Repo order help with defence needed.

[cosalt]

Hiya,

 

I have a finance agreement on a vehicle that I am struggling to pay. I only have 8 payments of a 37 month agreement left to pay.

 

Last months direct debit was returned and so we are 1 month in arrears, I have phoned them and they are totally inflexable, the best they can do is offer to take a double payment this month, which is impossible ( we will struggle to make the one payment )

 

I know I could do a voluntary termination and return the vehicle, but the vehicle is not used any more and is in poor condition, no mot, somke damage etc so they would charge.

 

The thing is the HP agreement I signed is incorrect, I noticed this after getting involved with another HP agreement thread on here.

 

Basically they have added my acceptance fee of £150 onto the agreement and spread it over the term, charging interest on it. But it is not included in the total amount of credit stated in the agreement. Not only have they admitted it to me over the phone, but when you calculate the interest charges on the amount of credit, the charges are based on an amount £150 higher than what is shown.

 

Please could someone help as to what to do, they wont pay ball on reducing any payments, but I know if they took me to court the agreement is invalid which presumably means I could get all my money back.

 

Thanks in advance.

[cosalt]

Thanks so much, will scan it now !

[cosalt]

Here we go, cant believe how long that took me !

 

[cosalt]

Thanks for that, for what reason would they owe me money ?

[cosalt]

ive noticed some thing

 

they should have signed and dated the agreement after your sig to execute agreement

 

cant see that

 

Yes you are right, and that is the copy of the agreement they have sent me with the letter saying when my payments start etc.

 

It even says on the agreement:-

 

"In no circumstances, even if you are in possession of the goods, will it become a binding agreement until it has been accepted by signature for and on behalf of Carlyle Finance"

 

[cosalt]

things like acceptance fee etc are not part of the goods

ie

the car

they are not part of the credit

 

the charges need to be included in a seperate colum, then added in total ammount payable

not bundled togeather

 

it still confuses me a bit but in your case

you have been paying interest on the acceptance fee for 30 months

that can be reclaimed

 

but wait for confirmation

 

did they sign and date after your sig

 

So this means I can only claim interest on the £150 ? Thats only £16.88 !

 

They have not signed the agreement, the copy they sent to me is what I have scanned.

[cosalt]

Thanks Atwozee for the great response.

 

I work out the repayments to be correct, even though it says the agreement is 37 months, it says repayments start 2 months from the date of the agreement. The timing of payments part is worded a bit vaguely, but in essence I see it as saying 36 payments including a final one of 214.03. And that does make £7355.08.

 

However I cant see how the amount of credit can be correct, amount of credit presumably means the amount of money they have lent me. And they have lent me the £150 arrangement fee so it should be included.

 

Infact it actualy says at the bottom of the other financial information box how they calculate the interest. It says:-

 

" interest is calculated by multiplying the amount of credit ( including, for vehicle HP, the arrangement fee if spread ) by the fixed interest rate"

 

To me that implys that the arrangement fee is included in the stated amount of credit ( which it is not ), otherwise it would say "the amount of credit plus the arrangement fee"

[cosalt]

Ok, I will have to hope the fact that they have not signed it, and that they actually say that it is not binding unless signed by them will be enough.

 

Why can't finance companies just be reasonable, I only wanted a little help on the remaining payments, they have already had back the cost of the vehicle.

 

One thing is for sure, I will not drop it, if there is anyway out of this agreement I will find it ! With the help of cag of course !

[cosalt]

hi cosalt

 

glad you are getting replies now

 

we will soon get to the bottom of this

 

good hunting

 

Thank you

[cosalt]

Okay – after my earlier screw up (sorry) I think your argument has merit on the basis that:

 

The amount of credit (prescribed term) is stated as £6300.00 but this doesn’t include the £150.00 arrangement fee (they can't put the figure here though because it's credit to purchase the car and that's why it states Vehicle HP). If the interest on the loan has been calculated including the £150 (which it has) then the £150.00 should be treated as credit even though it is stated in the breakdown for total charge for credit (this is where your agreement differs to suzies – correct?)

 

So now your argument would be that the £150.00 itself is a mini loan within the agreement and requires its own prescribed terms i.e. ‘Amount of credit’ and ‘Repayments’ or they could have stated amount of credit as £6450.00 under the word ‘Total’ and next to the £6300.00.

 

Is that the kind of thing you were thinking?

 

Yes thats exactly what I was thinking, amount of credit to me means how much I have borrowed on credit, ie. money that I have to pay back over time with interest charged.

 

It is clear to me the amount of credit should be £6450, just hope I am right.

