Yes Car Credit PPI REclaim *** Resolved***

[ukdarrenfan]

Hi - in the absence of more experienced help - it appears that they are trying to claim that they were acting on behalf of the insurer in selling you an insurance product, not acting as your advisor. As the weren't acting on your behalf they don't believe that they had to disclose the commission to you. If the court accepts that they were not your agent then there would be no need for disclosure. I would however assume that they would have had to tell you at the point of sale that they were acting as agents for the insurer which I would imagine that their paperwork didn't - this is possibly a point worth making. It's probably worth flagging the case for somebody on the legal issues forum to have a look at. Apologies the answer is vague - not my area of expertise and don't want to mislead you that it is. Hopefully experienced help will be along soon

 

Thanks Andybars. I've posted in the legal forum and hope that somebody can help me soon.

[ukdarrenfan]

Is it worth me trying the underwriter route first? Has anybody had any success that way? Or should I just go ahead to court? If the underwriter refuses to acknowledge responsibility can it then go to the FOS...and then to court if they can't make them pay up? I know the court route would be quicker, but I need to have a good POC and I'm not having any luck in finding help in that direction so far...

[postggj]

UKADARRENFAN

 

I will catch up later on this thread

 

What i can tell you is that they have to tell you if any commission payment is included with the sale of the policy, AND YOU end up paying for that commission payment.

 

Wilson V Hurstanger

 

Sorry if already asked, do you have a copy of the insurance underwriting sheet listing this commission payment

[ukdarrenfan]

Thank you postggi. I have attached a sheet showing their commissions in post no 37 of this thread on page 2. It worries me slightly as they have stated in their letter to me that they were an agent for the insurer and not myself, so therefore did not have to disclose any commission to me. Is this true? They also state that with regards to taking the deposit from the insurance, there was no express agreement that they should offset the deposit against the car.

[postggj]

They cannot off set a deposit against the insurance products, prescribed terms in the credit agreement will have been mis-stated ending in an unenforceable agreement

 

Have you asked if those so called agents, or should i say employees trained and certificated to sell insurance products?

 

Did they tell you they were only agents??

 

Its a maze of deceit that you just have to keep digging at

 

What is the date of the agreement?

[ukdarrenfan]

This is what they had to say about the insurance

 

DAFS provided credit to you in respect of the purchase of a vehicle and merely provided finance to you for the purchase of a payment protection policy (PPI) and other insurances under the agreement. To be clear we were not an agent for you, we were agent for the insurance provider.The supplier (the insurer) is separate from the creditor (DAFS). The insurance part of the agreement was concluded by us on behalf of the insurer with the insurer’s authority and as such the agency was disclosed to your client and DAFS had no obligation to disclose any commission payments as it was not your agent.

 

and this is what it had to say about the deposit

 

We refute the suggestion that the agreement has been incorrectly constructed as a result of the deposit being applied to the wrong agreement. We would point out that the deposit of £1001 provided by you was not subject to an express agreement to offset that deposit against the cost of the vehicle rather than the cost of the PPI.

[postggj]

RUBBISH

 

Back peddling, damage limitation exercise, smoke screen and mirrors

 

What is the date of the agreement???

[ukdarrenfan]

RUBBISH

 

Back peddling, damage limitation exercise, smoke screen and mirrors

 

What is the date of the agreement???

 

11th April 2002

[postggj]

FSA regulation came in 2005 i believe, but before that to sell any insurance products, they will have had to be regulated i believe by the Financial Leasing Association

[ukdarrenfan]

Yes they had great delight in telling me that they weren't regulated then as they know then that I can't go to the FOS. I know others are trying to go by the route of the underwriters and then the FOS, but would it be quicker to take them to court and would I have a good chance of winning?

[postggj]

It seems to me you have been more than reasonable in trying to resolve this dispute

 

What they are not telling you is that by applying the deposit to the insurance, The amount and total amount of credit are mis-stated. the 50% termination figure is also prejudiced.

 

That will draw me too the conclusion by removing the insurance element from the agreement, any extra you have had to pay due to the insurance element is claimable. I am talking of extra payments due to the already high APR limit

 

You have been subjected to an unfair association with yes car in that as we know, they deliberately tried to deceive you every step

 

Give me a few day, it has been a while since i retrieved my old records, Probably hamster bedding by now:lol:

 

And i will update you on my own recommendation on how to continue. My inclining is a N1 court claim and let a judge sort it out, but lets get all the relevant facts first before jumping too conclusions

[dx100uk]

if it says regulated by the consumer credit act on the agreement

 

get them under section 56....

 

Consumer Credit Act Section 56. refers...

— (1) In this Act “antecedent negotiations ” means any negotiations with the debtor or hirer—

(a) conducted by the creditor or owner in relation to the making of any regulated agreement, or

(b) conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or

© conducted by the supplier in relation to a transaction financed or proposed to be financed by a debtor-creditor-supplier agreement and “negotiator ” means the person by whom negotiations are so conducted with the debtor or hirer.

[postggj]

Totally agree

 

Can go so far as an Unfair Relationship

[ukdarrenfan]

The agreement was regulated under the Consumer Credit Act 1974 and it says that on the top of the agreement

[ukdarrenfan]

if it says regulated by the consumer credit act on the agreement

 

get them under section 56....

 

Consumer Credit Act Section 56. refers...

— (1) In this Act “antecedent negotiations ” means any negotiations with the debtor or hirer—

(a) conducted by the creditor or owner in relation to the making of any regulated agreement, or

(b) conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or

© conducted by the supplier in relation to a transaction financed or proposed to be financed by a debtor-creditor-supplier agreement and “negotiator ” means the person by whom negotiations are so conducted with the debtor or hirer.

