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

[cab1ne]

Well, there's levels I guess isn't there...

 

I'd be content with never having to pay them another penny.

I'd be happy with some damages even if only a small amount.

I'd be over the moon if I got what your barrister is going for..!!

 

To be honest, my ideal outcome would be if I got a car of equal value out of them (don't want the car they repo'd back - they had to force the steering lock and I'm told that can result in serious issues further down the line), but I realise that may be wishful thinking and am going to the auctions with my father at the end of the month to get myself another (cheaper) car that I will own outright (even though I will be paying my dad back over a few months).

 

Now that I've calmed down a bit I'm happy to play the waiting game as I appreciate that doing that is being proactive. Any idea of timescale though??

 

the money you have paid + another vehicle of value or the cash equivelent or the price sold at auction (all reasonable) your choice

 

cab

[cab1ne]

We're taking out the part where I give the 14 days to reply then? "yep" we dont need to rush at this point, we just need "INFO". HAVE YOU SENT A S.A.R YET.

I actually do expect to get a reply out of them as to this point they have always responded to my letters etc, even if they haven't been helpful or cooperative. Might be wrong and they might clam up.

 

they might just do that, but we won't. they might even sh*t them selfs and in a panic take you to court:D:p

 

CAB

[ColdUpNorth]

they might just do that, but we won't. they might even sh*t them selfs and in a panic take you to court:D:p

 

CAB

 

Right now a nice pack of court papers landing on my doorstep would make my day..!!

 

Though probably better if they take a little longer. Haven't sent SAR yet, money's tight thanks to not having the car any more (having to pay for transport to/from work and had just filled the tank which should have lasted me until pay day) so I'm going to hang on til the weekend and then take a few DVD's and CD's that I haven't used for ages in to a shop in town to raise the £10.

[ColdUpNorth]

Oh and I have a horrid suspicion that I left my Sat-Nav in the car despite removing all my belongings...I think it was under the seat and I forgot to check there.

[ColdUpNorth]

the money you have paid + another vehicle of value or the cash equivelent or the price sold at auction (all reasonable) your choice

 

cab

 

That would fall under the "dream scenario" heading

[ColdUpNorth]

Okay, so I want to send this letter on Friday as I have the day off work so can get to the Post Office.

 

That gives us tomorrow to get it spot on, although I think thanks to your very kind help it is pretty much there.

[cab1ne]

Okay, so I want to send this letter on Friday as I have the day off work so can get to the Post Office.

 

That gives us tomorrow to get it spot on, although I think thanks to your very kind help it is pretty much there.

 

"ok" no probs

ive asked bee (beyond hope) to pop down later and have a peek, three heads are better than two:D

 

cab

[beyondhope]

Ill just have a read through with my glass of brain juice

[beyondhope]

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.

 

 

This may be true but I know of at least one company dishing out defective DNs as soon as 1 month in arrears

[beyondhope]

yes you do have a case, also your impatience could be costly to yourself. you need to gain a bit of a paper trail to show a judge that you have tried to be reasonable. also remember any correspondence you delve into can also go against them in court. patience is a virtue "USE IT". keep cool/calm and collective, the ball is in your court "DONT WASTE IT".

 

cab

 

absolutely - I wanted to hang the g*ts regarding my HP agreement as soon as I knew my agreement was defective but 6months later they have hung themselves much better and I am now in an even stronger position. Dont go flying into it you need to research until your brain hurts and be 110% clear and what where and why to support your arguements.

[beyondhope]

Here's the draft letter I have come up with (I edited BeyondHope's letter from another thread, I hope she doesn't mind):

 

Dear Sir/Madam

 

Re: Terminated Agreement Number:

 

Following your unlawful rescission of contract on 7th April 2010 and your further enforcement of repossessing a vehicle related to this no longer active agreement on 12th April 2010, I wish to draw your attention to the following.

 

 

Before a creditor or owner in the position of Advantage Finance Limited can become entitled to use Section 88 of the Consumer Credit (Enforcement Default and Termination Notices) Regulations 1983 (S/I No 1561) and (amendment ) Regulations 2006, Advantage Finance Limited must first serve a valid default notice. The Regulations are clearly set out in some detail, the form in which the notice must take, and what information a Default Notice must contain. In particular, Section 87 (1): The relevant parts of Section 87 (1), read as follows.

 

Section 87 (1):

"Service of a notice on the debtor or hirer in accordance with section 88 (a ´Default Notice') is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement, -

 

(a) To terminate the agreement, or

 

(b) To demand earlier payment of any sum, or

 

© To recover possession of any goods.

