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

[ColdUpNorth]

How does that work?

 

Surely the account was still active until they terminated, which wasn't until 17th March...

 

Not saying you're wrong (in fact I'm delighted it you're right) but just don't understand why.

[cerberusalert]

If they terminate an agreement on the back of a defective default notice, which they have by repossessing the vehicle, they will have unlawfully rescinded the contract.

The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, and that a failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).

 

In the final paragraphs of the costs order in BOS v Robert Mitchell June 2009 judge langan said;

 

 

"11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate"

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

[ColdUpNorth]

Thanks, but I think I'm getting a little confused...

 

The DN was invalid so they unlawfully rescinded the contract, I understand that part.

 

I am only liable for the arrears stated on the DN (I still don't understand why that is the case and not the arrears up until the date the Termination Notice was served).

 

I can claim damages, but how much can I realistically claim for? £1000 as stated in the example above? Can I claim back any of the payments I have already made? Can I claim anything for the loss of the vehicle since they had sent a Notice Of Termination prior to lifting it?

[cerberusalert]

I am only liable for the arrears stated on the DN (I still don't understand why that is the case and not the arrears up until the date the Termination Notice was served).

Because when they terminated the agreement on the back of a defective DN. The DN wasn't lawful in the first place.

I can claim damages, but how much can I realistically claim for? £1000 as stated in the example above?

That is the going rate if it went to court, although many people settle out of court for a lower figure. In essence they have damaged you in two ways, they have prevented you from having the enjoyment of the goods and secondly if they've marked a default on your credit file they have libeled you.

[ColdUpNorth]

Because when they terminated the agreement on the back of a defective DN. The DN wasn't lawful in the first place.

 

Okay, I think I get that now (thought still don't understand why, but I'll accept that it's the case). Since I paid those arrears on 28th January it means I don't owe them anything.

 

That is the going rate if it went to court, although many people settle out of court for a lower figure. In essence they have damaged you in two ways, they have prevented you from having the enjoyment of the goods and secondly if they've marked a default on your credit file they have libeled you.

 

How do I set the ball rolling on this then or do I have to wait for them to take me to court?

[Ell-enn]

I would definitely send them a subject access request - send by recorded delivery and keep a copy. Check on the royalmail website a few days later to print off the signature receipt - staple that to your copy letter - we wouldn't want them to say they didn't get it would we

 

When you get the SAR info back we'll know how to proceed.

[ColdUpNorth]

What else would an SAR get me that I haven't already got?

[Yoshiro]

It would give you all their notes and any information they hold on you - as well as dates of documents etc........

[Jasper1965]

I am only liable for the arrears stated on the DN (I still don't understand why that is the case and not the arrears up until the date the Termination Notice was served).

Because when they terminated the agreement on the back of a defective DN. The DN wasn't lawful in the first place.

 

It has been argued succesfully by the creditor upon occasion that under the cca 1974 an unlawful termination of an agreement based upon a defective DN is not legally binding. ie you cannot lawfully accept or endorse via a Court judgment something which is unlawful.

 

However repossessing the vehicle in these circumstances is an act which falls outside the scope of the CCA 1974 /2006 and into the scope of 'normal' contract law. Accepting their unlawful recission of contract at this stage could pay dividends in the future as your acceptance precludes them from revisiting the agreement and re-issuing dn's etc.

 

I would be looking for compo plus the return of any/all monies you had spent improving the vehicle and any deposit you paid under the agreement at the least. You might also validly add any insurance/warranty payments which you have been obliged to make after the loss of use was incurred. eg if you have 4 months premiums to pay on a vehicle you no longer have put them on the bill.

 

Avoid the judge lottery, accept their unlawful recission asap; in contract law this will give you a position of strength

[ColdUpNorth]

Do I need those if I already have the invalid default that they terminated on the back of?

[ColdUpNorth]

However repossessing the vehicle in these circumstances is an act which falls outside the scope of the CCA 1974 /2006 and into the scope of 'normal' contract law. Accepting their unlawful recission of contract at this stage could pay dividends in the future as your acceptance precludes them from revisiting the agreement and re-issuing dn's etc.

 

I would be looking for compo plus the return of any/all monies you had spent improving the vehicle and any deposit you paid under the agreement at the least. You might also validly add any insurance/warranty payments which you have been obliged to make after the loss of use was incurred. eg if you have 4 months premiums to pay on a vehicle you no longer have put them on the bill.

 

Avoid the judge lottery, accept their unlawful recission asap; in contract law this will give you a position of strength

 

Would you be able to guide me on what would need to go into a letter to accept the unlawful rescission?

 

Also, how do I start down the compensation/ reimbursement route if that's what you're suggesting??

[Jasper1965]

I am only liable for the arrears stated on the DN (I still don't understand why that is the case and not the arrears up until the date the Termination Notice was served).

Because when they terminated the agreement on the back of a defective DN. The DN wasn't lawful in the first place.

