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Gaston Grimsdyke

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Everything posted by Gaston Grimsdyke

  1. Sale of Goods Act does not apply. It is a hire purchase agreement not a sale agreement, so it's the Supply of Goods (Implied Terms) Act 1973 which governs your agreement. Also the "6 month rule" where any faults in the first 6 months are deemed to be there at the date of the agreement unless the finance co can prove otherwise does not apply to hire purchase agreements. So you have the burden of proving that there were faults at the date of the agreement, although based on what you say I don't think you'll have much trouble with that. You are too late to reject the vehicle. You have carried on using it in the knowledge of the faults, so you are deemed to have accepted it. You are still entitled to damages, however (i.e. repair costs, loss of use etc). The CAB advice was really poor. Having lost the right to reject, you are still bound by the HP agreement which means you have to continue making the payments. You are in breach of agreement by stopping the payments so the finance co is entitled to recover the vehicle and sue you for the balance owing under the agreement. However, you have a counterclaim for damages for the faulty vehicle. Sounds like you are being pushed from pillar to post by the finance co and the dealer and court proceedings could get messy. Can you afford a solicitor?
  2. What exactly did they fail to provide you with - a signed agreement or any agreement? Bearing in mind they are not obliged to give a signed copy under s78.
  3. Yes, to remedy the breach the arrears set out in the DN are what needs to be paid, not any amounts that have not yet contractually fallen due. The only way to remedy the breach would have been to pay those arrears in full. If the OP made an arrangement with the creditor to pay them beyond the expiry date of the DN, partial compliance with that would not mean the breach was remedied. At best it would be an agreement for the creditor to forbear from terminating the agreement, but that forbearance would cease if the arrangement was breached. Was there actually an arrangement or just a promise by the OP?
  4. Check what section 88 said in 2005. I think you'll find that the period for compliance was less than 14 days; it was increased to 14 days by the 2006 Act. Did the OP clear the arrears in full by 11 April, or just comply with some promise to pay some of the arrears? Obviously only discharging the full arrears could have remedied the breach.
  5. Why are you wasting your time with this? The CCA is irrelevant as your agreement is not regulated by the CCA. And don't try any of the Freeman of the Land garbage, you'll just label yourself as a debt evader and harden the creditor and court's approach to you.
  6. This will not happen. A bankruptcy court will only consider two matters: 1. Does the debtor owe more than £750? 2. Can the debtor pay that off immediately? Clearly, in this case, whilst part of the debt might be disputed, a sum well in excess of £750 is not. And it is clear the OP cannot pay that off immediately, and is providing the court with perfect evidence of that by asking to pay by instalments. Section 271(3) does not give the court power to consider whether the creditor should accept instalments, it only enables the court to consider whether an offer of security has been unreasonably refused. An instalment offer is not security. The OP has two choices. First, persuade the creditor to voluntarily consider instalment payments. The court won't. Second, offer the creditor security i.e. a charge over his house. Obviously he would want that supported with some kind of undertaking that the creditor will not enforce the charge provided agreed instalments towards the debt are paid. All that will be achieved by trying to get the demand set aside because the OP wants to pay by instalments is to increase the debt because the application will be dismissed and the OP will have to pay the creditor's legal costs.
  7. Yes, I am saying you should not waste your time with an application to set aside the stat demand. If you a) admit you owe a sum in excess of £750 and b) can't pay it off in full immediately, then you are insolvent and the court would have to make a bankruptcy order if a petition was issued. A bankruptcy court cannot make an instalment order, you can either pay the entire debt immediately or you can't. I do not, however, suggest you let them go for a petition. That is the worst thing that can happen, because at the hearing the judge will ask you if you can pay the full debt immediately, and if you say "no" you will be made bankrupt with horrendous consequences. Do not fall into the trap of thinking you can make an offer of instalment payments at a bankruptcy hearing .Your best bet is to communicate with the creditor and try and get them to agree to an instalment arrangement - I can't believe they want to make you bankrupt, but they probably will if you do nothing.
