Advantage Finance repro claim - ***i won & judge orders all payments returned**

[RCT40]

Sorry for the delay, I will get back to you shortly I promise!!

 

Ok ta - the default notice is up on 17th.

[RCT40]

Sorry for the delay, I will get back to you shortly I promise!!

 

Hiya wannabe, do you have any idea when you'll have time to get back to me? I'm getting concerned that I need to get something to them before expiry of the dn (or do you think I'm worrying unnecessarily?)

 

Thanks

[wannabedebtfreesoon]

Have a read of this and see if you think it's suitable for you

 

Dear Mr Douglas

 

Agreement Number:

 

I acknowledge your letter and enclosed default notice of 29th September 2010.

I must admit I am grossly confused by your company’s actions regarding this matter. The facts of this matter are as follows:

· One payment was missed by myself

· The vehicle was repossessed on 29th September 2010

· Your company issued a Default Notice to myself also dated 29th September 2010

· On 4th October 2010 I received a telephone call from Pam Cider of the Repossession Department advising that if I clear the arrears the car will be returned to me and this was to be put in writing.

· I have to date yet to receive any such letter.

 

I am aware of my rights as a consumer as set out in the Consumer Credit Act 1974, the Consumer Credit Act Amendments 2006, the Supply of Goods (Implied Terms) Act 1973 and the Unfair Terms in Consumer Contract Regulations 1999.

 

It appears that there have been several breaches of your statutory duty with regard your lack of compliance with the Law and associated regulations. Firstly you were under a legal obligation under the Supply of Goods Act to ensure the goods were fit for purpose and of satisfactory quality. It was made clear to you that the vehicle was faulty at the time of delivery but to date you have refused to honour your obligations to either repair or pay for the repairs to the vehicle.

 

Further to this, in order for a default notice to be served in accordance Section 88 of the Consumer Credit Act, Section 86B© of the 2006 Amendments states that the amount of the shortfall shall be no less than the sum of the last two payments which he is required to have made before that time. As you will be aware, the shortfall in this instance is the sum of only one payment.

 

Notwithstanding that an invalid default notice has been issued, you will also note that Section 87 of the Consumer Credit Act precludes the creditor from taking any enforcement action, to include the retaking of the vehicle, without first the service of a valid default notice in the prescribed form allowing 14 clear days from when it is deemed served to allow the debtor to remedy the breach before any further action is taken. The vehicle was in fact repossessed and, as such the agreement is now terminated, the default notice was dated and received on a date after this.

 

I suggest that the demand for the payment of arrears following the repossession of my vehicle in order to secure its return is unfair, as is your intimation that I will be liable for the balance on the agreement and your presumption that you will succeed in any legal proceedings that may ensue. I believe you are utilising your position in order to put me at an unfair disadvantage.

 

It is also unclear why your letter states:

"As this is a Hire Purchase Agreement we will look to recover our vehicle immediately”, firstly as the vehicle had already been recovered by that time and secondly because, had it still been in my possession, you would not be entitled to recover the vehicle without first allowing 14 clear days to allow remedy of the breach.

 

It is my suggestion that as you now have possession of the vehicle you seriously consider that the agreement be deemed settled in a full and final manner. Should this not be forthcoming I will vigorously defend any legal action you may bring and in fact issue a counter claim for, but not limited to, the return of all monies paid by myself in accordance with Section 140B of the Consumer Credit Amendments 2006.

 

As per my initial request, I do not wish to discuss this matter by telephone, rather I agree that this matter has now become very serious and as such request that all communications are made in writing only.

 

 

Yours Sincerely

 

 

If you need anything else just shout, best of luck!

[wannabedebtfreesoon]

Hiya wannabe, do you have any idea when you'll have time to get back to me? I'm getting concerned that I need to get something to them before expiry of the dn (or do you think I'm worrying unnecessarily?)

 

Thanks

Ha ha! Now that's what you call timing! and yes I do think you are worrying unnecessarily

[sequenci]

You might also want to throw in the mix that repossession vehicles from a private driveway is likely to illegal.

 

Check out the Court of Appeal case of Spring House v Mount Cook Land in 2001 for a good legal definition of the term 'premises'

 

Also see if your local Trading Standards are decent and helpful (some are, some aren't)

[wannabedebtfreesoon]

Thanks for that I'm not sure the car was on his drive, but it might've been!

[sequenci]

Thanks for that I'm not sure the car was on his drive, but it might've been!

