duncton no1/ moneybarn repo - won

[madh21]

received a default notice from Duncton No.1 for 3 missed payments on my car (contracted payments of £236 = £708 but the DN was for £808 to include charges for the notice and non payment by DD. They gave me until 26th March to pay. I got the money together contacted Duncton on Thurs 25th to advise that I was sending a cheque but they told me under no circumstances would they accept a cheque and it woud be returned.

 

They said it woud have to be a card payment or bank transfer. I had lost my card and was waiting for a new one which meant I couldnt do either of these (Sanatander dont yet do fast payments) for which I needed my card to either arrange over the phone or go into the bank. I was at work doing 15hr shifts thurs and Frid so this was not possible. The man at Duncton said if the payment was not received then the agreement would be terminated. I asked what he meant and what would happen. He said they would contact me and if I could pay the arrears then the agreement would be reinstated and continue. This I knew I could do. I rang them again yesterday and ofered to pay by card but they refused saying we want the car back. I dont care what you were told last week I have made the decision that I want the car back.

 

moving on....yesterday, I received a letter from Duncton advising that my agreement had been terminated and passed to CEATTA who would contact you. Then, last night at 21.20, a man from CEATTA turned up requesting the car! I told him to get off my property and get a court order.

 

So how do I stand? I havent quite paid 1/3rd. The DN contained charges and not just the contractual payment, they told me they would give me the opportunity to pay the arrears and then decided they wouldnt, no pre-possession letter (dont know if this is applicable) and they wouldnt accept my payment.

 

Your advices would be much appreciated.

Edited April 2, 2010 by madh21
mistake

[madh21]

ok...if Duncton have never asked me to pay the charges added (for the default notice and for non payment by DD), can they then include them in the total sum stated in the defaut notice? surely it should be for the contractual payments missed? (and penalty charges at a that!)

 

secondly, the DN only states that payment is to be received, not that these should be cleared funds as Duncton are saying. This is not clear in the default notice. If I had posted a cheque (which they refused to accept!) they would have received this in good time in accordance with the DN)

 

Please anyone?

[palomino]

One small point : the faster payments service only covers amounts up to £250.

 

Another small point : 'payment' normally means cleared funds.

[ncf355]

Firstly, well done for telling CEATTA to get lost!

 

I believe that if you have paid less than a 1/3 they can take it without a court order - not 100% on this one - others with more knowledge will hopefully give an opinion

 

The charges are detailed in Dunctons agreements (well, in mine at least!), so yes they can include them though if it went to court you may have grounds against them for the default being invalid due to it including unfair penalties?

 

Regards them saying on the phone they would accept payment beyond the DN date, if you havent got that recorded it will be of no use as it would be there word against yours

 

Can you scan the DN and put it up here (minus personal details!) so we can offer opinion?

 

If not, what date is on the DN, does it give 14 CLEAR days between them sending and you having to act (so, the 14 days start from the day after you received it (postage is assumed at 2 working days if sent first class) and DO NOT include the date upon which you must act)

 

For 26th March to be valid, the letter must be dated no later than 9th March

 

If the dates are wrong and they have terminated by letter following an invalid default notice, they are screwed and you would be in the position of being able to pay no more than the arrears outstanding at the time of the DN and keep the car

Edited April 2, 2010 by ncf355

[madh21]

so therefore, they knew that bank transfer wasnt an option.

 

secondly, how is joe public supposed to know that 'payment' means cleared funds? this should be explicit. This would then mean that the date stated meant you need to pay well before this! An unfair term if you asked me. The CCa states that the DN should be clear!

 

But how can they include unlawful charges that they have not asked me to pay?

[ncf355]

 

secondly, the DN only states that payment is to be received, not that these should be cleared funds as Duncton are saying. This is not clear in the default notice. If I had posted a cheque (which they refused to accept!) they would have received this in good time in accordance with the DN)

 

Please anyone?