 

Thank you so much for that dx. I had to Google that to turn it into a language that I understood, but now I do it seems like the perfect basis for a claim!

[postggj]

Let see if we can stir things up shall we

 

Seems i will be burning the midnight oil on the Consumer Credit Act 1974

 

 

140A

Unfair relationships between creditors and debtors

(1)The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—

 

(a)any of the terms of the agreement or of any related agreement;

(b)the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

©any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

 

(2)In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).

 

(3)For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.

 

(4)A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.

 

(5)An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).

 

 

140B

Powers of court in relation to unfair relationships

 

(1)An order under this section in connection with a credit agreement may do one or more of the following—

 

(a)require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

 

(b)require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

 

©reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

 

(d)direct the return to a surety of any property provided by him for the purposes of a security;

 

(e)otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f)alter the terms of the agreement or of any related agreement;

 

(g)direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

 

(2)An order under this section may be made in connection with a credit agreement only—

 

(a)on an application made by the debtor or by a surety;

(b)at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or

©at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant.

 

(3)An order under this section may be made notwithstanding that its effect is to place on the creditor, or any associate or former associate of his, a burden in respect of an advantage enjoyed by another person.

 

(4)An application under subsection (2)(a) may only be made—

 

(a)in England and Wales, to the county court;

(b)in Scotland, to the sheriff court;

©in Northern Ireland, to the High Court (subject to subsection (6)).

 

(5)In Scotland such an application may be made in the sheriff court for the district in which the debtor or surety resides or carries on business.

 

(6)In Northern Ireland such an application may be made to the county court if the credit agreement is an agreement under which the creditor provides the debtor with—

 

(a)fixed-sum credit not exceeding £15,000; or

(b)running-account credit on which the credit limit does not exceed £15,000.

 

(7)Without prejudice to any provision which may be made by rules of court made in relation to county courts in Northern Ireland, such rules may provide that an application made by virtue of subsection (6) may be made in the county court for the division in which the debtor or surety resides or carries on business.

 

(8)A party to any proceedings mentioned in subsection (2) shall be entitled, in accordance with rules of court, to have any person who might be the subject of an order under this section made a party to the proceedings.

 

(9)If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.]

Edited June 13, 2013 by postggj

[ukdarrenfan]

Wow, that is some reading! I will look at that in more detail when I get home!

[postggj]

Lets get the A-team to sort this out once and for all

 

It has been going on far too long and you deserve closure

[ukdarrenfan]

So it looks like I have a choice on whether to claim on Section 56 or 140a? Would I need to also find the relevant sections regarding the deposit and also the commissions?

[postggj]

Use everything

 

I have the info on commissions and underwriting sheets, prescribed terms etc

 

I am going to have to have at least a week to put things together for you as this is not easy

 

I also have a dissertation to finish by next Friday as well

[ukdarrenfan]

Thank you. I'm just reading about unfair relationships myself and it will give me time to put a few notes together on how best to put my case forward. I will put together (another) letter before action and get it sent to them.

[postggj]

I myself consider we have passed the unfair relationship test just on allocating the deposit to the insurance and not what it was intended for, the car.

 

You have been prejudiced in my opinion

[ukdarrenfan]

This is what I have just been reading. I would say it covers just about everything.

 

On what basis can a relationship be deemed unfair?

Section 140A sets out the criteria for determining whether a relationship is unfair because of one or more of the following:

Any of the terms of the agreement or any related agreement;

The way in which the creditor has exercised or enforced any of its rights under the agreement or any related agreement;

Anything done or not done by, or on behalf of the creditor.

Individuals may bring or defend actions on the basis of the provisions, as well as the OFT having the power to bring an action under Part 8 of the Enterprise Act 2002 where there is an unfair relationship which harms the collective interests of consumers. An example of this might be where a lender uses certain terms and conditions in all its agreements which are unfair.

What exactly does unfair mean?

There is no definition within the provisions themselves. Guidance encourages taking the widest possible view, and it is considered that there is suitable direction in analogous statutory provisions, in particular the Unfair Terms in Consumer Contract Regulations 1999. These regulations, taken with the judgment in Director General of Fair Trading –v- First National Bank (2001) create the proposition that unfairness arises as a result of:

Lack of fair and open dealings between the customer and the lender;

Failure to give potentially disadvantageous terms sufficient prominence;

Deliberately or unconsciously taking advantage of consumers’ necessity, lack of experience, unfamiliarity with the subject matter, weak bargaining position or any other relevant factor;

Causing a significant imbalance in parties’ rights and obligations;

Acting contrary to good faith;

Acting in detriment to the consumer.************

[postggj]

That is about it

 

Lack of fair and open dealings between the customer and the lender;

Failure to give potentially disadvantageous terms sufficient prominence;

Deliberately or unconsciously taking advantage of consumers’ necessity, lack of experience, unfamiliarity with the subject matter, weak bargaining position or any other relevant factor;

Causing a significant imbalance in parties’ rights and obligations;

Acting contrary to good faith;

Acting in detriment to the consumer.******

 

l

[ukdarrenfan]

Damn. Just been doing a bit more reading and came up with this. Seems like we can't claim an unfair relationship as our agreement ended in 2006.

 

The introduction of provisions

 

The provisions were introduced by the Consumer Credit Act 2006. They applied to new agreements from 6 April 2007, and to pre-existing agreements from 6 April 2008. Agreements completed before the new provisions took effect remain subject to the previous extortionate credit bargains provisions.