mjf
Active member
You do not state a time frame when all this occurred. When was the judgement made and where please?
My boat has been repossessed and I've also been handed the mortgage to pay
- Thread starter duncan1859
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mjf
Active member
Wow - just been throu the whole sorry post and see others have the case in hand.
I still feel there is not enough info here to come to take a view - have to say though I like Nick H advice and ctc the bank and sort it out by talking and concluding a deal.
I still feel there is not enough info here to come to take a view - have to say though I like Nick H advice and ctc the bank and sort it out by talking and concluding a deal.
jfm
Well-known member
Eh? The expression "attached" is a colloquialism. Be more precise. A debt can be secured on a vessel, and a good faith susbsequent owner can find he has bought a vessel that has been pledged to a bank. Exactly OP's circs. That might be what some people would call "attached"
But you can never unwittingly become liable to pay money to a bank by buying someone else's boat. I mean the obligation to repay A's loan cannot transfer to an innocent third party buyer B, merely because B bought A's boat. So in that sense the debt doesn't attach to the boat. Not even in maritime law.
If that's not clear or you're not convinced, so be it!
What conclusion are you saying I have jumped to?
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Pinnacle
Well-known member
This is post No 42;
I'm back. Sorry but I am overwhelmed by the response. Thank you. I realise that this seems crazy, but it is true. Some of the things that don't add up probably are as a result of me not wanting to ramble on and on thinking that it would switch readers off, so I tried to only put down the key bits. I was very keen to see if this had happened to anyone else or if I am a one-off as this would help my case if I am the first.
The case was heard on October 9th 2009, Queen's bench division, Admiralty court, 2009 Folio 767. [My Italics.] The order was: 1. judgement for the claimant in default of acknowledgement of service or defence in the sum of £26,383.13 including interest. 2. The defendant to pay the claimant's costs of this application and the claim. 3. The ship to be appraised and sold by the Admiralty Marshal.
In case you are asking 'why did he wait till now if the judgement was Oct 09? the reason that I have done nothing until now is rather complex. Firstly, I heard nothing from the bank's solicitors until March 2010. I had stupidly assumed that my HPI check and blank registry search would be sufficient to win the case. Also, if you have been inviolved with the high court (my first time) you will know that they make absolutely no contact with you. Everything comes via the claimant's solicitors. Secondly, the boat bought by me for £17500 in 2006 was worth minus trailer 7-8k max. In addition the case pretty much coincided with my divorce timewise and my wife got the boat in the financial settlement. So my interest in it had already diminished.
If you look at point 1 on the order, you will see that, as far as I can tell, by me filling out and signing the 'acknowledgement of service' and signing it saying that I was the owner of the ship, I appear to have become in the eyes of the judge, synonymous with the defaulting borrower. A lesson to be learned I guess and thanks for those who suggested as much.
I found this site however, by googling the name Shizelle which is apparently a test case that the bank are going to use when I contest their statutory demand. There's tonnes on it and also an article in the independent 1994.
The law is really clear and I may well be in real trouble. There is no obligation on any bank to register anywhere its interest in an unregistered ship (mine's unregistered). But they are entitled to seize that vessel. So if you do buy an unregistered vessel you are in fact buying totally blind and have no way of knowing if there will be a letter on the mat with the worst possible news. See the Shizelle for evidence of this as it went to High Court and the owners lost.
I am really grateful to those who suggested going after the defaulting borrower as I feel this could well be a great help - even if only in mitigation. If I can serve him with a statutory demand - which I reckon should be straightforward - then even if the court rules against me, they will have to rule against the crook who sold the boat without paying off his mortgage. Logically, he would then pay me and I would pass that to the bank. It's a possibility.
Also thanks to Mike for the advice about the loan size. This guives real hope as the loan was £23000 which Mike says is a personal loan (unsecured) and so cannot be attached to the vessel. My solicitor thinks this could be a real way forward.
