Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
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    Default Help re my car being repossessed

    Hi Everyone,

    I am new to this forum, so please feel free to shoot me down if I step out of line. I have been an active poster on other forums and have personally taken on banks over charges and unfair credit agreements. So, I hope to have something to give back.

    To the point. For my sins, I took out an unregulated car loan, in May 2007, with Capital Bank for some 80k, having put down a deposit of some 7k. Repayments are 1,200 a month.

    Everything was fine until earlier this year when the Credit Crunch hit my business. I have struggled with the repayments and come to various arranagements with Capital Bank, but am now virtually at the end of the line and having had the usual default notices issued, they are now set to repossess my vehicle. I am not sure when, but it could be any day now!

    Alongside all of this, I have served a SARicon on them to enable me to check to see if there was anything untoward about the agreement (I understand that if there is any secret commission to the dealer from Capital Bank, then there may be cause to challenge the agreement). SARicon take 40 days or more and it was some 3 weeks ago that it was served. So, this is one angle but not quick enough to save me if what I suspect (re secret commission) is correct.

    My business is starting to turn around now and should be back on track within a few months. So, I am looking to save the situatiton and not lose the car, if I can!

    I have studied various web sites and spoken to a few of the usual consumer organisations to try to establish my rights, with a view to buying a bit of time.

    Some say that , if I refuse to hand over the vehicle, they cannot take it off my drive without a court order. Others give the opinion that - yes they can!

    Can anyone clarify my rights in this area. And can anyone suggest any tactics that I could use to buy some time or how to effectively fend off the bailiffs

    Comments, experiences, advice would be much appreciated.

    Thanks


  2. #2
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    Default Re: Help re my car being repossessed

    This sounds as if you took out a loan and with some of that loan you bought a car. Is that correct or was some of the loan secured on the car.

    Why I ask is 80k seems higher than normal for a car, but then if your busniness was doing well at the time, why not get a class car.


  3. #3
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    Default Re: Help re my car being repossessed

    Quote Originally Posted by Conniff View Post
    This sounds as if you took out a loan and with some of that loan you bought a car. Is that correct or was some of the loan secured on the car.

    Why I ask is 80k seems higher than normal for a car, but then if your busniness was doing well at the time, why not get a class car.
    The loan is all car, I am afraid! And it is secured on the car. It is also a non-regulated agreement, which means that even though I have paid more than a third of it, they will not have to go to court to take it back!

    Yes business was doing well some 2 years ago when I got the car. Cars have always been by passion and now, quite possibly my downfall!!

    I am seeing solicitors later today, to see what they suggest.

    However, any constructive advise would be most welcome.


  4. #4
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    Default Re: Help re my car being repossessed

    Can you confirm that the loan was taken our before 6th April 2008 as after that date, all secured loans, no matter how much the loan is for, are regulated under the consumer crediticon act.

    If you don't want to lose the car and incure the inevitable fees that will bring, have you tried to renegotiate the loan with the finance house?
    They will sell the car at auctionicon and you will have to make up the shortfall.

    It won't be 'bailiffs' that come to collect your car as bailiffs can only come through the courts, so they will be just debt collectorsicon who have no legal power whatsoever.

    Can you lock the car away so that they can't see it, that could give you the time to get back on track. If it should go to court, the judges are very reluctant to order the hand over if you can show that you can pay the installments and something off the arrears as well.
    A court appearance could be good for you because of this and will probably take a few months to get organised.

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    Smile Re: Help re my car being repossessed

    Quote Originally Posted by Conniff View Post
    Can you confirm that the loan was taken our before 6th April 2008 as after that date, all secured loans, no matter how much the loan is for, are regulated under the consumer crediticon act.

    If you don't want to lose the car and incure the inevitable fees that will bring, have you tried to renegotiate the loan with the finance house?
    They will sell the car at auctionicon and you will have to make up the shortfall.
    Thanks. that is very useful information regarding the regulation of the loan, if what you say is correct then regardless of how they label it, they would have to go to court to take the car back. And if they did not, then they would have acted incorrectly and I would have an action against them.