 

My bad! I thought I saw a thread where a car was taken from a friend's driveway. As you can imagine I skim read thousands of posts a day.

 

Anyway, I'm sure that little nuggest will come in useful for you!

[RCT40]

Wannabe, thanks for the letter and support it was sent recorded delivery today so I'll keep the thread updated with progress.

 

sequenci, I was actually one my parents drive - but I gave them the key (was glad to see the back of it tbh ), so I'm not sure that I can get them one that - but that said the repossesions department called me and asked for the key because they think it was lifted at the side of the road, pretty much sums up the company to me

[RCT40]

Ha ha! Now that's what you call timing! and yes I do think you are worrying unnecessarily

 

Hi Wannabe,

 

Advantage have their letter, and I've had a very annoyed Pam Cider (opps Sizer) because I got her name wrong. :madgrin:Anyway to cut the story short I hung up before she could say much more because she was like a raving lunatic. I've since received a text message from her saying that if I would like to resolve this amicably I need to call her - I'm not sure whether I should call her back, write again reminding the that everything needs to be in writing or just ignore her sit back and wait for a written response. I would once again value your thoughts.

 

thanks

 

rct40

[sequenci]

Best to keep things in writing in case you need it at a later stage. Also get their complaints proc + consider getting trading standards involved.

[RCT40]

Best to keep things in writing in case you need it at a later stage. Also get their complaints proc + consider getting trading standards involved.

 

Hi sequenci,

 

Do you think I should write again and reminder Mrs Sizer that everything should be done in writing, or just leave it with the letter than Wannabe help me with and let them respond to that?

[wannabedebtfreesoon]

Ha ha that really tickled me!! Raving lunatic lol!

Sounds like you've made them very cross by knowing your rights! I 'd have to agree and say that everything needs to be kept in writing just in case you need it at a later date, phone calls aren't worth the paper they're written on. If they call you again I would send them the telephone harassment letter from the cag library, if you've requested they don't call you then they have to abide by that end of.

 

In my opinion I think you've been very amicable considering

[RCT40]

Ha ha that really tickled me!! Raving lunatic lol!

Sounds like you've made them very cross by knowing your rights! I 'd have to agree and say that everything needs to be kept in writing just in case you need it at a later date, phone calls aren't worth the paper they're written on. If they call you again I would send them the telephone harassment letter from the cag library, if you've requested they don't call you then they have to abide by that end of.

 

In my opinion I think you've been very amicable considering

 

Thanks for that advice wannabe, found a message on the home voice mail from Pam pretty much saying that she didn't offer written confirmation of them 'looking' after the vehicle for now and would return after the missing payment, I am apparently putting word into her mouth, then once again in the same breath verbally offering return of the vehicle for payment of the one missing payment. She also on the message suggests that they have a recording of me telling them that I was going to abandon the vehicle, at that they collected it abondon at the side of the road. The odd thing in that statement though is that it was parked on a driven off my parents drive [private property] with myself and my wife present, it was 10pm and my parents also witnessed it being handed over and driven away so I know she is a liar. [incidentally do I HAVE to be notified if calls are recorded] - I even have a receipt from the guy that repossessed it along with his mobile number should I have any queries. This company is an absolute gem, their professionalism bears no boundaries. I think she'll say anything in the hope she'll rattle me and I'll comply.

[RCT40]

Thanks for that advice wannabe, found a message on the home voice mail from Pam pretty much saying that she didn't offer written confirmation of them 'looking' after the vehicle for now and would return after the missing payment, I am apparently putting word into her mouth, then once again in the same breath verbally offering return of the vehicle for payment of the one missing payment. She also on the message suggests that they have a recording of me telling them that I was going to abandon the vehicle, at that they collected it abondon at the side of the road. The odd thing in that statement though is that it was parked on a driven off my parents drive [private property] with myself and my wife present, it was 10pm and my parents also witnessed it being handed over and driven away so I know she is a liar. [incidentally do I HAVE to be notified if calls are recorded] - I even have a receipt from the guy that repossessed it along with his mobile number should I have any queries. This company is an absolute gem, their professionalism bears no boundaries. I think she'll say anything in the hope she'll rattle me and I'll comply.

 

I've now received a letter from Advantage refuting my allegations, is there an easy way for me to share this letter rather than having to key them in by hand?

[RCT40]

I've just checked my mail and have also received an email from Advantage...

