Unlawful Car Repo? MotoNovo

[orfoster]

I have found the details of the CEO e-mail address online, should I e-mail him a copy of the previous letter and cc the complaints dept advising that court actions is about to commence as I haven't received a response?

[BRIGADIER2JCS]

I have found the details of the CEO e-mail address online, should I e-mail him a copy of the previous letter and cc the complaints dept advising that court actions is about to commence as I haven't received a response?

 

Good idea.

[orfoster]

Guess what, no response and the time is up.

 

I sent an e-mail to the CEO and copied in the Customer Services dept and received an auto acknowledgement just like I did with my original complaints etc.

 

Complaint to ICO?

[orfoster]

So, we have received a response to the complaint - doesn't actually answer anything we have said though.

 

Apologise that we didn't receive a response to our alleged complaint dated 12 June 2011 but they are unable to locate a complaint on file (although they have supplied this twice as part of SAR!)

 

They address full issues of the repossession but that isn't the subject of the complaint nor do we agree with their assertions. They basically believe that due to the repo the default is correct. They don't address at all the fact that they've failed to send a default notice.

 

Complaint has been submitted to ICO now but will provide a copy of their letter and also perhaps respond to them saying they've failed to address any of the points raised in the complaint?

[orfoster]

My draft response to them, what do you think?

 

Thank you for your letter dated 24 June 2013.

 

Unfortunately you have failed to address any of the points raised in my complaint and therefore do not regard that my complaint has been dealt with at all, nor do I agree with any of your points and therefore reserve my right to make further representations after this specific matter is resolved.

 

Your response states that "I won't make any comment on the aspect of your complaint surrounding the DSAR" I haven't made any assertions in my complaint about the DSAR?

 

I am concerned that, despite receiving several copies of my complaint dated 12 June 2011 and a subsequent complaint dated 27 June 2011 in response to my DSAR that, you are unable to locate either of these documents, these were disclosed by MotoNovo only a matter of weeks ago and I therefore have concerns about the security of my data with your organisation if you are unable to locate this document.

 

My complaint relates solely to an entry placed on my credit file showing that MotoNovo has filed a defaulted the account in July 2011, no compliant default notice was received at any time in direct breach of Consumer Credit Act 1974 s88, MotoNovo have subsequently confirmed that no such notice exists within my file.

 

I hope you are now able to respond fully to my complaint made dated 10 June 2013, a copy of which I have enclosed for your reference.

[orfoster]

Does anyone have any other suggestions to my response?

[dx100uk]

just remember, they only have to 'indicate' in the 'comms log' [whatever they call it] that the 'system' sent one.

if that does not exist then tough on them!

dx

[orfoster]

Hey DX,

 

Thanks.

 

They have a copy of the default issued in Feb 2010 in error on file, they confirmed no other copy correspondence exists on file.

In terms of the comms log or system notes that they have provided - In May 11 they have "Letter campaign issued" theres absolutely no mention of the default at all.

Does that help?

[orfoster]

If they are going to allege that "letter campaign issued" means default sent then this isn't referred to at all when they sent 2010 default.

[dx100uk]

pers I don't think they have a leg to stand on.

 

dx

[orfoster]

Can I just ask, irrespective of the previous aspects of the thread. Its clear that MotoNovo never actually supplied a default and their time is up on Thursday (bundle ready for the ICO).

 

Section 87 of CCA states as "Need for default notice"

 

Need for default notice.

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

What does 4 mean above and does this mean that aside from all the other issues they couldn't repossess on this issue alone?

 

Cheers

[orfoster]

Hello,

I've had a response form MotoNovo today.

 

It says that because we requested the Voluntary Termination they don't need to comply with s88 is that correct? They have confirmed that they got the default balance on the credit file very wrong and have just changed that, isnt that an issue in itself?

 

Cheers

[orfoster]

Their response offers £200 as full and final.

 

It then goes on to adds the notice of default sums charge was £35 due to not maintaining payments, surely this in itself should have meant a default notice itself to be served and it to be accurately recorded with the correct balance?