 

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

 

(e) To enforce any security.

 

I now return to the facts of the Default Notice.

On 8th January 2010 Advantage Finance Limited sent a Default Notice which Advantage Finance Limited contend complies with the provisions of the Consumer Credit (Enforcement Default and Termination Notices) Regulations 1983 (S/I No 1561) and (Amendment) Regulations 2006 made there under. I do accept that in some respects the Default Notice complies with some of the statutory requirements, but I contend that the Default Notice has one critical flaw.

 

The Default Notice describes the action required to remedy the alleged breach of Agreement as "Pay the arrears of £317.47 to us within 14 days. For the purpose of doubt I shall explain why the above Default Notice falls short of the provisions of the Consumer Credit (Enforcement Default and Termination Notices) Regulations 1983 (S/I No 1561). On the 19th December 2006 the (Amendment) Regulations 2006 came into force and amended the time scale for a Default Notice to, “Not less than fourteen days”.

 

The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983[2] shall be amended as follows. In Schedule 2 in paragraphs 3©, 3(d) and 6 for the words "not less than seven days" substitute"not less than fourteen days".

 

With this evidence in hand I have come to the conclusion in relation to that one critical flaw, the Default Notice is non compliant.

 

The statute was plainly enacted to protect consumers. When a debtor is said to have broken the terms of an Agreement, the debtor needs to know precisely what is wrong and what is needed to put things right. The creditor has the ability and the resources to give that information with precision. If the creditor does not do so accurately then they cannot take "the next step".

 

What Advantage Finance Limited has done is that they have totally missed out on TWO vital points.

 

Point 1

 

The Interpretation Act 1978 Section 7 Practice Direction, Service of Documents - First and Second Class Mail.

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting. "Working days" are Monday to Friday, excluding any bank holiday.

 

8th March 1985*

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

 

Point 2

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

In a nutshell Advantage Finance Limited must allow for at least 2 days postage, 2 working days Monday to Friday, also allowing for any bank holidays. The Default Notice is dated 8th January 2010 and states that it must be remedied “within 14 days”. The Default Notice also states the date by which it must be remedied as 22nd January 2010. What Advantage Finance Limited have not taken into account is that a Default Notice has to be Date Specified and that this date must allow for 2 working days postage, as such the date specified of 22nd January 2010 falls short of the statutory requirement by 4 days.

 

At this point Advantage Finance Limited had the opportunity to re-issue another Default Notice in compliance with the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006, but Advantage Finance Limited did not. On the 7th April 2010 Advantage Finance Limited issued a Termination Notice, the Termination Notice did not simply imply Advantage Finance Limited could or would, not even we may, the Termination Notice clearly stated “YOUR HIRE PURCHASE ACCOUNT HAS NOW BEEN TERMINATED”. Upon receipt of this Termination Notice it is perfectly obvious that Advantage Finance Limited had in fact relieved BOTH parties from the performance of the Agreement and all the terms and conditions with in it.

 

I am in no doubt that Advantage Finance Limited are totally aware that a Default Notice must adhere to the prescribed regulations for the manner in which a Default Notice is set out and the information that a Default Notice must contain. In particular and of utmost importance a Default Notice must give a debtor an opportunity to remedy any alleged breach and give a debtor “Not less than fourteen days” from the date of service and not 14 days from the date of author in which a Debtor must do so.

 

The Consumer Credit Act gives a creditor no room for error and demands that with the financial and legal knowledge at their disposal, they should be very able to get all their documentation right or suffer the consequences.

 

The consequences of Advantage Finance Limited actions are as quoted in case law an Unlawful Rescission of Contract see (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255). Thus having unlawfully rescinded the agreement by failing to comply with the requirements of the consumer credit act Advantage Finance Limited have also lost all benefits of section 87 (1): (a) To terminate the agreement, or (b) To demand earlier payment of any sum, or © To recover possession of any goods (d) To treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or (e) To enforce any security.

 

Advantage Finance Limited should also be made aware that having unlawfully rescinded the agreement by failing to comply with the requirements of the consumer credit act, would not only prevent the court from enforcing any debt outstanding, A Debtor would also have a right to counter claim for any damages see( Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

 

I am confident this plainly outlines why the agreement has been unlawfully rescinded and how you weren’t in a lawful position to repossess the vehicle related to the agreement which you proceeded to do following termination.