My boat insurance was no use in this however. As my boat had neither been in an accident or stolen, they did not want to know.
Once this is all over, I will be back out there and will get a nice little replacement - probably second hand again. But if that boat is unregistered, I will be asking for an insurance policy that will cover me from any loss due to the emergence of marine finance and also I will ask for the legal cover to specify legal fees relating to any attempt to repossess my boat from a third party. I recommend anyone out there does the same or tells us what they have in place to secure against this happening to them.
If anyone wants any more details filled in, I'll be only too pleaased to write more on it. If any of this stops someone else's dream being shattered and spoiling what should be a real pleasure, then it has some value at least.
thanks for a great forum. I feel better than I have done for a long while.
Duncan
petem
Well-known member
Ok JFM, I knew you'd be right...
Following some research of my own....
"[Maritime mortgages] give the lender in rem rights against the mortgaged vessel (that is, rights against the vessel itself, and not just personal rights against the owner)."
"....a mortgage that is not registered may be legally valid between the parties and, indeed, enforceable against a subsequent purchaser of the vessel, even if that purchaser had no knowledge of the mortgage because of the lack of registration."
Am I right in deducing that none of ths mentions the new owner and therefore he has no liability beyone the return of the boat? The fact that it is "in rem" would mean that it is the boat that is liable for the mortgage and a boat has no assets that would allow it to settle the remaining balance (hope this makes sense)!!!!
Plenty more riveting stuff here....
http://books.google.co.uk/books?id=...onepage&q=2 Lloyd’s Rep. 444 shizelle&f=false
Pete
Following some research of my own....
"[Maritime mortgages] give the lender in rem rights against the mortgaged vessel (that is, rights against the vessel itself, and not just personal rights against the owner)."
"....a mortgage that is not registered may be legally valid between the parties and, indeed, enforceable against a subsequent purchaser of the vessel, even if that purchaser had no knowledge of the mortgage because of the lack of registration."
Am I right in deducing that none of ths mentions the new owner and therefore he has no liability beyone the return of the boat? The fact that it is "in rem" would mean that it is the boat that is liable for the mortgage and a boat has no assets that would allow it to settle the remaining balance (hope this makes sense)!!!!
Plenty more riveting stuff here....
http://books.google.co.uk/books?id=...onepage&q=2 Lloyd’s Rep. 444 shizelle&f=false
Pete
jfm
Well-known member
Yup Pete. The bank's only claim is to have the boat handed to them. That's why it's called "in rem". The bank has no claim against Duncan for the repayment of the debt, beyond the return of the boat. The stuiff above about the lending-of-money debt passing to the boat buyer was wide of the mark
But beware researching law on the net. It's much more involved, and the winning of tricky litigation when you'rte on the back foot involves a load of subtle manoeuvres and skills that only the top practitioners possess, and they are not the authors of what you read on the net. They're probably swanning around on big powerboats instead
. In this case, the lender's failure to do ANYTHING to make innocent 3rd parties aware of the security, when there are umpteen easy mechanisms available to them to "advertise" their security interest, added to the fact they're a sophisticated lender who should know better, could all be turned into a decent defence if the right lawyer handled it. It would certainly cut the result in half, ie Duncan would only have to hand over a half interest in the boat. But this needs a lawyer who knows his stuff, and alas the value of the boat is a bit out of kilter with the legal fees
PS, and scuse me for calling a spade a spade, but I love the way you check my legal advice by reasearching on the net. Does it ever occur to you that some real people actually know more than what bloggers or tin-pot law firms write on the net? I trust the author of what you read on the net is driving a Sq78
But beware researching law on the net. It's much more involved, and the winning of tricky litigation when you'rte on the back foot involves a load of subtle manoeuvres and skills that only the top practitioners possess, and they are not the authors of what you read on the net. They're probably swanning around on big powerboats instead
. In this case, the lender's failure to do ANYTHING to make innocent 3rd parties aware of the security, when there are umpteen easy mechanisms available to them to "advertise" their security interest, added to the fact they're a sophisticated lender who should know better, could all be turned into a decent defence if the right lawyer handled it. It would certainly cut the result in half, ie Duncan would only have to hand over a half interest in the boat. But this needs a lawyer who knows his stuff, and alas the value of the boat is a bit out of kilter with the legal feesPS, and scuse me for calling a spade a spade, but I love the way you check my legal advice by reasearching on the net. Does it ever occur to you that some real people actually know more than what bloggers or tin-pot law firms write on the net? I trust the author of what you read on the net is driving a Sq78
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petem
Well-known member
So could the OP negotiate a £5k* settlement with the bank (in lieu of returning the boat) then attempt to recover this from the seller via the small claims court?
