Help Please - Car Repossesion

[fedupmick]

I would be grateful if anyone could guide me on what to do. I took out a car loan with Duncton No1 in december 2007. I had a accident last November and have not been able to work since, in fact I have just been awarded perminant DLA higher mobility.

 

I contact Duncton to tell ask them of a payment holiday because of my circumstances. They did not want to know, I cancelled my direct debit in November and missed that months payment. They sent out a default on the 26th November, I missed the December payment on the 10th, they sent out a default notice on the 17th, then cancelled the agreement on the 16th.

 

I pointed out the requirements of negiotation in the FLA (trade body), but again they said they still wanted payment in full or the car back. I pointed out that I had paid more than a third and they were welcome to come and take it back, but I would not authorise it and pointed out the law on the matter.

 

That was when the phone calls started, I was getting two a day for a whole month. I sent out the harrisment letter from this forum which worked. They then sent out letters.

 

I could not pay any money as I received £5.65 per week in incapacity benefit and paying the mortgage with the wife's wages were a priority.

 

In March a repossesion agent came to my house and left a card to ring, which I did not. The following day I went for an interview for a job that required no manual lifting (I had discs taken out of my back and cannot walk without the aid of crutches, I cannot drive a manual car now either). Whilst in the interview I was called out to the reception. It was the respossion agent from Burlington's! I was on the company car park with the recovery vehicle. As you might imagine, the interview went downhill from that moment.

 

I contacted Burlington's asked for a CCR, plus assignment, but got a letter back saying that they have had their instructions cancelled.

 

Dunctons have now applied to the court for a return of goods hearing. I had asked them for a exicuted agreement which they did not supply. Today I received it in the post, together with their claim.

 

Can anyone tell me how I can deal with this? I live in the sticks, there is no bus stop near me and I cannot walk more than 50 metres. Losing a car will make me house bound. I know I have to pay for it and can now offer my DLA payment to Dunctons. The court hearing is on the 1st May.

 

I have attached the agreement, plus their court claim. Can they claim interest at 28.6% when the agreement has a differnt amount, 27.6%?

 

Thanks in advance.

 

[postggj]

can you post up the default notice

 

IMPORTANT

[fedupmick]

 

These are the only correspondence I have from them.

 

Thanks for your help in advance.

[Markiemark1]

I'll have a proper read in a bit, but if it all is ok, what can you afford to pay in terms of the monthly instalment.

 

Noted the comment about interest, but the Agreement does say 28.6%

 

Mark

[fedupmick]

I can now safely pay £250.00 per month.

 

The agreement says that as an APR, is that not different to an interest rates, sorry, I am a bit of a numpty on this issue

[Markiemark1]

Actually yes, you're right...I've just been reading the agreement through thoroughly and the contractual rate is 27.6% so their pleadings are incorrect.

 

Did you receive the defence forms. You could make a time order application which will allow the judge to effectively reopen the agreement and order you to pay £250 per month.

 

Sorry it's taken a little while to come back to you. I am devising a spreadsheet to make sure agreements are compliant with the CCA.

 

Mark

[fedupmick]

Thank you for your help Markiemark1

 

I have been a complete fool, the date on the Duncton letter is incorrect to the front page of the summons. It is for Monday 27th at 10.30am ! Their letter say they will collect the vehicle on the 1st.

 

Ahhhh.

 

Can I plead in person that the submission is incorrect and ask for the time order. Is there anything else I can do.

 

I am really worried now that the Bailiffs will turn up on Tuesday and snatch the car back.

 

Is the agreements compliant with the CCA?

 

Thank you so much for your help.

[Markiemark1]

Hello, so the hearing is tomorrow. OK, go to court, explain the circumstances to the Judge and ask him to make a time order allowing you to pay £250 per month. It is a bit presumptious of Duncton to say they will collect the car. What the court will do if they won't give you time to pay is to make an order for delivery up of the vehicle. If you don't surrender it the County Court Rules state that the order should be enforced by the issue of a warrant of delivery (not sending the bully boys who have no right to access your property should the car be on the driveway etc etc).

 

Have you ever had a termination notice - as I notice that the particulars of claim don't mention this. If not, I would raise that with the Court as without a termination notice they cannot get the order.

 

I will try to go through the agreement now!

 

Mark

[Markiemark1]

presumably the reg no is shown on the agreement?

[fedupmick]

No, I have not had a termination notice in a default sense. They sent me a letter telling me the agreement has been terminated, that's all.

[fedupmick]

No it is not shown on the agreement at all. I have not blanked that out

[Markiemark1]

Unfortunately the agreement does look compliant, as indeed I would expect as was made after April 2007. Give us a mo and I'll post up the bits I have on Time Orders.

[fedupmick]

Thanks.

[Markiemark1]

OK - here's the section of the Consumer Credit Act 1974 that applies to offering time to pay!

 

Extension of time

129.—(1) If it appears to the court just to do so—

(a) on an application for an enforcement order; or

(b) on an application made by a debtor or hirer under this paragraph after

service on him of—

(i) a default notice, or

(ii) a notice under section 76(1) or 98(1); or

© in an action brought by a creditor or owner to enforce a regulated

agreement or any security, or recover possession of any goods or land to which a

regulated agreement relates,

the court may make an order under this section (a " time order ").

(2) A time order shall provide for one or both of the following, as the court considers

just—

(a) the payment by the debtor or hirer or any surety of any sum owed under a

regulated agreement or a security by such instalments, payable at such times, as

the court, having regard to the means of the debtor or hirer and any surety,

considers reasonable;

(b) the remedying by the debtor or hirer of any breach of a regulated agreement

(other than non-payment of money) within such period as the court may

specify..

