section 92 of the cca 1974/repossession

[postggj]

under section 92 of the cca 1974, the creditor needs to have a court order to repo a vehicle that is on private land. be it the creditor has permission from the land owner or not. section 92 is quite specific.

now if the creditor went ahead with the repo as stated above, be it the hire purchase agreement has been terminated or not

what case law can be quoted to support a claim for unlawfull recession or breach of statutory duty

in this sinario i believe the debtor is entitled to a new vehicle of same make and milage/condition
and
all payments made returned

what case law can be quoted on a pertic of claim to support this

many thanks

[Caspar]

Re: section 92 of the cca 1974/repossession

Can you give some history to this please. Did you have an HP agreement? Was it terminated - if so why? On what basis are you claiming unlaw recission? Who knowingly and willfully failed to perform?

More info please!

[postggj]

Re: section 92 of the cca 1974/repossession

wrong choice of words by myself


what recourse is there for the debtor for breach of statutory duty by the creditor on a hire purchase agreement terminated by the creditor,and the vehicle was unlawfully taken from private land as to s.92 of the cca 1974.

what action can the debtor take

this is just a question for my own education and understanding and does not effect myself in any way

[Judge mental]

Re: section 92 of the cca 1974/repossession

under section 92 of the cca 1974, the creditor needs to have a court order to repo a vehicle that is on private land. be it the creditor has permission from the land owner or not. section 92 is quite specific.

now if the creditor went ahead with the repo as stated above, be it the hire purchase agreement has been terminated or not

what case law can be quoted to support a claim for unlawfull recession or breach of statutory duty

in this sinario i believe the debtor is entitled to a new vehicle of same make and milage/condition
and
all payments made returned

what case law can be quoted on a pertic of claim to support this

many thanks

Hi:

A breach of Statutory duty is remedied by an award of damages, these damages would have to be actual damaged and proved to the court.

I am not aware of anything that suggests the debtor is entitled to a new vehicle AND all payments returned.

An option to recover the amount paid on the agreement is available under section 90 of the CCA which states that where the debtor has paid more than one third of the amount due and before a termination notice is served, it cannot be recovered without an order from a court, this has a remedy under section 91 where the debtor is relieved of all liabilities and can recover all monies paid.

In any event, a creditor would not be allowed onto or in any private premises or land (whether belonging to the debtor or not) without an order from a court.

Case law relating to breach of Statutory duty http://www.lawteacher.net/PDF/Statut...es%20Cases.pdf

Hope it helps

Stuart

[postggj]

Re: section 92 of the cca 1974/repossession

Thanks

But What Punishment (financial) Can The Creditor Suffer For Repo The Vehicle Off Private Land With Out A Court Order

At The End Of The Day The Debtor Is With Out A Vehicle For Illegal Reposession Be It He/she Is In Default Of The Agreement Or Not And Being In Default Is Irelevant To The Issue Of The Illegal Repo

[postggj]

Re: section 92 of the cca 1974/repossession

Many Appologies

Seems I Have Two Threads Running

Can They Be Merged

[TUTTSI]

Re: section 92 of the cca 1974/repossession

I expect full restitution tbvh.+ if the Creditor has done something that they should not have done the director/MD could face even a prison sentence.

Some years ago before lovely informative sites like this were arround I had my car repo'd from my private drive. The bailiff turned up at 6:45am so I was not able to call anyone, I had paid unfortunately less than 1/3rd of the HP, so they did not need a court order but the law says that if a car is on private land they can not enter to remove it. They did in my case and a lawyer who gave me advice at that time said I would be entitled to full restitution.

Here are some bits you find usefull from my letter to the MD back in 2003. I have to say that I got no where but that was because we did not know how to finish this claim at that time and agreed to mediation which was a total waste of time. I hope that you can use some of the bits from here which were gathered at that time.