 

Palamino is right on this one, general interpretation by law would mean CLEARED payment by the date stated, so as a cheque takes 4 working days to clear this would not have given cleared funds in time

[ncf355]

But how can they include unlawful charges that they have not asked me to pay?

 

As detailed above, it will be in the original credit agreement

 

If its not, thats a different story

[madh21]

Hi...they have confirmed to me that all telephone calls have been recorded so the evidence will be there!

 

I appreciate that the charges can be included in the entire balance but can they for the purpose of the arrears? They have defaulted me for missed contractual payments. They have never written to me asking me to pay any charges.

[ncf355]

Hi,

 

yes, they can request that in the DN

 

When I missed a payment I had to pay the charge there and then - they would normally ask for the months payment, plus the "late payment" charge

 

Basically, forget about this bit for now - what about the dates ?

 

And also do you have the original agreement?

[madh21]

ok....date of letter is 8th March which I received on the 12th

 

My name name and address is obviously at the top for posting purposes.

 

for the actual defualt notice it states the creditor details only but not mine and the goods as my registration number only (not the car details)

 

The date for repayment is 26th March.

 

Sorry...not able to scan it up.

[madh21]

the breach is stated as

 

1. failure to pay instalments of £708

 

2. failure to pay administration charges of £75 (fo not having a direct debit)

 

3. failure to pay administration charge of £25 to issue default notice.

 

How can I have failed to pay something that they have not asked me for and have only added for the purpose of the letter? Surely thats not right! and...they have NEVER asked me to pay ANY charges!

 

If the charges were not included I could have paid the rest the week before!

Edited April 4, 2010 by madh21
more info

[madh21]

Anyone Got Any Ideas?

[rhodium78]

Post the Default Notice as requested as well as the Default Notice Sums letter and any Arrears Notice you received.

 

Also, the amount paid to date, the amount left and the date the agreement was taken. Any arrears outstanding and any extra charges levied.

 

That would help caggers to help you

 

EDIT: OOOPS... JUST SPOTTED THE FACT THAT YOU CAN'T SCAN... MY BAD.... NOTE TO SELF.. DO NOT SPEED READ!!!!!! APOLOGIES.

 

Can you please clarify whether you have received ANY of the above notices apart from the DN and TN as well as let us know the relevant information about:

 

"the amount paid to date, the amount left and the date the agreement was taken"

 

Do you want to salvage this agreement or can it go to h3ll for all you care?

Edited April 6, 2010 by rhodium78

[madh21]

I havent received a termination notice. I received a default sums notice but thats all it was...not a request for payment. I havent received an arrears notice.

 

I do want to keep the agreement and have even rang them to pay over the phone which they refused to accept, despite being told that I would be allowed to fo this (and this is recorded). If they had accepted this payment then I would have paid a third of the aggreement!!

 

If they hadnt have added charges I could have paid the amount the week before. I have read on here somewher that they cannot include defauot charges in the amount in arrears. Especialy when they have never asked me to pay them before this!

[rhodium78]

So you received a default sums notice and a default notice... no termination notice...? Note, they are two different things....

[madh21]

yeah...thats right

[rhodium78]

Ok.. what are the dates of each of those notices and how much is left on your agreement and when did you sign it?

 

I see that the date of the Default Notice is 8th March and that they gave you until 26th March to rectify.

[rhodium78]

As a side note, I know you can't currently but a scan of every document you have from them would be very very helpful as we can see if they adhered to law in the way they setout their letters? Not sure if you are able to but if you can at some point, blank our your particulars and post it.

[madh21]

what's the relevance of the date for the default sums notice? and when I signed the agreement (its 2009) and I havent paid a third as yet

[madh21]

sorry...dont have the facility to scan it at the moment.

[rhodium78]

It helps build a picture of dates and when you sustained the default sums.... therefore BEFORE or AFTER your default notice. You stated earlier that you received a default notice with the penalty charges in there... some of which are questionable but if you have been given notice on at least one of them, the £25.00 charge in the default sums notice, it would tie in. If not, then they can't do that....

