Help! Car repossessed, only 1 month behind, not received Termination letter..

[Jasper1965]

Now they say they need to speak with Mrs GSM on the phone - I have told her to refer them to the Solicitors, if it's anything other than a call to arrange rerurn of the car and contents. We are now £510 out of pocket with vehicle rental alone, and this will increase by £170 come Friday...

 

Mike

 

I would recommend you/she insist(s) all communications are to be in writing and through the solicitor from hereon. To be fair what can they say on the 'phone to make it better, returning the car and your property still will not compensate you for the provable losses you have incurred hire/insurance etc. and the inconvenience.

 

Don't forget to invoice the £170 pw to the OC, keeps them focused.

[GSMGuy]

Well, my solicitor has spoken to them at length yesterday..

 

Now they seem to be taking a different route, saying that they are not happy that the car appears to have been used as a taxi (It is primarily used to transport the kids, but it is also plated, as it is my personal backup car in case the other is off the road)

 

Solicitor told them that there is nothing in the hp agreement forbidding this, and if they check the mileage, they will see that the car has done only 7000 miles since May last year.. Hardly the sign of heavy use...

 

They then countered that Mrs Gsm should always retain "custody and control of the vehicle" and, as such, I should not be using it for business purposes..

 

My solicitor told them this was rubbish, firstly, as husband and wife, we both use each others cars, secondly that merely leaving the car parked, or at the dealers for a service would put her in contravention of such a term..

 

Mike

[GSMGuy]

Ok - Received a reply from Santander, waffling on that they would happily "remove your equipment" from the vehicle - At a cost of £250_ vat, and we would then be able to collect...

 

Sol wrote back saying stop messing about, you have broken the law and are just trying to fudge the issue..

 

Santander replied to my Solicitor, as follows:

 

 

Thank you for your letter of 30th March 2011, the contents of which have been noted.

 

As you are aware, as less than one third of the amount payable had been paid, no Court Order was required to repossess the vehicle.

 

I can confirm that our agents, Botchit and Scarper Recovery, have reported that our vehicle was parked on the driveway of the premises of our customer, Mrs GSMGuy. However, our customer, who was present at the time, authorised them to enter her property and handed over the keys for the vehicle, to allow them to recovery of our vehicle. (typo as per their letter!

 

Therefore, as authority was given by Mrs GSMGuy to enter her premises, we have not breached Section 92(1) of the Consumer Credit Act 1974.

 

Your sincerely

 

Miss Senior Complaint Handler

 

Just a couple of problems here...

 

 

• They have admitted that the car was on the private driveway... So in the abscence of consent, a CourtOrder would have been needed.
  
• It was actually ME (MR GSMGuy) that answered the door and spoke to them, as Mrs GSMGuy was not at home, being at work some 20 miles away.. I explained this to them, and they still saw fit to speak to me..
  
• It was ME that was coerced into handing over the keys - Whilst holding my 4 month old Son, and trying to keep an eye on the other 3 children.
  
• The property (our house) is actually in MY SOLE name, as Mrs GSM was not working at the time we bought the house, so it all went in my name, and as such the land registry entry is in my sole name also.
  
• When they took the car, it was ME that signed the condition form, not Mrs GSMGuy, because...
  

She wasn't there, to give consent, permission, approval, grant entry or whatever they want to call it!

So... I think they HAVE breached Section 92(1) of the Consumer Credit Act 1974.

 

Have yet to speak to Solicitor (only just got letter) But I presume they have dropped themselves RIGHT in it...

 

Wannabe, care to comment??

 

Mike

[postggj]

Quick question

 

was the vehicle in joint or just the mrs name

[GSMGuy]

Quick question

 

was the vehicle in joint or just the mrs name

 

JUST Mrs GSMGuy... ie HP agreement in her name only

 

I feel an apology or return of vehicle coming on - BUT TBH, I /We think now, that we'll just go for the money, plus car hire/compensation and buy a slightly older S-Max for cash...

 

Just spoken to Sol, he got me to email over a scan of the "vehicle recovery receipt" which clearly shows MY name printed, next to MY signature...

 

Mike

[postggj]

Me thinks unlawful recession of contract on this as they have jumped the gun a bit

[GSMGuy]

Me thinks unlawful recession of contract on this as they have jumped the gun a bit

 

In addition to an ulawful reposession?? I find it interesting thet they STILL haven't disposed of the car, and they have had it at the auction site since 10th Feb....

