Joint and Several Liability Definition

[bobj70]

Hi,

 

Allready posted somewhere else, but have another question please, maybe in right place this time.

 

 

A friend of mine signed a joint car finance agreement, split up with her partner, due to his abuse.He took the car and as far as she knew carried on using and paying for it. She now is being chased by a solicitor and has

got a 12 month old CCJ against her ALONE although she is joint secondary signatory.

The car was registered, used and taken when they split by partner alone, who must of sold it as he now drives a different car. I first of all sent reply, his car, he took it, so he should make payments, get it returned to them or sell it and give them the money. This was ignored or not commented on and the joint and several liability thing sent in reply.

 

Can they actually do this ?, I looked up definition of joint and several thing which i know is one, either or both BUT it also said ".. only if their concurrent acts brought about the harm to the plaintiff" which in this case is not true, he took the car and sold it, not her, so its a non concurrent act, i will contact dvla to try and find dates, when sold and how much etc but any thoughts or advice on how to tackle it please ?

 

Thanks

[foolishgirl]

I think perhaps you are somewhat confused as to who owns/drives the car & who signed up for the finance.

 

The ownership etc. of the car & which partner owes who is a matter for them to sort out between themselves.

 

The finance for the car (& it could have just been a loan or overdraft, the car itself is immaterial here) is in joint names, therefore joint & several liability for the debt (whether or not the car is driven by only one of the parties, sold, written off etc).

 

The creditor is entitled to claim off one or both parties. They will usually go for the 'easiest' option, maybe the easiest to trace or the one who has some assets (property etc). Hence the reason your friend has been prosecuted solely for the debt.

 

If her ex took the car without her consent, it could be technically theft (depending on who is named as the owner on the registration docs); however if she gave her consent, the matter of who pays what should be thrashed out between them. If they can't agree, it's possible she may be able to take legal action depending on the circumstances in which the car was taken.

Edited August 15, 2009 by foolishgirl
amendment

[bobj70]

Thanks for the reply.

 

Both parties are equally traceable here,she is single parent, working part time, in rented house with no assets, with a clean credit history before this.He lives with a new partner in (her ?) house while owning and running his own night club, but with a bad past credit history, hence while she had to sign for him.

 

I understand due to his past physical violence against her even the original contract was signed under duress (which may be worth making a police matter), as he used the car it was loaded up with his things and taken when he left, her consent or wishes never came into it.

 

I dont think the car is immaterial here, if he has sold the car knowing it to be on finance that is an offence unless he gets the finance companies and her permission and gives them the money, therefore reducing the debt they are chasing her for.This joint and several thing means your involved jointly with the debt so surely you should be involved jointly regards any assets.

 

 

Cheers

[foolishgirl]

 

I dont think the car is immaterial here, if he has sold the car knowing it to be on finance that is an offence unless he gets the finance companies and her permission and gives them the money,

 

 

The car is immaterial if in the loan agreement to finance it, it does not state that it is specifically linked to the car & & the finance co. retain an interest in it or if it was an HP agreement. If the finance was taken out as a straightforward loan (even if the reason given for it was to purchase a car), the debt for the finance remains regardless of what has happened to the car.

 

Your friend really needs to read the small print in the agreement.

[bobj70]

Thanks for your reply,

 

I have requested all information and paperwork under CCA and DPA as she has zero paperwork at present.

 

I know a loan is not securred on any specific item, but I wrongly assumed then that the finance company had an automatic link,interest and say in it's future etc to a vehicle if it's details were included on the agreement.

[foolishgirl]

I have requested all information and paperwork under CCA and DPA as she has zero paperwork at present.

 

Good idea

 

I know a loan is not securred on any specific item, but I wrongly assumed then that the finance company had an automatic link,interest and say in it's future etc to a vehicle if it's details were included on the agreement.

 

As I said before, it depends on what type of agreement it is - loan without strings but approved for the purchase of a car, loan for the explicit use of purchase of a car, or car finance/HP specifically linked to that vehicle.

 

BTW you didn't say whose name the car is registered in - his or hers. The ownership, aswell as the finance conditions, could make a great difference to the theft angle & the right to its resale.

[bobj70]

Thank you for the reply again,

 

With no paperwork it's guess work at the moment, she was just taken to a garage and told sign this,she thinks it was hp/finance.

 

I have requested car details so i can check with DVLA who it was registered to, keeper change dates and try and back track who he sold it to and how much for.

 

The poor mare is actually being chased for two different cars she signed for over 4 years, one was down to "love is blind", this one down to the "fear factor" i think.

 

Cheers for the help again.

[foolishgirl]

With no paperwork it's guess work at the moment, she was just taken to a garage and told sign this,she thinks it was hp/finance.

 

In that case, should be the finance company & new owner's problem, not hers. She should really have reported it to them as soon as she knew.

I have requested car details so i can check with DVLA who it was registered to, keeper change dates and try and back track who he sold it to and how much for.

If it was sold whilst still on finance/HP, the new owner could be in deep poo.

 

You should also try & get hold of the POC & judgment so you can see who the claimant was etc. The docs are available from the court that issued the judgment, just phone.

 

The poor mare is actually being chased for two different cars she signed for over 4 years, one was down to "love is blind", this one down to the "fear factor" i think.

 

Some people never learn do they?!

 

FG

[bobj70]

Hi,

 

It's being handled by a Shoosmiths solicitors in Northampton, but the finance is a First Response Finance of Nottingham. Sorry for being thick but what is a POC and what use is knowing the claimant, will it not just be one of these ?

 

Thanks

[foolishgirl]

POC - Particulars of Claim

 

It's useful to know exactly what & how much the claim was for & who the claimants were eg. if the claimant was not the finance company, there may be grounds for setting aside the CCJ or if the amount they claimed was in incorrect.

