My story

[XG_Falcon]

I don't like to make assumptions but I'd be surprised if the car wasn't used as the security asset to attain this loan in the first place. The creditor has every right to take the car and sell it to recoup their costs on the loan if you fall behind on your payments.

Loans can be secured or unsecured, usually secured is a lot cheaper (lower interest rates) because the car or another significant asset is used as security - which means the creditor is taking a much smaller risk.

After studying the information we've been given, it seems like this was a secured loan, which would mean that the creditor is the actual "owner" of the vehicle (so to speak). They can repossess and sell the car if the borrower falls behind. It's a simple civil matter.

[NX74205]

Originally Posted by XB GS 351 Coupe

Two way street, think of it as a contract, because that is what it is, now the seller has breached the contract, which is a civil matter, it is not a crime it is just a brach of contract. It is buyer beware, if buyer does not do his homework then really he has messed up, lesson learned for buyer I guess.

Which contract? If you're saying that the seller has breached the contract with the finance company, I'd say that that's a distinct possibility but we don't know that for certain without reading that contract. There is no breach of contract with the OP: the seller sold the BF XR6 in consideration for the purchase of an AU XR6.

Now, if the seller represented to the OP that the car was unencumbered, then that would be a different story, but based on what the OP posted, there is no misrepresentation here. The general rule is that silence does not constitute misrepresentation.

Originally Posted by BENT_8

Strange story, who would swap a BF for an AU regardless of condition, should have rung bells immediately.

Why? The BF is the better car.

Originally Posted by XB GS 351 Coupe

You did what?? You knowingly sold a car you admitted here you knew was not yours...That perfectly fits the definition of stealing/larceny/fraud, you have now committed a criminal offence and admitted to it on a public forum

No, the car belonged to the OP, just as it belonged to the seller. A security interest in the car does not create a property interest in it, all it does is create an encumbrance in the car. The contract between the seller and the finance company may well prevent the seller from disposing of the car without the finance company's approval, but the car nevertheless belonged to the OP just as it had belonged to the seller before him.

Originally Posted by XB GS 351 Coupe

It's called 'Mens Rae' also referred to as a guilt mind, he knew what he was doing was wrong, the car does not belong to him, it belongs to the finance company, he has now knowingly disposed of property that he knew was not legally his, therefore denying the true owner of the vehicle possession of the vehicle that he is legally entitled to.

First of all, it's mens rea, not mens rae.

Second, there's two sets of property rights here - property in the car itself, and property in the security interest. Property in the car itself had been transferred legitimately to the OP, just as it had belonged to the seller before him. The property right in the car was transferred in consideration for a certain amount of money that was paid by the seller to whoever owned it before him.

Then there's the property right in the security interest. In consideration of the loan provided to the seller, the loan is secured against the car ("collateral"). This is a distinct and separate property right to the property right in the car itself. This security interest allows the finance company to take possession of the collateral in the event of a default by the seller.

The car does not belong to the finance company. Some people tend to think of property as a thing. It is not. In the legal sense, property is a bundle of legal rights attached to certain things, whether tangible or intangible. There can be more than one set of property rights in the same thing.

[XB GS 351 Coupe]

Originally Posted by NX74205

Which contract? If you're saying that the seller has breached the contract with the finance company, I'd say that that's a distinct possibility but we don't know that for certain without reading that contract. There is no breach of contract with the OP: the seller sold the BF XR6 in consideration for the purchase of an AU XR6.

Now, if the seller represented to the OP that the car was unencumbered, then that would be a different story, but based on what the OP posted, there is no misrepresentation here. The general rule is that silence does not constitute misrepresentation.



Why? The BF is the better car.



No, the car belonged to the OP, just as it belonged to the seller. A security interest in the car does not create a property interest in it, all it does is create an encumbrance in the car. The contract between the seller and the finance company may well prevent the seller from disposing of the car without the finance company's approval, but the car nevertheless belonged to the OP just as it had belonged to the seller before him.



First of all, it's mens rea, not mens rae.

Second, there's two sets of property rights here - property in the car itself, and property in the security interest. Property in the car itself had been transferred legitimately to the OP, just as it had belonged to the seller before him. The property right in the car was transferred in consideration for a certain amount of money that was paid by the seller to whoever owned it before him.

Then there's the property right in the security interest. In consideration of the loan provided to the seller, the loan is secured against the car ("collateral"). This is a distinct and separate property right to the property right in the car itself. This security interest allows the finance company to take possession of the collateral in the event of a default by the seller.