    The loan was taken out on 29th May 2007. I have appended a copy of the agreement.

    With regards to the consequences of reposssession of the car, I am aware of these. Also hefty charges have clocked up already. I have served a Subject access requesticon (SARicon) on the bank. Once I get a response from them, I will be fighting them over the charges. Also, I will be looking to see if there is any undisclosed commission on the loan; so, if the Jag dealer took a commission on the loan and that was not made transparent in the agreement, then they could be in serious trouble.

    On the subject of negotiating with them, this is a bit of a funny one! Depends who you get when you call them. Last week - they said "no dice - you have bounced a couple of cheques on us - pay up or lose it" Today, I called and must have got a fellow petrol head on the phone! I proposed to pay 450 early next week and then the same weekly; he said that would be Ok!! he also admitted that they had incorrectly sent out the Default notice and would have to re-send it anyway! I wonder if that department is aware of my SAR ?

    My business is turning around nicely now and I am in with a chance of keeping up with this arragement or at least holdng on until the SAR information comes back, at which point there may be a serious legal discussion to be had!

    Re locking away the car. My garage has been converted into a room - so the car is on an open drive.

    I appreciate the comments made - the info with regards to agreement is gold and will be a useful weapon to keep in reserve. Many thanks.

    Any other comments / help would be appreciated.

    And please - no body say how stupid I have been to pay that much for a car - that's my wife's job

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    Default Re: Help re my car being repossessed

    Quote Originally Posted by gramtrad2
    And please - no body say how stupid I have been to pay that much for a car - that's my wife's job
    That's because you only bought her a bike


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    Default Re: Help re my car being repossessed

    Was the loan taken out by you on your own behalf, or as a director of a business (partnership/Ltd company etc)? Capital are pretty inflexible, but if you only need a little breathing spave, they may offer you a limited waiver - so it could be in your interesticon to advise them of the short-term difficulty and ask for their forbearance. You've got nothing to lose.


  8. #8
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    Default Re: Help re my car being repossessed

    Quote Originally Posted by buzby View Post
    Was the loan taken out by you on your own behalf, or as a director of a business (partnership/Ltd company etc)? Capital are pretty inflexible, but if you only need a little breathing spave, they may offer you a limited waiver - so it could be in your interesticon to advise them of the short-term difficulty and ask for their forbearance. You've got nothing to lose.
    It was a personal loan.

    Re Capital Bank flexibility - I have struck a deal with them; see my earlier post at 12.18. Have to get working hard to try to keep it!


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    Default Re: Help re my car being repossessed

    Quote Originally Posted by gramtrad2 View Post
    It is also a non-regulated agreement
    How so, out of interesticon?


  10. #10
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    Default Re: Help re my car being repossessed

    Quote Originally Posted by My Real Name View Post
    How so, out of interesticon?
    Hi,

    It says "non -regulated agreement" on it, but there is a question mark over that - see Connifs earlier comments.


  11. #11
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    Default Re: Help re my car being repossessed

    Hi,
    Back again on this topic!!

    I have been trying to do a bit of reseach on Unregulated Agreements.

    What I have read on a car forum is that there was a change in the consumer crediticon Act in 2006 which indicated that all agreements subsequent to that amendmenticon would automatically come under the umbrella of the Consumer Credit Act. Is this correct ?

    If so, my agreement, taken out in May 2007 should be covered under the Act, despite whatever name they put to it!

    Any views please?


  12. #12
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    Default Re: Help re my car being repossessed - secret commission identified

    An Update.

    Time has moved on now and I was forced to hand back my car, earlier this year, because I could not keep up payments. I surrendered it voluntarily to avoid the embarrassment of someone taking it off the drive!

    I am being chased for a sum of some 21k to cover losses under the agreement.

