Termination of hire purchase without a Default Notice

[chez262]

Hi,

 

I've only just registered to this site but been reading articles for a while now.

 

I have a hire purchase agreement which is regulated by the Credit Consumer Act. I missed my first payment after 18 months of paying on time, on the 1st Jan 09. I received no DN and on the 21st Jan 09 a letter of termination dropped through my letter box.

 

After reading all the posts on here I am now of the understanding that they have unlawfully terminated the contract, however I am unsure of what to do now?

 

After receiving the letter I paid the arrears on the 23rd Jan 09 to avoid any more trouble with them and I requested a payment holiday (as my business had just gone up in smoke, literally)

 

Since the termination letter, the person dealing with my account was changed immediately and I have started to receive DN for the months following. Which I have not paid nor do I want to in the event that I may shoot myself in the foot.

 

My other concern now is that they could produce a false DN between the 1st and 21st Jan to help their cause. How long is it after a missed payment, can a DN be sent out? Is it 14 days plus 2 for postage to pay the arrears?

 

Many thanks.

[postggj]

afernoon

 

just a few questions

 

who is the finance company

do you still have the car

a dn notice and missing payments (default} are two different things.

 

did you receive a dn before termination letter (important)

 

its normal for a default notice and termination letter to be sent out after 2 or three missed payments, the first letter is prob saying you have missed a payment and we are going to charge you xyz.

 

the best thing to do is scan the default notice, termination letter as well into your pc,

 

google photo bucket and upload onto this thread with out the thumbnails option

 

take out personel detals but leave in any facts and figures

 

the norm for a valid default notice is 14 days from the date on the letter plus 2 for service

[chez262]

afernoon

 

just a few questions

 

who is the finance company

do you still have the car

a dn notice and missing payments (default} are two different things.

 

did you receive a dn before termination letter (important)

 

its normal for a default notice and termination letter to be sent out after 2 or three missed payments, the first letter is prob saying you have missed a payment and we are going to charge you xyz.

 

the best thing to do is scan the default notice, termination letter as well into your pc,

 

google photo bucket and upload onto this thread with out the thumbnails option

 

take out personel detals but leave in any facts and figures

 

the norm for a valid default notice is 14 days from the date on the letter plus 2 for service

 

Hi,

 

Many thanks for your quick reply.

 

The company is Admiral and it is not a car, it is a machine I used in my shop before it went up in flames

 

I do still have the machine, they told me to arrange collection with them in the termination notice but once I paid the arrears for that month they said the contract was 'back on'.

 

I thought a DN was issued when a payment was missed???

 

A payment was due 1st Jan but I couldn't pay it and received the Termination notice on the 21st Jan. No Default Notice or warning letters in between both dates.

 

I will try get them on here for you to see.

 

Thanks again

[postggj]

its unusual to terminate an agreement after one missed payment

like i said

a dn gives you time to pay the arrears , 14 days, before the account is terminated

 

does your liability insurance not cover the cost of the machine through fire/smoke damage

 

if they are playing silly buggers ref the dates sent out on the dn, we will get computer screen shots to prove when and if they were actually sent out

 

its looking like they terminated the account unlawfully,

need to get all the facts so please post up those letters

[chez262]

The machine was not damaged in the fire, however the shop had to cease trading due to building damage hence me struggling to make the repayments.

 

Since I made the payment after receiving the termination notice they have continued with the contract... yes, the one they terminated!!!

 

I then missed the Feb, March and April payments and I'm now receiving Default Notices with the threat of termination if its not paid up to date by Saturday

 

I think the 2nd attempt of termination is a follow of the rule book CCA but the 1st attempt was not... unfortunately, I'm hoping a 2nd chance they do not get by law!

 

A termination of the contract 21 days after missing my 1st ever payment just seems a little unlawful in my opinion.

 

I'll post the letter ASAP this evening.

 

Thanks.