  8. The judgment might have been handed down in 2007, but dealt with events in 2000 so was decided on the old law. It is a spectacularly bad idea to try and get a statutory demand set aside on the grounds that you want to pay by instalments. What you are in fact doing is proving that you are indeed insolvent, because you cannot discharge your debt immediately. That actually increases your prospects of being made bankrupt. Also, disputing the interest will get you nowhere. Provided you owe more than £750, the court will not care whether the debt is £751 or £10,000. The court will make a bankruptcy order and leave it to the trustee to decide exactly how much you owe, and as you admit owing 10K plus you've got nowhere to go with an application to set aside the demand. There is no need for a CCJ to exist before issuing a bankruptcy petition. I doubt very much the creditor wants to make you bankrupt, and that the real reason for serving the stat demand was to force your head above the parapet, so it's mission accomplished there. I am sure they will consider reasonable instalment proposals so I suggest you call the person named as the contact on the demand and sound them out about paying by instalments. Don't waste time because if they issue a bankruptcy petition, unless you can pay the whole debt off the court will have to make a bankruptcy order and you will likely lose your house eventually.
  9. This CCA stuff is all irrelevant because gambling debts are not regulated agreements. No credit has been given so the CCA doesn't apply.
  10. You don't have a claim against them. Once you terminated, that was it. You cannot unilaterally change your mind. So you couldn't stop them taking the car, and they didn't need a court order. You possibly have a claim for breach of statutory duty for the taking from private land, but even if you do it's worth about a tenner.
  11. When is your payment due date? You should VT as close as possible a due date, that way you get to use the car for up to 30 days free. For example, if your due date is the 15th July, your VT liability would be exactly the same on 16th July as it would be on 14th August, so why not use it up to the very last minute? There is no concept of part monthly payments. I would fax over your letter on the day before your next instalment falls due, that will be sufficient for the purposes of section 99.
  12. LOL! Still good law and used in court though! As is L'Estrange v Graucob.
  13. To be expected when we don't have a codified legal system. You won't find the concepts of offer, acceptance and consideration in any statute either but they are still established principles of law.
  14. There isn't a statutory authority, it is the common law that a party can recover its losses flowing from the breach of contract by the other party. In the case of a hire purchase agreement, that means the balance of all sums which would have been paid had there been no breach. In other words the full purchase price less what has been paid, less the sale proceeds of the vehicle if repossessed. This is established by cases such as Hadley v Baxendale and Dunlop v New, it's all trite law.The common law is modified by statute in the case of a hire purchase or conditional sale agreement regulated by the CCA, in that the amount owed by the hirer is limited if the agreement is terminated by the hirer under section 99 of that Act. It's an exception to the common law rule.
  15. Yes it is lawful, because Parliament say so and judges can't interfere with that.
  16. Show me where I said any different. What? Are you trying to say advancing payment by reason of early termination is a penalty?
  17. Not talking about a VT. Talking about whether a termination clause by itself is a penalty clause. No it isn't, because it only provides for recovery of actual losses. The VT liability is a loss for the creditor and a benefit for the debtor, so that's why creditors don't like them and will make sure they mark against a debtor's credit file that he has VTed so any future potential lender can load his rate to reflect the increased risk of a loss.
  18. Again, it is not a question of knowledge of the law, it is a question of knowledge of the facts. Not sure if it is up on Bailii, but the Court of Appeal decision in Ginn v First Plus might be instructive.
  19. Exactly so, and those charges can only represent the creditor's actual losses associated with the default e.g. costs of running a collections department, producing reminder letters etc. The default charges cannot be a source of profit as well, otherwise it is a penalty clause.
  20. Really? So how much extra profit does a creditor make from a debtor who defaults and they terminate, repossess and sell compared to a debtor on an agreement that runs its course? If the answer is nothing (which it is) then it's not a penalty clause. The fact is that the VT calculation is a creature of statute and a departure from the general common law. Why should a debtor get the advantage of a rebate before he has actually made any accelerated payment of instalments? Have a read of Forward Trust v Whymark.
  21. To repeat, it's concealment of facts, not law. The facts in question being the repossession of the vehicle and how much had been paid under the agreement, which of course were facts known to the OP at the time. Whether knowledge that those facts amounted to a breach of the law and a cause of action is not relevant for limitation purposes. That's why all the CMCs are getting hammered on PPI claims right now.
