Hostile Termination of Hp Agreement

[nathal]

In january i got a car on hp, which with interest totaled 21k.

 

fell into difficulty and got behind on payment.

 

Car then broke down and was getting fixed but in the process the car was repossed in the state the car was in.

 

the car was auction and achieved 7k

 

i am liable for the balance.

 

The collection team lifted the car from the garage while getting repaired and sold at auction nort driving.

 

the collection are in my opinion at blame for the car not achieving full market value.

 

hense the balance should be wrote off

 

opinions please!

[buck rogers]

who was the car finance company?

[barracad]

If the amount was 21k including interest then I am guessing it was worth less than that, and that price may have been on the high side as it was through a dealer?

 

You don't say when the car was sold at auction, but if it was 9 or 10 months later there is no way it could be expected to fetch anywhere near 21k at auction even if it was in the same condition as when you bought the car.

 

 

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[nathal]

car with interest totalled 21k

21 - car sale(7 odd) = what im liable for

 

the retail on the car was much higher

[nathal]

capital bank- part of rbos

[Jimbo44]

The words "duty of care" are buzzing through my mind!

 

True, you may well be liable for the balance between the sale proceeds of the car and the balance owing on the account. However, I have a feeling that the finance company have a "duty of care" to the hirer to mitigate his losses as much as possible in circumstances such as these.

 

By repossessing a car that was, as you say, in the middle of repair and I assume un-driveable, they seem to have ensured that it would have achieved the lowest possible amount at auction. Not a lot of "duty of care" there I think! Maybe a close scrutiny of the "small print" of your agreement could throw some light too?

 

The garage's behaviour also comes into question here as well, I think. Did they release the car with your consent (preferably written consent too)?? Who paid their charges for work already done??

 

Afraid I can't give any links, references etc. for what I've said about "duty of care", but hopefully someone more savvy than me about the legal niceities of it could?

[mnrbig]

Have you paid at least 30% of the finance amount.

[alexifa]

What car? What repairs needed doing and how much would they have cost? And what do you think the market value was if the repairs had been complete?

[nathal]

ok, what words are springing to mind are:

 

duty of care

incompetence by hp company

 

market value would have been a least double auction price achieved

[nathal]

the car was not driving, not sure what was wrong, but the warranty would have repaired the car

[alexifa]

I think the fact that the car was still under warranty yet the car was sold as 'not driving' clearly shows that the finance company has ignored it's duty of care and this is the angle I would pursue it from.

What are you planning to do next?

[buzby]

The 'market value' issue is a complex one - and if the car is sold at public auction there is no grounds for appeal on price as it was sold at its market value. What Glass's Guide thinks is immaterial. Hence the ability to sell the car (with permission) either privately or to a dealer by the hirer is always a better resolution than under duress at an auction.

[Jimbo44]

Don't become too embroiled in the car's "market value". Having spent (too) many years of my life in the retail motor trade (always main dealers and new cars) I can tell you that the same car will have many "market values".

 

To illustrate just some of these probably the lowest is that between two motor traders; next comes it's value at auction; then it's value as a sale between two private individuals; move on to it's value on a non-franchised dealers forecourt and finally, it's value on a main dealers forecourt. Alll will be different and sometimes significantly so too! All these values are, however, greatly influenced by (a) how popular that make/model is with the car buying public (i.e. how easy it will be to sell), (b) what "stocks" of that model are within the trade and © what the general used car market is like at the time of sale.

 

A very major factor in deciding the valus of a car in any of thses circumstances is the condition of the car. Make, model, colour, "factory fitted options", the condition of the exterior bodywork (cleanliness and evidence of repair or parts needing repair/painting), cleanliness and condition of interior are all taken into account wherever the car is sold.

 

The fact that the car in question here seems to have been a "non-runner" and in the midst of repair will have very significantly affected it's sale price, no matter where it was sold.

 

Finally, don't become too focussed on the "book price". Glass's Guide and CAP are only guides to the prices of cars and not the "be-all-and-end-all bible".

[nathal]

The fact that the car in question here seems to have been a "non-runner" and in the midst of repair will have very significantly affected it's sale price, no matter where it was sold.