 

Mike

[wannabedebtfreesoon]

Ok - Received a reply from Santander, waffling on that they would happily "remove your equipment" from the vehicle - At a cost of £250_ vat, and we would then be able to collect...

 

Sol wrote back saying stop messing about, you have broken the law and are just trying to fudge the issue..

 

Santander replied to my Solicitor, as follows:

 

Just a couple of problems here...

 

 

 

• They have admitted that the car was on the private driveway... So in the abscence of consent, a CourtOrder would have been needed.
  
• It was actually ME (MR GSMGuy) that answered the door and spoke to them, as Mrs GSMGuy was not at home, being at work some 20 miles away.. I explained this to them, and they still saw fit to speak to me..
  
• It was ME that was coerced into handing over the keys - Whilst holding my 4 month old Son, and trying to keep an eye on the other 3 children.
  
• The property (our house) is actually in MY SOLE name, as Mrs GSM was not working at the time we bought the house, so it all went in my name, and as such the land registry entry is in my sole name also.
  
• When they took the car, it was ME that signed the condition form, not Mrs GSMGuy, because...
  

 

She wasn't there, to give consent, permission, approval, grant entry or whatever they want to call it!

So... I think they HAVE breached Section 92(1) of the Consumer Credit Act 1974.

 

Have yet to speak to Solicitor (only just got letter) But I presume they have dropped themselves RIGHT in it...

 

Wannabe, care to comment??

 

Mike

What a great letter

 

So what they basically saying is that if they didn't have the authority of Mrs GSMGuy, it would have been a breach of Section 92(1). Well that's easy enough to deal with then 8-)

 

Now consent is a funny thing, what they really needed to have was the INFORMED consent of the debtor. In order to obtain an adequate defence to this case they need to show that they explained Mrs GSMGuy's statutory rights and subsequent protection to her with regard the removal of the vehicle from her premises. Personally I can't see how they can prove that if she was not even present at the time.

 

I don't believe the Land Registry issue to have any bearing on this case, the law quite clearly states that they are not permitted to enter ANY premises and that includes that of a third party, unless they get the consent of the DEBTOR. The driveway could have belonged to Joe Bloggs, it doesn't vacate the issue that Mrs GSMGuy did not give her consent.

 

Be wary that they may try to invoke Section 134 of the CCA 1974, but all you need to do to counter that is state that at no point did they sent you any written requests to return the vehicle and confirm that they didn't make any applications for the enforcement of the agreement.

[GSMGuy]

Cheers peeps..

 

Will mention the sec 134 to Solicitor.. I really do think they have scored an own goal now..

 

Just totted up the figures, have spent £1760 on car hire to date, have paid just over £6k off the agreement, and have had 11 weeks of inconvenience through not having a seven seater, not to mention at least two canceled weekends away In the caravan, due to hire car not having a towbar...

 

Big numbers, which is why I think I'd rather get the cash...

 

Mike

[GSMGuy]

Ok, just received copy of reply sent by Sol to above from Santander..

 

 

Dear Miss Senior Complaint Handler,

 

Further to your letter dated 5th April, we note that Botchit and Scarper Recoveystate that Mrs GSMGuy was present at the time and authorised Botchit and Scarper to enter her property, and that she handed over the keys to the vehilcle to allow them to recover it.

 

 

 

You state that authority was given by Mrs GSMGuy and therefore Section 92(1) of the Consumer Credit Act 1974 has not been breached.

 

In light of the attached document we wonder whether you would be prepared to reconsider your stance.

 

You will note that Section 3 of the attached document is signed by a "Mr M GSMGuy"

 

Can you please confirm it is still your case that you had Mrs GSMGuy's permission to remove the vehicle from private property?

 

Further, can you please advise why Botchit and Scarper advised you that Mrs GSMGuy provided them with both the authority and the keys?

 

Our clients are suffering ongoing losses, not limited to hiring a replacement vehicle, and we have instructions to commence County Court proceedings for all losses sustained.

 

We require your urgent response.

 

Yours faithfully

 

Mr & Mrs GSMGuys' Solicitor

 

The document referred to was the signed "vehicle collection report/receipt" which was signed, next to my handwritten printed name, by ME..

