Welcome - illegal repo in contravention of section 92 and unfair relationship ** WON **

[GSMGuy]

Wannabedebtfreesoon,

 

I am counting the days with you, having had a similar experience recently..

 

One question, can you point me in the direction where it says

 

the law quite clearly states "...from ANY premises..." and "...or that of a third party without the consent of the debtor or hirer..."

 

As Santander are trying to imply that as I "willingly" gave them the key - I didn't, I was coerced whilst holding my 5 month old, and trying to give dinner to the other 4 children, by threats of "recovery vehicles dragging it off your drive in front of your neighbours, and £500 charges for this and opening the car" That this counts as a "legal reposession" Whereas, in fact, Mrs GSM, whose name the agreement is in, was in fact at work, unaware and most certainly did not give her consent to the "repo"

 

Cheers

 

Mike

[postggj]

/ VIOLATION OF SECTION 92 OF THE CONSUMER CREDIT ACT 1974

 

92 Recovery of possession of goods or land

 

(1) Except under an order of the court, the creditor or owner shall not be entitled to enter any premises to take possession of goods subject to a regulated hire-purchase agreement, regulated conditional sale agreement or regulated consumer hire agreement.

 

(2) At any time when the debtor is in breach of a regulated conditional sale agreement relating to land, the creditor is entitled to recover possession of the land from the debtor, or any person claiming under him, on an order of the court only.

 

(3) An entry in contravention of subsection (1) or (2) is actionable as a breach of statutory duty.

 

 

 

THROW IN ALSO

 

TRESPASSES

WRONGFUL INTERFERENCE WITH GOODS

BREACH OF STATUTORY DUTY

[GSMGuy]

Excellent - Have just read that in full on this page here: http://www.legislation.gov.uk/ukpga/1974/39/section/92 but can't find any mention of the "Third party bit?"

 

Cheers

 

Mike

[sequenci]

I'm thinking your other half wouldn't be legally able to make a decision in realtion to the HP agreement under the legal doctrine of privity of contract.

[GSMGuy]

I'm thinking your other half wouldn't be legally able to make a decision in realtion to the HP agreement under the legal doctrine of privity of contract.

 

Sequenci,

 

The agreement was in Mrs GSM's name, however - it was myself that was at home when the repo peeps turned up, they basically coerced me into giving them the keys - Mrs GSM had no idea they had even been until she got home that night - The point I am trying to confirm, is that I had no authority in effect to act, and by taking the keys from me, they still acted illegally as Mrs GSM did not give her consent .. If you know what I mean.. Just trying to head them off..

 

Mike

[patrickq1]

dont forget they trespassed on your airspace ,there was a recent case for trespass of airspace and they won there case i will try find the link Wbee

patrickq1

[postggj]

gsmguy

 

do you have a thread on this situation as we dont want to take over wanabees thread:-)

[GSMGuy]

Yes, it's this one:

http://www.consumeractiongroup.co.uk/forum/showthread.php?293900-Help!-Car-repossessed-only-1-month-behind-not-received-Termination-letter../page3&p=3298307#post3298307

 

Mike

[patrickq1]

trespass of airspace several cases here on lexoligy

http://www.lexology.com/library/results.aspx?q=trespass+of+airspace&j=United+Kingdom&w=&f=

patrickq1

[wannabedebtfreesoon]

Sequenci,

 

The agreement was in Mrs GSM's name, however - it was myself that was at home when the repo peeps turned up, they basically coerced me into giving them the keys - Mrs GSM had no idea they had even been until she got home that night - The point I am trying to confirm, is that I had no authority in effect to act, and by taking the keys from me, they still acted illegally as Mrs GSM did not give her consent .. If you know what I mean.. Just trying to head them off..

 

Mike

You are absolutely right. If the agreement is in your wife's name then it is her consent that is needed and even if you gave them the keys and waved them off, they still committed an offence by not getting her consent. If she wasn't even there then there's no way she could possibly have given consent! You might also consider breach of the Data Protection Act in that they discussed your wife's agreement with you.

