Bill Of Sales and repossession of goods - NOTE: much of this is now out of date - dx 2016

[frustrated46]

Just to add to this discussion, I am not sure the BoS is invalid if signed by the underwriter. The act says:

s10 Attestation

The execution of every bill of sale by the grantor shall be attested by one or more credible witness or witnesses, not being a party or parties thereto . . . . . . F1

Annotations:

 

Amendments (Textual)

 

F1Words repealed by Statute Law Revision Act 1898 (c. 22)

 

So I think that bit was repealed and therefore the underwriter can sign... please tell me if you think I am wrong.

 

Frustrated

[tomterm8]

Just to add to this discussion, I am not sure the BoS is invalid if signed by the underwriter. The act says:

s10 Attestation

The execution of every bill of sale by the grantor shall be attested by one or more credible witness or witnesses, not being a party or parties thereto . . . . . . F1

Annotations:

 

Amendments (Textual)

 

F1Words repealed by Statute Law Revision Act 1898 (c. 22)

 

So I think that bit was repealed and therefore the underwriter can sign... please tell me if you think I am wrong.

 

Frustrated

 

You're wrong. What statute law is saying is that there were words repealed in that section (after the thereto) by the statute law revision act 1898... but the wording it shows is the current wording.

[frustrated46]

V Happy to be wrong, because the underwriter signed my bill of sale, ...so I guess I should add that to my claim.

 

Frustrated

[frustrated46]

However, I DID put this in my original claim:

 

"The Bill of Sale is signed by the agent, Mr XXX, as a witness. I understand that under the Bills of Sale Act that the document should not be signed by a beneficiary of the document they attest to or its consequences. I therefore believe the Bill of Sale is unenforceable."

 

In their first defence Lbl replied:

 

"While attestation of the bill by a party is not permitted (by s10 of the said 1882 act) this requirement is not infringed in the event of attestation by an employee"

 

So, what does this mean??

 

Frustrated

Edited July 22, 2009 by frustrated46

[frustrated46]

I've had a look around at case law on this and, without some express statutory provision there is no general requirement for witnesses to be independent of the person to whose signature they are attesting. But in this case there is statutory provision..

[frustrated46]

Ok, don't want to be a COMPLETE bore, but case law says: following Seal v Claridge (1881) 7 QBD 516, it was held that attestation must be independent of the bill of sale. This follows Freshfield v. Reed in that the party to an instrument cannot “attest” it. This statutory requirement to attestation is differentiated from and does not have the same meaning as to "testify". The term “attest” manifestly implies that a witness shall be present, to testify that the party who is to execute the deed has done the act required by the power; the object of which was, that some person should verify that the deed was signed voluntarily.

 

So an employee cannot "attest" a BoS, as they can witness, say, other contracts. If lbl are going to use an antiquated draconian instrument, they have to get it exactly right. The attestation is also a statutory requirement, so the courts can't overlook this.. I will have to add this back to my claim

[tomterm8]

I'd have to see the bill of sale, my instinct is that a witness who is an employee but not a director or agent of the company can witness the bill of sale, but I don't have access to lexis at the moment so can't get any definitive information.

 

My instinct is that the person who accepted or endorsed in the name of, or by or on behalf or on account of, the company by a person acting under its authority can't be the same person who witnessess the BoS.

[frustrated46]

Hi Tomterm8, I can get lexis and westlaw but can't find anything recent..

 

What does your second para mean?

 

Frustrated

[tomterm8]

In essence? I don't think the person who decides to give you the loan, or who earns commission from it, is a creditable witness. And I don't think a director of the company or someone empowered to make contacts(i.e. an agent) would be able to be a witness, as in effect he/she is a party to the contract.

Edited July 23, 2009 by tomterm8

[frustrated46]

First, one would have to define the person who signed it, I suppose. He called himself an "underwriter", but the company refers to him in their defence as an "employee". He was empowered to make contracts.

 

So one could argue he was a party.

 

Have you been able to access lexis?

 

Frustrated

[IS IT ME?]

Any news on their OFT case?

Edited December 8, 2009 by IS IT ME?

[frustrated46]

He, the underwriter, was not an officer of the Company held by the OFT. They use a group of about 40 underwriters.

 

The OFT currently have the defence from Lbl to my claim, in which they "DENY that any findings of unfairness have resulted or that the OFT is capable of making such findings".

[The GodMother]

He, the underwriter, was not an officer of the Company held by the OFT. They use a group of about 40 underwriters.

 

The OFT currently have the defence from Lbl to my claim, in which they "DENY that any findings of unfairness have resulted or that the OFT is capable of making such findings".

 

So they DENY the findings and deny the OFT are capable of making such findings.

