Advantage Finance repossessed my car - No Default Notice ever received - URGENT HELP PLEASE

[ColdUpNorth]

Hi,

 

I'm starting a new thread on this because things have moved on since the other threads I started earlier today and I wanted to be able to have a fresh start on things.

 

When I got home from work tonight I was greeted by someone from a collection company with paperwork to repossess the car that I bought through Advantage Finance last year. As the car was parked on the road there was nothing I could do to prevent him taking it, however I did not hand over the keys or log book and refused to sign anything - for his part he was perfectly polite, attempted to contact Advantage for me to see if they would agree to hold the repossession and he did give me a receipt.

 

Here's the thing though, I have checked all my paperwork and I never received a Notice Of Default from Advantage Finance. They sent a Notice Of Termination last week which states on it that they did serve a DN, but I have definitely not received one.

 

Here's where things get a bit sticky though. I moved house at the beginning of January, I did write to Advantage to advise them of this, however the copy I have of the letter is dated the 6th January, I sent it first class post (as I always do) but have no proof of this and obviously no proof of receipt at their end. I have a statement of my account from Advantage on which it states they issued the DN on the 8th January so I suspect they sent it to my old address and I did not have a redirect set up or any way of getting back in to my old post (I was a lodger and fell out with the landlord big style - moving incurred extra costs to me which only made matters with Advantage worse.)

 

The reason I suspect that Advantage sent the DN there is that never acknowledged receipt of my change of address letter and I did not receive any correspondence from them at my new address until March despite again stating my change of address in an email in February when they emailed me asking me to confirm where the car was kept.

 

My conduct to Advantage until January was good, however after this I have struggled to make any payments (January's was late but was made) and currently February and March's payments are in arrears (April's would have been due on 14th April). I also made the mistake of lying to them that I had made a payment direct to their bank when I hadn't (which I did to buy myself time - yes I realise this was possibly the most stupid thing I could have done). I have also written to them last week offering to come to an arrangement to clear the arrears and continue the normal repayments on time.

 

Where do I stand with regards to not receiving the DN? Judging by the other letters etc they have sent me it would not surprise me if it was invalid but obviously I have no way to prove this. The closest thing I have received was a Default Sum Notice dated 17/03/2010.

 

Obviously I would prefer to get the car back, however I am pretty much resigned to the fact that I am not going to see it again and intend to get myself a little runabout at the end of the month. And actually, maybe not having to pay out the £250 a month won't be such a bad thing.

 

I would appreciate any advice though on how I might proceed with this, if I request a copy of the DN and it is invalid, as I suspect, how do I proceed?

 

Have I understood the other threads around here correctly that I could actually claim for illegal repossession of the vehicle and either get it back or get a replacement vehicle as a result? How do I go about this?

 

Please help while I figure out how to tell my girlfriend and housemate this as I had kept this from everyone...those 2 in particular I may find difficult as I each of them has lent me money recently which I still owe them.

 

Thanks in advance.

[tomtubby]

I a not sure that this is the right place to post this question.

 

The action to recover your car was NOT by a bailiff but by a recovery agent because a finance agreement was apparently in default.

 

Maybe somebody with more experience of these matters will be along soon otherwise, I will ask the moderators to move you again.

[cerberusalert]

Moved to Debt Collection Forum.

[ColdUpNorth]

Moved to Debt Collection Forum.

 

Thanks

[Jasper1965]

Can you clarify the following please?

 

You state that until January the payments were good, that Januarys was late and Feb & marches were in arrears. One wonders then why you " have a statement of my account from Advantage on which it states they issued the DN on the 8th January" ???????

 

The DN dated 17/03/2010 is the one upon which they have acted, it would be a good idea if you can get this scanned and posted for scrutiny.

[ColdUpNorth]

The payments came out by Direct Debit on the 1st of each month. January's bounced but was eventually paid on 28th January, I was then unable to meet February and March's payments.

 

The document from 17th of March isn't actually titled as a Notice Of Default (I will scan and post this when I get home tonight) so if that's the document they've acted upon then I would say from what I've read here that I have them over a barrel... What makes you say this is the one they've acted on??

[Jasper1965]

What makes you say this is the one they've acted on??