    However, I have not given up the fight! I have served various SARs on the lenders and their agents. Finally, I have managed to get them to admit that there was a secret commission paid to the Jaguar dealer for setting up the loan for me! I now have this in writing.

    So, we now have a situation where I was issued with an agreement in which there was no indication that a commission had been paid to the agent who supplied the car and set up the agreement. I am well aware that this is sort of non disclosure is a "no no" in contracts such as mortgages. However, in my case the agreement (above 25k) is unregulated. Does anyone know if I will have case against the finance company? And if so, what should I be aiming to achieve?

    I would appreciate a view on this.

    Many thanks.


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    Default Re: Help re my car being repossessed

    Dontt pin your hopes on this 'secret commission'. How on earth did you think the dealership got paid for all the extra work in arranging finance and doing the paperwork, when compared to if you turned up with a suitcase of notes and they gave you the keys?

    Finance commissions are standard, and are a commercial arrangement between the dealership and the finance house. The reason why it has nothing to do with you, is that it forms no part of your contract with the finance house. The amount the dealer gets paid is calculated on the value of the amount financed, the percentage rate, and the duration of the loan. The dealer is not morally bound to provide you with the 'best' deal, just one you'll accept and sign for. The reason why there is competition between finance houses for garage business is that some will offer a higher percentage to the dealer in exchange for them placing the business with them. There may be cheaper deals available (to you) but since the dealer will go for the one he likes best (for his bottom line) and based on perhaps the amount of finance he placed with that company in a given month or quarter, this has no relevance to your arrangement, even under the CCA arrangements. This will be a blind alley that will not assist your goal.


  14. #14
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    Default Re: Help re my car being repossessed

    Quote Originally Posted by buzby View Post
    Dontt pin your hopes on this 'secret commission'. How on earth did you think the dealership got paid for all the extra work in arranging finance and doing the paperwork, when compared to if you turned up with a suitcase of notes and they gave you the keys?

    Finance commissions are standard, and are a commercial arrangement between the dealership and the finance house. The reason why it has nothing to do with you, is that it forms no part of your contract with the finance house. The amount the dealer gets paid is calculated on the value of the amount financed, the percentage rate, and the duration of the loan. The dealer is not morally bound to provide you with the 'best' deal, just one you'll accept and sign for. The reason why there is competition between finance houses for garage business is that some will offer a higher percentage to the dealer in exchange for them placing the business with them. There may be cheaper deals available (to you) but since the dealer will go for the one he likes best (for his bottom line) and based on perhaps the amount of finance he placed with that company in a given month or quarter, this has no relevance to your arrangement, even under the CCA arrangements. This will be a blind alley that will not assist your goal.
    Thanks, Buzby.

    Looks like I have been barking up the wrong tree!

    So, now stuck with sorting out a 21k loss. Ouch.


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    Default Re: Help re my car being repossessed

    it will be a problem this comission if you ended up paying it in your agreement

    you need to know this

    1/ price of the car from the dealer (invoice)

    2/price (amount of credit) on the agreement

    if the dealer comission payment has been worked into the agreement without informing you then look up

    wilson v hurstanger and breach of fiduciary duty


  16. #16
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    Default Re: Help re my car being repossessed

    I have decided to have a go at this, based on Wilson v Hurstanger and breach of fiduciary duty.

    Re postggj's comments, I have the invoice and the credit agreement. The position is not crystal clear, but I would think that the secret commission is hidden in the "charges" element.

    I am appending the following docs:

    1. Agreeement
    2. Invoice
    3. Court Notice of Fast Track Allocation

    The Court case has been set for Aug 2011. I should be grateful if someone would assist me in getting my submissions in order. With regards to doc 3 above - can someone please advise me as to what is required for the following :

    1. Standard disclosure (needed by 11th May)
    2. Requests for copies/ inspection (by 18th May)
    3. Pre-trial checklist (by 16th July)
    4. The bundle must be lodged by five working days before the trial
    5. Parties may apply in accordance with CPR 3.3 (5) & (6)

    I want to get this right. Last time I went to court and may have to pull in a local solicitor to assist if I do not feel confident enough!

