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

[wannabedebtfreesoon]

Oh they're really gonna hate you for that lol!! Chances are the car would've gone straight to an auction house where it will be sold without the V5 and the new buyer will apply to the DVLA for a replacement. That's gonna prove rather difficult if it's already being transferred to Advantage!!

 

So you're saying that they classed this as a repossession? What without serving a default notice or you missing at least 2 payments??

[wannabedebtfreesoon]

Well in that case I would say that if you ever hear from them again they will be in deep crap!

 

It would seriously be in their best interests to get what they can for the car and forget you ever existed

 

They have removed the car with absolutely no written notices, they cannot even claim that you VT'd because they would need to prove that you specifically wrote and requested it.

In my opinion you would be able to argue many points if they try to screw any more money out of you such as; failure to give notice under the Consumer Credit Act, failure to terminate, not allowing you a cooling off period, goods not fit for purpose under the Sale of Goods Act, Distance Selling Regulations etc. I'm sure the list could go on!

[wannabedebtfreesoon]

The fact that they didn't take the V5 would actually work in your favour because it could've been used as grounds that you didn't give informed consent, but that's another story!

 

Best of luck to you 8-)

[wannabedebtfreesoon]

Hi all, does anyone have any information for me - the default notice expires on 17th October and I'm not sure what my response to this should be...

 

Grateful for any comments provided!

Apologies for not replying earlier I've just had so much on

I just need to get some work done but I promise I will be on at some point today to see if there is anything I can offer

[wannabedebtfreesoon]

A further update...

 

I've this morning received a call from a Pam Cider of Advantage Finance Repossesions department saying that they have the vehicle in safe keeping and want me to make an arrangement to clear the arrears (one payment) so that they can return the vehicle to me and I continue with the agreement. This is of course contradictory to the information that I provided above about the letter and the default notice - and also of course the Repossession receipt provided when the car was lifted. She continued to say that it will be held in safe keeping until the period of the default notice has expired (17th October) after which time the vehicle will be sold and I will become liable for the short fall in the agreement. She is apparently putting all of this in writing.

 

I'm now very confused about my next move - can they do this? Does the letter and default notice (which mentions nothing about safe keeping - only repossesion) not stand any longer?

 

Help!

Sounds like they have realised they have severely screwed up and are trying to wriggle their way out of it!!

Ok the issues as I see it are:

 

• They repossessed the car without serving a default notice
  
• They served a default notice after repossession
  
• They served a default with only 1 missed payment
  

They don't get to repossess your car and then serve a default and then give it back if you pay!!! LUDICROUS!!

 

At no point should you "become liable for the short fall in the agreement" because they are in breach of the CCA 1974 on several counts and so in my opinion they are entitled to FA! On the contrary, it is you that is entitled to the return of all monies paid

 

I suppose that what happens next is entirely down to what outcome you would like??

[wannabedebtfreesoon]

I would think a rather strong worded letter should do the trick Something along the lines of "I know what you did and if you don't buggar off quietly I will make a massive fuss and you won't like that"!

[wannabedebtfreesoon]

I don't suppose there are any basic letters in the library for this, I'll have a go at something over the next couple of days.

It's unlikely you'll find a template for that kind of thing but if you do what you can I'll help you out with the nitty gritty

[wannabedebtfreesoon]

That's great, leave it with me over the weekend and I'll see what I can come up with

[wannabedebtfreesoon]

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

[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

[wannabedebtfreesoon]

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

[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

[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

[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

[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.

[wannabedebtfreesoon]

Absolutely brilliant! So good to hear of a judge that actually takes notice of consumer credit law I'm so glad it all worked out for you, bloody well done mate x

And a load of egg on the face for another finance company that think just because they are big they are automatically entitled to win!!

 

Now make sure you don't forget your costs...it's no less than they would do to you. LiP rates stand at £18 per hour these days

[wannabedebtfreesoon]

I know all about impressive judges so I completely get where you are coming from!

Yes, thank you I was successful too. It took a trip to High Court and an appeal heard by a Lord Justice but we got there in the end

[wannabedebtfreesoon]

Sounds like a nightmare, but at least you got there in the end. I wasn't aware that I was able to claim costs as all the work I did myself - I'll definately need to have a look at what I can get out of this before filing the counter claim.

 

[wannabedebtfreesoon]

OMG!!! Do not do anything until you know exactly what you can claim!! How long have you got to submit your counter claim??

[wannabedebtfreesoon]

For starters I believe that all the info regarding costs is covered in CPR and PD 48.

What are your causes of action and what restitution will you be seeking as a result?

[wannabedebtfreesoon]

Sorry, I didn't mean to worry you! It's my fault, I'm so used to being on guard because of the dastardly tricks welscum are always pulling. You have always got to cover all bases and expect everything.

 

Here's a few links for you:

 

Civil Procedure Rules Part 48

 

Part 18 Practice Direction LiP Costs Section

 

Let me know if there's anything I can help with,

Surita x

[wannabedebtfreesoon]

Sorry to butt in. Is there any reason why you don't just ask for your monies back? It is pretty obvious to all parties how this will end so it should not be necessary to return to court. In my view you should get your monies, and costs back. I would be inclined to ask Advantage first before going back into litigation. Might save some grief.

 

"Save some grief"? For who? RCT gave the lender ample opportunity to "save grief" from the beginning of this whole sorry saga but it was THEIR choice not to accept. The lender had no qualms about inflicting grief on the OP over the past 18 months; dragging this out unnecessarily when they knew all along they were in the wrong, so why should the OP allow them the opportunity to quietly pay up now? Hardly seems proportionate to me.

 

I am sure the OP does not feel aggrieved by being given leave to file a counter claim which will undoubtedly lead to a judgment in his favour! It is of course possible that some people have no interest in the money aspect of a claim, and consider justice to be more about right and wrong. Not to mention the benefits having such a judgment would provide for the consumers in general. Perhaps, if more cases like this were brought and publicised, lenders would be more inclined to act within the law by which they are governed.

 

Obviously it's not my decision but personally I believe that some lenders purposefully fight a knowingly fruitless battle to frighten the 'little person' into submission and then expect to be able to pay them off quietly at the end if things don't go their way. Good plan, and I'm sure it works often.

 

Just my opinion as always, but do unto others and all that....

[wannabedebtfreesoon]

Hang on, after reading Dbabylon posts again, your confused. I have not been to court yet.

 

I believe that comment was actually meant for RCT

Do you have your own thread? This one is getting a bit jumbled!

[wannabedebtfreesoon]

Sorry to butt in. Is there any reason why you don't just ask for your monies back? It is pretty obvious to all parties how this will end so it should not be necessary to return to court. In my view you should get your monies, and costs back. I would be inclined to ask Advantage first before going back into litigation. Might save some grief.

 

Implying the OP has already been to court...

 

Just to add to the confusion:-)

 

Ask for the money or litigate? Tough call. Maybe that should read offer the other side a chance to settle of straight to litigation?

 

Care needs to exercised here because if you do not give the other side the opportunity to settle then you will attract criticism from the judge, you are unlikely to get your costs if you go straight to litigation.

 

BUT I bow to your experience in matters of litigation

 

Yes absolutely add to the confusion! How can they go straight to litigation but also 'return' to court? They either went to court first in order to return or they didn't?

 

I'm all for pre-action protocol if you haven't started litigation, but if it is an existing case that has exhausted that and several other attempts to settle were made and refused I'm sure a judge would not find anything to be critical about, wouldn't you agree??