Vehicle re-possessed of private land, ***UPDATE - WON - SETTLED OUT OF COURT***

[The Mould]

A very dear friend of mine recently had a hire purchase vehicle re-possessed by the creditor.

I should point out that my friend is a clean living, law abiding, hardworking decent and respectful fellow whose credit history with his creditors is exemplary, he has never defaulted on any contract in the entirety of his adult life, he is a man of great heart and often helps others in need and those with disabilities. He, like many, is a very good consumer and most certainly not one the ‘bad debtors’ in our fine land.

No valid statutory default notice was served, the vehicle was parked on private land, my friend did not give any consent nor did he sign the paperwork handed to him by the creditor’s agent instructed to take possession of the vehicle, no Court order was obtained by the creditor to enter onto the private land and take possession of the vehicle.

The instructed agent obstructed the vehicle with his own car at 06:00 (am) one morning last week and arranged a tow truck to take it away by 9:30 am that same day.

My friend had not repudiated on the credit agreement, his account had fallen into one month’s arrears and a temporary contract was agreed with the creditor whereby for a two-month period my friend’s payment was set at the agreed rate of £100.00. My friend performed his obligations in reliance upon the said temporary contract and within a few days of him performing, the creditor went back on his agreement and insisted upon his strict rights under the credit agreement, this of course is inequitable under the principles of promissory estopple.

My friend came to me for advice and I furnished him with the knowledge of the principles of the rule at law of promissory estopple in respect of the said temporary contract (which he has evidence of). A genuine dispute arose and I took conduct of the matter under a letter of authority supplied and signed by my friend granting his consent for me to do so.

I sent an open letter of claim to the creditor pursuant to Civil Procedure Rule Practice Direction – Pre-Action Conduct (I included a copy of the 1998 CPR in the said letter). The full factual details of the dispute were set out therein and the creditor was requested to provide his substantive response to the same within 28 days, failing which, proceedings would be issued in the High Court of Justice Queen’s Bench Division on the grounds of his repudiation.

The creditor refused to engage in any discussion with regards to the said dispute and he gave a bare denial of his agreement to the said temporary contract, we advised that the Claimant (my friend) would issue proceedings if he continued with his wholly unreasonable conduct, the creditor continued to disregard the said dispute and refused to correspond with regards to the same.

The creditor served three invalid statutory default notices upon my friend (the arrears figure was substantially inaccurate in each said notice and the statutory minimum 14 day period was not given therein to remedy the breach that the creditor relied upon).

I advised my friend that he needs to issue proceedings, he agreed to undertake the litigation of this matter with my help (free of charge of course) and so we decided that we would commence proceedings by the end of the second week in the New Year, however, as stated above, the creditor took possession of the vehicle by unlawful means in the first week of this New Year.

I sent correspondence to the creditor informing him that he had no entitlement to take the action that he has against my friend; the creditor ignored the further correspondence of course.

My friend’s claim against the creditor and full Particulars thereof were drafted and filed to the High Court, we are waiting for the same to be served under seal upon the creditor and his agent, his agent is an accessory to the trespass and theft of the vehicle, the vehicle was taken to auction, so no possibility of injunctive relief with the return of the vehicle.

I have read through the credit agreement and found that the same is an improperly-executed credit agreement, the agreement is 2010, so s.127 of the CCA 1974 (unenforceable) does not apply, however, s.65 of the CCA 1974 does indeed apply, this of course is in addition to the creditor’s statutory breach of s.92 and s.87/88 of the said Act.

There is also of course promissory estopple that my friend can absolutely rely upon in addition to the above.

The agreement is improperly executed because my friend signed a one-page document at the car dealer’s premises and the said document does not contain any financial information or any terms and conditions. Around two weeks after collecting the vehicle from the car dealer, the creditor sent an eight-page credit agreement containing the key financial information and all the terms and conditions relating to the hire purchase vehicle to my friend and, the said one-page document had clearly been photocopied and inserted into the said eight-page credit agreement, also enclosed in the envelope was a five-page Gap Insurance contract and a supplement A4 sheet stating all the additional charges and terms and conditions thereof that may be made by the creditor in relation the credit agreement, that my friend had never seen before since the same was only disclosed to him some two weeks after he signed the said one-page document and collected the vehicle.

At the signing of the said one-page document, my friend was told that Gap Insurance was required and that he had to pay the full costs of such at £255.00 up-front, which he duly did and has evidence of this, however, upon examining the 8-page credit agreement I noticed that the sum of £255.00 (Gap Ins) that my friend had already paid in full, was added onto the costs of the finance advanced! With interest accruing thereon over a 48 month period at 32.45%!

I also noticed that a redemption fee of £100.00 was added onto the costs of the finance over the 48 month period (again. Accruing the said interest) and that at the end of the agreement this same £100.00 fee is said to be payable as owing! (this was never discussed with my friend and is clearly not stated in the said 1-page document)

There is also a £25.00 option to purchase fee that has been added onto the cost of the finance over the 48 year period (accruing the said interest) and at the end of the agreement this same £25.00 is said to be payable as owing! (this was never discussed with my friend as is clearly not stated in the said 1-page document).

An acceptance fee of £300.00, which was never discussed with my friend, has been added onto the cost of the finance.

The finance advanced is £3,900.00 and the total charge for the credit is £2,893.16, this figure includes the Gap Ins; the £100; the £25 and the £300 referred to above.