1) I draw to your attention section 92 of the Consumer Credit Act 1974. Sub section 1 refers in particular, and the general effect of this section deals with and restricts the right of the creditor or owner of the goods to enter the hirer's premises in order to repossess goods subject to a regulated hire purchase, conditional sale or consumer hire agreement. In order to enter the debtor's premises, a court order must first be obtained and in any event upon such order the court will hear the plea of the debtor because in order to decide the issues and merits of the case, the court has the power to agree that the debtor can keep hold of the goods so long as the debtor can pay the debt back in reasonable instalments.
2) If one has paid a third or more of the total owing under an agreement the creditor must go to court to ask for possession of the goods. However, the creditor cannot just go to the debtor's premises and remove the goods. Even if the debtor has not paid more than a third of the agreement, the creditor will still need an order from the court to remove the goods from any premises they are on. Premises include the debtors garage or drive but not a car park or roadside. If the debtor's car is parked on the road, or in a public car park, then it would be at risk. From your letter of the 10th March 2004, you have confirmed that your agent alleges that he drove the vehicle from the "hard standing" i.e. private property after being passed the keys by your hirer. Your agent, acting upon your company's instructions, therefore would agree that he entered the premises illegally to recover your goods without your having first presented him with a court order to do so. The only time that a creditor or its agent can enter a debtor's premises is when the debtor actually consents to so doing at that time. Section 173(3) of the Consumer Credit Act 1974 applies to this situation and the debtor's rights must be preserved in that permission must be granted by the latter for the creditor to enter. In this situation, I had not given permission for your agent to enter my premises i.e. the drive. It was at 6:45am on 8th April 2003 that your agent had already trespassed and entered the premises with his tow truck and connected the vehicle ready for towing as well as clamping the vehicle. I must again advise you that I have several witnesses to the event, which happened, and the threatening behaviour displayed by your agent. Your agent was not prepared to listen to reason and he said that if I did not hand over the keys to him there and then, he would smash the window of the car and gain entry that way, and that I would be charged for the breakage. His manner was most aggressive, I felt threatened, and he did not speak pleasantly but continued throughout with a raised voice and quite often shouting, which disturbed neighbours. At that point, I considered that this was an impasse situation because he was not going to leave until he had the goods. His tow truck was obstructing the drive so that other vehicles could not leave. I had no alternative, under duress, but to give him the keys as he was acting in an unprofessional and abusive manner, and just being a neighbourhood nuisance. That is why my advisors inform me that the vehicle was repossessed prematurely and your not observing correctly the law as it stands. You cannot be above the law.
3) Entry to premises without a court order is a breach of statutory duty and the remedy appears to be a County Court action for damages for trespass, in the first instance. The damages will be assessed as a natural consequence of the breach. Wrongful recovery under Section 92 can also attract penalties under Section 5(1) of the Theft Act 1968, as recovery must be both wrongful and dishonest. In this instance the recovery procedure adopted was wrongful and dishonest. It would be a defence for creditors to say that they believed they had a right in law to deprive the debtor of that property. The penalty for this is a fine, imprisonment, compensation and/or restitution. Also, under Section 6(1) of the Criminal Law Act 1977, it is an offence to use and threaten in any way to gain entry to the debtor's premises. You should be aware that the penalty for this is up to 6 months imprisonment for all those who are corporately culpable.
4) In this instance, I draw your attention to your Solicitors letter to me dated 21st January 2004, where they draw reference to the fact that your agent, is instructed by yourselves to undertake all necessary procedures to recover its property, this includes entering on to any property deemed to be under the control of the hirer. In my case and certainly it is not mentioned in that letter from your solicitors in simple terms that a court order is required in order to follow procedure and comply with the law. When your agent had entered my premises, he did not have with him a court order to remove the goods, and so the law had been broken there and then. Therefore as result at that time, all references which I have made to Acts in this letter come into force.
5) Because correct procedures had not been followed i.e. not having obtained a court order, you have compromised my situation and prejudiced my rights as a consumer under the Consumer Credit Act 1974 by prematurely taking the vehicle. In this way, I had been prevented from seeking a Time Order from the court for the purpose of remedy. My legal advisors inform me that in view of the foregoing matters, and taking into account damages for trespass, theft, compensation, costs and interest and wrongful recovery of my vehicle, that I am entitled to recover from you no less than £14,250, and I expect to receive settlement forthwith.