 

As well as Section 92, the issue of 'consent' is dealt with in Section 173.

[postggj]

Gday wanabe

 

whats your interpetation on section 173 ref refusal of consent and liability

[wannabedebtfreesoon]

It appears to me that their should be no obligation on the debtor to give consent and if the debtor chooses not to give consent then there should be no adverse liability for this.

 

This is the interpretation from The Book although I need to dig deeper to find something about liability:

"Consent

 

It is for a creditor who seeks to rely upon sub-s (3) to prove that the debtor freely consented to his action. See Mercantile Credit Co Ltd v Cross [1965] 2 QB 205, [1965] 1 All ER 577, [1999] GCCR 251. It may be that the court will be more willing to find in favour of a creditor who took steps to explain the position to the debtor, so that he was aware at least that he was surrendering some of his statutory protection, but it is at least arguable that the information set out in statutory documentation (eg in a default notice) should suffice for this purpose. As to enforcement provisions to which sub-s (3) may apply, see in particular the CCA 1974, ss 40, 65, 90, 92, 113(2), 126 and 148. Subsection (3) does not apply to the CCA 1974, s 132 (financial relief for hirer) since that section specifies the consequences of recovery of goods without action but does not prohibit recovery without a court order."

[skintandfat]

Hi Wanna

 

Just taken the time tonight to read you thread

 

I can't believe they have had the nerve to drag things on so much

 

I wish you all the luck and will be popping back to see how you get on

 

I have also lost my car to a finance company, this was volountary on my part as they would not accept reduced payments (I am a joiner and my work has dropped by 70%, so I wanted to reduce my payments but they refused)

The car will be at auction in Edinburgh (the repo guy was really nice and told me where he was taking the car )

 

 

Don't want to ramble on too much, but you deserve to wipe the floor with this lot

[wackyone]

subbing, eagerly awaiting the judgement against them

[wannabedebtfreesoon]

There be mutual exchange of witness statements by 4pm on 26th November 2010.

 

Just received an UNSIGNED witness statement from the recovery agent saying the car was overhanging the pavement!!! Apparently they will forward me a signed version in due course. Does anyone know if they can submit a 'draft' witness statement that wasn't even written by the man himself 4 months later than the date they were due according to the directions from the court??

 

17 days to go.....

[wackyone]

seems like they are clutching at straws to me

[wannabedebtfreesoon]

seems like they are clutching at straws to me

Thanks for your support Wackyone!

Having had a few minutes to calm the Hell down, I've had a quick look at CPR and have discovered some very interesting facts

 

Apparently if they serve a witness statement they need to do 1 of 2 things;

1) Make the witness available for cross examination at the final hearing or

2) Submit the statement as Hearsay

 

Needless to say, they have done neither of these things and so are continuing to breach Part 1 of the CPR.

I have just fired off an email to them requesting they tell me which option they are going with You see if they say 'its hearsay' then I need to give them notice of my intention to 'attack the credibility' of the evidence OR if they say 'he won't be available for cross examination' I need to apply to the court for a subpoena to make him available OR if they say 'he will be available for cross examination' then I get to show him photos of himself doing things he said he didn't do and ask him some very uncomfortable questions about his witness statement

 

Either way, the fact that they've only left me just over 2 weeks to do any of these things is not going to make a judge very pleased at all

[wackyone]

Thanks for your support Wackyone!

Having had a few minutes to calm the Hell down, I've had a quick look at CPR and have discovered some very interesting facts

 

Apparently if they serve a witness statement they need to do 1 of 2 things;

1) Make the witness available for cross examination at the final hearing or

2) Submit the statement as Hearsay

 

Needless to say, they have done neither of these things and so are continuing to breach Part 1 of the CPR.