 

I wonder what will happen next??

 

Mike

[GSMGuy]

UPDATE....

 

Ok, after my Sols writing back to Santander - They (Santander) have now instructed their own Sol, who has written back as follows:

 

Spot the glaring errors, in law and facts....

 

 

 

Dear sirs.. bla blah...

 

Santander Consumer (UK) plc t/a Santander Consumer Finance -v- Mrs GSMGuy (Actual heading of their letter!)

 

We act fotr the above in relation to the Conditional Sale Agreement entered into between our respective clients regarding the Ford S-Max Diesel Estate 2.0 Registration No: **** **** ("the vehicle").

 

Please note our interest and forward any further correspondence to us. For the avoidance of doubt, we are instructed to accept service of proceedings.

 

We have copies of your recent correspondence and note your client's position. Essentially, your client will say that our client reposessed the vehicle contrary to section 92(1) of the Consumer Credit Act 1975 ("the Act"). For that reason your client is demanding the return of the Vehicle and damages for her alleged loss.

 

We do not accept your client's position. Firstly, there has been no such breach of Section 92 of the Act. There are two issues here;

 

 

1. Your client's husband, Mr GSMGuy is claiming a right to posession of the Vehicle - He does so by registering himself as the owner, as evidenced by the V5 document. With that in mind, Mr GSMGuy would be considered to be within the definition of "the debtor" - see section 189 of the Act. By allowing agents onto the property and signing the recovery form, our client has obtained the necessary consent.
   
2. If you are not with us on the above point, the more simple approach is to refer you to the fact that Mr GSMGuy owns the property at which the Vehicle was reposesssed. Therefore, entry onto the third party's premises (ie Mr GSMGuy's property) was done so with the consent of the landowner. This is a very straightforward common law position, which we would assume you have knowledge of.
   

We should also take this opportunity to make your client aware of the following:

 

 

1. Mrs GSMGuy was in breach of the Agreement for failing to pay the arrears. (Clause 6.1)
   
2. Mrs GSMGuy was in breach of the Agreement by allowing another party to take posession of the Vehicle. It is clear that Mr GSMGuy purported to be the registered keeper of the Vehicle and thereby acquiring posession and/or control of the vehicle. This is a breach of Clause 3.4
   
3. There is a potential breach of 6.1 for failure to give correct information on theAgreement. We understand that the Vehcle was fitted with equipment intended to be used as a Taxi. There is no mention of "taxi driver" as the customer's occupation in the section entitiled "Customer Details" within the agreement Please confirm your client's occupation, and at the same time the occupation of Mr GSMGuy.
   

Our client's position remains unchanged, but for the avoidance of doubt the Vehicle will not be returned and no "damages" will be paid to your client as demanded.

 

We shall leave you to advise your client accordingly.

 

In the meantime, please be aware that there is an outstanding balance on the Agreement in the sum of £20,069.82. In order to mitigate the loss suffered the Vehicle needs to be disposed of and therefore the loss can be crystalised.

 

If we do not hear from you within the next, say 14 days we will advise our client to dispose of the vehicle. We will then inform you of the final balance and make a demand for payment. If paymrent is not received then we anticipate that our client will instruct us to issue proceedings. In readiness, please confirm whether your firm has instructions to accept service of those proceedings.

 

Yours faithfully

 

Pet Solicitors.

 

 

Couple of issues here - I think they are running scared, IF they thought they were in the right, they WOULD have sold the car 12 weeks ago..

 

As everyone is aware, Legal owner and registered Keeper are two totally different things - The car was registered in my name, as the insurance and No Claims Bonus are in my name, PLUS the cover note that I took to the Dealers when they taxed it, was also in my name.

 

How the hell can they claim I am the debtor???

 

How has Mrs GSMGuy allowed "another party to take control or ownership" ie me.. The legal owner is, and always has been Santander - The Muppets!

 

IF Santander were so sure of their position, why would they be instructing sols??

 

and

 

 

 

 

1. Your client's husband, Mr GSMGuy is claiming a right to posession of the Vehicle - He does so by registering himself as the owner, as evidenced by the V5 document. With that in mind, Mr GSMGuy would be considered to be within the definition of "the debtor" - see section 189 of the Act. By allowing agents onto the property and signing the recovery form, our client has obtained the necessary consent.
   