 

You weren't in a default position on the 8th of January as you were at that time simply one week late with one (monthly) payment. Two months or more in arrears (on a monthly a/c) is the earliest stage at which a creditor can issue a valid notice. The prescribed form and wording for a DN are as you seem aware very clearly stipulated, sounds hopeful that this is an unlawful recission.

[ColdUpNorth]

Okay, that's what I was hoping for.

 

As I never received the original DN they claim to have sent out and have already taken the car back, where do I go from here and what can I aim to get back?

 

I've resigned myself to not getting that car back and am going to get something cheaper that I can buy outright, but I'm up for the fight and willing to take them for everything I can...

 

What's my first step, try and get a copy of the DN they claim they sent in January - how would I do this?

 

I've read a lot of threads, and am in fact currently doing a Law course through the OU, but need all the guidance I can get.

[DeBilde]

Have you paid more than 1/3 of the ammount owed?

[ColdUpNorth]

No I hadn't gotten anywhere near that, but surely without a valid DN then the repossession was still illegal??

[DeBilde]

Well they did not need a Court Order to take the car but you must have been defaulted in the correct manner for them to do this.

 

They are saying that they sent a DN dated the 8th Jan 2010 giving you 14 days to remedy the breach?

 

They should not have sent this until March at the earliest as you were 2 payment in arrears a this point. In the termination notice did they mention when the DN was served? Maybe the correspondence you recieved in January was a Default Sum Notice.

 

You may need to SAR them or ask them when the DN was sent. We can then look at it and see where we go from here.

[ColdUpNorth]

They haven't said they sent a DN in January, but before they terminated the account I requested a full statement so that I could try and negotiate to clear the arrears and on it was a charge for them issuing the DN on 8th Jan.

 

Sorry to sound dense, but is a Default Sum Notice different from a Notice of Default??

 

On the Notice Of Termination, it doesn't state a date, it simply refers to the default notice them previously sent.

 

It looks like a Subject Access Request may be my only way to get a copy of the DN doesn't it.

 

ETA: Though, would it be enough if I was able to get them to admit that they were acting on the back of the January DN as that would have them admitting to issuing the DN before I had legally defaulted?

[ColdUpNorth]

The plot thickens: I checked my credit report on the creditexpert website and in my most recent report, Advantage aren't even listed. I can also download the previous month's report and they are listed on there, however they have not recorded a default against my account at that point (report dated 16t March 2010)...

[DeBilde]

They haven't said they sent a DN in January, but before they terminated the account I requested a full statement so that I could try and negotiate to clear the arrears and on it was a charge for them issuing the DN on 8th Jan.

 

Never seen a charge for a DN before, Default Sum Notice then yes. But not all companies act the same.

 

Sorry to sound dense, but is a Default Sum Notice different from a Notice of Default??

 

Yes, Default Sum Notice is a list of charges they are applying to your account when your breach the TC's

 

On the Notice Of Termination, it doesn't state a date, it simply refers to the default notice them previously sent.

 

It looks like a Subject Access Request may be my only way to get a copy of the DN doesn't it.

 

It is looking that way

 

ETA: Though, would it be enough if I was able to get them to admit that they were acting on the back of the January DN as that would have them admitting to issuing the DN before I had legally defaulted?

 

You would need proof of some sort for this, a copy of the DN or a recorded call admitting when the DN was served

 

I am sure someone else with more knowledge will be along soon to give more advice.

[Jasper1965]

They haven't said they sent a DN in January, but before they terminated the account I requested a full statement so that I could try and negotiate to clear the arrears and on it was a charge for them issuing the DN on 8th Jan.

 

Sorry to sound dense, but is a Default Sum Notice different from a Notice of Default??

 

On the Notice Of Termination, it doesn't state a date, it simply refers to the default notice them previously sent.

 

It looks like a Subject Access Request may be my only way to get a copy of the DN doesn't it.

 

ETA: Though, would it be enough if I was able to get them to admit that they were acting on the back of the January DN as that would have them admitting to issuing the DN before I had legally defaulted?

 

Sounds like the recent one is a Notice of Termination which is good news if the only DN sent was issued on the jan date as you simply were not in a default position at that stage so IMO any default notice issued would be defective on that point alone. A copy of that notice would be very useful.

Now the account has been terminated they cannot reissue a compliant DN obviously so it might be pertinent to write to them formally "accepting their termination of the contract which you assume from documentation within your possession is based upon your alleged failure to comply with the January default notice".