 

Now why am i not suprised by this?

[JonCris]

He, the underwriter, was not an officer of the Company held by the OFT. They use a group of about 40 underwriters.

 

The OFT currently have the defence from Lbl to my claim, in which they "DENY that any findings of unfairness have resulted or that the OFT is capable of making such findings".

 

I don't think I need to ask but could you confirm who the solicitors are who are peddling that nonsense?

[frustrated46]

Wismayers, surrey.

[frustrated46]

Actually, the OFT asked for a copy of their defence to my claim because they found it interesting that Lbl solicitors would make such a statement...

[Nicky Bodmin]

There are a number of companies operating on the basis of loans secured on property, for example cars. These loans are often provided for relatively small amounts of money, with very high rates of APR (often, over 100, and cases of APR’s over 200% are not uncommon).

 

In many cases, the results of even minor infractions of the rules on these agreements are severe; resulting in the repossession of the goods, and charges that can often amount to hundreds of pounds, while the debtor remains liable for more than the original cost of the loan.

 

However, in almost all cases due to technical mistakes by the creditor, the securities offered by these agreements are null and void even if the underlying debt is not.

 

What is a bill of sale?

 

 

The definition is so broad that it includes any security on private goods (other than a house or land), but do not include any agreement where the goods automatically pass to the lender.

 

But a bill of sale is not a pawnbroking agreement, where the debtor parts from possession of the goods, and redeems them at the end of the contract, or a “sale and buyback” scheme, where the customer sells the goods to the creditor (who then owns them, and gains possession of them), with the “debtor” having an option to purchase the goods back after a period of time), or a hire purchase scheme.

 

for the formal definition look up http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=bills+of+sale&Year=1878&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1054646&ActiveTextDocId=1054652&filesize=4315

 

 

The statutory requirements for a bill of sale to be valid.

 

1. The bill of sale must be in the correct form and contain the prescribed information contained in the 1882 act.

 

2. The bill of sale must be registered.

 

If either requirement is not met, the bill of sale is void (that is, the security will not be enforceable, although the underlying debt may be).

 

Form and Content of a Bill of Sale.

 

The language for some of the wording is is archaic, which most ordinary people today wouldn’t understand. Nevertheless, if not in the prescribed form, it renders the bill of sale void.

 

It will be rendered void if it does not contain:

• The date of the bill
  
• The names and address of the parties
  
• A statement of Consideration
  
• An acknowledgement of the receipt of the advance
  
• An assignment by way of security of particular goods, capable of description
  
• Statements of the sum secured, the rate of interest, and the instalments by which repayments are made,
  
• Agreed terms for the maintenance of security
  
• A clause limiting the grounds of seizure to one of the following:
  
  • Default with the repayments or any covenant of the bill
    
  • Bankruptcy or seizure of the goods for rent, rates, or taxes.
    
  • If the granter fraudulently removes goods, or arranges for their removal
    
  • If execution has been levied against the goods
    

   

  [*]A schedule containing a description of the chattels

  [*]Execution (signature) by the granter (borrower)

  [*]A statement in the form of the 1882 act

  [*]Attestation by a witness not a party to the bill

  [*]Registration

The consideration is the amount the borrower receives for the bill of sale; NOT the sum secured by the bill (which would include interest and costs). For example, if the agreement is regulated by a consumer credit agreement, it would have to use the amount that was advanced to the borrower BEFORE charges, costs and interest.

 

The bill of sale must contain a statement in the form provided by the act. Here is the wording: http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=bills+of+sale&Year=1882&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1055715&ActiveTextDocId=1055738&filesize=2273 . This is often missing.

 

If a credit agreement regulated by the consumer credit act is secured on a bill of sale, and the bill of sale is void, the credit agreement may also void by virtue of the act, although the law on this is VERY unclear. I would recommend getting into contact with the national debt line on this issue.

 

So. You’ve got a copy of the bill of sale, and it is a rare bill of sale that complies in all respect with the acts.

 

Can it be enforced?

 

Registration

 

A bill of sale can only be enforced if it was properly registered. Since this is an expensive and difficult process, it is rare that this actually happens. However, failure to register the bill of sale renders it void, and so renders any security on goods void.

 

Consequently, before allowing any creditor to gain possession of your goods, ask to see a registered copy of the bill showing the supreme courts seal.

 

You can also call the national debt line, and ask them how to search the registry yourself.

 

Requirements of the consumer credit act

 

Most bills of sales are also regulated by the consumer credit act. Such a security will be no more valid than the consumer credit agreement. The requirements of the consumer credit act include:

• A description of the security should be included/embodied in the credit agreement
  
• The bills of sale must be presented to the debtor at the time the credit agreement was signed
  
• The creditor will normally have to issue a default notice before calling in the debt.
  