 

Do you know if your friend actually received the summons prior to getting notified of the judgment? Did she defend the claim at all? Did she receive any default notice or letter before action before the claim was commenced?

 

Information is power & if you can acquire as much as you can, you may be able to help her out of the mess using the law.

[bobj70]

Cheers for the reply,

 

Nothing has been defended,she knew nothing about the CCJ until i did a search for the other CCJ.She was in a bad state at the time but she has and can not remember ever having ANY paperwork regarding this matter. That said she could have had everything and just blocked out and ignored it all, so i have to wait until the requested paperwork comes so i can see if they have sent all the needed stuff at the correct times.I am trying to build a defence and case but have no bricks to build with at present.

 

 

Could i be really, really cheeky ?

 

Please take a look at my other post below and see if any thoughts or idea's come to mind.

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/214718-consumer-credit-act-help-new-post.html

 

 

Thanks Again

[foolishgirl]

I've looked at your thread bobj which is really all tied in with the details on this one isn't it?

 

You are getting excellent help re. the SD set aside - it really should be done pdq now. You may also like to read these threads too for more info:

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

http://www.consumeractiongroup.co.uk/forum/legal-issues/189218-statutory-demand-recd-special.html

 

BTW if you want to act as your friend's rep. it is probably easiest to get her to sign all the docs that require it, use a digital sig. for those that don't & if you want to attend a hearing with her just ask for the permission of the DJ. It shouldn't be refused. Just make sure she passes on all corresp. to you as soon as she gets it.

[bobj70]

Thank you foolishgirl so much, i wish i had found this site weeeks ago, what a great bunch of people you are, just found out i can donate via paypal to your site, more than glad to cheers all.

 

Advantage finance even refused to deal with me as her rep despite I sent her signed,witnessesd authority letter and yet solicitor one is happy to deal with me, should i mention that also.

 

One question please, what happens if they send info before i get forms in or hearing date set, can i still do it and can they reissue a new SD ?

 

Cheers again

[bobj70]

One other thing sorry

 

 

 

Is the failure to supply agreement template letter the right one to use, looks it to me ?

 

Thanks

[foolishgirl]

Advantage finance even refused to deal with me as her rep despite I sent her signed,witnessesd authority letter and yet solicitor one is happy to deal with me, should i mention that also.

 

Don't think the court will see that as relevant.

 

One question please, what happens if they send info before i get forms in or hearing date set, can i still do it and can they reissue a new SD ?

 

As I understand it, your main reason for the SD set aside is that they haven't supplied an agreement & you are also applying to set the CCJ aside. Whilst those processes are underway they wouldn't be granted a SD anyway so there would be no point in them trying again. If you can get the CCJ overturned an SD is not applicable no matter how hard they try (although you may have to defend that one again at some time in the future if they have another pot )

 

 

 

Is the failure to supply agreement template letter the right one to use, looks it to me ?

 

Is this to send to the finance co. for not supplying on time. If so, yes, but as they already have a CCJ in place not much point. You would be better just applying to have the CCJ set aside & then mounting a defence on the basis that they have not supplied the agreement. You could also then use CPR18 to request it again; if they then don't supply, it's likely they haven't got it & won't be able to produce it in court & you should get the CCJ set aside.

FG

[bobj70]

An update

 

Basically despite them not sending ANY contract or even a reply under the CCA within the 12 day limit and before we had chance to fill court papers in to get the CCJ and SD set aside they have issued a bailiff warrant of execution.

 

This was dated 14/08,posted 17/08, but due to area postal dispute arrived 24/8 on payment deadline day given, there limit to send information was up on 18/08 so it was acted on while in the 12 days.

 

I sent proper request letter, fee, recorded, etc even informing them under act they can not persue debt in this limit, so i assume i am on very safe ground saying this warrant is wrong to be sent.

 

I even sent another letter when 12 days up saying account in dispute, entered default, take this letter as formal complaint, either provide contract within 7 days or have your SD withdrawn or i will apply to have it and SD set aside (no answer to date)

 

I spoke to bailiff who said he would hold off until this week provided we filed papers last week.

 

Went to court Thursday did application to set aside for the SD and also his warrant of execution,asked for warrant costs and my costs to be deducted and if in powers for judge to request they comply with my CCA and DPA requests, but NOT the CCJ because was advised rightly or wrongly by solicitor the no contract failure and wrongly issued warrant did not make ccj wrongly issued so judge would not grant this to be set aside without me proving errors in its issue, which i can not with no paperwork, thought for now warrant set aside would at least stop bailiff action so safer bet.

 

We are talking end of September, start October for hearing dates according to court.

 

Am i right in thinking while these two applications are in they can (should)NOT legally take any further action, even if they do send the contract ?

 

Other than wait for court, DPA request dates to arrive what else can i do, i read posts saying send a cpr 31.14 for information but is that what i now need to do, i think (?) the SD and warrant set aside should prove itself with there actions ?.

 

Should i try and do a defence for these, have a go at CCJ with no paperwork or what ?

 

I am talking lady to CAB next week and trying to get her a legal aid solicitor, but most solicitors seem ignorant about the CCA.

 

She is worrying herself something silly and i am worrying i will drop a clanger not knowing what i am doing, other than trying my best.

 

Please,please help if you can, i am blowing my miond reading site trying to find what to do as all cases are different.

 

Cheers

in advance.

[bobj70]

Sorry, told you my mind was blowing, not sur i posted this even in my write post, link to other below i hope.

thanks

 

http://www.consumeractiongroup.c o.uk/forum/welcome-consumer-forums/214718-consumer-credit-act-help-new-post.html