    Comments appreciated.

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  17. #17
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    Default Re: Help re my car being repossessed

    Quote Originally Posted by gramtrad2 View Post
    Attachment 27318I have decided to have a go at this, based on Wilson v Hurstanger and breach of fiduciary duty.

    Re postggj's comments, I have the invoice and the credit agreement. The position is not crystal clear, but I would think that the secret commission is hidden in the "charges" element.

    I am appending the following docs:

    1. Agreeement
    2. Invoice
    3. Court Notice of Fast Track Allocation

    The Court case has been set for Aug 2011. I should be grateful if someone would assist me in getting my submissions in order. With regards to doc 3 above - can someone please advise me as to what is required for the following :

    1. Standard disclosure (needed by 11th May)
    2. Requests for copies/ inspection (by 18th May)
    3. Pre-trial checklist (by 16th July)
    4. The bundle must be lodged by five working days before the trial
    5. Parties may apply in accordance with CPR 3.3 (5) & (6)

    I want to get this right. Last time I went to court and may have to pull in a local solicitor to assist if I do not feel confident enough!

    Comments appreciated.
    Bump.

    Anyone?


  18. #18
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    Default Re: Help re my car being repossessed

    Hi Folks,

    Help!

    I am close to going to court on this one and am in e-mail correspondence with the opposing party's solictors.

    I have to produce a witness statement and intend to set out my arguments that Hurstanger v Wilson should apply. I am proceeding on this basis having discovered a secret commission and will allege a breach of fiduciary duty.

    The opposing party's solicitors are suggesting that Hurstanger v Wilson does not apply and quote Branwhite v Worcester Works Finance Ltd (1968) as having set a president

    Indeed, I have just picked up this extract from a student law journal (online) :

    "The general principle is that the retailer who sells goods to the finance company under an unregulated agreement is not the finance company's agent unless exceptional circumstances apply:
    Branwhite v Worcester Works Finance Limited [1969] 1 AC 552. "

    Am I undone by this argument, or is there any mileage in the Hurstanger v Wilson argument ?

    I should be very grateful if someone "in the know" could comment on this for me and if possible suggest a line of attack.

    Many thanks.


  19. #19
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    Default Re: Help re my car being repossessed

    Quote Originally Posted by gramtrad2 View Post
    Hi Folks,

    Help!

    I am close to going to court on this one and am in e-mail correspondence with the opposing party's solictors.

    I have to produce a witness statement and intend to set out my arguments that Hurstanger v Wilson should apply. I am proceeding on this basis having discovered a secret commission and will allege a breach of fiduciary duty.

    The opposing party's solicitors are suggesting that Hurstanger v Wilson does not apply and quote Branwhite v Worcester Works Finance Ltd (1968) as having set a president

    Indeed, I have just picked up this extract from a student law journal (online) :

    "The general principle is that the retailer who sells goods to the finance company under an unregulated agreement is not the finance company's agent unless exceptional circumstances apply:
    Branwhite v Worcester Works Finance Limited [1969] 1 AC 552. "

    Am I undone by this argument, or is there any mileage in the Hurstanger v Wilson argument ?

    I should be very grateful if someone "in the know" could comment on this for me and if possible suggest a line of attack.

    Many thanks.
    BUMP! Any views please. I am up against it; trial date 8 Aug 11 !!!!


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    Default Re: Help re my car being repossessed

    i am now looking into this but the quote from the sols

    UNREGULATED AGREEMENT COMES TO MIND

    IS YOURS A REGULATED AGREEMENT????

    WHAT IS BEING SOLD AT THE END OF THE DAY IS A REGULATED AGREEMENT UNDER THE CCA 1974 AND ANY COMMISSION PAYMENTS ARE BEING INCLUDED IN THE AMOUNT OF CREDIT, AND NOT INFORMING THE DEBTOR/CUSTOMER OF THIS FACT



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