2. If you are not with us on the above point, the more simple approach is to refer you to the fact that Mr GSMGuy owns the property at which the Vehicle was reposesssed. Therefore, entry onto the third party's premises (ie Mr GSMGuy's property) was done so with the consent of the landowner. This is a very straightforward common law position, which we would assume you have knowledge of.
   

 

Sounds to me like clutching at straws - Point 1 is total rubbish, I registered myself as the KEEPER, not the OWNER Sec 189 of the CCA is "definitions" and the definition of "debtor" under that section is:

 

"" debtor " means the individual receiving credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement includes the prospective debtor;"

 

Which certainly does NOT make me the "debtor"

 

The following para (2) Erm.. My mortgage company own the land, not me.. And I STILL did not give Mrs GSMGuy's consent - She wasn't there remember..

 

I think they are getting worried now, especially the way they say "if we do not hear from you say, within 14 days" very poor response....

 

Anyone care to comment??

 

 

Mike

[wannabedebtfreesoon]

I think there a couple of issues missing from this picture.

 

Sorry for my bad memory but could you please just remind me of a couple of things?

 

• how many months in arrears you were when they issued the default notice?
  
• what was the date of the default?
  
• did they only issue one default notice?
  
• were payments made after the issue of the default?
  
• did they serve a termination notice?
  
• when was the last payment made?
  

What is your solicitor's view on all of this??

[GSMGuy]

I think there a couple of issues missing from this picture.

 

Sorry for my bad memory but could you please just remind me of a couple of things?

 

 

• how many months in arrears you were when they issued the default notice?
  
• what was the date of the default?
  
• did they only issue one default notice?
  
• were payments made after the issue of the default?
  
• did they serve a termination notice?
  
• when was the last payment made?
  

 

What is your solicitor's view on all of this??

 

Cheers wannabe...

 

1st default notice was issued when account was 1 month in arrears, they advised us that they would collect 2 payments on the next due date, whaich would have been 14th Jan, BUT they only took one payment - even though we made sure the ££ was there for them, on the 11th Jan (payment collected via DD, so THEY set the amount, not us) That was the only DN we received.

 

A payment WAS made after the DN, they took 1 payment via DD on the 11th Jan, as above, they then wrote and advised they would then take all outstanding payments on 14th Feb, so we assumed they had made an error in not collecting 2 payments in Jan, and therefore made sure money was there for 2 payments on 14th Feb. But they came for the car on the 10th Feb instead.

 

We have letters from them dated beginning of Jan saying they would collect 2 payments in Jan, and also letter dated 31st Jan saying they would now collect 2 payments on 14th Feb..

 

Termination notice was received in an UNSTAMPED envelope, on 17th Feb - 10 days AFTER car was taken... Termination notice was dated 02nd Feb, but as said, was received with no postage on it, 7 days after car was taken (I do still have the "santander" envelope it came in..

 

Last payment was 11th Jan via DD for 1 full monthly payment.(although they had prev advised us they would collect 2 payments on that date, they only took 1)

 

Sol is being as helpful as he can, but he is a not a specialist in credit law, and he is doing all of this FOC for me, as he is a friend.

 

Whats your view of the fact that Sanrtander are still not disposing of the vehicle, would that, and the fact they have now instructed their own Sol indicate that they are not 100% sure on their position?

 

Cheers

 

Mike

Edited April 16, 2011 by GSMGuy

[wannabedebtfreesoon]

So what was the date of the default notice and what was the due date of the missed payment??

 

Sorry just need to be absolutely sure of these things first because it affects the whole of the rest of your course of action.

[postggj]

Befor we go into the nitty gritty

 

1/ how soon after the default notice expired did they repo the car (days)

2/ was any payment made on that default notice balance prior to the repo

 

most of the second part of the solls letter is just waffle and of no substance

[postggj]

SORRY WANABE

 

YOU AND ME ARE ON THE SAME WAVE LENGTH:lol:

[wannabedebtfreesoon]

The solicitors probably think it's their lucky day just having to deal with S.92, as soon as the DN irregularities are bought into it I suspect things will change.

 

Just skimming back over the thread- Dec payment missed, DN allegedly issued 7th Jan, Jan payment taken as normal then car repo'd before Feb payment due.