Pete
* I suggest £5k as (a) this is the maximum for small claims court and (b) if the boat (boat without trailer) if worth £7k then taking disposal costs into account this is all the bank would get anyway.
Pete
* I suggest £5k as (a) this is the maximum for small claims court and (b) if the boat (boat without trailer) if worth £7k then taking disposal costs into account this is all the bank would get anyway.
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SpottyDog5
Well-known member
As the ex wife now has the boat, doesn't she also have the debt (if it stays with it)?
petem
Well-known member
I assume that either the op has to persuade ex Swmbo to hand boat over to the bank or the bank has to apply through the high court to take possession of the boat. Ex Swmbo would then have a claim against the op and the op would have a claim against the seller. Op might be liable for some of the banks costs. Does ex Swmbo still have boat? It's gonna be a mare if she's unwittingly sold ot on!
PaulGooch
Active member
That being the case, if you read the judgement that the OP posted, it does seem to me to say he has to pay the mortgage AND return the boat. It doesn't say he has to pay the debt OR return the boat. So, that begs the question (i think touched upon before and never addressed), did the court mistakenly believe that the OP was the original borrower ?
Not forgetting he's also been served with a statutory demand.
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petem
Well-known member
Ok lets recap....
The case was heard on October 9th 2009, Queen's bench division, Admiralty court, 2009 Folio 767. The order was:
1. judgement for the claimant in default of acknowledgement of service or defence in the sum of £26,383.13 including interest. (petem - this does not mention defendant so is ambiguous but assumption is that this is not directed at op but the original borrower.)
2. The defendant to pay the claimant's costs of this application and the claim. (petem - we've made an assumtion that the op is the defendant. Is this the case? What was the claim for, the return of the boat or the outstanding mortgage?)
3. The ship to be appraised and sold by the Admiralty Marshal.
PeteM
The case was heard on October 9th 2009, Queen's bench division, Admiralty court, 2009 Folio 767. The order was:
1. judgement for the claimant in default of acknowledgement of service or defence in the sum of £26,383.13 including interest. (petem - this does not mention defendant so is ambiguous but assumption is that this is not directed at op but the original borrower.)
2. The defendant to pay the claimant's costs of this application and the claim. (petem - we've made an assumtion that the op is the defendant. Is this the case? What was the claim for, the return of the boat or the outstanding mortgage?)
3. The ship to be appraised and sold by the Admiralty Marshal.
PeteM
Bobobolinsky
New member
This adds another level altogether to the "Find a woman you don't like and give her your house" gag
petem
Well-known member
I might be being dim here but does this point....
"2. The defendant to pay the claimant's costs of this application and the claim."
...mean the claim or the costs of the claim - huge difference?
Pete
"2. The defendant to pay the claimant's costs of this application and the claim."
...mean the claim or the costs of the claim - huge difference?
Pete
jfm
Well-known member
Yup. We'll never know, cos OP hasn't posted the judgment and therefore we can't read it. His quoting of it is parapharased not verbatim, so will be inaccurate most likely. But you're right that the court could have been mistaken as to even the basics like whether OP was the borrower. The court hates people not turning up, so will have simply taken the facts as presented to them by the bank in the absence of OP's attendance. Hence as you say the court might have thought OP was the borrower.
