Percepción de los beneficiarios de los programas del Centro Pastoral el Salvador

Generally in English law, in case of default, the secured creditor is entitled to seizure of collateral by resorting to self-help remedies (recaption).140 Self-help remedies are favored, where available, for they are fast, they avoid legal costs, and can bypass procedural and substantive law obstacles to a judicial remedy. Matters are some- what complicated in English law due to the distinction between legal and equitable security interests. Yet once the right to take possession due to the debtor’s default was expressly reserved in the security

140. ROY GOODE, GOODE ON COMMERCIAL LAW 121 (5th ed., Ewan McKendrick ed. 2016).

instrument, it can be exercised regardless of the nature of the secu- rity interest.141 A secured creditor can seize goods without an order of the court, provided there is no breach of peace and there are no statutory restrictions.142 _{For instance, there can be no repossession}

of a good covered by a regulated agreement within the CCA mean- ing, without a fourteen-day notice to the debtor,143 and court orders are required in case the creditor must enter the premises of a debtor to repossess goods from the consumer-debtor.144

Judicial repossession can occur by order of the court, either di- rectly for possession or for the appointment of a receiver, who will have the power to take possession. Furthermore, the CCA provides that, in an action brought by the creditor to recover possession of goods to which the agreement relates, the court may either make an order (a return order) for the return to the creditor of goods to which the agreement relates, or make an order (a transfer order) for the transfer to the debtor of the creditor’s title to certain goods to which the agreement relates (the transferred goods), and return to the cred- itor of the remained of the goods (a return order).145

Return or transfer orders have limited power, for they do not al- low recovery agents to enter the premises of the debtor to recover possession of collateral, and do not entitle the holder to seek the as- sistance of police officers in the process. This is problematic be- cause the law states that if the debtor fails to comply with the return or transfer order, the goods to which the order relates but were not returned, the creditor must submit another application to the court. As a result of this subsequent judicial action, the court may revoke the part of the order that referred to the non-returned goods and order 141. Id. at 707-08.

142. BEALEET AL., supra note 64, at 623.

143. Consumer Credit Act 1974, c. 39, § 88 (UK), available athttps://perma.cc

/4VE6-HWJ5.

144. JUDITH TILLSON,CONSUMER AND COMMERCIAL LAW 196 (2011). See also Consumer Credit Act 1974, c. 39, §§ 90, 92 (UK), available at

https://perma.cc/UJU8-96H5 and https://perma.cc/9LX6-HT8Y, respectively.

145. Consumer Credit Act 1974, c. 39, § 133(1)(b) (UK), available at

the debtor to pay the creditor the unpaid portion of so much of the total price as is referable to those goods.146

The possible effect is staggering, for the (quasi-)secured creditor faces the risk to return to the initial situation, where the default of the debtor deprived him of both the payments and the collateral. This possibility undermines the very idea of secured status. Later on, the CCA states that refusal to deliver the goods at the request of the creditor may be deemed to be adverse to the creditor and entitles the secured creditor to bring a claim for damages in conversion. How- ever, this does not solve the main issue of non-payment, delays, or even impossibility to recover the collateral, for it does not empower the creditor or his/her agents to enter the premises of the debtor to take possession.147

Hence, when the goods whereabouts are known and the debtor did not comply with the return order, the creditor is entitled to apply for a writ of delivery. The procedure requires the creditor to pay an additional fee, but once obtained, the writ of delivery allows the creditor’s agent to access (on sight of goods) any lock-up, land, or garage (provided it is not attached to a dwelling house) and may use reasonable force in order to seize the goods.148 _{At the same time, a}

writ of delivery also entitles the holder to ask for the assistance of police officers in the process. They will ensure there is no breach of the peace whilst the goods are recovered. The writ takes about 10 days to obtain and is valid for a year after, which emphasizes the risk that within the 10 days period the debtor can move the goods to another location and hinder repossession efforts.149

Unlike the U.S. where judicial repossession is almost as fast as the self-help remedy, in the UK, judicial action poses an entire series 146. Id. at § 133(7).

147. On the issue of delays and hardships faced by creditors as well as on the alternatives available to them, see Insights: Return of Goods Orders - Under- standing Your Enforcement Options, OPTIMA LEGAL, June 2015, https://perma.cc /VZQ8-979V (last visited June 16, 2017).

148. Id.

of risks to the secured creditor, requires significant amount of time, additional costs and does not appear to be a viable alternative to self- help remedies (where they exist).