 

The reason why we are going backwards and forwards is that there is nothing to really go on... I am trying to determine whether the default sums notice was lawful, whether the default notice was lawful, how much left in the agreement..when you took out the agreement which in post 19 of this long winded thread is 2009. The regulations changed hence some people may still have an old HP agreement, others have new ones. I am not going to ask you questions just for the sake of it. I want to determine whether you have a case under unlawful repudiation as it will make your letter asking them for re-instatement of the agreement a bitter pill which they have to swallow.

 

In short, they can seize the car under s 90 of the CCA 1974 IIRC... if you had a previous agreement with them and that was over a 1/3, then they can't....

 

Let me know if you still don't understand the relevance of any of my questions or comments!

[madh21]

But...my questions are:-

 

The addresses to the parties are not included in the DN, only 'between you and Duncton' (my name and address is at the top of the page for postage purposes, their address is on the headed paper at the bottom of the page). I thought that names and addresses were a requirement?

 

They have included default charges and charges for non payment by direct debit even though they have never requested me to pay them. I have read on here somewhere that they cannot do that.

 

None of the words are in bold or underlined....some parts are in capitals.

 

They did not include a default information sheet (but it says to phone for one if not included)

 

There is no signature....not even a salutation.

 

They have provided no termination letter.

 

They told me that I would be able to pay the arrears after the date and given the opportunity to re-instate the agreement which they have changed there mind about. (all recorded). The supervisor said'I dont care what you were told last week, I have decided that I want the car returned' and refused to accept my offer to repay all of the arrears there and then!

[rhodium78]

But...my questions are:-

 

The addresses to the parties are not included in the DN, only 'between you and Duncton' (my name and address is at the top of the page for postage purposes, their address is on the headed paper at the bottom of the page). I thought that names and addresses were a requirement?

They should make it out clearly from and to who....

 

What you have breached....

 

How to rectify it... see below for content...

 

They have included default charges and charges for non payment by direct debit even though they have never requested me to pay them. I have read on here somewhere that they cannot do that.

 

The DD is wrong... the Default Sums Notice changes things as regards the £25.00...

None of the words are in bold or underlined....some parts are in capitals.

 

It has to have prominence... can't comment on that as I don't see it

 

They did not include a default information sheet (but it says to phone for one if not included)

 

They can do that...

 

There is no signature....not even a salutation.

 

They have provided no termination letter.

 

It will be shortly along in the post...

 

They told me that I would be able to pay the arrears after the date and given the opportunity to re-instate the agreement which they have changed there mind about. (all recorded). The supervisor said'I dont care what you were told last week, I have decided that I want the car returned' and refused to accept my offer to repay all of the arrears there and then!

 

Get the tape as evidence but if they did comply with the 14 clear days, haven't looked at the dates now as I am busy, then it is at their discretion and you might have a case under tort and not CCA..

 

 

 

RATHER LONG...

 

SCHEDULE 2Form of Default Notice before a Creditor or Owner Can Become Entitled, by Reason of Any Breach by the Debtor or Hirer of a Regulated Agreeement, to Terminate the Agreement, Demand Earlier Payment of any Sum, Recover Possession of any Goods or Land, Treat any Right Conferred on the Debtor or Hirer by the Agreement as Terminated, Restricted or Deferred or Enforce any Security

 

Regulation 2(2)

Details of agreement

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:—

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

 

 

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly remedied or the compensation is duly paid in the following form—

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH”.

 

 

 

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences of the failure by the debtor or hirer to comply with the default notice in the following form—

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]”.

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the creditor or owner.

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action intended to be taken to enforce any security.

 

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice,

 

 

 

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

 

Retaking of protected hire-purchase etc, goods

[in the case of a hire-purchase or conditional sale agreement relating to goods,

(a) made on or after 19th May 1985, where the property in the goods remains in the creditor; or

(b) made before 19th May 1985, where the debtor has not himself put an end to the agreement by virtue of any right vested in him and where the total amount payable under the agreement does not exceed £7,500,

 

 

 

a statement in the following form—]

“BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT BELOW”.