 

 

[postggj]

terminated with out a default notice

 

o dear

 

do you still have the t&c for the agreement

prob on the back

[chez262]

 

[postggj]

ime looking at paragraph 8

 

termination by the owner

 

as its not called small print for nothing, can you write out that paragraph

 

its looking rather good for you at the moment but need to see paragraph 8 to confirm

[chez262]

8 Termination by the Owner

8.1The Owner will be entitled to terminate the hiring under the Agreement after giving any notice required by law:

(a) if the Hirer fails to pay on the date for payment any Rentals or other payments due under the Agreement; or

(b) if the Hirer has made any untrue statement or given false information to the Owner concerning the Agreement; or

© if the Hirer takes any step towards selling the Equipment, or if any distress execution hypothec poinding arrestment sequestration or other process is levied upon the

Equipment or any of the Hirer's property, or

(d) ifthe Hirer is an individual, an application is made for an interim order to be made in relation to him or a petition is presented for a bankruptcy order against him or if the

Hirer arranges or attempts to arrange a composition or scheme with its creditors or anything analogous occurs in Scotland or he dies; or

(e) if the Hirer is a company, a petition is presented for the appointment of an administrator, administrative receiver, receiver or liquidator or a like officer or such person is

appointed over all or any of the assets of the Hirer or if the Hirer arranges or attempts to arrange a composition or scheme with its creditors or a meeting is called or any other

steps are taken for the winding-up, dissolution or administration of the Hirer or if anything analogous happens in Scotland; or

(f) if the Hirer is a partnership, a petition is presented for a bankruptcy order to be made against anyone or more partners for the payment of a partnership debt or anyone

of the partners enters into a voluntary arrangement with the creditors of the partners or the partnership is dissolved; or

(g) if the Hirer abandons the Equipment or does or suffers anything whatsoever which in the Owner's reasonable opinion would or might have the effect of jeopardising the

Owner's property in the Equipment: or

(h) if the Hirer is in breach of any of the terms of the Agreement; or

(i) if there occurs any change in control (as defined in Section 840 of the Income and Corporation Taxes Act 1988) of the Hirerfrom that subsisting at the date of this Agreement.

8.2 It is agreed that each of the events set out in Clause 8.1above shall constitute a repudiation by the Hirer.

 

 

My understanding is one that if over a third of the contract is paid then the CCA stands firm? Is this true as I've paid over half already

[postggj]

ok please confirm the following , dont miss any and list your response

 

they have terminated the agreement, did you ever get a valid default notice giving you 14 days to rectify the breach or the agreement would be terminated

 

is it a hp agreement (please confirm) OR LEASE HIRE

 

AND YES, IF YOU HAVE PAID MORE THAT A THIRD , THE GOODS CANT BE REPO WITH OUT A COURT ORDER.

[chez262]

I got no Default Notice what so ever... no letter was received before this termination! I only missed the payment 21 days before receiving this letter so is there even enough timefor them to have sent out a DN before this?

 

What is the difference between HP and lease hire? I think it is Hire Purchase as its mine at the end of the contract.

 

Once I paid the missed payment (which had resulted in the termination letter) and then missed the following months payment, they started to issue me with DN's and have now threatened to terminate it again on Saturday 25th April.

 

Can anyone please help... I have to make my move tomorrow if I'm to do anything about this termination

[postggj]

i think you are still confused

a default notice is a letter that states at the top

 

default notice under the consumer credit act 1974

 

it then gives you 14 days to rectify the breach, a date is inserted

it then says about getting legal advice if unsure and cab

 

a missed payment letter is not a default notice

[chez262]

But surely a Default Notice is issued when you stop paying, telling you you have 14 days to pay? I didn't pay and they just terminated the contract after 21 days with no chance to rectify the breach hence bring the account back up to date. I didn't even get a missed payment letter never mind a DN.

From what your saying I should have at least received a missed payment letter, then a DN, then a Trmination

 

If thats the case, I think I got a case!

 

Can anyone tell me what my first step would be if I wanted to dispute a HP contract based on the grounds of unlawful Termination???

 

Thanks

[Viscount Stair]

The one problem you have is that by making the payment on 23rd Jan after the agreement had been wrongly defaulted, Admiral might be able to argue that you affirmed the contract at that time.

 

What exactly did they send after the later missed payments?

 

Was it a proper DN in the prescribed form with the proper 14 day period for compliance?

 

If not, you do have a case?

 

Can you also scan up the rest of the agreement if you have it? Not just the Ts and Cs.

[chez262]

But would my arguement not be that I had to seek legal advice so paid to avoid any further harrassment? I would have had to make that payment either way as it was arrears pre termination?

 

Surely a judge deals with legal fact and the fact is they terminated without giving me the option to rectify the issue and I have never re signed the agreement again.

 

Regardless of the fact that I didn't know the facts around termination at the time, surely the basic fact is they terminated and and unless we sign up to that agreement again they can't just say she acknowledged the contract so its back on???