 

Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[DeBilde]

I think we need to be clear when the DN was sent though. As everything went to the old address, have the current occupiers kept any post for you or have the returned to sender?

A termination letter was received last week. Meaning a DN could have been sent when March's payment was missed.

 

Either way I can't see any harm in accepting their termination, but would you even need to do this anyway as actions of repo of the car clearly shows the account has been terminated.

[ColdUpNorth]

Okay, I have emailed the Repossessions Manager and she has very kindly confirmed that in her words:

 

"The Default notice was issued to you on 8th January this has not been satisfied, hence termination."

 

I have asked if she will be able to send me a copy of the Notice Of Termination, if she says no then I will SAR them...

 

What if the DN comes and has my old address on it? While I wrote to them on 6th Jan informing them of my change of address, it is entirely possible that they did not receive this before they issued the DN. Does this matter if the DN was issued on a date that would make it invalid??

[cerberusalert]

You won't receive a copy of the DN, they don't keep them. You may be lucky and it will be recorded in the 'events log'. However if as you say they have not recorded it on your credit file they would have a difficult time actually proving that one was actually issued.

[ColdUpNorth]

You won't receive a copy of the DN, they don't keep them. You may be lucky and it will be recorded in the 'events log'. However if as you say they have not recorded it on your credit file they would have a difficult time actually proving that one was actually issued.

 

So would you still go down the SAR route?

 

I now have a copy of an email from them stating that they were acting on the back of the January DN, and they have also shown a charge on the statement of my account showing that the DN was issued on 8th Jan.

 

Sounds like I have a case if this goes to court, how do I get it there??

 

What should I do next????

 

Since the car won't have been sold at auction yet, is there anything I can do that will make them give it back, or at least prevent them selling it??

 

(Also, and you may not be able to answer this one, what do I do with regards to the V5 - I don't want to leave it registered in my name if I no longer have it, but the relevant section 9 on the V5 requires the signature of the Motor Trader too...)

[ColdUpNorth]

Most recent development, they have emailed me a pdf of the DN (I have asked them to post me a hard copy) and it is dated 8th January, gives me until 22nd January to repay the arrears (which is 14 days from the 8th - no time allowed for postage) and is addressed, not to my previous address, but to the address before that at which I took out the agreement.

 

I'm guessing the address part doesn't matter as I have no proof that I informed them of my change of address (I did), but the dates seem to be the show stopper to me.

 

I will upload it when I get home tonight for you all to examine for anything else I can use.

 

Looks like I have them...does everyone agree?

 

What next..??

[cerberusalert]

It's definitely a defective DN going on those dates unless it was served by hand.

[ColdUpNorth]

Which of course it wasn't. Every envelope I can find for letters from them has a 25p frank which is, unless I'm mistaken, second class...

 

Even then, the fact that I wasn't 2 months in arrears at that point also makes it invalid.

 

I'm really up for this fight as they've done nothing to try and help me come to an agreement with them, just need to know how to get started...

[DeBilde]

It looks like a result to me. Unlawful reccesion on 2 counts.

 

How you get the car back I am not sure but the only amount you owe is the arears stated on the DN in January which as you say was for only 1 months payment which you have already made, so you owe them nothing but you have lost the car.

[ColdUpNorth]

Surely I still owe the arrears up until the Notice Of Termination??

 

Is there any way to get one of the Jedi Masters who seems to knock around here to take a look at this and see what they think.

 

If the outcome is that I owe them nothing but have lost the car, then that's not the worst thing ever, but I've read elsewhere that if a car is repo'd after unlawful rescission, even if I haven't paid 1/3, then I have grounds for a claim against them for damages...

 

Just to clarify, I'm resigned to not getting the car back, not sure I'd want it after watching them force the steering lock to lift it (unfortunately I had to get items of value out of the car so unlocked it, but they did not get the keys or log book off of me), but if I can get anything out of them that I can put towards another car or maybe a holiday...well they're a big company and I'm certain they can afford it!!

 

If only I'd hidden the car..!!

Edited April 13, 2010 by ColdUpNorth

[DeBilde]

No just the arrears on the DN. You can claim for damages but not sure about repo'd items.

 

Yes, hopefully one of the more experienced Caggers will be along soon.