BPF/TLT want car - now have citation for return/decree/warrant

[mischiefmaker]

Hi there, I am hoping to get some advice.

 

I purchased a car using finance from Barclays Partner Finance at the middle of last year.

At the start of this year I was expecting a bonus from work and stupidly overspent over the festive period. T

he bonus didn't materialise until the end of March and I missed 2 payments as I had to juggle my finances and at the time,

the car payments seemed the lower priority.

 

In March I was sent a letter which said I needed to clear the arrears within 14 days or they would issue a default notice.

This took me quite nicely up to pay day when I was receiving my bonus.

 

 

However, rather stupidly, I tried re-arranging some of my debt to reduce charges etc which meant I was 5 days late making the payment.

I did try calling them on the number provided which was an automated system which told me I was £570 in arrears

(3 months - another one must of been added on early as it wasn't due until April).

 

 

There was an option to let them know you were intending to pay which I selected and entered the date that I would be making the payment.

I then made the payment on this date bringing the account back in order.

 

Yesterday, I returned home to find a letter from a solicitors telling me that they were acting on behalf of Barclays

and that they want the full outstanding balance of £11,117 paid or they will recover the car.

It states that I have 2 options, pay in full or surrender the car.

 

 

It states that they will begin court proceedings to repossess the car if I do not contact them by the 17th.

 

I tried phoning Barclays to explain that I thought the account was brought back in line

but was told it was showing as closed, and that the department I wanted to speak to was now closed.

I also went through the automated system which said my account owed 2 payments (it should only be 1 - this months).

 

I have the money to pay the 1/2 outstanding payments and my finances have returned back to normal.

I would rather not give back the car but I do not know if that is any longer an option?

 

I have not been able to speak to the solicitors as they are only open when I am at work.

 

I live in Scotland and have NOT paid over 1/3 of the total HP loan since it was taken out.

 

Any help or advice is most appreciated!!

[theoldrouge]

you need to look at a time order

 

https://www.nationaldebtline.org/S/factsheets/Pages/08%20SCOT%20Hire%20purchase%20and%20conditional%20sale/Page-02.aspx

[mischiefmaker]

Wow! Thanks for the quick reply and link.

 

I've had a quick look but am not sure it is definitely what I am looking for. I guess I am asking if it is possible to stop it from going to court as I am in a position to continue making regular payments but the letter only gives me the option of full payment or surrender the car/have it repossessed.

 

Since Barclays have terminated the agreement, does this mean they can quite rightly decline an offer of monthly payments and just take the car?

 

I'm so annoyed with myself right now it's not even funny!

[dx100uk]

I'd be ringing BPF again and telling them what you have learned here.

 

you either want the agreement reinstated

or you'll go for a time order..

 

is that what they really want to happen..[a Time Order] me thinks not

 

who are the sols please

not yule is it?

 

 

dx

[mischiefmaker]

No, the solicitors are TLT (tltsolicitors.com)

 

So just to clarify, do I need to wait for them to take me to court to apply for a time order, and is this definitely an option in Scotland?

 

I realise most of this is in the link that the oldrouge posted - I guess I am just a bit anxious and not that confident that I understand it all.

 

Thanks again for your help. I really appreciate you using your time to respond. This is such a great website!

[theoldrouge]

No need to wait and yes def an option and gives you the protection of the courts

 

But first follow DX,s suggestion and phone BPF ,but you must act on this,as a VS or repo

 

will leave you liable for the full agreement minus sale proceeds at auction

[dx100uk]

it is worthy to note..

going by past threads here

 

 

TLT solicitors aren't the brightest of the bunch

and its prob a std letter sent by BPF using their letterhead.

[sols for hire ]

 

 

might not be as serious as it looks.

esp as they've not mentioned Scottish laws

[mischiefmaker]

Good news!

 

I called and spoke to Barclays this afternoon and told them I had received the letter but believed the account to be in order due to the payment at the end of March. The very friendly and helpful woman on the other end of the phone said she could see the payment and that I was only 2 months in arrears.

 

I explained that I was happy to pay the arrears and continue making the payments as normal if this was possible. She said this was absolutely fine and she would reinstate the account today and asked if I would like to clear the arrears in full or spread them out.

 

I queried why it was 2 months arrears as I believed it only to be one months payment that was due (this months) which she checked and agreed. She then checked and said I had accrued £44 of charges which she refunded and my account is now in good standing and can continue as before. Yay!

 

The letter I received from TLT was 4 pages including 2 which were a vehicle inspection sheet and auction sign off which also requested the V5 etc ready for their collection agent to take the car. Do you think it would be worth uploading a copy with my details blanked out to help others see what was sent out?

