interest to an EA ? If so, does this depend on the type of debt being enforced ?

[Peterbard]

That does not make any sense. It will be each case on its own merits. The County Court case does not set any legal precedence and should have no impact on any other case. But of course the publicity about the case has been created and interested parties will no doubt use it to say how one Judge interpreted the legislation in one specific case.

 

No finance company will come to any agreement. They will tell EA companies to follow the correct legal process and if necessary it will be up to a court to decide. For reasons of Data Protection and the rights of the debtor under contract, the finance company would not disclose details of beneficial interest available, unless a valid legal request was made for this.

 

Is there any legislated process for finance companies to disclose beneficial interest to an EA ? If so, does this depend on the type of debt being enforced ?

 

Similar to my initial reaction, however we do not know what other financial incentives the EAs will be offering. I think it is rather a case of is there any legislation which prevents them disclosing, there my be some issue with the DPA, but that would have to be examined.

[brassnecked]

Similar to my initial reaction, however we do not now what other financial incentives the EAs will be offering. I think it is rather a case of is there any legislation which prevents them disclosing, there my be some issue with the DPA, but that would have to be examined.

They will need to be very careful with "Financial Incentives" aka Backhanders, I feel a judge would look at any detriment to the debtor, as if a vehicle was sold and fetched less than the estimate, the bailiff and the Finance Co would be both going after the debtor for their shortfall

 

I think the Bailiffcos are making too much of this judgment that could well be struck down by a case in a higher court when it's potential for floodgates and a seizing spree to the detriment of the Finance Industry if confirmed in a higher court are realised.

[E Munch]

You must not take beneficial interest and the level of equity as being the same thing. The judge felt a debtor hiring a vehicle under an HP agreement has a beneficial interest in that vehicle. The fact the debtor has a vehicle on HP is in the public domain via Experian or HPI Ltd or maybe others. The level of equity does not need to be known and depending on what beneficial interest means it is possibly irrelevant. It is the vehicle that has control taken of it not the equity in the vehicle.

 

 

The biggest practical problem will be selling the vehicle. I believe auction houses will have codes of practice to prevent selling of vehicles on finance and many end user purchasers will need to finance the vehicle themselves and not be able to do so, so the market for such vehicles may not exist.

[unclebulgaria67]

Similar to my initial reaction, however we do not know what other financial incentives the EAs will be offering. I think it is rather a case of is there any legislation which prevents them disclosing, there my be some issue with the DPA, but that would have to be examined.

 

They cannot disclose information to an EA. Not allowed. FCA rules and Data Protection. No financial incentive could be entered into.

 

There would have to be a proper legal process for disclosure of any beneficial interest. If the interest would only be realised by sale at the correct market value, then the interest would be of only fictional value, until the vehicle was sold. It could be argued that for a quick sale, it would be sold for less and in some cases there would be less interest or no interest available.

 

Think EA's would be daft to get into anything complicated and taking a vehicle under finance at the moment is not worth the hassle. If they want to pursue beneficial interest, they should lobby government to gain legislation that allows them to work with finance companies to obtain money owed.

[mikeymack2002]

A third party cannot and must not force further issues with a legally binding contract to which they have no legal interest in, in as much as the EA should apply to a higher Court each time they to remove goods on HP. Then the Judge has the final word on each case, the EA then should be responsible for all costs in that matter...

 

 

As we all know a contract is binding if correctly processed, any third party other than the creditor and the person named on the contract should have full protection under the law. In this case the Credit Consumer Act.... Then if someone wants to force a breach by either party they must obtain the correct procedure.. By going to Court for a definitive ruling, whatever the level of Court....

[brassnecked]

You must not take beneficial interest and the level of equity as being the same thing. The judge felt a debtor hiring a vehicle under an HP agreement has a beneficial interest in that vehicle. The fact the debtor has a vehicle on HP is in the public domain via Experian or HPI Ltd or maybe others. The level of equity does not need to be known and depending on what beneficial interest means it is possibly irrelevant. It is the vehicle that has control taken of it not the equity in the vehicle.

 

The biggest practical problem will be selling the vehicle. I believe auction houses will have codes of practice to prevent selling of vehicles on finance and many end user purchasers will need to finance the vehicle themselves and not be able to do so, so the market for such vehicles may not exist.

Good points EM, this whole track could become a blind alley especially if theis judgment is in breach of regulatuions surrounding sale by auction, and the protections in place to prevent certain vehicles being sold. Other issue is vehicles seized and sold at auction can fetch 10% of their value leaving the bailiff and Finance Co way out of pocket leading to more demands for cash from the debtor the vehicle was taken from.