 

It has been argued succesfully by the creditor upon occasion that under the cca 1974 an unlawful termination of an agreement based upon a defective DN is not legally binding. ie you cannot lawfully accept or endorse via a Court judgment something which is unlawful.

 

However repossessing the vehicle in these circumstances is an act which falls outside the scope of the CCA 1974 /2006 and into the scope of 'normal' contract law. Accepting their unlawful recission of contract at this stage could pay dividends in the future as your acceptance precludes them from revisiting the agreement and re-issuing dn's etc.

 

I would be looking for compo plus the return of any/all monies you had spent improving the vehicle and any deposit you paid under the agreement at the least. You might also validly add any insurance/warranty payments which you have been obliged to make after the loss of use was incurred. eg if you have 4 months premiums to pay on a vehicle you no longer have put them on the bill.

 

Avoid the judge lottery, accept their unlawful recission asap; in contract law this will give you a position of strength

[DeBilde]

Would you be able to guide me on what would need to go into a letter to accept the unlawful rescission?

 

Also, how do I start down the compensation/ reimbursement route if that's what you're suggesting??

 

Just state that 'that you accept their termination of the agreement under a unlawful recession'. Keep it brief and don't let on why it is unlwaful e.g. don't mention the dodgy DN, let them hang themselves with it later on.

[Jasper1965]

Just state that 'that you accept their termination of the agreement under a unlawful recession'. Keep it brief and don't let on why it is unlwaful e.g. don't mention the dodgy DN, let them hang themselves with it later on.

 

Yes, certainly keep quiet about dates etc at this stage and maybe include something speculative along the lines of "Since the sum you stated as the default sum was paid to you in full by myself prior to your termination of the account I request written confirmation that I therefore have no further liability to your company under this agreement. If you cannot agree that I have no further liability to your company under the agreement then I require you set out your reasons and supply me with any supporting evidence to such claim"

 

If they confirm then you have further documentary evidence that they accept the agreement was unlawfully rescinded, if they as we all suspect attempt to argue that you still owe them the balance then your pre Court disclosure process has started as pretty well anything they send you in reply is likely to cause them problems in the future. You will also be able to prove at litigation that you have attempted to remedy the wrong done to you amicably and outside the Court system

 

See what they send you then I'd just basically write to them , tell them you believe they have acted unlawfully and are in breach of the contract and their breach has caused you damages. Enclose a bill for settlement.

 

They'll repudiate this I guess so next time resend the bill with your extra costs added (LIP costs stationery, postage etc), tell them briefly why you believe they are in breach and warn them that if they don't pay up within say 14 days you may litigate.

 

14 days later resend updated bill plus formal LBA giving notice of intention and increase in costs and only after further 14 days file the Court paperwork.

 

You will have by this time pointed out their errors, given them ample time to remedy the wrong, and will be able to prove this which can be very important when applying for non provable damages.

 

This should fill in the time and ramp up your award whilst the SAR is being processed.

[ColdUpNorth]

Thanks Jasper, so step 1 is I send them a letter accepting their unlawful rescission of the agreement and the bit about the arrears?

[ColdUpNorth]

Cab1ne...I see you're looking into this thread and know from reading another thread that you have some experience in this area...anything to add??

[cab1ne]

Cab1ne...I see you're looking into this thread and know from reading another thread that you have some experience in this area...anything to add??

 

just getting the run down;)

 

some good advice but some a little confusing.

 

"back very soon"

 

cab

[cab1ne]

"well" you are a lucky cagger

 

DN dated 8th jan (friday)

forget sat/sun (dont count)

day 1 = 11th

day 2 = 12th

leaves 10 days to remedy.

 

the ball is well and truly in your court.

you dont need to accept any unlawful rescission because they have repossessed the car and there is no way they can get round that one (not even with a bias judge). do not pay another bean and do not offer one neither (they now owe you).

 

you need to now play the game of "TICK TOCK" by this i mean write to them and point them in the direction of there errors. wait for a response ( TICK TOCK) and then reply with another error, and always pointing them in the direction of what they would like to do to rectify there errors (IN LAW).

 

cab

[ColdUpNorth]

"well" you are a lucky cagger

 

DN dated 8th jan (friday)

forget sat/sun (dont count)

day 1 = 11th

day 2 = 12th

leaves 10 days to remedy.

 

the ball is well and truly in your court.

you dont need to accept any unlawful rescission because they have repossessed the car and there is no way they can get round that one (not even with a bias judge). do not pay another bean and do not offer one neither (they now owe you).

 

you need to now play the game of "TICK TOCK" by this i mean write to them and point them in the direction of there errors. wait for a response ( TICK TOCK) and then reply with another error, and always pointing them in the direction of what they would like to do to rectify there errors (IN LAW).

 

cab

 

And the DN was also served when I was only 1 week late with a payment.