Thanks

But What Punishment (financial) Can The Creditor Suffer For Repo The Vehicle Off Private Land With Out A Court Order

At The End Of The Day The Debtor Is With Out A Vehicle For Illegal Reposession Be It He/she Is In Default Of The Agreement Or Not And Being In Default Is Irelevant To The Issue Of The Illegal Repo

[postggj]

Re: section 92 of the cca 1974/repossession

Please Do Find Any Paperwor

The Very Least I Would Expect Is Full Restitution As The Creditor Has Commited An Unlawful Action

That Includes A Replacement Vehicle
All Payments Made Returned
Released From All Liability Ref The Agreement


Can Someone Please Give Me The Relevant Case Law To Back It Up In A Pertic Of Claim

Section 90 Of The Cca Only Says About The Third Point In Payments

Its

the Liabilities The Creditor Will Face By Doing A Repo Off Private Land With Out A Court Order

[postggj]

Re: section 92 of the cca 1974/repossession

Many Thanks But Please People

Keep It Comming

[postggj]

Re: section 92 of the cca 1974/repossession

I REALISE THE REDRESS QUESTION IS A GRAY AREA

Time to bump this thread

as of s.90, it offers the full redress option of doing a repo whena third has been paid but

s.92 is still a gray area on the redress options

as a breach of statutory duty has occured ill be looking at

1/ repayment of all monies paid
2/ replacement vehicle or cash allternative
3/ relesed from all liability

i just need some examples of case law to quote in any pertic of claim

[Judge mental]

Re: section 92 of the cca 1974/repossession

s.92 is still a gray area on the redress options

I would be interested in hearing what you consider to be a 'grey area'. S.92 is quite clear that it is a breach of statutory duty, therefore the redress is an entitlement to damages.

Damages could possibly include things like a hire of a vehicle to replace the one wrongfully removed or the costs of alternative travel.
Maybe a refund of car tax and insurance paid for the period you were without the car, whether a judge would consider a claim for things like 'inconvenience' or not, I have no idea, but I am sure the judge would be reluctant to give anything which may give rise to an 'unjust enrichment'

I gave a bit of time to researching other areas of laws which might offer an alternative resolution that is more in line with what you are seeking.
I came across things like Trespass to chattels and the Torts (interference with goods) Act 1977 which provides for damages representing the value of the goods lost.
Also aggravated negligence which can provide for punitive damages, but a judgement requesting any form of punishment would require much higher standard of evidence and a horrendous amount of litigation to argue.

I do think that any attempt to recover more than what the law provides would be seen as unjust enrichment and may jeopardise the recovery of anything.


Stuart

[ncf355]

Re: section 92 of the cca 1974/repossession

Please Do Find Any Paperwor

The Very Least I Would Expect Is Full Restitution As The Creditor Has Commited An Unlawful Action

That Includes A Replacement Vehicle
All Payments Made Returned
Released From All Liability Ref The Agreement


Can Someone Please Give Me The Relevant Case Law To Back It Up In A Pertic Of Claim

Section 90 Of The Cca Only Says About The Third Point In Payments

Its

the Liabilities The Creditor Will Face By Doing A Repo Off Private Land With Out A Court Order

Your thoughts on this make no sense

The above would not be "restitution" - restitution means putting you back in the situation had the agreement not existed

Were you to be awarded the amounts and items listed above, you would profit from having taken part in the agreement

I could understand return of all payments made so far,, then the agreement terminated with no further liablity on either side (they keep the car) but nothing beyond that

In fact, even then you would profit as you would have had the use of the vehicle for all that time at the princely sum of £0.00?

[jebedee]

Re: section 92 of the cca 1974/repossession

I come to this a little late but section 91 CCA 1974 provides the remedy for a breach of secion 90. There is no specific remedy in section 92 beyond that set out in that section, i.e. it is actionable as breach of Statutory Duty. In the absence of other remedies within the CCA then this is the only remedy. See also section 170 CCA.

[jebedee]

Re: section 92 of the cca 1974/repossession

Just an additional thought, if the agreement had been terminated then the vehicle would not be subject to a regulated agreement and as you say section 92 is very specific.

[diddydicky]

Re: section 92 of the cca 1974/repossession

you mentioned that a "bailiff" removed the vehicle

a bailiff can indeed enter private land not belonging to the hirer of the car to recover it

any dispute as to whether he tresspassed in order to do so- would be an argument between the land owner and the bailiff and not between the hirer and the creditor (IMO)