We are requesting a copy of the underwriting sheet in order to establish whether or not if any commission has been paid. The car dealer acted as the intermediary, no application for credit was ever made by my friend, and he received a short letter from the creditor informing him that “a line of credit” had been obtained, no information as to what the terms and conditions of this “line of credit” would be was ever given to my friend, the said letter was received because my friend had made an informal enquiry with the car dealer in respect of a vehicle that my friend said he was interested in, the car dealer sent requests for credit facility to several creditors, who in turn sent letters to my friend offering a “line of credit” and that if he wanted to take advantage of this offer of a “line of credit” then he had 28 days to take advantage of the said ‘offer’.

As usual the OFT and the TSO are not interested, it appears to me that creditors of this type are unpoliced, I would go on to say that the fact that the OFT will not take up or act upon an individual’s compliant/case concerning a creditor’s statutory breach of requirements imposed upon him under the CCA 1974 (as amended) and all subsequent Regulations thereof, is undoubtedly a fundamental problem in consumer law that has always been there and has indeed worsened, as said above, the creditors are acting outside of the law because there is no-one to police them, the said Regulator is of no use and serves no purpose for the individual consumer or indeed for the collective masses of consumers who are made to suffer day in and day out at the hands of creditors whose unjust and unlawful business practices have, in my opinion, no place in consumer law.

What an incredibly appalling and unacceptable state of affairs we find ourselves suffering from in this 21st Century.

Post away on this thread if you would like to add anything relevant to this case or indeed if you wish simply to offer any support or if you would like to post something funny (like ha ha funny, is what I mean, do it after midnight though).

Godzilla

Kind regards

The Mould

[jdes26]

Regarding estoppel I don't think the creditor has a leg to stand on

Do u have the so called " acceptance "

Note/letter from the dealer

And also how long does the dealer have to file a defence on your court proceeding?

I find all your posts very interesting mould

[The Mould]

Regarding estoppel I don't think the creditor has a leg to stand on

Do u have the so called " acceptance "

Note/letter from the dealer

And also how long does the dealer have to file a defence on your court proceeding?

I find all your posts very interesting mould

 

Good evening jdes26

 

If you mean the "line of credit" letter, yes, I have all of my friend's documents relating to his case, I am photocopying the same in readiness for the disclosure stage/ trial bundle.

 

The claim has only just been filed to the High Court, so, perhaps by the end of next week the same will be served under seal upon all three Defendant parties; the creditor; the car dealer and the vehicle re-possession Co. Acknowledge of Service and the filing of their full response to the Particulars of Claim is the usual time-scale from the date of service.

 

We filed a claim in the Chancery Division last October (2011), they had a back log of claims to issue and our's took 3 weeks before it was sealed and issued. I will chase the Court mid-week next week to find out how things are progressing with the issuance of the claim.

 

The promissory estopple aspect holds in indisputable favour of my friend's claim. I have a lot of correspondence with creditors in-house litigation departments and with solicitors with regards to fundamental breach of contract/repudiation and this particular creditor will not even discuss this matter or pass control of the case to his in-house legal department (if indeed he even has such a department), most unusual and wholly unreasonable conduct - not willing to acknowledge a genuine dispute, his bare denial of the said temporary contract was expected.

 

Thank you for posting jdes26, I am thoroughly looking forward to reviewing the three Defendants response to the claim and my friend and I are also looking forward to a solid legal Spartan battle:lol:

 

Kind regards

 

The Mould

[jdes26]

Im Going to watch this thread with interest and I think it will be very interesting reading when you received their defence

Good luck !!!

[robbie2009]

Good luck in your quest. Just make sure you spell 'estoppel' correctly

[The Mould]

UPDATE - WON - SETTLED OUT OF COURT

 

Good evening fellow Caggers

 

I am very pleased to confirm that my very dear friend's case has been settled. The creditor concerned offered to settle his claim and I advised my very dear friend that the settlement offer was indeed a reasonable one and a great result for him.

 

I would be grateful to the Site Team if one of them would kindly update this thread/case to reflect another superb success for the consumer against the wrongdoings of his creditor.

 

Thank you very much indeed in advance.

 

Kind regards

 

The Mould

[wannabedebtfreesoon]

Absolutely brilliant news!

Jolly well done to you and your friend

 

Are you able to share details of what was sought and the settlement offer?? I'd be keen to know which aspect of the claim exactly it was that the creditor feared the most...

[The Mould]

Absolutely brilliant news!

Jolly well done to you and your friend

 

Are you able to share details of what was sought and the settlement offer?? I'd be keen to know which aspect of the claim exactly it was that the creditor feared the most...

 

Good afternoon wannabedebtfreesoon

 

I apologise for not responding to you sooner.

 

It was one of the third parties in this matter who became fearful of the case against him that prompted the creditor to settle the dispute.

 

The third party acted as agent for the creditor and interfered with the contractual relationship between my dear friend and his creditor, and in doing so the third party became jointly liable for the wrondoing of the creditor pursuant to the authority of Lumley v Gye [1853] EWHC QB J73.

 

The settlement achieved resulted in the creditor removing the defamatory default from credit files, write-off of nearly £9k and £2k as compensation to my dear friend in full and final settlement of his claim.

 

A great result indeed and rapidly resolved. I have posted on your case a while back, you have achieved a tremendous result and I, like so many other Cag members, am so very pleased for you.

 

Kind regards

 

The Mould

[MARTIN3030]

A few weeks late Mouldy,but better late than never.

[iconoclash]

And another well done from me too - you sound eloquent and knowledgeable and I could do with you on my team - lol

[The Mould]

And another well done from me too - you sound eloquent and knowledgeable and I could do with you on my team - lol

 

Goodafternoon campari2 and thank you for your kind words.

 

Perhaps if you would post a link to your thread/case, then when I have a few moments to spare I shall peruse the same and see if I can offer any advice/help or support.

 

Kind regards

 

The Mould