 

 

 

Note:

This statement shall follow the specification under paragraph 6 of the further action intended to be taken by the creditor or owner and be followed by—

(a) either

(i) the total amount payable under the agreement, or

(ii) where there is an installation charge, separately, the amount of the installation charge and the rest of the total amount payable under the agreement; and

 

 

 

 

 

(b) the total amount that the debtor has paid to the creditor by the giving of the notice.

 

 

 

 

Requiring earlier payment of any sum

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act—

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

 

 

 

 

 

 

 

 

 

[Ending the agreement

8A

Where the agreement is a hire-purchase or conditional sale agreement, a statement in the following form—

“You [may] [NOTE 1] have the right to end this agreement at any time before the final payment falls due.

Note that this right may be lost if you do not act before the date shown (after which we may take action).

If the date for final payment has not passed and you wish to end this agreement, you should write to the person to whom you make your payments. [You will need to pay [NOTE 2] if you wish to end this agreement by the date shown and we will be entitled to the return of the goods. You will also be liable for costs if you have not taken reasonable care of the goods.] [NOTE 3].

Note that if you end this agreement, this will not necessarily terminate any insurance finance agreements that are linked to this agreement.

NOTE 1: creditor to omit the word “may” in the case of a hire purchase agreement.

NOTE 2: creditor to insert the amount to be paid by the debtor calculated in accordance with the provisions of sections 99(2) and 100 of the Act and on the assumption that the debtor terminates the agreement on the date shown in this notice.

NOTE 3: creditor to insert the passage in square brackets where the debtor's right to terminate under section 99 of the Act subsists.]

 

Time order

9

A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff court or in Northern Ireland to the High Court or the county court for a time order—

“IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME”.

 

 

 

 

[interest payable after a judgment

9A

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a statement in the following form—

“You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay off the whole amount of the judgment, you may still have a further sum to pay.”.]

 

General

10

A statement in the following form—

“IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU”.

 

 

 

 

[10A

A statement in the following form—

“This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.”.]

 

11

A statement in the following form—

“IMPORTANT—YOU SHOULD READ THIS CAREFULLY”.

[rhodium78]

In addition... once we have a list of defects in their documents... have a look at the very draft letter below... might end up in a fight with them in court so only send if you feel comfortable... I would wait until I get the termination notice personally so it is on paper...

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

Dear Sirs,

 

I write to you as regards account number xxxxxxx and the unlawful termination of my agreement with yourselves on xx/xx/20xx via the telephone.

 

I believe that this issue arose out of a misunderstanding as I was quite willing to pay the arrears but unfortunately the method of payment was not convenient for yourselves.

 

I would like to settle this amicably thus I am willing to disregard the unlawful repudiation of our contract and treat the matter as a "thing writ in water" as defined by the law of contract in the subject of unlawful repudiation.

 

I kindly request that you contact me by the 27th of April with re-instatement of our agreement on the same terms as previously but with modification of the arrears to not include the penalty charges.

 

If this cannot be resolved amicably, I am afraid that I have no choice but to treat your repudiation of our contract as irreversible and would like to advise you that I will contest any action you take to recover any monies you allege due as unlawful.

 

As requested, please reply back by the 27th of April with a notice of your intent.

 

Regards,

 

madh21

[madh21]

OK...I have had 1 notice of default sums dated 1st Feb for x2 £25 charges for non payment by DD added on 27th Jan. (1 which should have been collected on 4th Jan and the other the 31st Jan!!) so they have added it before it was due for collection! They also added a default charge but subsequently removed it and didnt send a default notice acknowledging that they shouldnt have added any charge.

 

I have not since received any further of these letters.. The next being a default notice dated 8th March and received on the 12th March asking for £708 plus £100 in charges to be paid by 26th March.