Car Hire Purchase Agreement Question

[Toulose LeDebt]

As you're short of time here I've put a few words together if you get stuck on your deadline. You've been getting some very good help from the Caggers on this thread, good luck!!

 

In November 2008 the defendant served a request upon the claimant pursuant to Section 78(1) of The Consumer Credit Act 1974 (CCA), the claimant failed to comply with this lawful request and thus whilst in breach of this Sec 78(1) CCA request the claimant was unable to enforce the agreement (CCA 78(6)(a)).

 

Due to the defendants wife falling ill upon the day of the hearing in March (**/03/2009 the defendant was unable to attend the hearing and thus the defendant was unable to bring the claimants failure to comply with the Sec 78 request to the attention of the Court.

 

Since the defendant was unable to appear at this hearing, the claimants failure under Sec 78 of the CCA was not made known to the Judge and judgment was awarded in default.

 

 

At the subsequent hearing to have this judgment set aside **/**/2009 the defendant was able to bring the Sec 78 breach to the attention of the Judge who ordered the claimant to comply with the request by producing a legible copy of the agreement and terms & conditions of this agreement within 7 days. At this hearing the Judge ordered that the order of **/03/2009 be set aside

but the vehicle which had already been repossessed under this order was subsequently not returned to the defendant despite the claimant having no effective Court order granting possession. The claimant did not comply with the order of the Judge at this hearing and took until August 2009 to produce an enlarged copy of the original agreement, (this copy was simply a blown up version of the previous document not a better more legible copy). The claimant remains in breach of the order to produce a legible copy of the terms and conditions of the agreement.

 

The supplied copy of the agreement fails to meet the requirements of the Sec 78 CCA request on technical grounds.

 

At some time after the hearing at which the order granting possession to the claimant had been set aside, the exact date is not known but it is believed to be in July, the claimant sold the vehicle.

 

At the time of sale of the vehicle there was no Court order in existence granting possession to the claimant.

 

Since the defendant had paid more than one third of the amount of the agreement the terms of Sec 90(1)(b) of the CCA were met and the claimant was thus not lawfully entitled to have or take possession of the vehicle without an order from the Court.

 

Without a Court order granting possession the claimant was in breach of Section 90 of The Consumer Credit Act 1974 at all times between the date of the hearing to set aside the order of possession and the time of sale of the vehicle and being in breach of the condition set out in Sec 90(1)(b) of the CCA the claimant was not lawfully entitled to dispose of the vehicle which should have been returned to the defendant when the possession order ceased to exist.

 

The remedy for a breach of Section 90 of the Consumer Credit Act 1974 is set out in Section 91 of this Act which I reproduce here.

 

Section 91 CCA 1974

 

91.

Consequences of breach of s. 90.

If goods are recovered by the creditor in contravention of section 90—

(a)the regulated agreement, if not previous terminated, shall terminate, and

(b)the debtor shall be released from all liability under the agreement, and shall be entitled to recover from the creditor all sums paid by the debtor under the agreement.

 

The defendant avers that the claimant first became in breach of Sec 90 CCA when they failed to return the vehicle after a reasonable period when the original Court order granting possession was set aside.

The defendant avers that the claimant disposed of the vehicle at a time when no Court order granting possession to the claimant existed and that such possession and subsequent disposal of these protected goods represents a breach of Sec 90 of the Consumer Credit Act 1974 since the terms set out in Sec 90(1)(b) were met and the claimant did not have a valid Court order as prescribed within section 90.

 

The defendant seeks the following remedy pursuant to Sec 91 of the Consumer Credit Act 1974:

 

That pursuant to Sec 91(a) of the CCA the agreement be deemed terminated.

That pursuant to Sec 91(b) of the CCA the defendant be released from all liability under the agreement.

That pursuant to Sec 91(b) of the CCA the claimant be ordered to return all sums paid by the defendant under the agreement.

 

The defendant has attached a financial statement of this account which he believes to be accurate, the claimants failure to provide such statement under the Sec 78(1) request has severely prejudiced the defendants ability to ensure that all payments made by the defendant appear in this account but states that any omissions from this account are de minimus and in favour of the claimant in each instance.

 

The defendant seeks full payment of the sum set out on the attached financial statement of the account with interest claimed under Sec 69 of the County Courts Act 1984 at the rate of 8% per year.

[Toulose LeDebt]

 

Do you think the cca request which went in the form of a letter in Oct/November, but not in the format as we caggers know it will make any difference without the £1? postgg thinks as long as we have the acknowledgment (which we have) as a request for a copy then that should suffice, just wondered how you feel the Judge may view that with regards to a reference of breaching a CCA request?

 

 

Since you have written acknowledment from the Finance Co and the Judge at the previous hearing has made an order that they produce the agreement and T&C's this shouldn't be a problem. However wrongly the original request was made, there's no escaping the fact that the claimant was ordered to produce documents by the Judge.

I set out the case as your friend believes it stands. If the claimant were to make any argument over whether the CCA request was valid it is now actually of very little consequence to the matter.

 

What your friend is doing is not arguing that the Sec 78 request was not complied with, that's just a statement he believes to be true.

 

Your friends argument is simply that as a result of the April? hearing the possession order was set aside, the reasons for that are not important at this stage, all that matters is that it was set aside and the claimant had due notice in which to apply to have that decision varied, stayed or overturned and failed to do so.

 

 

Whatever the rights and the wrongs surrounding any of the earlier hearings or disclosure, this legalities of this case changed drastically when the claimant first failed to return and then subsequently disposed of the vehicle.

Instead of being the 'normal' argument over whether the agreement is enforceable etc. you can ignore all that and go straight for unlawful repossession and recission of the agreement with the Sec 90 breach.

 

The above statement simplifies matters by introducing the sec 90 breach and 91 remedy so there's no need to get involved in the nitty gritties of the agreement as the whole case against your friend has at this stage been reduced to one single point.

 

The over riding question facing the Judge now is simply:

 

At the time of sale did the claimant hold a valid Court order granting them possession?

 

 

They didn't:- We know it, they know it and the Court know it or will know it very soon. Therefore the claimants possession and ultimate disposal of the vehicle was in breach of Sec 90 CCA 1974.

 

They can argue that the sec 78 request was not valid all they like but that request was later superceded by the Judge ordering them to produce certain docs anyway. Strictly speaking the original should be made available to the Court so you would have had them over producing a copy had they made the effort.

 

They sold the vehicle whilst in default of the Court order requiring this documentation to be produced and at a time when no Court order awarding them possession existed.

 

Even had they produced the original agreement in Court (as they are indeed obliged to) the fact remains that there was no possession order in their favour.

 

Don't lose sight of this fact it's what in all likelihood will win your friend his case.

Edited September 7, 2009 by Toulose LeDebt

[Toulose LeDebt]

I've had a very long few days and myeyes are tired so I read 'donation' as 'domination' and thought 'me too'.

 

ps don't forget to ask that any adverse entries recorded against your friend be removed and the account marked as satisfied with all CRA's.