The car does not belong to the finance company. Some people tend to think of property as a thing. It is not. In the legal sense, property is a bundle of legal rights attached to certain things, whether tangible or intangible. There can be more than one set of property rights in the same thing.

You are basically repeating what I said worded more complicated, people here struggle to comprehend the basics like you can't sell a car that is encumbered, no need to get into the detail you are talking about.

[XB GS 351 Coupe]

Originally Posted by XG_Falcon

I don't like to make assumptions but I'd be surprised if the car wasn't used as the security asset to attain this loan in the first place. The creditor has every right to take the car and sell it to recoup their costs on the loan if you fall behind on your payments.

Loans can be secured or unsecured, usually secured is a lot cheaper (lower interest rates) because the car or another significant asset is used as security - which means the creditor is taking a much smaller risk.

After studying the information we've been given, it seems like this was a secured loan, which would mean that the creditor is the actual "owner" of the vehicle (so to speak). They can repossess and sell the car if the borrower falls behind. It's a simple civil matter.

The fact that the car is/was encumbered proves this, an encumbered vehicle is used as security for the loan.

[BENT_8]

If the vehicle is security for the loan and the person who took out the finance defaults, the finance company will repo the car to retrieve some of their losses.
It wont matter who has bought the car and how it was aquired, the car will be repo'ed and it will be up to whom ever owns it now to chase the OP for their lost $1200.
It will then be on the OP to chase the original owner for their loss through legal avenues.

None of it is a criminal matter.

As with my situation, my Brother sold a car to me, i traded it at a car yard, the car yard on sold it and when my Brother defaulted the finance company tracked it down and took it, no if's, no buts, it was theirs to take.

It then became a matter between the people who bought it from the car yard and the car yard, the car yard reimbursed them. settled.

It then became a civil matter between the car yard and me, which went to court where it was exposed that the car yard failed to do a (VSR) Vehicle Security Register check, which if done correctly, would have revealed the issue before anyone else got involved and i could have reversed my purchase with my Brother. case closed.

Unfortunately the car yard failed in its duty and as a result an innocent party got dragged in to it.
When the judge looked at the case he blamed the car yard for not checking the vehicles title.
I then arranged for my Brother to meet with the yards DP and arrange to pay back the debt including legal fee's that the yard had incured by reimbursing the new owner and taking me to court.

How does this relate to the topic, the original owner had a debt on the car, he swapped it with the OP, it was up to the OP to check its title and didnt. The OP then sold it to the current owner who we would assume has also failed to check the title.
If the loan goes into default, the finance company will seek out the car via rego, vin and engine no's. so if its been stripped the engine and chassis are useless as they can be tracked.
If the car is repo'ed, the current owner can take legal action to recoup their $1200 against the OP and will likely win as they bought it in good faith with their own money.
The OP can then persue the original owner for the AU and will likely win. as they bought it in good faith with their own money (the AU)

So in the end it can all get reversed through the courts, albeit with fee's, and the original owner will have a debt, legal fee's and no car. which will be worse than if he just surrendered the car, especially if its been stripped.
If they have onsold the AU, they will also have to refund its value to the OP.

Thats my take on it.

[neverready3]

correct me if iam wrong , doesn't it say on our rego papers that this name on the form does not prove ownership of the vehicle.

[BENT_8]

Originally Posted by neverready3

correct me if iam wrong , doesn't it say on our rego papers that this name on the form does not prove ownership of the vehicle.

You are correct, registration doesn't confirm ownership.
If you have a reciept of purchase it over rides the registered owner.

Back in the late 80's my BIL asked a friend to go to motor reg and register his car for him as he was laid up in bed sick.
The so called friend filled in the rego paper, forging my BIL's signature and transferred it into his name and then shot through.
My BIL then reported the car stolen and it was eventually tracked down and impounded in Albury. The Police contacted my BIL and we made arrangements to retrieve it.

Hey i grew up in Elizabeth, this **** is an everyday event...lol

[XB GS 351 Coupe]

Originally Posted by BENT_8

If the vehicle is security for the loan and the person who took out the finance defaults, the finance company will repo the car to retrieve some of their losses.
It wont matter who has bought the car and how it was aquired, the car will be repo'ed and it will be up to whom ever owns it now to chase the OP for their lost $1200.
It will then be on the OP to chase the original owner for their loss through legal avenues.

None of it is a criminal matter.

As with my situation, my Brother sold a car to me, i traded it at a car yard, the car yard on sold it and when my Brother defaulted the finance company tracked it down and took it, no if's, no buts, it was theirs to take.