  22. I'll ask Francis Bennion next time I see him, but in the meantime you have to remember that the liability following a creditor termination is not per se a penalty. It represents the creditor's actual loss on breach i.e. the return of its capital outlay and compensation for loss of bargain, being the interest on that capital outlay (less of course a discount for early payment in the form of a rebate at the date of actual payment, not the date of termination). It that respect it is no different to the sums due on termination on a motorloan or personal loan, or indeed a mortgage where there is a shortfall after repossession and sale of the property. It is only a penalty when directly compared to a VT liability in that a customer in breach pays more than a customer not in breach. The notion that Parliament deliberately removed the 50% liability for creditor terminations in 1974 to endorse full liability is reinforced by the changes to the more recent Default Notice Regulations which brought into force the requirement that the debtor's right to terminate is set out in the Default Notice, thereby informing the debtor who is in breach that he still has the right to avoid full liability by exercising his right to terminate before the creditor can get in. That is also why the exact amount to be paid on a VT is required to be inserted into the Default Notice, so that a debtor can evaluate whether to allow the creditor to terminate or terminate himself. All this happened post Siddons so no judge is now going to follow Siddons because now a debtor in breach who nevertheless fails to then exercise his right to VT is bringing the "penalty" upon himself.
  23. Perhaps the OP could clarify exactly what the agreement date was and its term i.e. 36 months or whatever. Would save going down any blind alleys about VTs. She has no defence on limitation to a claim by the creditor because she has extended limitation to another 6 years every time she made a payment after the car went back. Might have an estoppel defence though, and quite possibly a claim of her own to the return of payments made in the last 6 years as payments made by mistake (no payments being due because the agreement came to an end the moment the creditor took possession of protected goods), on the assumption a court accepts that the VS was not a genuine VS but was illicitly obtained by the repo agent. Again, s32 won't help her because her "mistake" in not knowing the agreement came to an end when goods were repossessed illegally is not a mistake someone who had acted with reasonable diligence would have made. No court will accept that being ignorant of the law is a good reason. It's an objective not a subjective test.
  24. Don't think the account statement is much use in determining when the term of the agreement expired, it shows the dates payments were made not when they were due. Unfortunately the copy agreement posted up seems to have the key dates redacted, but the OP makes it clear in the very first post that she missed the last 3 payments in Jan 2005 - in other words that the term of the agreement expired in Jan 2005. That being the case, the agreement cannot possibly have been terminated thereafter whether by the OP or by the creditor. You can't terminate something that has already come to an end (and anyway it makes it clear in the language of section 99 itself when it uses the expression "at any time before the final payment is due"). So there is no point even considering a VT in this case because it was never an option at the time the events in question took place. Whilst you are correct that there is no specific format a VT has to take (so long as it is in writing and is intended to end the agreement that is efficient), and I agree a VS could be construed as a VT because of its language, given that a creditor is only ever going to try to get a VS if it has terminated the agreement because of breach, or because the term of the agreement has expired the reality is that a VS cannot be a VT because the right to VT has already been lost by then. So, assuming the VS was not genuine because the OP was bullied into signing it, that is a clear breach of s90 and the OP could have recovered all her monies under s91. The cause of action is a breach of statutory duty and probably a breach of contract as well, and that cause of action arose when she was bullied into signing the VT in June 2005. Limitation is 6 years for both causes of action, and that time has gone. Section 32 of the Limitation Act is not going to help for 2 reasons: 1. It is concealment of the facts not the law that must be established. What were the facts? The fact that the agent bullied the OP, and when did the OP realise this? Immediately of course. What it is alleged was concealed was that this bullying was illegal, which is a matter of law and not relevant. It is exactly the same as the host of PPI cases which have lost on limitation recently when the customers have tried to rely on section 14A of the Limitation Act to extend the primary limitation period. They have all lost because they knew of the facts giving rise to the mis-selling (i.e. that they were self-employed at the time, or whatever) when the PPI was sold; the argument that they didn't realise until later (when they read articles in the papers) that these facts gave them a claim against the seller fails because that is the date of knowledge of the law which is irrelevant. Here's an article on it: http://www.lexology.com/library/detail.aspx?g=a3dd684e-bb83-452e-bb27-52899ec1035e 2. It's an objective test anyway, i.e. not the date the OP discovered the alleged concealment, but the date a reasonable consumer would have discovered it. And what would a reasonable consumer have done after being browbeaten into signing the VS? Gone and got advice of course, which would have immediately identified a claim against the creditor. The fact the OP left it for more than 6 years is fatal.
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