• The terms of the bills of sale must be consistent with the credit agreement.
  
• The agreement must not be extortionate ( if made before 2007) or constitute an unfair relationship(after 2007)
  

All the other, normal requirements of the consumer credit act apply. It is also possible to apply for a time order to prevent the repossession of goods under the consumer credit act 1974.

 

Enforcement of Bills of sale

 

Before you are required to give up your property, they must (if you ask for it) provide a valid bill of sale exists, that bears the stamp of the Supreme Court.

 

However, repossession does not need to be carried out by a certified or professional “enforcement officer” given this, the professional conduct of those actually repossessing goods is of serious question, AND I ADVISE ANYBODY when presented by a bill of sale to call the police immediately, informing them that you are afraid of a breach of the peace and asking for their attendance.

 

Im desperate to find out if the bill of sale document I have on a Log Book Loan is correct. They say it has been registered. I am fighting to get my car back. I bought it from a friend and I was not aware of any loan on the car. They came 27 July without any paperwork police where called and now they have my car. After reading info on this brill site I have got a copy of the bill of sale. Can somebody please take a look to see if it is legal

Edited October 6, 2009 by Nicky Bodmin
removal of details

[sequenci]

Nicky, I have unapproved your attachment as it contains personal infromation. Please can you attach a new version with your name and address blacked out

[JonCris]

Wismayers, surrey.

 

 

Thought so:rolleyes:

[JonCris]

Actually, the OFT asked for a copy of their defence to my claim because they found it interesting that Lbl solicitors would make such a statement...

 

 

Really shows the OFT still don't get it I'm afraid:-x

[frustrated46]

Is there anything I should know about Wismayers JC??

[Nicky Bodmin]

I have just read the above information, I have just had my car taken by balifs. They removed the car under a log book loan from the previous owner who is a friend. I new nothing about about the LBL untill the balif turned up in January this year to reposse the car. The car was at the time in a garage having a new engine new clutch and MOT. All of which I paid for. The car was then given to me because the promise of payment from my friend fell through just after I paid for the engine by credit card on the 8th January this year. This was to cover the money used for the repair due to the fact that I had paid for all the repairs to the said vehical.ey I paid to put the car back in working order. i contacted the LBL and told them that the car was mine because the person that had the loan couldnt pay me the money I had used to pay all the garage bills. I kept calling but nothing happened. My friend had not recieved any kind of paper work telling him of their intentions to remove the car. Untill they came this week.

After reading other posts I have taken a closer look at the bill of sale

I have fouind several opoints that would void the bill of sale. Can any one pease confirm this for me

There was only two signiture on the bill of sale the agent for the lender and my friend the borrower. Its states that the witness has to be independant of names listed on the bill

I would also like the bill of sale that was used to enforce the removal of goods to be cheaked because I really dont no what to look for would anyone be able to do this

Edited July 29, 2009 by Nicky Bodmin

[applecart]

"They couldn't reposess any property named in the bills of sale, but they could enforce the debt like any other unsecured credit agreement in the court.

 

 

Tomterm - with respect, I put to you .... why should lenders bother drawing up a BOS in the first place, if the credit agreement can be enforced on it's own???? why not just draw up a Credit Agreement??

 

I'm sorry, but I don't see that the documents are separate in this way - a bill of sale is a security instrument - it's purpose is to guarantee the loan - the law provides that where a BOS is found to be void then the loan has no guarantee - (The CCA 1974 contains various sections that are there to protect consumers who fall prey to unscrupulous lenders who seek to enforce Credit Agreements where the BOS is void).

 

Further - the Lenders Credit Agreement would not be 'like any other unsecured credit agreement' - by virtue of the fact that their so-called 'unsecured credit agreement' would have reference to a bill of sale within it's terms!

 

Lenders who seek to enforce a credit agreement where a BOS is attached (and they cannot produce a valid BOS) tread on very thin ice in seeking to enforce the Agreement in my opinion.

[applecart]

Also - can I just say - much mention has been made of Section 8 of the Bill of Sale Act - and on each occassion I see the quote as given by Section 8 of the BOS 1878 Act - please note this was repealed by Section 8 of the BOS (1878) Amendment Act 1882.

 

Old Law:

 

Bill of Sale Act 1878 Section 8 is 'Avoidance of Unregistered bill of sale in certain cases'

 

New Law:

Bill of Sale (1878) Amendment Act 1882 is 'Bill of Sale to be void unless attested and registered'

[applecart]

I did not put those 'shaded sunglass images' in my post - I have no idea why they have appeared...

 

needless to say it should say '8' where they have appeared