 

jimbo- in you opinion, who would be at fault

[buzby]

All of this is of course a sideshow to the main event, the loan was effectively secured on the vehicle, and it's value seriously compromised, therefor it would be hard to find someone to 'blame' as the disposal was achieved leaving the outstanding balance due to be cleared by the purchaser

[Jimbo44]

All of this is of course a sideshow to the main event, the loan was effectively secured on the vehicle, and it's value seriously compromised, therefor it would be hard to find someone to 'blame' as the disposal was achieved leaving the outstanding balance due to be cleared by the purchaser

 

Very true okonski. That's assuming, of course that the car was subject to a hire purchase agreement and not a personal loan of some kind. I know from experience that many people have what they think is an HP agreement, but which, after close inspection, then turns out to be a personal loan.

 

Nathal, is it definitely hire purchase? Does it say "Hire Purchase" on the agreement? I suspect it probably is because the car was re-possessed rather than a civil action started for the repayment of the loan.

 

I do, however, feel that the loan company have questions to answer regarding the manner in which they "snatched" the car and their timing of this vis-a-vis it's condition at that time (i.e. it was in the process of being turned from a non-runner into a more saleable proposition).

 

At the end of the day though, the responsibility for any shortfall lies with the hirer/borrower. Despite this, I think the loan company's behaviour merits serious questions being asked.

 

nathal, in answer to your question (in my opinion, who's at fault), I'm afraid there's no straight answer. In some respects the loan company over their timing of the "snatch"/sale not being of the best to achieve maximun re-sale value. But there are others too!!

[nathal]

could anyone comment on:

statutory duty

and

duty under the common law of negligence

[nathal]

What is Duty of Care?

 

Duty of care is the obligation to exercise a level of care towards an individual, as is reasonable in all the circumstances, to avoid injury to that individual or his property.

Duty of care is therefore based upon the relationship of the parties, the negligent act or omission and the reasonable foreseeability of loss to that individual.

A negligent act is an unintentional but careless act which results in loss. Only a negligent act will be regarded as having breached a duty of care. Liability for breach of a duty of care very much depends on the public policy at the time the case is heard.

In the FE and HE system duties of care will govern relations with a wide variety of groups including, but not limited to, employees, students and even visitors.

Differences in the UK Jurisdictions

 

In Scotland this area of the law is called Delict while in England, Wales and Northern Ireland it is called the law of Tort. Delict and tort differ from the law of contract. Contracts generally specify the duties on each of the parties and the remedy if these duties are breached. Upon entering into a contract, the parties obtain specific rights and certain duties. In delict or tort these duties exist through the nature of the parties relationship regardless of the contractual obligations.

In both jurisdictions, delict and tort attempt to strike a balance between the individual's wrongful conduct and compensating the victim for his loss.

Much of the law in this area has been developed by the Courts, however, there are now a number of statutory rules which apply in particular, to employment, disability discrimination, health and safety, data protection and occupier's liability to name but a few. A FE and HE Institution is subject to both the general rules on negligence and to specific rules relating to education, property ownership and employment.

The development of the law surrounding duty of care has been similar in the different jurisdictions but there are a number of differences between them, for example, the law of defamation in Scotland in comparison to libel and slander in England, and the law of nuisance. However, many of the general principles and the law of negligence are now more or less the same. Therefore any relevant case law or decisions of any of the UK courts will generally be applicable to all FE and HE Institutions, regardless of where they are situated.

[nathal]

im only brainstorming for a template letter

 

Is there a duty of care

is there a breach

did the breach cause damage/loss

 

 

defences s.4 the defect was not present when he supplied the product

 

liability in negligence s.16 - ucta

ref: hire purchase act 1964

[nathal]

Dear Sir/Madam

I write in relation to agreement number *** in which your company have requested payment of an outstanding balance.

The vehicle relating to this agreement was collected by a collection team authorised by your company. The vehicle was collected from (address) and drove by the collection agent to their offices located in ***.

When the vehicle was auctioned at market, it was auctioned as a non-runner, which in simple terms means it had incurred mechanical failure and was pushed through the auction house, and sold in that state.

As I delivered the vehicle to the collection team at (address) and the vehicle was driven away, the vehicle was of sound mechanical order and it was indicated at the time that the vehicle had no impending problems.

I therefore do not believe I am liable for the outstanding balance due for this vehicle, as the vehicle had no defects when delivered upon the collection agent.

I hope you will agree with my analysis of this situation, and await hearing confirmation that the account will be settled and the balance wrote off.

 

 

 

any comments or addirtions to this letter gratefully accepted

[buzby]

I like it! My only concern is from a strong start it just goes a bit weak when you say 'I believe'. I'd prefer something more robust - along the lines of;

 

Since the vehicle was mechanically sound and in full running order when I delivered the car to your agents, I am concerned that in the (short) intervening period between delivering the said vehicle and it reaching the auction house, it mysteriously developed a fault that was so serious it was sold as a non-runner, seriously affecting its resale value and increasing my indebitedness.