 

---

Dear Mr

 

I have written to you on Friday since you hung up the phone on me and we could not discuss the account and in particular the point you mentioned in your letter which stated that I had told you I would write to you. I had not said this to you and and felt that it was necessary to make our position absolutely clear with you and the most efficient way of doing this is by a discussion between both parties.

 

 

You evidently had no intention of discussion and wish to proceed with litigation. I can see no benefit to either party in going down the unnecessarily, expensive route of legal action when the matter can at least attempt to be resolved with full co-operation of both parties. I can assure you that we as a company would prefer to come to an amicable solution and offer you the opportunity to resolve this matter with our full co-operation.

 

 

In the meantime please refer to my letter of Friday 15th October and as is states I will hold the account for fourteen days for you to decide what you want to do. You must understand that after this time I cannot hold this in my department and it will be transferred to our Legal Department.

 

 

Regards

 

 

Pamela Sizer

Head of Repossessions, Advantage Finance Ltd

 

---

I'm thinkning of email this back...

 

---

Dear Mrs Sizer,

 

 

 

You should note that the call was hung up for two reasons which are...

1. It wasn't a conversation it was more you boomed down the telephone whilst I was supposed to listen to you whilst not being able to get a word in edge ways!
   
2. I insisted that you put all communications in writing, but it appears that you feel you can ignore me whilst I must listen to you!
   

To be clear its a little late in the day to try and impress upon me that you've not repossessed the vehicle when Simon Douglas had already put in writing to me on the 29th September that the vehicle was to be repossessed immediately. I also have in my possession a receipt of 'repossession' issued to me by the company you commissioned to collect it on the night of 29th September along with his mobile number should I need further clarification.

 

It also occurs to me Mrs Sizer if my vehicle has not been repossessed can you explan why I'm actually having exchanges with the 'head of repossessions', should I not be talking to perhaps Simon Douglas the head of Collections? If we were to take your version of events into account the vehicle was still repossessed as your organisation is clearly in possession of said vehicle! Perhaps you can point out the facts of law that allow you to take a vehicle into safe keeping, it isn't in your agreement.

 

I also have a recording of you offering to put in writing that the vehicle was not repossessed, it was merely in storage - this proves beyond all doubt that YOU put those words into your own mouth - I'm not in the habit of lying Mrs Sizer as there is nothing to be gained from it! You also issued an invalid default notice due to only the one payment being missed, you can chase for payment but you cannot serve a valid default notice until a second payment is missed which it hasn't and the agreement has since ended.

 

 

Your absolutely correct, I wanted the vehicle collected but Simon made it very clear that due to the CCA 1974 the vehicle could not be collected until a default notice was served and 14 clear days allowed to pass before collection could actually take place - eventually I reluctantly agreed to holding the vehicle in the proper manner until this has occurred [of course you will have heard that on the recording you have]. As mentioned earlier I also have a receipt of repossession provided by Malcolm from the repossession company in exchange for the ignition key on the night the vehicle was collected from a private drive, therefore the vehicle had not been abandoned and was taxed and insured up to that time.

 

I beleive that your amicable settlement is that I make payment and receive back the car that you clearly repossessed breaking the terms of the agreement, with this in mind I do not wish a further 14 day extension, I would like you to pass all information to your legal department without further delay.

 

---

Be grateful for comments...

[wannabedebtfreesoon]

I've just checked my mail and have also received an email from Advantage...

 

---

Dear Mr

 

I have written to you on Friday since you hung up the phone on me and we could not discuss the account and in particular the point you mentioned in your letter which stated that I had told you I would write to you. I had not said this to you and and felt that it was necessary to make our position absolutely clear with you and the most efficient way of doing this is by a discussion between both parties.

 

 

You evidently had no intention of discussion and wish to proceed with litigation. I can see no benefit to either party in going down the unnecessarily, expensive route of legal action when the matter can at least attempt to be resolved with full co-operation of both parties. I can assure you that we as a company would prefer to come to an amicable solution and offer you the opportunity to resolve this matter with our full co-operation.

 

 

In the meantime please refer to my letter of Friday 15th October and as is states I will hold the account for fourteen days for you to decide what you want to do. You must understand that after this time I cannot hold this in my department and it will be transferred to our Legal Department.

 

 

Regards

 

 

Pamela Sizer

Head of Repossessions, Advantage Finance Ltd

 

---

I'm thinkning of email this back...

 

---

Dear Mrs Sizer,

 

 

 

You should note that the call was hung up for two reasons which are...

1. It wasn't a conversation it was more you boomed down the telephone whilst I was supposed to listen to you whilst not being able to get a word in edge ways!
   
