Black Horse Finance - Demand balance of payments now state not terminated

[Guest repo threat]

Is this ok ?, or would you suggest i pan out and get them to reveal their nuptials !

 

“Total Payable” under the Hire Purchase Agreement is £15,583.00 payable by way of a deposit of £1,435 and 48 Monthly payments of £293.50 and a final payment of £50

 

Default Notice dated ??/11/2007, I understood that 14 payments of £293.50 had been made plus £150.00 part payment as well as the deposit. I believe that the agreement was subsequently terminated and the account was then passed to: Nationwide Collection Services Ltd - £10,020 (20/05/200) then Mackenzie Hall Ltd - £10,020 (16/09/200) and then The Lewis Group Ltd - £10,020 (10/02/2010). Why else would they feel entitled to demand such amounts.

 

I understand that 34 payments (48 payments in total less 14 payments made) of £293.50 equates to £9,979. This figure is broadly consistent with the amount demanded by their collection agent.

 

I detail below the total payments made under the agreement, namely:-

 

20/07/2006

£ 500.00

27/07/2006

£ 935.00

25/08/2006

£ 293.50

27/09/2006

£ 293.50

10/11/2006

£ 293.50

27/11/2006

£ 293.50

27/12/2006

£ 293.50

26/01/2007

£ 293.50

27/02/2007

£ 293.50

27/03/2007

£ 293.50

27/04/2007

£ 293.50

25/05/2007

£ 293.50

27/06/2007

£ 293.50

27/07/2007

£ 293.50

24/08/2007

£ 293.50

27/09/2007

£ 293.50

04/12/2007

£ 150.00

11/01/2008

£ 150.00

18/02/2008

£ 150.00

20/04/2009

£ 10.95

 

 

I calculate the sum of the above to be £6,004.95. I calculate one third of £15,583.00 to be £5,194.33.

 

I note that the Default Notice dated 21/11/2007 states that £5,544.00 was the total amount paid at the date of the notice. Since 21/11/2007, A further £460.95 was paid as follows:-

 

04/12/2007

£ 150.00

11/01/2008

£ 150.00

18/02/2008

£ 150.00

20/04/2009

£ 10.95

 

 

Again, I calculate a total of £6,004.95 paid to date. This calculation is consistent going forward as well as backwards with all the documentation issued by Black Horse Ltd and its agents up to 12/04/2010

 

 

I was therefore concerned by your suggestion that less than £5,000 has been paid to date. I also note that the Default Notice dated 26/10/2010 (I have yet to establish how the agreement was somehow re-instated prior to this date) states that £4,503.11 was the total amount paid at the date of the notice. A difference of £1,040.89 compared to the Default Notice dated 21/11/2007 (£5,544.00 less £4,503.11) and a difference of £1,501.84 to my calculations of the sums paid to-date (£6,004.95 less £4,503.11).

 

It is clear to me that your information is misleading and inconsistent for which I remain confused and unable to understand my current position with accuracy. I have also today spoken to you and you advise me that 4 default notices have in fact been issued and that the agreement has not in fact been terminated and inviting me to voluntarily terminate the agreement. When I queried why your agents had been instructed to demand and collect the balance of the 34 remaining payments in 2008 if the agreement had not been terminated, I was advised that you were not responsible for third party agents. I explained that for me to now voluntarily terminate the agreement would be folly and possibly prejudicial to my legal position.

 

Please will you therefore forward to me a copy of:-

 

1) The original Hire Purchase Agreement

2) All four default notices

3) The termination notice that was issued in 2008.

4) The instructions issued to your collection agents.

 

I am now in receipt of your letter dated 8th December 2010, which details the payments under the account but still omits the deposit paid at inception. I also note that you have now added 3 further entries in respect of late payment Interest and also an “LPI Adjustment”. These 3 entries are disputed in their entirety. They were not included in the 6 monthly statements since 2008. The Consumer Credit Act 2006 (Commencement No. 3) Order 2007 clearly sets out the post sale information requirements. To now add some £1,059.89 is an attempt to diminish the effect of the sum of £6,004.95 as an amount paid under the agreement.

 

 

In so far as the agreement with you, I consider that I have paid more than 1/3rd of the “Total Payable” under the agreement. I do not consent to the retaking of the vehicle by you.

 

In order to conclude matters, and in consideration of you agreeing to passing title to the vehicle to me upon conclusion of the payments detailed in my offer, I am willing to pay 12 Monthly instalments of £400pcm over a period of 12 months commencing 1st February 2011. to give a total payment of £4,800. This offer is £210 less than the £5,010 reduced settlement offer that your agent The Lewis Group Ltd put on the table on the 19th March 2010. (Copy letter enclosed)

 

I trust that this explains my position as it currently is and is likely to move to. "

[Tingy]

I think they can repossess the car up until you have paid 2/3 of the original agreement. Iknow this isn't what you want to hear, but it's what I believe to be the case.