It then became a matter between the people who bought it from the car yard and the car yard, the car yard reimbursed them. settled.

It then became a civil matter between the car yard and me, which went to court where it was exposed that the car yard failed to do a (VSR) Vehicle Security Register check, which if done correctly, would have revealed the issue before anyone else got involved and i could have reversed my purchase with my Brother. case closed.

Unfortunately the car yard failed in its duty and as a result an innocent party got dragged in to it.
When the judge looked at the case he blamed the car yard for not checking the vehicles title.
I then arranged for my Brother to meet with the yards DP and arrange to pay back the debt including legal fee's that the yard had incured by reimbursing the new owner and taking me to court.

How does this relate to the topic, the original owner had a debt on the car, he swapped it with the OP, it was up to the OP to check its title and didnt. The OP then sold it to the current owner who we would assume has also failed to check the title.
If the loan goes into default, the finance company will seek out the car via rego, vin and engine no's. so if its been stripped the engine and chassis are useless as they can be tracked.
If the car is repo'ed, the current owner can take legal action to recoup their $1200 against the OP and will likely win as they bought it in good faith with their own money.
The OP can then persue the original owner for the AU and will likely win. as they bought it in good faith with their own money (the AU)

So in the end it can all get reversed through the courts, albeit with fee's, and the original owner will have a debt, legal fee's and no car. which will be worse than if he just surrendered the car, especially if its been stripped.
If they have onsold the AU, they will also have to refund its value to the OP.

Thats my take on it.

Pretty much sums it up.

But there may still be criminal matters involved, but most likely will not be pursued, in relation to the second owner as outlined earlier, it all depends on what evidence and is available and what the actual facts are. We only know what has been posted, so there may well be a lot more to the story than what we are aware of. As there could be some fraud, and misappropriation involved but I guess we will never know for sure as the OP appears to have gone awol.

Probably because he knows that he has done the wrong thing.

[BENT_8]

Originally Posted by XB GS 351 Coupe

Pretty much sums it up.

But there may still be criminal matters involved, but most likely will not be pursued, in relation to the second owner as outlined earlier, it all depends on what evidence and is available and what the actual facts are. We only know what has been posted, so there may well be a lot more to the story than what we are aware of. As there could be some fraud, and misappropriation involved but I guess we will never know for sure as the OP appears to have gone awol.

Probably because he knows that he has done the wrong thing.

Possibly, but i highly doubt it as the OP bought it in good faith with his own asset, he is entitled to on sell it as technically he owns the car if he has a reciept for the swap confirming his ownership.
His only offence is in not disclosing the encumberence.

If the OP didnt sign away his rights to the AU by providing a reciept to the guy he got the BF from, then technically the AU is still his and he could retrieve it as a stolen vehicle.
For arguments sake, he could say they simply swapped the use of the two cars and registered them accordingly but ownership remained as was.
He could then say he wants his AU back and report it as stolen as he hasnt provided a sales reciept, it is still legally his.
If he has signed a reciept it is a done deal.

[BENT_8]

Heres what i would do...

If the OP gave the BF owner a reciept, id contact the guy he sold it for $1200 to and tell him about the emcumbrence, give him the choice if he wants to keep the car and take a punt on the original owner keeping the payments up or returning the car and getting his $1200 back.
If the OP gets the BF back it is his problem for not doing his homework, if it gets repo'ed its his own fault.

If the OP didnt give a reciept, id be contacting the guy he sold it to and explaining that the car will soon be repo'ed, give him back his $1200 and then contact the guy with the AU and ask for his car back, if he refuses, report it stolen.

And i still cant get my head around who would swap a BF for an AU. As the AU owner i'd be questioning why a BF owner would want to back trade, alarm bells would have been going off for mine.

[XB GS 351 Coupe]

One big flaw in your plan, the vehicle is not stolen, it was handed to the first person. Reporting the vehicle stolen would be a criminal offence 100% guaranteed, as it would be making a false police report.

Stealing has a very simple definition and handing the vehicle to someone does not fit that definition. Simply not returning the vehicle is not stealing it.

If you ask to borrow my car to drive up the road to buy smokes or lunch and you then decide to drive around Australia for month using my vehicle before planning to return it my vehicle is not stolen, however if you sell the vehicle on it is stolen as you permanently deprived me of my car.

I lend it to you (a verbal contract) and you breached the contract by not returning the vehicle it is a civil matter. However if you planned the whole thing prior to borrowing my car to go up the road, it may be stealing of sorts (possibly fraudulent misappropriation). However for you to be criminally responsible I need to prove Mens Rea or guilty mind, meaning I have to somehow prove that you planned this from the beginning.