2. I insisted that you put all communications in writing, but it appears that you feel you can ignore me whilst I must listen to you!
   

To be clear its a little late in the day to try and impress upon me that you've not repossessed the vehicle when Simon Douglas had already put in writing to me on the 29th September that the vehicle was to be repossessed immediately. I also have in my possession a receipt of 'repossession' issued to me by the company you commissioned to collect it on the night of 29th September along with his mobile number should I need further clarification.

 

It also occurs to me Mrs Sizer if my vehicle has not been repossessed can you explan why I'm actually having exchanges with the 'head of repossessions', should I not be talking to perhaps Simon Douglas the head of Collections? If we were to take your version of events into account the vehicle was still repossessed as your organisation is clearly in possession of said vehicle! Perhaps you can point out the facts of law that allow you to take a vehicle into safe keeping, it isn't in your agreement.

 

I also have a recording of you offering to put in writing that the vehicle was not repossessed, it was merely in storage - this proves beyond all doubt that YOU put those words into your own mouth - I'm not in the habit of lying Mrs Sizer as there is nothing to be gained from it! You also issued an invalid default notice due to only the one payment being missed, you can chase for payment but you cannot serve a valid default notice until a second payment is missed which it hasn't and the agreement has since ended.

 

 

Your absolutely correct, I wanted the vehicle collected but Simon made it very clear that due to the CCA 1974 the vehicle could not be collected until a default notice was served and 14 clear days allowed to pass before collection could actually take place - eventually I reluctantly agreed to holding the vehicle in the proper manner until this has occurred [of course you will have heard that on the recording you have]. As mentioned earlier I also have a receipt of repossession provided by Malcolm from the repossession company in exchange for the ignition key on the night the vehicle was collected from a private drive, therefore the vehicle had not been abandoned and was taxed and insured up to that time.

 

I beleive that your amicable settlement is that I make payment and receive back the car that you clearly repossessed breaking the terms of the agreement, with this in mind I do not wish a further 14 day extension, I would like you to pass all information to your legal department without further delay.

 

---

Be grateful for comments...

I love it!! They know exactly what they have done and are fuming that YOU know what they have done

I do think that it might be an idea to amend your letter offering what you consider to be an amicable resolution rather than to leave it open ended. You need to strategically think ahead now, it's important you do everything by the book and appear to be unfalteringly reasonable. If it ever gets anywhere near a courtroom you want to be able to show how professional and reasonable you have been and how disgraceful they have been!

Don't let them draw you into a tit for tat argument, stay fair and reasonable at all times and let them dig themselves into a hole 8-)

Edited October 19, 2010 by wannabedebtfreesoon
typo

[RCT40]

I love it!! They know exactly what they have done and are fuming that YOU know what they have done

I do think that it might be an idea to amend your letter offering what you consider to be an amicable resolution rather than to leave it open ended. You need to strategically think ahead now, it's important you do everything by the book and appear to be unfalteringly reasonable. If it ever gets anywhere near a courtroom you want to be able to show how professional and reasonable you have been and how disgraceful they have been!

Don't let them draw you into a tit for tat argument, stay fair and reasonable at all times and let them dig themselves into a hole 8-)

 

Wannabe

 

Just to be sure are you suggesting that I respond to this letter or let the extra fouteen days elapse, I guess if I reply the only extra I would have to add is that I have a receipt of respossion.

 

Thanks

[wannabedebtfreesoon]

I think that the email you are thinking of sending back is very good, if you want to send it I would say that it need only be altered a little to remove the bit that says "pass it to the legal dept" and substitute it for the resolution you require.

 

I would think you do need to reply to their letter just in case they are stupid enough to take it further, just to show how reasonable you are

[RCT40]

I think that the email you are thinking of sending back is very good, if you want to send it I would say that it need only be altered a little to remove the bit that says "pass it to the legal dept" and substitute it for the resolution you require.

 

I would think you do need to reply to their letter just in case they are stupid enough to take it further, just to show how reasonable you are

 

 

Wannabe,

 

Thanks for the comments, I've replied to the email and also the letter - also realised that the default notice I received was not signed, another blunder from Advantage?

[RCT40]

I think that the email you are thinking of sending back is very good, if you want to send it I would say that it need only be altered a little to remove the bit that says "pass it to the legal dept" and substitute it for the resolution you require.

 

I would think you do need to reply to their letter just in case they are stupid enough to take it further, just to show how reasonable you are

 

 

Hi WannaBe,

 

I have received a letter as follows...