[orfoster]

Anyone?

[orfoster]

Hello,

I've had a response form MotoNovo today.

 

It says that because we requested the Voluntary Termination they don't need to comply with s88 is that correct? They have confirmed that they got the default balance on the credit file very wrong and have just changed that, isnt that an issue in itself?

 

Cheers

 

Ok, I've done some research.

 

Effectively because we aren't necessarily arguing that we didn't VT the vehicle, what we are trying to say is that the vehicle was unlawfully repossessed from the property. As stated in their own evidence the vehicle was taken with "nobody to sign".

 

I've been having a hunt around for case law and have found this case Chartered Trust Plc v King (2001) WL 172107 an extract is;

 

23 February 2001

Hire purchase – Damages – Failure to pay instalments – Purchaser refusing to pay remaining instalments for vehicle as agreement varied for lesser amount – Finance company failing to reduce instalments – Purchaser succeeding in counterclaim – Purchaser appealing against decision not to award further damages for loss – Whether damages recoverable by purchaser.

The defendant K, purchased a Rover 400 series car from a dealer in part exchange for his old vehicle. The balance was provided by means of a hire purchase transaction between K and the claimant finance company, C plc and was regulated by the Consumer Credit Act 1974. The car developed a number of faults within weeks of purchase which were unable to be remedied by the dealer. It was agreed that K would be permitted to choose a replacement. K chose a Vauxhall Vectra, which was of a lesser value than the Rover. K understood that he would receive a new hire purchase agreement reflecting the reduction in price. Notwithstanding repeated requests from K, that was not done. Accordingly, K stopped his monthly repayments under the agreement. C plc threatened to dispossess the Vectra if K did not clear the arrears under the original agreement. C plc seized the car when K was away from his home and instituted proceedings for the outstanding sums due under the agreement. K denied entering into any agreement relating to the Vectra and lodged a counterclaim for return of the car, damages and repayment of the monthly instalments he had paid. C plc's claim was struck out by the court and judgment on the counterclaim entered for K for the sums paid by the monthly instalments. At a further hearing to assess the amount of damages and interest payable, the court awarded interest but declared that K was not entitled to any further damages in addition to the judgment entered in his favour. K appealed against the order on the grounds, inter alia, that the court was wrong to take account of a clause in the hire purchase agreement which it construed as providing that C plc were owners of the Vectra and therefore entitled to possession. He further argued that the court had been wrong to conclude that he had consented to the repossession. K also contended that since he had been in possession of the vehicle at the relevant time he was entitled to have an assessment of damages by reference to the value of the car and for the loss of its use.

The appeal would be dismissed.

On an assessment of damages consequent on a default judgment a defendant could rely on any matter going to that issue which was not inconsistent with issues settled by the judgment on liability. In the instant case, judgment was given for the defendant but the court construed the hire purchase agreement so as to constitute C plc as hirer of the Vectra. Accordingly, the judge was wrong to approach the issue on the basis that C plc was entitled to possession against K. However, on the facts the court had correctly concluded that K had consented to C plc taking the vehicle and had in any event awarded sufficient compensation for its loss.

 

I have a copy of the full transcript of the case. Do you think this would be a possible course of action?

 

Cheers

[gerson]

Hi,

 

This thread may give you some useful information:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?242261-Car-repossessd-off-private-property-with-no-default-or-termination-served-with-police-consent!-**-WON-**

 

G

[orfoster]

Thanks for this, I'm no where near halfway through it yet....the interesting part is the part around 87 1 © of CCA 1974.

You see I'm not clear about the issuing of a default notice, it says in my view that before they can recover possession of any goods they must issue a default notice. Although in this case we terminated the agreement first.

 

The issue is that I believe they unlawfully took the car without consent because of the events that took place on the day and that they didn't get anything signed with the car was just taken!

 

I'm still reading though.........

 

I'm not sure what to do next........