This is all a bit of a shame but (and sorry to be harsh) OP has hugely amplified the problem by his own conduct. Referring back to the Ari argument, this isn't any kind of a precedent for innocent people losing their boats. If OP had gone to court and pointed out BoS's many mistakes esp their laziness in not advertising their security he would have had a strong claim (in equity) to have them held to be estopped from taking the boat from an innocent consumer. But he didn't, and he hasn't reported the judgment clearly, so we'll never know
I can assure you that if the court had the correct basic facts in front of them, even in the form of a basic 3 paragraph defence, they would never have found OP liable to pay the £26k debt to the bank. There is nothing in UK law that makes OP become the obligor for someone else's borrowings. If there were, I could have been liable for Raymarine's £70m debts when I bought a plotter earlier this year
It's a bit disappointing that this whole episode kinda scares used boat buyers. If it had been handled differently it could have provided them comfort instead. Ho hum!
mjf
Active member
Thanks for the 'missing' info.
I think this may have done to death on here now but IMHO your real big mistake was firstly not getting some 1st Class advice - on here there are several people who could have guided you a little or even recommmended trusted professionals ; but its understandable given the sums involved.
Sometimes it not worth the fight as the costs at risk make it a no brainer unless of course you want to make a point.....
Big mistake was not showing up in court. In my experience the Queen's bench division, Admiralty court people are extremely bright and get the issue fast, ditto the London maritime arbitrators
I think this may have done to death on here now but IMHO your real big mistake was firstly not getting some 1st Class advice - on here there are several people who could have guided you a little or even recommmended trusted professionals ; but its understandable given the sums involved.
Sometimes it not worth the fight as the costs at risk make it a no brainer unless of course you want to make a point.....
Big mistake was not showing up in court. In my experience the Queen's bench division, Admiralty court people are extremely bright and get the issue fast, ditto the London maritime arbitrators
petem
Well-known member
You're right it would be all over except that (a) it's not clear what the OP would have to pay had he still owned the boat and (b) it's not clear whether the issue has followed the boat which now belongs to ex-SWMBO who could well mount a more successful defence.
Pete
Assassin
Well-known member
If you did a search through an approved source you can make a claim against them as they are insured against this sort of error of their data, so this should be your first port of call, make a claim.
If this was not done through an approved service, you have to go against the seller and you have him under law for misrepresentation and failing to declare any outstanding debts on the craft. If he fails to respond, or tries to avoid payment, then turn to a debt recovery company to reclaim this for you. Only use a reputable debt recovery company, check their credentials, and ensure you feel safe in their hands. It will cost you nothing as they will recover the outstanding amount and add their substantial costs on top of the debt.
If this was not done through an approved service, you have to go against the seller and you have him under law for misrepresentation and failing to declare any outstanding debts on the craft. If he fails to respond, or tries to avoid payment, then turn to a debt recovery company to reclaim this for you. Only use a reputable debt recovery company, check their credentials, and ensure you feel safe in their hands. It will cost you nothing as they will recover the outstanding amount and add their substantial costs on top of the debt.
Major Catastrophe
New member
Paul, Searush and others. There was a post on here two months ago about marine mortgages and a few people, including myself, posted that they had a proper marine mortgage that was was not registered as Part 1 or SSR.
Duncan, I feel for you and sincerely hope you get this sorted as the judgement is morally wrong, even if it isn't legally wrong.
Get legal advice.
PaulGooch
Active member
Thanks, i see that from other replies. They really should be made to register their interests, it might not stop every problem, but it couldn't hurt.
Major Catastrophe
New member
I posted before realising there wee another three pages to read.
I want to be there when OP tries to get boat off exSWMBO to hand over to the bank.
Other threads that may be of interest
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