 

[cosalt]

Oh, dont apologise for an error you have made, finance a.greements should be clear and transparent, this one clearly is not

[cosalt]

Yes I think you are correct but only because they have charged interest on the £150 and this in itself makes it a separate agreement – you’ve got 2 loans here – one for the car and one for the arrangement fee and both require the prescribed terms to be stated.

 

The net outcome would be the same – the agreement would be unenforceable by virtue of s127(3)

 

Of course the creditor won’t agree with you so you might have to argue it in court – that’s the problem.

 

I am pleased you agree

 

Any views that they have not signed it, they make a specific reference in the agreement that it is not binding unless signed by them. This is the copy they sent me with the introduction letter, the first copy I kept when I signed the agreement. They should have signed it to execute it presumably.

[cosalt]

atwozee

 

i take it the wilson judgement comes into play on this one

 

do you agree

 

 

Tell me more !!

[cosalt]

Human rights - commercial charter? | Credit Management | Find Articles at BNET

 

try this

 

 

Great, have read through and it would seem that this case was the exact opposite of mine, ie they had included the fee in the amount of credit ??

[cosalt]

Sorry if I am being thick here !

 

Are you saying then that the creditor in this wilson case was correct in adding the arrangement fee to the amount of credit ? And this has set a precident. Thus making my agreement incorrect and unenforcable in court ?

[cosalt]

So my agreement is correct then ?

[cosalt]

ok, but in essence that is no different to mine ??

[cosalt]

This is how I read it – your agreement is correctly stated with regards to the Wilson case in as much as the amount of credit has been stated correctly because it doesn’t include the arrangement fee – the arrangement fee has been correctly placed within the total charge for credit – this is still where it is in parity with Wilson – however, once the creditor decided to apply interest to the arrangement fee it became more than just a an arrangement fee it became credit – and as such it requires its own regulated agreement (which would be a restricted use debtor-creditor agreement)

 

So now you are in a position where your agreement should state 2 amounts of credit which could be something like –

 

Total Amount of credit £6450.00

Amount of credit to purchase car £6300

Amount of credit for arrangement fee £150.00

 

And it would need 2 sets of repayment schedules such as (and these aren’t accurate!)

 

36 payments of £20.00 (to pay off the arrangement fee)

36 payments of £180.00 (to pay off the car purchase)

Total monthly payment = £200.00

 

That’s how I see it but would welcome another point of view.

 

Ok so they were right to not add the fee to the amount of credit, but if they intended to add interest to the fee it should be specified seperately because that in itself is effectively its own agreement.

 

As an innocent consumer the agreement to me says I am paying interest only on £6300, I would argue if I were aware that interest was being charged on the fee I would have paid it up front thus saving interest.

 

All this of course has an effect on the VT rights thus lengthening the time before I could exercise my right to VT.

 

Any suggestions on what I should do now, this whole episode started by them not being reasonable with my request to reduce payment amounts.

 

I think I should just stop paying and should they go down the court route, fight to have the agreement declared unenforcable, and try and get the lot back.

 

Unless you think I should try and take them to court now :confused:

 

Opinions much appreciated !

[cosalt]

Cosalt,

 

In August last year, I requested a VT from the loan company. I had paid well over the required amount, was not in arrears and they wrote back demanding more money.

 

I wrote to them explaining that as I had paid over what the agreement stated I was not in a position to, nor prepared to pay them any more money and that I wanted them to arrange collection of the vehicle.

 

They did not reply, they just defaulted me so this really pd me off, they were being very unreasonable.

 

Anyway, to cut a long story short I started investigating this whole unenforceable thing and was fascinated by what I was learning.

 

However, I have had a lot of great advice on here and I really appreciate the time people have spent looking at my posts and trying to help me out BUT I have had lots of differences of opinions and I am still as confused now as I ever was. My gut feeling is telling me that something is wrong with the agreement. I sent a copy off to who I thought was a reputable lawuer to have a look at but I later found out they were one of these claim farms so I wont pursue any further with them although they have told me that it was unenforceable, but of course they wont tell you how.

 

The CCA is a very complex piece of legislation and I dont really understand it that well. I was advised to take a softly, softly approach at first and gather information, which makes sense.

 

I have read all the thread but I cant remember if you said you sent off a CCA request to the company. If you havent, that might be a place to start.

 

Good luck with it.

 

Suzie

 

Hi Suzie, thanks for your input, I posted a few times on your thread so remember the details.

 

There is little point in me sending off a CCA request as I have the copy they sent me here, and they have not signed it.

 

As I said on your thread in my opinion they have charged you interest on your acceptance fee but it is not clear how they have calculated the interest so as atwozee said it could easily be said that you paid it with the first payment. With my agreement it is clear cut as they show exactly how they calculate interest and admit they have done so.