[mikeymack2002]

This is what the CAB say about this issue but not about the EA selling the goods, but it is the same not the less...

 

 

https://www.citizensadvice.org.uk/consumer/protection-for-the-consumer/consumer-contracts/what-if-the-seller-doesn-t-have-the-right-to-sell/

[Peterbard]

They seem to think it is a worthwhile exercise.

[Peterbard]

You must not take beneficial interest and the level of equity as being the same thing. The judge felt a debtor hiring a vehicle under an HP agreement has a beneficial interest in that vehicle. The fact the debtor has a vehicle on HP is in the public domain via Experian or HPI Ltd or maybe others. The level of equity does not need to be known and depending on what beneficial interest means it is possibly irrelevant. It is the vehicle that has control taken of it not the equity in the vehicle.

 

 

The biggest practical problem will be selling the vehicle. I believe auction houses will have codes of practice to prevent selling of vehicles on finance and many end user purchasers will need to finance the vehicle themselves and not be able to do so, so the market for such vehicles may not exist.

 

NOt entirely wth you here EM.

 

The amount of equity in the goods will surely depend on the amount of payments made and the value of the goods, surely this will represent the beneficial interest. When the car is sold and the agreement settled the sum left would be the debtors interest in the goods, the equity realised.

[mikeymack2002]

Taking this issue further then, if the EA does in fact seize and sell the car, the creditor then applies to the DVLA for the current owner details, receives them then takes the steps to reclaim the car that was originally sold at auction/private sale, the person who bought it in good faith loses out financially, the following could then be used to get their money back surely?

 

 

"If you’ve bought something which is stolen, or sold without the owner’s permission, you have a right to ask the seller for a refund. This right comes from the Sale of Goods Act.

If the seller won’t give you your money back, you could try taking them to court to claim it back. However, you will need to think carefully about whether going to court is worthwhile, especially if the goods are stolen".

 

The seller in this case is whom? The EA or the person that instructed the EA?

[brassnecked]

This is what the CAB say about this issue but not about the EA selling the goods, but it is the same not the less...

 

 

https://www.citizensadvice.org.uk/consumer/protection-for-the-consumer/consumer-contracts/what-if-the-seller-doesn-t-have-the-right-to-sell/

The EA would not have any lawful title in the vehicle as he would need the aquiesence of the Finance Company as owner to sell.

 

DB, they certainly do think it is a worthwhile exercis and will exxploit it until that judgment is struck down, and carry on even then, just like they used to use Observer v Gordon to justify taking third party cars under the old Regs.

[Peterbard]

It is a similar idea to a mortgage arrangement where the debtor can use the equity on the loan. the crutial difference being that in a mortgage (currently) the title rests with the debtor.(unless in possession)

[mikeymack2002]

NOt entirely wth you here EM.

 

The amount of equity in the goods will surely depend on the amount of payments made and the value of the goods, surely this will represent the beneficial interest. When the car is sold and the agreement settled the sum left would be the debtors interest in the goods, the equity realised.

 

 

As you have said previously the goods remain the property of the OC until all payments are made and title then passes to the other party... Unfortunately you can cannot pick and chose which parts of the law are relevant. At the end of the day perhaps a Supreme Court ruling on the matter is needed? ....

[unclebulgaria67]

NOt entirely wth you here EM.

 

The amount of equity in the goods will surely depend on the amount of payments made and the value of the goods, surely this will represent the beneficial interest. When the car is sold and the agreement settled the sum left would be the debtors interest in the goods, the equity realised.

 

No. Beneficial interest cannot just be value on paper. It has to be an actual value that could be paid towards a debt. The actual value would not be known until a vehicle was sold. The sale might never happen, so there is nothing to be paid.

[Bailiff Advice]

They cannot disclose information to an EA. Not allowed. FCA rules and Data Protection. No financial incentive could be entered into.

 

Although you are correct....in practice this is not the case and instead, many finance companies are willingly discussing the financial status of the agreement with the enforcement agencies. I do know (as does Dodgeball) that 'representation' is currently being made to the major finance companies on the issue of 'beneficial' interest and hopefully in a short while this subject will become clearer.

[Peterbard]

The EA would not have any lawful title in the vehicle as he would need the aquiesence of the Finance Company as owner to sell.

 

DB, they certainly do think it is a worthwhile exercis and will exxploit it until that judgment is struck down, and carry on even then, just like they used to use Observer v Gordon to justify taking third party cars under the old Regs.

 

Yes we need some opinion from the regulators i have emailed the FCA this morning to seek there opinion on the consumer credit angle regarding this.