With the limited information here, it appears the second owner may have realised he had done the wrong thing and the vehicle may be repossessed, so he had a guilty mind when he sold the vehicle on and he knowingly intended to deprive the finance company of the vehicle, however most of this is speculation based on the limited information available here, and personally I believe there is a lot more to the story than what is posted here.

[XB GS 351 Coupe]

I can't willingly hand property to someone and then say it is stolen, it's not.

If I give you my car as a present and all of a sudden I want it back I can't go reporting it stolen. Or I can't swap cars with someone as the OP did and then decide I am not happy and say my car got stolen that would be fraud.

If it was that easy lets swap cars, I then sell my newly acquired car and report my other one stolen.

[Danny]

Am I missing something? In Victoria, don't Vicroads always check for encumberances on cars of which are a subject of a transfer of ownership?

They won't transfer the ownership of a car under encumberance for the exact reason we have here. I thought this was how it worked? You'd apply to transfer o'ship and then you'd get a call from Vicroads saying that they're unable to do it.

Maybe I'm wrong. But I am certainly gobsmacked at the bleeding idiocy of some people.

[XB GS 351 Coupe]

I don't think every state does this.

Not sure really never been dumb enough to buy an encumbered vehicle.

[Itsme]

Originally Posted by Danny

Am I missing something? In Victoria, don't Vicroads always check for encumberances on cars of which are a subject of a transfer of ownership?

They won't transfer the ownership of a car under encumberance for the exact reason we have here. I thought this was how it worked? You'd apply to transfer o'ship and then you'd get a call from Vicroads saying that they're unable to do it.

Maybe I'm wrong. But I am certainly gobsmacked at the bleeding idiocy of some people.

No they don't, the transfer form warns the purchaser to check for encumbrance or any other monies owing such as fines etc.

A car with encumbrance can slip through Vicroads vehicle transfer.

[You Yangs]

Since when did swaps become the norm? The only swaps i accept is with a fistful of Pineapples and Lime Splices.

[Dave3911]

Originally Posted by XB GS 351 Coupe

If you ask to borrow my car to drive up the road to buy smokes or lunch and you then decide to drive around Australia for month using my vehicle before planning to return it my vehicle is not stolen, however if you sell the vehicle on it is stolen as you permanently deprived me of my car.

The handling of theft offences varies around the country, but most states have specifics that handle motor vehicles differently from standard theft. I only have experience with Victorian law, and the statement you make above is completely false in Victoria. The Crimes ACT 1958 contains the following clarifier for theft, aptly named Sect 73 "Further explanation of theft". Specifically Sect 73(14)(a)

(a) for stealing a motor vehicle or an aircraft proof that the person charged took or in any manner used the motor vehicle or aircraft without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it; and

If the law didn't have these provisions, those who took vehicles for the purpose of a joy ride, only to return them later, wouldn't meet the basic definitions of theft you describe above.

If the circumstance occurred as you describe it above, and I lent my car to a friend for a quick trip to go get lunch and they don't return the car a month later - I could walk into any Victorian Police station and report the car stolen. Not only would they take the report, given I know the offender, they would charge them and the normal legal process would occur.

If, as you assert, these types of occurrences weren't covered by criminal offences and purely civil disputes, I could go and rent a car from AVIS for a single day, fail to return it that afternoon and drive around scott free awaiting a civil summons in the mail for breach of tort...... Go try that one, see how far you get!

[XB GS 351 Coupe]

Originally Posted by Dave3911

The handling of theft offences varies around the country, but most states have specifics that handle motor vehicles differently from standard theft. I only have experience with Victorian law, and the statement you make above is completely false in Victoria. The Crimes ACT 1958 contains the following clarifier for theft, aptly named Sect 73 "Further explanation of theft". Specifically Sect 73(14)(a)

(a) for stealing a motor vehicle or an aircraft proof that the person charged took or in any manner used the motor vehicle or aircraft without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it; and

If the law didn't have these provisions, those who took vehicles for the purpose of a joy ride, only to return them later, wouldn't meet the basic definitions of theft you describe above.

If the circumstance occurred as you describe it above, and I lent my car to a friend for a quick trip to go get lunch and they don't return the car a month later - I could walk into any Victorian Police station and report the car stolen. Not only would they take the report, given I know the offender, they would charge them and the normal legal process would occur.

They must have a different definition of stealing in Victoria.