[ColdUpNorth]

Okay, so I'm going to write the letter to Advantage but need some help with some legal references if someone more knowledgeable could help.

 

I need to be able to quote where the legislation is found for the following:

 

1) The required steps to repossess the vehicle (DN - TN etc) when less than 1/3 paid

2) The rules regarding when a DN can be served

3) The rules regarding the format of a DN, specifically the part that prescribes the numbers of days that must be allowed to remedy

4) The number of days that must be allowed for postage of a DN

5) Why their actions in repossessing the car without a valid DN are unlawful

 

Also, if there are any relevant cases that I can quote for precedent that would be much welcomed.

 

The letter I have in mind will be a letter before action, will simply state that they have acted unlawfully in repossessing the car without a valid DN. Clearly explain why the DN was invalid. Give them 14 days to rectify their errors or court proceedings may be commenced without further warning.

 

As always, any guidance or help well received.

[cab1ne]

Okay, so I'm going to write the letter to Advantage but need some help with some legal references if someone more knowledgeable could help.

 

I need to be able to quote where the legislation is found for the following:

 

1) The required steps to repossess the vehicle (DN - TN etc) when less than 1/3 paid

 

it should say so on your agreement and in the 1974/2006 act regs

 

2) The rules regarding when a DN can be served

 

you breach they default (simples)

 

3) The rules regarding the format of a DN, specifically the part that prescribes the numbers of days that must be allowed to remedy

 

2006 No. 3094

CONSUMER CREDIT

The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006

Made

18th November 2006

Laid before Parliament

23rd November 2006

Coming into force

19th December 2006

The Secretary of State makes the following Regulations in exercise of the powers conferred on him by sections 88(1) and 182(2) of the Consumer Credit Act 1974

 

Citation, commencement and interpretation

1. This Order may be cited as the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006 and shall come into force on 19th December 2006.

 

Amendment of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

2. The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 shall be amended as follows.

 

3. In Schedule 2 in paragraphs 3©, 3(d) and 6 for the words "not less than seven days" substitute "not less than fourteen days".

 

 

Ian McCartney

Minister of State for Trade, Investment and Foreign Affairs Department of Trade and Industry

 

18th November 2006

 

EXPLANATORY NOTE

These Regulations amend the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. They provide that default notices served under section 87 of the Consumer Credit Act 1974 shall specify—

(a) that where action is required to be taken by the debtor or hirer to remedy the breach or pay compensation, this action shall be taken within not more than 14 days after the service of the notice; and

 

(b) where no such action is required to be taken, the date on or after which the creditor or owner intends to take action, must not be less than 14 days from the date of the notice.

 

4) The number of days that must be allowed for postage of a DN

1. Interpretation Act 1978, Section 7

This states:-

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(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.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

 

5) Why their actions in repossessing the car without a valid DN are unlawful

Before a creditor or owner can become entitled to use Section 88 of the Act, they must first serve a valid default notice. The Regulations are clearly set out in detail, the form in which the notice must take, and what information a Default Notice must contain.

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.

 

Also, if there are any relevant cases that I can quote for precedent that would be much welcomed.

 

The letter I have in mind will be a letter before action, (NO) will simply state that they have acted unlawfully in repossessing the car without a valid DN. (YES) Clearly explain why the DN was invalid. (YES) Give them 14 days to rectify their errors or court proceedings may be commenced without further warning. (NO)

 

As always, any guidance or help well received.

 

JUST POINT THEM IN THE ERROR OF THERE WAYS AND LET THEM DO ALL THE RUNNING AROUND AND ALL THE USUAL COURT THREATS. keep the burden of proof on them, you just need to rebutt all the rubbish they will come out with.

 

cab

[ColdUpNorth]

JUST POINT THEM IN THE ERROR OF THERE WAYS AND LET THEM DO ALL THE RUNNING AROUND AND ALL THE USUAL COURT THREATS. keep the burden of proof on them, you just need to rebutt all the rubbish they will come out with.

 

cab

 

Can I ask why?

 

I feel I have a case and would like to get things moving because I'm impatient and because I need to feel like I'm doing something proactive...

[ColdUpNorth]

Also, can someone confirm something for me:

 

They acted on the back on the DN issued on 8th Jan which stated arrears of £317.47, I made a payment of £325.47 on 28th Jan (granted outside the 14 days).

 

Defective or not, doesn't that mean they can no longer act on that DN as my account was no longer if default.

 

Or does the fact that they had issued a DN and I had then gotten into further arrears in Feb & March mean that they could act on it?

 

Also, some people are telling me that they shouldn't have issued a DN until I was 2 months in arrears, others are saying that they can default as soon as I am in breach (ie missing even 1 payment). Which is correct??

[cab1ne]

Can I ask why?

 

I feel I have a case and would like to get things moving because I'm impatient and because I need to feel like I'm doing something proactive...

 

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

[ColdUpNorth]

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...