 

If you have proof they have received your VT request I would just relax as you have done nothing wrong. Eventually it will come to a head and you should be able to get the default removed as you obviously have not defaulted, if anything they have.

 

Please follow this thread as I am sure any input from others will be helpful to both of us

[cosalt]

Just to follow on, do you think I have a good chance with this. Because if so I will just stop paying them and then bring this up if they try any court action.

[cosalt]

I think you have a good argument but I think that if you stop payments you may have to put this argument to the court – I don’t think there is a like for like case that you could refer to but the principal argument of mis-stated prescribed terms has already been argued in court.

 

Ultimately it’s your decision but I’m sure you will get help from people on here if you want to take it further, but there are no guarantees and that’s something to bear in mind.

 

It’s definitely 2 agreements rolled into one and perhaps you should write to the creditor and put your points across – you can also tackle the point regarding the missing signature also.

 

Hi atwozee,

 

In an ideal world I would just like to pay no more on the agreement, what do you think about a letter like this ?

 

Dear Sirs,

 

I write with reference to account no - XXXXXXXX.

 

I recently telephoned you to advise I was suffering financial hardship and was unable to continue to pay my monthly payments as before. I had already missed one payment with you and asked if you were able to consider a payment holiday or reducing the remaining payment amounts. Unfortunately the best you could offer me would be to double up on payments this month.

 

My financial situation continues to worsen and I find myself unable to offer any more than a token payment of £1 to you.

 

Bearing in mind I have already paid to you the purchase price of the vehicle, I think in the circumstance it would be reasonable to ask you to write off the remaiing balance on the account.

 

I would also like to notify you that I have in my possesion a copy of the agreement that you sent to me when you opened my account. I note that you have not signed the agreement and therefore according to your own terms and conditions it is not binding.

 

I would also like to point out that some of the prescribed terms in the agreement are incorrect, namely that you have charged me interest on the acceptance fee and this must be presented on the agreement as a separate agreement. This alone makes the agreement unenforceable in a court of law.

 

I look forward to your acceptance of the above and would request a reply in writing withing the next seven days.

 

Yours faithfully

 

COSALT

[cosalt]

Looks good to me – possibly consider quoting the CCA 1974 like this

 

I would also like to point out that this agreement is in breach of the Consumer Credit Act 1974 because some of the prescribed terms, which are required to be included within the agreement, are incorrectly stated, namely that you have charged me interest on the arrangement fee and this makes the arrangement fee the subject of a regulated agreement in its own right. I am of the firm understanding that this agreement would prove to be unenforceable in law.

 

and maybe allow 14 days for a reply. You can but try!

 

Thanks, have amended to this:-

 

Dear Sirs,

 

I write with reference to account no - XXXXXXXX.

 

I recently telephoned you to advise I was suffering financial hardship and was unable to continue to pay my monthly payments as before. I had already missed one payment with you and asked if you were able to consider a payment holiday or reducing the remaining payment amounts. Unfortunately the best you could offer me would be to double up on payments this month.

 

My financial situation continues to worsen and I find myself unable to offer any more than a token payment of £1 to you.

 

Bearing in mind I have already paid to you the purchase price of the vehicle, I think in the circumstance it would be reasonable to ask you to write off the remaiing balance on the account.

 

I would like to notify you that I have in my possesion a copy of the agreement that you sent to me when you opened my account. I note that you have not signed the agreement and therefore according to your own terms and conditions it is not binding.

 

I would also like to point out that this agreement is in breach of the Consumer Credit Act 1974 because some of the prescribed terms, which are required to be included within the agreement, are incorrectly stated, namely that you have charged me interest on the arrangement fee and this makes the arrangement fee the subject of a regulated agreement in its own right. I am of the firm understanding that this agreement would prove to be unenforceable in law.

 

I look forward to your acceptance of the above and would request a reply in writing withing the next seven days.

 

Yours faithfully

[cosalt]

hi cosalt

 

looks like with atwozee imput, we got there in the end

thats the beauty of cag

every body with different knowledge kicks in

 

interested in the reply that you get

 

go for it and good luck

 

Letter send recorded today !

 

Thanks for your input.

 

Will post as soon as I have news.

 

Cosalt:)

[cosalt]

Hi, just an update. They have a left a message on my answerphone saying they want to discuss a payment plan, do you reckon they realise my agreement is wrong ?

 

Presumably I should not ring them back ?

[cosalt]

Received this letter today, clearly not addressing any issues I brought up in my letter.

 

http://i407.photobucket.com/albums/pp152/cosalt/carlyle220109.jpg

 

Thoughts on where to go from here anyone ?