 

As I can provide witnesses to attest to the fact the vehicle was fully capable of propulsion, I regret I cannot accept that the vehicle was disposed of in good faith, therefore any action you may contemplate against me will be robustly defended, and I wish to state that should legal action be raised, a counter suit for the appropriate amounts lost due to an aparently fraudulent sale will follow without further notice. I do hope this will not be necessary?

 

Hit 'em where it hurts!

[nathal]

Dear Sir/Madam

I write in relation to agreement number *** in which your company have requested payment of an outstanding balance.

The vehicle relating to this agreement was collected by a collection team authorised by your company. The vehicle was collected from (address) and drove by the collection agent to their offices located in ***.

When the vehicle was auctioned at market, it was auctioned as a non-runner, which in simple terms means it had incurred mechanical failure and was pushed through the auction house, and sold in that state.

As I delivered the vehicle to the collection team at (address) and the vehicle was driven away, the vehicle was of sound mechanical order and it was indicated at the time that the vehicle had no impending problems.

Since the vehicle was mechanically sound and in full running order when I delivered the car to your agents, I am concerned that in the (short) intervening period between delivering the said vehicle and it reaching the auction house, it mysteriously developed a fault that was so serious it was sold as a non-runner, seriously affecting its resale value and increasing my indebtedness.

 

As I can provide witnesses to attest to the fact the vehicle was fully capable of propulsion, I regret I cannot accept that the vehicle was disposed of in good faith, therefore any action you may contemplate against me will be robustly defended, and I wish to state that should legal action be raised, a counter suit for the appropriate amounts lost due to an apparently fraudulent sale will follow without further notice. I do hope this will not be necessary.

I hope you will agree with my analysis of this situation, and await hearing confirmation that the account will be settled and the balance wrote off.

The new letter with amendments thanks to buzby

[buzby]

That reads much better - you might want to look at Para 4, where you say it had 'no impending problems' - I know what you mean, but you cannot reasonably state this, as without 100% clairvoyance you can't suggest this with any accuracy! A better tack might be;

 

"As the vehicle was delivered to the collection team at (address) and was subsequently driven away with no recourse to external influences (Breakdown or otherwise), I am of the opiniion the vehicle was of sound mechanical order and any subsequent difficulties were due to either mishandling by your agents or an obvious attempt to manipulate the price once the vehicle reached auction."

 

.

[Jimbo44]

Nathal, I’m a little confused (unless I’m missing something vital).

 

In your first post in this Thread, on 20th October, you say:

 

“Car then broke down and was getting fixed but in the process the car was repossed in the state the car was in.”

 

and

 

“The collection team lifted the car from the garage while getting repaired and sold at auction nort driving.”

 

Later, on 23rd October, you say:

 

“the car was not driving, not sure what was wrong, but the warranty would have repaired the car”

 

A part of the letter you’ve drafted to send to the finance company says:

 

“As I delivered the vehicle to the collection team at (address) and the vehicle was driven away, the vehicle was of sound mechanical order and it was indicated at the time that the vehicle had no impending problems.

 

Since the vehicle was mechanically sound and in full running order when I delivered the car to your agents, I am concerned that in the (short) intervening period between delivering the said vehicle and it reaching the auction house, it mysteriously developed a fault that was so serious it was sold as a non-runner, seriously affecting its resale value and increasing my indebtedness.

 

As I can provide witnesses to attest to the fact the vehicle was fully capable of propulsion, I regret I cannot accept that the vehicle was disposed of in good faith, therefore any action you may contemplate against me will be robustly defended, and I wish to state that should legal action be raised, a counter suit for the appropriate amounts lost due to an apparently fraudulent sale will follow without further notice. I do hope this will not be necessary.”

 

Now, while I hate to question you on anything you’ve said, as I read it those statements seem to contradict each other a bit.

 

As I’ve said, I might be missing (or misreading) something important and if I’ve misunderstood the situation regarding whether the car was or was not driveable when it was re-possessed, I apologise now.

[nathal]

your quite right to question this post as i should have had two threads, as there are two cases in this one thread.

 

First instance is a car which is described in the first half, but the letter to the hp company is for another case.

 

The letter describes the second scenario which occurred as it is impending at the moment.

 

As for the first instance, i have send a letter requesting account statements, docs from auction house, and related docs

 

 

Very sorry for the confusion, and thanks jimbo, hopefully now i have clarified these cases.