[dx100uk]

don't thinky ou need to bother with any of this

 

the car was repo'd from private land

without perm

 

end off

 

dx

[orfoster]

don't thinky ou need to bother with any of this

 

the car was repo'd from private land

without perm

 

end off

 

dx

 

Hi Dx,

 

After some days of lengthy research etc, I totally agree with you.

 

She did VT the vehicle but the car was taken without consent on the day in that......they turned up. She was there but told the guy in no uncertain terms she didn't want the car to be taken, he said she didn't have any choice in the matter and she went off to call me.

 

When she got back the car was gone. This can be confirmed by a witness.

 

In addition their "collection report" is unsigned where the repo guy notes "nobody to sign".

 

So here is what the last letter to them said;

 

Vehicle repossession

Further to the disclosure of my information I am now in receipt of an unsigned Vehicle Inspection Report “the report” which is dated 15 June 2011, your letter to me dated 17 June 2011 which confirms that I agree to these damages is incorrect, in addition I challenged these charges on 27 June 2011, according to your system notes an entry was made by HOGANA on 28 June 2011, I did not ever receive a breakdown of these charges nor the opportunity to challenge them, I did not receive a response nor has one been provided through my recent disclosure.

On 20 July 2011 a comment was added to your system stating that I was disputing the abort fee, the comment is closed with an action to speak to Manheim (the collection agents), no further comments are added and no response was provided to me in relation to my dispute.

I am appalled to learn that on 15 September 2011 you reviewed the complaint mentioned above and a comment was added “reviewed complaint letter (scanned) damages remain and stated. Whether there was a mix up in collection I don’t feel we should be liable for the mistake and now the invoice has been paid. Closed”. No response was provided in relation to this review for the simple reason that the invoice has been paid.

It is clear that no thorough investigation was carried out relating to my complaint.

As previously stated I did not receive nor agree to the charges which were placed on the vehicle, nor do I accept the aborted collection fee for reasons outlined above, despite requesting this inspection report. I do agree to the damage to the wheel totalling £55.

On the day of the vehicles repossession I had sought advice about the termination and on arrival I advised the gentleman that I did not agree to the repossession because I felt pressured and that my financial circumstances were only for a short period of time, I believe that MotoNovo could have done more to assist me during these difficulties. I was advised by the collection agent that I had no choice and that the vehicle would be taken, I asked him to wait, I went back into my property to seek further advice, however on my return the vehicle had been repossessed.

This is why the remark states “nobody to sign”, I did not agree to the repossession at any time.

I felt at all times that I did not have a choice but to have the vehicle repossessed.

 

Their response is that although the report was unisgned this doesn't make it invalid. They've now offered £200 but only for the error of the incorrect default amount on credit file. Although this was raised with them months ago, to date it remains unchanged on credit file.

 

Is the next step LBA re unlawful repo?

 

Does anyone have any POC for this?

[orfoster]

don't thinky ou need to bother with any of this

 

the car was repo'd from private land

without perm

 

end off

 

dx

 

I think we have finally got a grip of this.

 

Here is what was sent to them in May 2011;

It comes with regret that I am no longer able to make repayments of £176.46 on the above vehicle. Having tried to have a payment break whilst being employed on a sporadic basis and being told I could make half payments for 3 months, but would then would need to add the halves back on to the next three months payments is ridiculous as I cannot afford £264.49 for those three months. I am also not able to find the settlement figure, nor want to part exchange the car for something else, so I feel my only option is to have it recovered and then set up some sort of payment plan to pay any negative equity that comes up once you sell it at auction. Please now contact me by letter or telephone with confirmation of this letter and the steps I now need to take to have it recovered from my address.

 

BUT under CCA 92 they did not have permission to take car from private property and were indeed actually asked not to take it!

 

So just to confirm, all the rest isn't relevant, i.e that the above letter was sent, its the fact they took the car from private property (well off the public highway) without permission or a court order (it appears they needed a court order to do that).

 

They say they didn't need me to sign for it when they took the car, completely ignoring the fact I asked the guy to NOT TAKE THE CAR!

 

If someone can answer the above I will get on with LBA.