I have just fired off an email to them requesting they tell me which option they are going with You see if they say 'its hearsay' then I need to give them notice of my intention to 'attack the credibility' of the evidence OR if they say 'he won't be available for cross examination' I need to apply to the court for a subpoena to make him available OR if they say 'he will be available for cross examination' then I get to show him photos of himself doing things he said he didn't do and ask him some very uncomfortable questions about his witness statement

 

Either way, the fact that they've only left me just over 2 weeks to do any of these things is not going to make a judge very pleased at all

 

you have photos of him actually on your property not on the pavement/roadside so that in itself should blow his statement out of the water, like i said it seems they are just clutching at straws hoping you will drop the case

[wannabedebtfreesoon]

you have photos of him actually on your property not on the pavement/roadside so that in itself should blow his statement out of the water, like i said it seems they are just clutching at straws hoping you will drop the case

Judging by our very recent email correspondence, I think he now knows damn well I am not going to drop this!

They've replied to say they will take all the necessary steps to ensure the repo man will be present at the hearing. To me that says 'we'll try to convince him to come but we can't guarantee anything'.

 

It's totally ludicrous really, all of this should've been done by 26th November last year and leaving it this late has not been a very good move for them. The CPR on evidence is very strict and either way they haven't adhered to it, the difference is that even if they know the rules and chose not to abide by them, they certainly didn't expect me to the know the rules and so, as a result, they have really landed themselves in it! A situation has now arisen that they can't back track on and they will have to answer up to a judge about it.

[wannabedebtfreesoon]

So...... the witness evidence debacle continues

 

Further to my last post, the defendant then sent a signed witness statement from the repo man; the same being a version of events entirely different to the 'draft, unsigned' version they first sent me!

 

I decided to play my cards close to my chest on this one and said nothing further to them regarding this

 

Then.....

 

They sent me a copy of an N244 Application Notice which they had submitted to the court asking for permission to rely on this evidence, (better late than never I suppose )

 

Again I responded with total silence...

 

Got an email yesterday asking me what I intend to say to the court in response to this application, (not in those exact words mind!). Court have been swift to reply and have listed this matter for a 5 minute hearing immediately before the trial starts. That's going to be a great start to the day, the first thing the judge gets to know about them is how they want to submit evidence some 4 months past the date stated in the directions

 

Hmmmmm... decisions decisions! Do I oppose the submission of this evidence or agree to it?? Will I be considered unreasonable if I object??

 

6 days remaining..........

[postggj]

wait for a consent order in the post

me thinks they are about to settle

you have come this far

 

tick tock

[wackyone]

i agree with postggj on this one,

how can you be considered unreasonable by objecting to a statemnet that is not only submitted very late but also totally differant to one they provided you with at an earlier point in the proceedings, either the earlier statement was correct or it wasnt, if it wasnt then that in itself could be classed as perjury if they intended to use it in court

[wannabedebtfreesoon]

wait for a consent order in the post

me thinks they are about to settle

you have come this far

 

tick tock

No chance I'll let them get away with it that easily! I said from the start I wanted a judgment and waving a few quid under my nose won't change that. This company have made my life hell for over 3 years with this and the past year and half I have put my life blood into preparing for this case. That is all time that has taken me away from living my life and being with my children and family, no amount of money can give me that time back or ever compensate for the loss of it.

They had many opportunities to negotiate with me and deal with me fairly, through their brazen arrogance and pig headedness they chose not to take any of those chances

 

For my own peace I need to see this though to the end.

[wannabedebtfreesoon]

i agree with postggj on this one,

how can you be considered unreasonable by objecting to a statemnet that is not only submitted very late but also totally differant to one they provided you with at an earlier point in the proceedings, either the earlier statement was correct or it wasnt, if it wasnt then that in itself could be classed as perjury if they intended to use it in court

Thanks Wacky, I think I will oppose their application actually. I don't see why I should give them any kind of leniency, they would hardly do the same for me! I also totally resent the fact they first tried to sneak it in without the permission of the court by assuming I'm a stupid LiP little girl who wouldn't know any different

The interesting thing about this whole witness fiasco is that in their efforts to get a witness statement admitted, they have inadvertently jeopardised the entire credibility of their own defence and they don't even realise it! Can't say too much more really in case of prying eyes, I want it to be a 'surprise'

[GSMGuy]

Yup, they didn't give YOU any leniency when they took your car, did they?

 

Mike