[Guest repo threat]

is it 1/3rd without court order and 2/3rds with a court order ?

[Tingy]

is it 1/3rd without court order and 2/3rds with a court order ?

 

You could very well be right, I honestly am not sure and would not want to mislead you. In fact I read another thread last night that said about it being one third which would back up waht you say. I do know I've read something about 2/3, so worth your while checking!

[Guest repo threat]

If you have paid more than one third of the total amount payable, section 90 of the 1974 Act states that the motor vehicle is 'protected' from repossession. So, if the motor vehicle is recovered then, under section 91 of the 1974 Act you are entitled to a return of all of the money you have paid to the creditor, regardless of how long you have had the motor vehicle.

If you have paid less than one third of the total amount payable, the motor vehicle is not protected from repossession. Instead, if it is recovered you can say that the creditor has wrongfully interfered with your right to possession of the motor vehicle. The Court cleared-up what this meant in Chartered Trust plc v King (2001) WL 172107 and decided that the debtor (i.e. you) are entitled to a return of all of the money paid to the creditor. Again, it is irrelevant how long you have had the motor vehicle.

[Tingy]

Very useful - thank you!

[scoobyd00]

If they do proceed to get a court order for the return of the vehicle, make absolutely sure that the people who come to collect are bailiffs from the County Court issuing the court order (acting under a WARRANT FOR POSSESSION) and not just private repossession agents trying to enforce a court order that they have no power to enforce. A lot of repo agents/finance companies are just exploiting a lack of knowledge on the part of the public - PM me if they do attempt to do this and I will let you know exactly how to deal with it!!

[ThewarstartsNOW]

Dear Repothreat,

 

I am in the process of helping a friend write off their car finance to blackhorse, and have been able to find a serious flaw with blackhorse which enables rescinding as well as a return of all monies paid.

 

PM me

[Guest repo threat]

well the agents came today to recover the vehicle.

 

It is in my financial interest that they remove the vehicle from my drive without my consent.

 

The Vehicle receipt has been handed to me and endorsed by the agent as follows"Customer refused consent for removal of vehicle off his drive"

 

i propose to wait for a few weeks and then claim my £6,000 being the amount paid under the agreement by me.

 

any advice ?

[scoobyd00]

Absolutely - as long as:

 

i) your agreement is regulated by the Consumer Credit Act (CCA) (i.e. it is between you as an individual and the finance co, rather than in the name of a limited company) and;

ii) you have paid more than one third of the balance owing under the agreement and;

iii) there has not been a court hearing and a judgment made for the return of the goods

 

then yes, you should be entitled to claim back all the money paid under the agreement and thereby be restored to the position you were in prior to signing the agreement. As per my previous post - even if they do have a court order (judgment for delivery of goods), it would need to have been executed by a court bailiff.

 

Incidentally, I would also say that you have very reliable evidence of civil trespass in the written receipt provided to you. This is only really a 'technical' trespass and your damages for winning a separate action for trespass would be minimal. However, the finance co will need to defend the case and this could cost them hundreds of pounds - if you really wanted to twist the knife, I would suggest you advise them that you will also be considering legal action for trespass unless they can offer you suitable compensation.

 

Let me know if you need any more help

[Guest repo threat]

I refer to my letter of the 21st December 2010 offering to pay a sum to discharge my liability under the agreement. I also refer to your colleagues subsequent telephone call to me advising that my offer was unacceptable.

I refer to the personal visit to my home address today by your agent. It was explained that I did not consent to the removal of the vehicle, (which was parked on my drive) by your agent and your agent was advised that I had paid more than one third of the total amount payable under the agreement. Your agent explained that he would arrange a lorry there and then to remove the vehicle. In order to mitigate your costs, your agent was advised that removal would be without consent. Your agent removed the vehicle and endorsed the Vehicle Receipt as follows” Customer refused consent for removal of vehicle off his drive”.

The Total amount payable under the agreement was £15,583. I have paid £6,004.95, which is greater than one third of the total price of the agreement.

Section 90 of the Consumer Credit Act 1974 states

“ (1)At any time when—

(a)the debtor is in breach of a regulated hire-purchase or a regulated conditional sale agreement relating to goods, and

(b)the debtor has paid to the creditor one-third or more of the total price of the goods, and

©the property in the goods remains in the creditor,

the creditor is not entitled to recover possession of the goods from the debtor except on an order of the court.”

I note that no order of the court had been applied for or granted.

Section 91 of the Consumer Credit Act 1974 states

“If goods are recovered by the creditor in contravention of section 90—

(a)the regulated agreement, if not previous terminated, shall terminate, and

(b)the debtor shall be released from all liability under the agreement, and shall be entitled to recover from the creditor all sums paid by the debtor under the agreement.”

Accordingly please refund to me the sum of £6,004.95 being all the money I have paid under the agreement within 7 days in compliance with the Consumer Credit Act.

Failure to do so will result in a claim being issued out of the county court without further notice.