 

I sent them a letter asking for a payment holiday post this payment also but it was to give me more time and to aviod them knowing what I was seeking advice for.

 

They have never sent me a reply to state whether I was given that holiday and instead have kept issuing letters to me regarding the missed payments. I'm now in arrears 3 months and have not made a payment since the termination.

 

What can I do... please help

[Viscount Stair]

Yes, if they argue you affirmed the contract, you can argue you didn't.

 

But, to be on the safe side, we need to know whether or not they sent the right Default Notice (and not just reminder letters or demands) after the later payments.

 

It is also worth checking the agreement if you have it.

 

What exactly did they send after the later missed payments?

[chez262]

If the CCA is in place to protect debtors then surely it takes into account that we do not know the law?

If they have terminated unlawfully and then forced me into a position whereby I'm having to ask for a payment holiday as I'll be late with my payments every month due to my circumstances and can't do with the stress of getting the contract terminated every month (which I thought at the time until I relised they might have breached contract) then the fact that they terminated still stands???

I would have thought they can't go back after terminating and we would have to reagree the contract. Please tell me this is the case

 

Viscount Stair said:

Yes, if they argue you affirmed the contract, you can argue you didn't.

 

But, to be on the safe side, we need to know whether or not they sent the right Default Notice (and not just reminder letters or demands) after the later payments.

 

It is also worth checking the agreement if you have it.

 

What exactly did they send after the later missed payments?

 

Ok heres a history breakdown,

 

1st January - missed payment

21st January - Termination letter

23rd January - arrears before termination paid

26th January - letter sent for payment relief (unaware at the time of the termination being unlawful)

27th March - missed payment letter

6th April - Correct Default Notice sent

25th April - Contract will be terminated again as stated in the DN.

 

I believe the DN sent on the 6th April to be correct, it has the agreement, the breach and the action required listed.

 

Many thanks again

[Viscount Stair]

OK.

 

Bear in mind that they would need a court order to repossess the goods. So you will have the opportunity to submit a defence making the point about the unlawful termination (and that you did not affirm the contract) and, in the alternative, to request a time order.

 

I'd suggest writing to Admiral pointing out that they had already terminated without following the statutory procedure and that they would need a court order to recover the machine, which means that there would be a hearing to determine the issue.

 

You could, if you want, separately write to them Without Prejudice or Without Prejudice Save As To Costs offering to resume payments after a suitable payment holiday.

[chez262]

I don't know what 'Without Prejudice' is but due to the fact that my business is still not trading, I am unable to use the machine therefore unable to meet the payments anyway.

 

So am I right in thinking, they have terminated the contract and would need a new contract signed to continue with the agreement, as once its terminated it is effectively void and any dialogue following is then also void as there is no contract to discuss? Therefore they are taking action on me for a breach in contract that no longer exists due to them terminating it?

 

(sorry about the babbling, I'm just trying to get this straight in my head )

 

Is there anything in particular that I should put in a letter to them, i.e. mentioning a section of the CCA?

I don't want to put my foot in it at this stage.

 

P.s. you've been really helpful and I'm entirely greatful for your generosity, thank you!

[postggj]

it appears that they have terminated the contract, unlawfully

a court order is needed to get the goods back

 

on the 6 april a correct default notice sent, irrelevent as contract terminated but

 

CAN YOU POST UP THE DEFAULT NOTICE/ 6 APRIL/ MINUS PERSONEL DETAILS

 

ITS IMPORTANT

 

USE PHOTO BUCKET AGAIN

[chez262]

Yes no problem, I'll have to post it this evening though as I'm in work at present

 

Out of interest, why is the DN important if it is irrelevant?

 

[Viscount Stair]

I am pretty sure this is not in the prescribed form, so it is invalid.

 

Even if they manage to argue that you did affirm the contract last time round, the second termination should be invalid as well.

 

It is getting late and I was supposed to be writing letters of my own, so I will elaborate over the weekend.

 

The short answer is that they have terminated twice and not got it right either time. They would need a court order to repossess the goods and they should not get that, even if they take it that far.

 

We will sort you out with a suitable letter but sleep easier.

[chez262]

I can't thank you enough... bless you my friend!

[postggj]

thats the importance of a default notice

[chez262]

Wow you guys are great... so I can safely assume they have got it wrong TWICE!!!

 

Unbelievable, and to think I've been having nightmares due to their threats.