 

Cheers

 

[dx100uk]

as far as I know that is correct.

 

the overriding fact is they repo from private land without permission.

 

dx

[sequenci]

as far as I know that is correct.

 

the overriding fact is they repo from private land without permission.

 

dx

 

The only remedy for this is damages for a breach of statutory duty - the damages would be negligible. if the car was taken without a court order and more than 1/3 has been paid then, as you know, the creditor would be in a whole world of trouble. By the way, I may have missed stuff as I've not read the thread in great detail

[orfoster]

The only remedy for this is damages for a breach of statutory duty - the damages would be negligible. if the car was taken without a court order and more than 1/3 has been paid then, as you know, the creditor would be in a whole world of trouble. By the way, I may have missed stuff as I've not read the thread in great detail

 

I just need to fully calculate whether over 1/3rd was paid for sure just to double check everything.

She didn't ever receive the VT Notice but it came through with the SAR bundle.

On the day the guy arrived she told him she didn't want the car to be taken anymore because she was going to complaint about the lack of support she received from MotoNovo that they didn't help her enough in her temporary difficulty. He said "you have no choice" there was a witness to this. She went inside to phone me and I told her to call the police but by the time she got hold of me the car was taken. Hence the fact it was an unsigned report because she wasn't there when they took it!

 

I've been busy reading another thread which is mentioned a few threads above which is basically the same situation and I understand they won damages for the agreement back in accordance with s92 of the CCA 1974.

[orfoster]

Here is the balance statement from MotoNovo.

 

[ATTACH=CONFIG]45655[/ATTACH]

 

They have confirmed that the option to purchase fee "was not ever charged to the agreement" well clearly in the attached it was and obviously had it not been applied it would have taken close to the 1/3rd (as it was added in at the start but they say it wasn't should I be entitled to the 9% interest that would have been applied to the amount each year?

 

So the third is £2,873.03.

TOTAL Paid £2661.54

Charges £86.90

Option to purchase taken off as though it wasn't there is £129.57

 

TOTAL £2878.01

 

So.....is it over a 3rd???? Could someone just double check and challenge my reasoning.

 

Thanks

[orfoster]

Hello all,

 

I have started a new thread because my previous was quite long and I had the issue confused.

 

Had a HP agreement with MotoNovo in November 2009, the car was taken in June 2012.

 

I have attached the latest balance sheet. It appears from my calculations that over a 3rd WAS paid by £4!

 

This does include taking into account refunding all of the charges and the option to purchase fee.

 

[ATTACH=CONFIG]45657[/ATTACH]

 

MotoNovo in their "final response" say that they never took the option to purchase fee but it is clearly deducted from the agreement and then refunded onto the account the month after the car was taken.

 

Could someone just double check my figures here?

 

The agreement says the 3rd is £2873.03

I have calculated;

TOTAL PAID £2661.54

CHARGES £86.90

OPTION TO PURCHASE FEE £129.57

 

TOTAL INC ABOVE £2878.01

 

The car was taken from private property following this being sent;

It comes with regret that I am no longer able to make repayments of £176.46 on the above vehicle. Having tried to have a payment break whilst being employed on a sporadic basis and being told I could make half payments for 3 months, but would then would need to add the halves back on to the next three months payments is ridiculous as I cannot afford £264.49 for those three months. I am also not able to find the settlement figure, nor want to part exchange the car for something else, so I feel my only option is to have it recovered and then set up some sort of payment plan to pay any negative equity that comes up once you sell it at auction. Please now contact me by letter or telephone with confirmation of this letter and the steps I now need to take to have it recovered from my address.

 

When the guy arrived he was asked not to take the car because we didn't want to terminate the agreement any longer, this was because we'd taken advice to go back to the finance company, he said tough basically and took the car (witnesses present). Nothing was signed when the car was taken because we were running around trying to find out what to do with the car being taken.

 

They have provided a VT Notice in their SAR bundle BUT this was never received our end, I expect they did send it but we never had it.

 

Is this unlawful repo?