 

HIRE PURCHASE NOTICE OF TERMINATION

 

In view of your failure to comply with the terms of the Default Notice served in accordance with Section 87(1) of Consumer Credit Act 1974, the hiring under Agreement between us is now terminated. Any insurance policies taken out under this agreement are also terminated.

 

You are no longer in possession of the goods with our consent. If they are not made available to us for collection we shally apply to the County Court for their return.

 

Your sincerely.

 

 

Can you tell me in your opinon, does this need a reply pointing out again that the notice wasn't served correctly or do you think I should sit tight and see what occurs as I would only be saying again what I've already told them?

 

Thanks for your help again!

[RCT40]

I've received a Statutory Arrears Notice in this mornings post, I'm not really sure what my reply should be to this - as far as I can see we're far past arrears notices as the agreeement legally ceased on 29th September when the car was repossed via an invalid default notice.

 

Any advice on how I should proceed?

[mcjohnson]

Voluntary Termination (VT) is the clause in a Hire Purchase Agreement that enables you to return the goods once 50% of the total amount payable has been passed. However clauses in Hire Purchase contracts stipulate that the vehicle should be returned in a reasonable condition (i.e. allowing for fair wear and tear).

 

I am fairly certain that the account must also be in good order (i.e. no defaults) to enable the VT to take place (otherwise everyone would simply get to the 50% marker and stop paying, then VT several months later!!).

 

Regarding unreasonable action; a court would be unlikely to be in your favour, as the loan is the original amount borrowed plus the interest, which you agreed to repay and haven't. It would therefore not be unreasonable for a creditor to pursue you for this balance.

 

The best thing you can do is post a copy of your agreement on hear to establish what penalty clauses have been invoked, and the annual statements so we can see how the additional charges have been applied.

Edited January 18, 2011 by mcjohnson

[RCT40]

Actually mcjonhnson is correct - but rather than pay those cowboys I think I would take my chances.

[wannabedebtfreesoon]

I let the repossession company take the car from the drive, gave them the key and everything, so I don't think I can hold that against them - the fact it was taken before a default notice was served upon me didn't do them any favours though.

Hello RCT hope you are well. Actually this statement is not necessarily true Giving consent by way of giving keys etc doesn't necessarily mean you gave INFORMED consent, the 2 are quite different.

[Guest repo threat]

Informed consent is considered by the Judiciary in :-

Chartered Trust plc v Pitcher

 

Queen's Bench Division 12 February 1987 (Times Law Report 13.2.87)

 

Where a finance company re-possessed under a hire purchase agreement goods protected under section 33(1) of the Hire Purchase Act 1965 otherwise than by action, that constituted a contravention of section 34(1) if the hirer had not given an unqualified and informed consent to re-possession. But such recovery would be permissible if it did not amount to "enforcing any right" within the section.

The Court of Appeal dismissed an appeal by Chartered Trust plc from an order of a County Court judge, whereby the judge dismissed a claim for £2,451 made by the company against Mr R. J. Pitcher. This was the balance due from Mr Pitcher under a hire purchase agreement dated October 10, 1982, in respect of a Ford Granada car.

Section 33(1) of the 1965 Act defined "protected goods" as goods let under a hire purchase agreement of which one third of the hire purchase price had been paid and when the hirer had not terminated the agreement.

It was held that it was clear that if there was unqualified and informed consent by Mr Pitcher to the collection of the car by Chartered Trust, then there could be no question of a breach of section 34(1).

The section was penal in its consequences and it was obviously impossible to conclude that if a finance company recovered possession with the unqualified and informed consent of the hirer it was "enforcing a right", that is, a right conferred by the hirer's consent. The issue turned on the effect of the word "enforce". That implied action which was not consensual, but to some extent coercive.

The judge held that the recovery of the car was not consensual because Mr Pitcher's consent to it was not "informed consent". On the facts, the circumstances in which possession of the car was recovered by Chartered Trust showed that its recovery was not on a merely consensual basis so far as Mr Pitcher was concerned. The recovery which was made was sufficiently coercive to amount to an enforcement of a right otherwise than by action and that contravened section 34(1). It was never Mr Pitcher's wish that Chartered Trust should simply take the car back. He did not intend to exercise the option to terminate the agreement. What he really wanted was to keep the car on the basis of some re-arrangement of this financial obligations.

The court had power to make an order to that effect under section 35 although Mr Pitcher did not know that.