IN NSW if a person takes a vehicle for a joy ride then they get charged with 'use conveyance without consent of owner' not 'stealing' as for stealing the person has to intend to permanently deprive the owner of the vehicle, without proving intend to permanently deprive there is no way in the world a stealing charge would successfully be prosecuted in a NSW Court as to permanently deprive is one of the proofs of the offence, and all proofs have to be met.

Originally Posted by Dave3911

If, as you assert, these types of occurrences weren't covered by criminal offences and purely civil disputes, I could go and rent a car from AVIS for a single day, fail to return it that afternoon and drive around scott free awaiting a civil summons in the mail for breach of tort...... Go try that one, see how far you get!

Depending on the persons intend it is nothing but a basic civil matter and in most cases is treated as such, unless you can somehow prove that it is anything but a breach of a contract. It is something hire companies regularly struggle with.

[khodeer]

He actually said he doesnt care about his credit name/history etc he said he is going to stop paying it and get it reposessed

[Itsme]

Originally Posted by khodeer

He actually said he doesnt care about his credit name/history etc he said he is going to stop paying it and get it reposessed

You are one special person, if someone did that to me I would be seeking revenge in an unkindly manner.

[khodeer]

I just took it on the chin and accepted that I had done the wrong thing as I didnt do the check first
He seemed so believable but at the end of the day it was my fault
He even cancelled the reg on it he just completely stuffed me around
and FYI I let the person know I sold it to knew about the encumbarance

[khodeer]

It was also during a rough time as my grandmother was passing and she passed away a week after the swap may god rest her soul
I didnt have time or the patience to go through the courts and persue it in a civil matter

[Danny]

oh my god.

[XB GS 351 Coupe]

Just out of interest what happened to your AU??

So now you have $1200 and no car?? and old mate got rid of his car and now cruses in your AU??

He seems to be a major grub

Hard lesson to learn, I bet you won't be making that mistake again.

[XG_Falcon]

Sounds like this guy is a real scum bag and I hope he gets what's coming to him.

Hopefully you've learned a lesson (even though this kind of thing is a harsh teacher).

[Iggle Piggle]

Just glad the OP is not into wife swapping...my head hurts thinking of the subsequent thread where he can't get his Mrs back and he passes Caitlyn with the deep voice on to someone else.

In SA we also have 2 classes of vehicle theft...

"Illegal use" = slap on wrist

"Larceny of a MV" = more serious, but probably only translates to slighly harder slap on wrist.

Difference is what was stated earlier...they have to prove you intended to permanently deprive the owner of their vehicle to charge them with the more serious "larceny" offence. Always thought it odd that scum could get in a pursuit and blow through red lights at 100km/h and still only be charged with illegal use...you do that **** and I don't think you are looking to avoid depriving the owner of their vehicle.

[T MAN]

Originally Posted by khodeer

I just took it on the chin and accepted that I had done the wrong thing as I didnt do the check first
He seemed so believable but at the end of the day it was my fault
He even cancelled the reg on it he just completely stuffed me around
and FYI I let the person know I sold it to knew about the encumbarance

if he could cancel the rego on the bf why cant you cancel the rego on the au or report it as stolen..

fight fire with fire..

[khodeer]

Cause like I said my grandma had just passed away the same time this was all going on and I have a very big family and I had no time to do all of this kind of stuff, karma will get him for what he's done as its out of my hands now

When I said I wanted to swap back he said he smashed the car and then I found it on Gumtree and he had sold it

And did you say one of your old mates is driving my AU?

[XB GS 351 Coupe]

Originally Posted by T MAN

if he could cancel the rego on the bf why cant you cancel the rego on the au or report it as stolen..

fight fire with fire..

Because it is not stolen, it's pretty simple to understand, how can you report something stolen that you traded for something else, no one stole anything.

So you trade your car in at a car yard for a lemon then because you are no longer happy with the deal you sell your new car and report your old one stolen

[T MAN]

just the same as how can the guy sell or swap his car knowing it had money owed on it, because he could and he did.
the same as how or why did he cancel the rego on him? because the guys could and did because hes an *******.


if the au was still in his name there is no reason he cant report it stolen. the au is not in his possession.
yes legally its not stolen, but who is to say it wasn't? the police don't know, they only go on the information given.

imo it stops being about morals or whats legal when someone is being an ******* to someone who afaik swapped cars in good faith.
and yes the op made the mistake of swapping in good faith without checking first, so that leaves him at a big loss.
but for the guy to straight out cancel the rego and stop paying the loan on the bf, then re sell the au to get a profit is a dog act.
its a shame we live in a world full of liars, cheats, thieves and assholes..