130.—(1) Where in accordance with rules of court an offer to pay any sum by

instalments is made by the debtor or hirer and accepted by the creditor or owner, the

court may in accordance with rules of court make a time order under section 129(2)

(a) giving effect to the offer without hearing evidence of means.

(2) In the case of a hire-purchase or conditional sale agreement only, a time order

under section 129(2)(a) may deal with sums which, although not payable by the debtor

at the time the order is made, would if the agreement continued in force become

payable under it subsequently.

69

(3) A time order under section 129(2)(a) shall not be made where the regulated

agreement is secured by a pledge if, by virtue of regulations made under section 76(5),

87(4) or 98(5), service of a notice is not necessary for enforcement of the pledge.

(4) Where, following the making of a time order in relation to a regulated hirepurchase

or conditional sale agreement or a regulated consumer hire agreement, the

debtor or hirer is in possession of the goods, he shall be treated (except in the case

of a debtor to whom the creditor’s title has passed) as a bailee or (in Scotland) a

custodian of the goods under the terms of the agreement, notwithstanding that the

agreement has been terminated.

(5) Without prejudice to anything done by the creditor or owner before the

commencement of the period specified in a time order made under section

129(2)(b) (“ the relevant period “),—

(a) he shall not while the relevant period subsists take in relation to the agreement

any action such as is mentioned in section 87(1);

(b) where—

(i) a provision of the agreement (“ the secondary provision”) becomes operative

only on breach of another provision of the agreement (“ the primary

provision”), and

(ii) the time order provides for the remedying of such a breach of the

primary provision within the relevant period,

he shall not treat the secondary provision as operative before the end of that period;

© if while the relevant period subsists the breach to which the order relates is

remedied it shall be treated as not having occurred.

(6) On the application of any person affected by a time order, the court may vary or

revoke the order.

 

 

[fedupmick]

Thanks for that, I am a bit lost reading it, which section do i point out to the Judge in the morning?

[Markiemark1]

Some issues to raise with the particulars of claim, apart from the interest quoted.

 

My copy of the Civil Procedure Rules states that the parties to the agreement should be stated and they do not appear to be on your particulars - just says the claimant is a party. Secondly there is no number or identification of the agreement. I'd raise the whole lot if I were you, and if the Judge asks its CPR PD 7B para 7 that I'm referring to.

 

The Judge may, if he or she is in fussy mood (hopefully) adjourn the hearing. However, as a compromise you might like to suggest an order along the following lines:

 

1) The Defendant to return the good described in the Particulars of Claim forthwith.

2) The above order to be suspended upon terms that the Defendant do pay reduced monthly instalmens of £250 per month.

3) the amount payable under the Agreement not to be increased as a result of this Order. Claimant may however extend the agreement to recover all monies due.

4) Money Judgment in the sum of £22025.50 not to be enforced whilst the Order remains suspended.

5) Fixed costs in the sum of £x to be added to the judgment debt.

 

I'll PM you as well.

 

I'm gonna have to kip in a moment, but I'll be up reasonably early.

 

Hope that helps

 

Mark

Edited April 26, 2009 by Markiemark1
Posted it before complete!

[fedupmick]

Does the Reg of the vehicle have to be shown on the agreement? Otherwise, how can they claim to enforce an agreement that has no property to enforce?

[fedupmick]

Sorry please bear with me but what do you mean by "just says the claimant is a party"

[Markiemark1]

Section 129(2)(a) is the bit that allows the Court to make an order allowing you to pay according to your means and what it feels is reasonable!

[fedupmick]

Thanks Mark.

 

you are a star!

[Markiemark1]

Their Particulars of claim state at paragraph 4, "The claimant was one of the original parties to the agreement.

 

The Civil Procedure Rules state that the particulars must "state the parties to the agreement".

 

Might be enough to get it chucked!

 

Mark

[fedupmick]

Thank you. I will do a list to bring up in court in the morning, hopefully you might be able to see it and let me know if it will be OK?

[fedupmick]

Been down to the court, judge adjourned the hearing because they never had the correct details on their claim.

[fedupmick]

Hi Markie or anyone.

 

I need to submit a detailed defense no later than 4pm on Monday. I am looking at using Hurstanger V Wilson and have not been able to get the credit details from Duncton. I was looking at the commissions paid to the broker, who I believe placed me with them as a direct result of their high payments rather than a mainstream lender, which I would have been accepted by at the time.

 

How do I frame my defense forcing them to give me a copy of that paperwork? Commissions, decisions making, lower rates available?

 

Any help would be appreciated.

[fedupmick]

Hi Markie or anyone else who can help.

 

I PM’d you on the site the other day. I need to get me detailed defence in by 4pm tomorrow.

Do I have to present it in a particular format?

I was looking at submitting this?

I ask that the court dismisses the claimants claim as the parties to the agreement should be stated in accordance to the Civil Procedure Rules (CPR PD 7B para 7).

1. The registration number of the vehicle in paragraph 1 on the claimants particulars of claim are incorrect The claimant is fully aware of the vehicles registration number has they hold the log book and apply for the vehicles road fund license. (they have the original registration number on it, I had it changed by the dealer before I brought it to my personal plate).

2. There is no number or identification of the agreement on the particulars.

3. The particulars are wrong insofar as to the interest rate claimed, that being 28.6% per annum. The defendant did not enter into any agreement where this interest was contracted.

4. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.(is this the way to get the documents showing the commissions and how they arrived at their costs as per Hurstanger V Wilson? They failed to provide a true copy of all correspondence of the account including credit decisions, other rates available and commissions paid to introductory agents)

How can I force their hand to show what secret commissions they paid?

 

Any help would be really appreciated.

 

I have been offered an interview tomorrow, which also includes an exam, it will take or day, so would like to fax my particulars off to them in the morning and put the hard copy in the post and drop it into the court on the way there.