 

I would respectfully request you look at your records to confirm what I have outlined and how you propose to remedy the situation. I would expect an adequate response outlining your intended actions and any timescale of utilising these actions within 14 days.

 

Yours faithfully

 

Comments/ammendments please...

 

 

Sounds ok to me but I held off until the last second to send this letter as its detailed and shows clearly where they have f**ked up whereas I like to let them hang themselves

[beyondhope]

bee wont mind she's a good girl (sometimes)

 

also if they are reliant upon this default notice on the alledged arrears in february/march 2010, then they are snookered again. as in Woodchester Lease Management Services Ltd v Swain and Co. the amount has to be accurate and not in the slightest mis-stated.

 

"GAME ON"

 

also have a read of this

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

cab

 

haha sometimes

[beyondhope]

the money you have paid + another vehicle of value or the cash equivelent or the price sold at auction (all reasonable) your choice

 

cab

 

Ive gone for money paid, value of car + costs all + stat interest coz im greedy

[beyondhope]

ok im all commented out -good advice here

[cab1ne]

i think it would be wise to get a sar off to them first and see what they have got.

 

cab

[ColdUpNorth]

i think it would be wise to get a sar off to them first and see what they have got.

 

cab

 

Okay, will do that on Friday.

 

Is there anything in particular we're looking for that could help, or hinder my case??

 

I know if will show records of me saying I had paid cash into their account when I hadn't (which I know was stupid but I was trying to stall for time) which must go against me.

 

Anything else??

[cab1ne]

Okay, will do that on Friday.

 

Is there anything in particular we're looking for that could help, or hinder my case?? "yes to both" thats why it is best to see what they can offer in the sar,

I know if will show records of me saying I had paid cash into their account when I hadn't (which I know was stupid but I was trying to stall for time) which must go against me. its amazing what these thugs can do to you, all the stress and pressure they apply its just appauling.

Anything else??

 

everything seems fine so far,

 

link to the sar

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

in your case signing it is ok. lifting your signature is futile, dont worry.

 

cab

[ColdUpNorth]

everything seems fine so far,

 

link to the sar

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

in your case signing it is ok. lifting your signature is futile, dont worry.

 

cab

 

Thanks, and yes if they wanted to lift my signature anyway they have had enough letters with it on.

 

Is it worth doing a CCA request while I'm at it?? I have my copy of the original agreement, wonder if they have theirs? Or would a SAR give me that anyway?

 

Sorry to sound a little dense...

[cab1ne]

Thanks, and yes if they wanted to lift my signature anyway they have had enough letters with it on.

 

Is it worth doing a CCA request while I'm at it?? I have my copy of the original agreement, wonder if they have theirs? Or would a SAR give me that anyway?

 

Sorry to sound a little dense...

 

yep, everything they have on you, transcripts of phone calls, sometimes they slip up and send stuff they dont want you to know:rolleyes:

 

cab

[ColdUpNorth]

everything seems fine so far,

 

link to the sar

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

in your case signing it is ok. lifting your signature is futile, dont worry.

 

cab

 

Just a thought, if I do a SAR and they fail to include something they were then later to produce in court...surely that would work in my favour as it would another breach of a statute??

[ColdUpNorth]

Bump....oops!!

[ColdUpNorth]

So following the advice of a member of the site team to "keep my powder dry" for the time being, I am sending the following letter along with a SAR in recorded post tomorrow...

 

---------------------------------------------------

 

Ref: Agreement Number

 

Dear Sir/Madam

 

Reference the agreement number quoted above for vehicle reg [XX##XXX], I accept your unlawful rescission of the agreement.

 

Yours sincerely

 

ColdUpNorth

 

---------------------------------------------------

 

I know it's been agreed that I don't need to accept the unlawful rescission, but as others have pointed out, why show my hand before I have to. Let's see if they can work out why it's unlawful...

[ColdUpNorth]

Hey folks, can you take a look at this person's thread - they're having problems with Welcome...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/255834-guaranteed-car-finance-welcome.html#post2880092

[ColdUpNorth]

Bit quiet on here today..!!

[beyondhope]

Just a thought, if I do a SAR and they fail to include something they were then later to produce in court...surely that would work in my favour as it would another breach of a statute??

 

Certainly!

 

In my case I had an incomplete sar which was paid for and as a fob off they provided another that had a whole heap of other stuff in that I didnt have first time

 

Just remember to keep envelopes of anything received should you ever need to prove postage/receipt i.e first or second class

 

SAR would defo help

 

Acceptance letter is fine I did this 2 wks after termination and they still repo'd