[Guest repo threat]

Please note the agent was talking about paying 1/3rd of the total finance agreement, i.e. the amount lent plus interest, not the total payable under the HP agreement.

 

so does that mean that if lord sugar buys another roller for say £200,000 and borrows £2,000 on finance, that if he has not paid more than say £700, they can recover his vehicle if in breach of agreement ?

[Guest repo threat]

i do wonder which particular muppet black horse employ in their recoveries department !

[scoobyd00]

Hi, letter looks good to me - all the best with it!

[Guest repo threat]

it would appear that black horse is of the opinion that the deposit paid to the dealer (which constitutes part of the Total amount payable referred to in the default notice) is not part of the finance agreement and that the deposit amount is not part of the 1/3rd payable element to qualify for the goods to be protected goods.

 

discuss please....

[mcjohnson]

My understanding is that, to repossess the vehicle from private property and without your consent, they would need a court order at any point - even if you'd paid less than a third. You've got your smoking gun, in the form of the statement from the agent, so happy days.

[Guest repo threat]

please advise me on what authority mcjohnson

[mcjohnson]

To collect the vehicle the agent would need to enter your property, which you clearly would not allow them to do. As such, if they remove the vehicle from your property without your permission then the agent would, in fact, commit trespass. As such they would have breached your statutory rights, constituting a repuditary breach of the contract between the individual and the creditor. This forum is littered with numerous examples of individuals that have successfully recovered their entire payment history under these agreements as a result of such breaches.

 

Thus, as with any debt recovery action, the agent would need a court order to enter your property without your consent. Common sense really - can you imagine the chaos if private companies, at their whim, could enter individuals property without their consent?

Edited January 11, 2011 by mcjohnson

[Guest repo threat]

Note that the section says:

 

Section 90(b) "[when]...the debtor has paid to the creditor one-third or more of the total price of the goods..."

 

Presumably, it is arguing that the deposit paid to the dealer by me should be treated differently from the financed sum (plus interest, blah blah), which is paid to the finance company by me.

 

In other words, i need to have paid to the creditor at least £5,195, and if ican only reach that figure by adding in the deposit, ihaven't brought myself within the section.

 

That argument seems plausible to me.

[Tingy]

No expert, but I do understand written English and I would agree with you that it is very plausible.

[Guest repo threat]

but then again...............

 

S 189 of the CCA 1974 defines total price, namely:-

 

“total price ” means the total sum payable by the debtor under a hire-purchase agreement or a conditional sale agreement, including any sum payable on the exercise of an option to purchase, but excluding any sum payable as a penalty or as compensation or damages for a breach of the agreement;

 

this effectively excludes penalty interest for late payment (see Julian Hodge Bank Ltd v Hall 1998 CLY 2493 CA) and as the deposit must surely be tender in whatever form denoted on the executed Hire Purchase Agreement.

[mcjohnson]

The deposit isn't included in the total amount of credit, and should not be taken into account when calculating the 1/3 or 1/2 way points in the agreement. The 1/3 and 1/2 way points refer entirely to the total amount of credit, so balance remaining after deposit + interest.

 

So if you had a £20,000 vehicle and paid a £19,000 deposit, followed by 12 payments of £100 then failed to pay the first two payments technically the vehicle could be repossessed.

 

Regarding deposit currency you could pay in any currency the dealer is willing to accept, but the liability for FOREX transactional charges would likely be taken out of the value of the deposit. The deposit is completely isolated from the Hire Purchase Agreement.

 

This methodology seems to promote providing as small a deposit as possible, if any, as it does not benefit you (save for reducing your monthly payments) in the longer term.

 

Certainly, on my HP agreement with VW Financial Services, it makes no mention of the actual price of the vehicle, or the deposit paid - only the balance due on finance.

 

Payments for penalties can not be taken into account, as they are not incurred as part of conducting the account in an efficient manner. They are only incurred after a breach of the agreement, and do not form part of the financing of the vehicle.

Edited January 11, 2011 by mcjohnson

[Guest repo threat]

who mentioned credit ?

 

Section 90 of the Consumer Credit Act 1974 states

“ (1)At any time when—

(a)the debtor is in breach of a regulated hire-purchase or a regulated conditional sale agreement relating to goods, and

(b)the debtor has paid to the creditor one-third or more of the total price of the goods, and

©the property in the goods remains in the creditor,

the creditor is not entitled to recover possession of the goods from the debtor except on an order of the court.”

[Guest repo threat]

A hire purchase agreement requires an initial deposit, then the remaining balance is settled by equal monthly payments over the agreed period. The deposit and repayment periods can be adjusted to suit the budgetary requirements of the customer.

 

if the deposit did not form part of the hire purchase agreement, then what agreement does it form part of?#

 

an interest free loan to the retailer never to be reclaimed ? i think not

[mcjohnson]

Apologies - I just misread my agreement - oops; but that's good; it brings my 50% point forward several months!

 

Sorry fella.

 

But my earlier point regarding repossession from your driveway is correct..