 

What a lot of nonsense! (Trying so hard not to swear )

[postggj]

yep

 

thats the way i see it

 

just need confirmation from the op

[GSMGuy]

Ok, just looked at the ream of letters... Chronology is:

 

 

• 01/11/10 normal payment made by DD - Account fully up to date, no arrears etc
  
• 01/12/10 payment missed
  
• 17/12/10 Letter received dated 14/12/10 advising of missed pyt - "Notice of Default Sum" but NOT a default notice, ie not giving date to rectify etc.
  
• 24/12/10 Letter received dated 21/12/10 "notification of outstanding payment" and enclosing new DDM, which was completed and returned, now making TWO live DDM's on account. Not a default notice.
  
• 03/01/11 Letter rcd dated 31/12/10 advising that they would now collect "all amounts remaining ourtstanding via DD on or after 14th Jan 2011".
  
• 10/01/11 Letter rcd dated 07/01/11 "notice of default sum" NOT a DN - Showing 2 x payments O/S plus TWO "late fees" but we were expecting them to collect the full amount on or after 14/01/11 as per their letter dated 31/12/10 (prev bullet)
  
• 11/01/11 SINGLE payment taken via DD, not the TWO payments we expected to be taken - funds were available for full amount to be taken.
  
• 18/01/11 Letter rcd dated 15/01/11 advising that there was still ONE payment outstanding plus a late fee of £25
  
• 24/01/11 Letter rcd dated 21/01/11 now advising outstanding balance as ONE payment and ZERO late fees... Enclosed yet another DDM which was returned, making THREE live mandates..
  
• 03/02/11 Letter rcd dated 31/01/11 advising of late fees, and advising that they would now collect "all amounts remaining ourtstanding via DD on or after 14th Feb 2011" So we made sure there was enough money in the bank - Again..
  
• 10/02/11 Repo man turned up and took car..
  
• 17/02/11 Unstamped termination notice received in post..
  

Having just looked at all of the letters, NONE of them is actually a "Default Notice" ie requiring certain action by a certain date to avoid further action etc, the letters are merely "Notice of default sums" in relation to a missed payment and "late fee" So, in fact, a true "Default Notice" has never been received....

 

Does this info help??

 

Mike

Edited April 16, 2011 by GSMGuy

[GSMGuy]

Just to add, the ACTUAL DN they issued (allegedly) on 07/01/11 has never been seen or received by us... We have also not been provided with a copy of this.

 

Mike

[postggj]

03/02/11 Letter rcd dated 31/01/11 advising of ONE outstanding payment PLUS late fee, and advising that they would now collect "all amounts remaining ourtstanding via DD on or after 14th Feb 2011" So we made sure there was enough money in the bank -

 

please tell me you still have that letter

 

and

 

DID YOU EVER GET A DEFAULT NOTICE, THATS NOT DEFAULT SUMS NOTIFICATION BUT A DEFAULT NOTICE SERVED UNDER

SECTION 87 (1) OF THE CCA 1974

[GSMGuy]

03/02/11 Letter rcd dated 31/01/11 advising of ONE outstanding payment PLUS late fee, and advising that they would now collect "all amounts remaining ourtstanding via DD on or after 14th Feb 2011" So we made sure there was enough money in the bank -

 

please tell me you still have that letter

 

 

 

and

 

DID YOU EVER GET A DEFAULT NOTICE, THATS NOT DEFAULT SUMS NOTIFICATION BUT A DEFAULT NOTICE SERVED UNDER

SECTION 87 (1) OF THE CCA 1974

 

Oh yes.... Still have the letter, and NO never received a "proper" default notice..

 

Why?

 

Mike

[GSMGuy]

The solicitors probably think it's their lucky day just having to deal with S.92, as soon as the DN irregularities are bought into it I suspect things will change.

 

Just skimming back over the thread- Dec payment missed, DN allegedly issued 7th Jan, Jan payment taken as normal then car repo'd before Feb payment due.

 

What a lot of nonsense! (Trying so hard not to swear )

 

 

Yes Wannabe, they say they served a DN on 7th Jan, but then collected a payment on 11th Jan - They then came for the car 4 days before the date they had advised they would take the full outstanding blance. Is this significant?

 

Mike

[postggj]

You bet it is

 

oh happy days

[GSMGuy]

You bet it is

 

oh happy days

 

 

Now you are teasing me... Come on.....

 

Mike