 

Thanks again for all your help. I've barely slept since I got this letter!! I will sleep better tonight though!

Edited May 14, 2015 by mischiefmaker
Wrong date entered

[theoldrouge]

well done excellent news:-)

[dx100uk]

aw that's great

did you get them to put that in writing

or did she say they'll call the repos guys off and contact TLT?

[mischiefmaker]

Bad news!

 

After my initial jubilation, it turns out it all might of been a bit pre-emptive.

 

I called back yesterday evening as I had agreed with them to make a payment for the overdue amount,

only to be told by the person on the phone that the person I had spoken to earlier did not have the authority to re-open my agreement

and that only the collections department could do this who were now closed.

 

 

She did say that once an agreement has terminated, they usually will only accept full payment or surrendering of the vehicle

but I should call back tomorrow (today) to see if there was anything they can do.

 

Rather frustratingly, today is also the last working day I can speak to the solicitors before they begin court proceedings and I am stuck in work all day.

 

I'm going to phone them first thing this morning,

but I am not getting my hopes up as it didn't sound too positive last night.

 

 

One thing she did clarify is that the reason it was terminated was that although I paid the arrears

that was on the default notice and what was asked of me on the automated system,

another months payment had been added on literally a couple of days before the payment went through which meant I had underpaid by a month.

 

I've been on the website for my local sheriff court but cannot find anything to do with time orders.

Is this something I will need to go in to the court and get a form for?

Can I apply for it this morning and any idea how long the process takes?

Also, you mentioned telling BPF that I would get a time order when I spoke to them.

If I do this, can they decide to rush through the possession before the time order is agreed?

i.e. can it make things worse?

If necessary I will take time out of work this morning to go and get it filled in and begun.

 

 

As always, my sincere thanks for your help.

[dx100uk]

it is worthy to note

being in Scotland

they need a court order at ANY TIME

to take the car.

 

 

if they don't have a court order first

you'll be able to sue under CCA and get all your moneyback.

 

 

dx

[mischiefmaker]

Well, I just spoke to BPF who this time refused to speak to me and told me I would have to go through their solicitors TLT.

 

I called TLT and explained everything to them again. They told me they wanted full payment or the car back. I explained I had the money and was happy to clear any arrears and continue making payments. The lady said she would have to speak to Barclays but threatened court again to take the vehicle. I explained yet again that I was happy to come to a payment agreement with them but if they insisted on going through the courts I would apply for a time order. She told me 'if you knew anything about the law, you would know you cant do that until we have began court proceedings against you'.

 

I've got a horrible feeling this is going to be a long and drawn out process. She is off to see if Barclays will accept my offer anyway.

[dx100uk]

stand your ground.

 

 

dx

[theoldrouge]

Nonsense you can apply as soon as they

 

issue a default notice

[mischiefmaker]

Right, quick update.

 

 

I did try to call back TLT earlier to confirm that they had understood what it was I was asking and offering,

however they have not answered or returned any of my calls.

 

I have spoken to NationalDebtLine and also managed to locate a copy of a time order application form.

I was advised that these are not very common in Scotland but are most definitely valid.

 

 

Was advised to speak to either a solicitor or Citizens Advice to get help filling it in (although it doesn't seem overly complicated, but better safe than sorry).

I'm going to make an appointment on Monday for this.

 

Hopefully, I will hear back from TLT/Barclays saying they accept the offer of full payment & arrears,

but if not, it sounds as though as long as I offer to make full monthly payments plus a bit extra,

and can prove that it was a temporary blip and I can indeed afford the payments,

then hopefully it should be approved.

 

Please correct me if any of this is wrong or if you have any alternative advice as to how you think I should proceed.

[theoldrouge]

all fine, make sure you get any acceptance of your offer in writing

 

TLT need a refresher on cca1974

 

129 Time orders.

 

(1)[F1Subject to subsection (3) below,] if it appears to the court just to do so—

(a)on an application for an enforcement order; or

(b)on an application made by a debtor or hirer under this paragraph after service on him of—

(i)a default notice, or

(ii)a notice under section 76(1) or 98(1); or

[F2(ba)on an application made by a debtor or hirer under this paragraph after he has been given a notice under section 86B or 86C; or]

©in an action brought by a creditor or owner to enforce a regulated agreement or any security, or recover possession of any goods or land to which a regulated agreement relates,

the court may make an order under this section (a “time order ”).

(2)A time order shall provide for one or both of the following, as the court considers just—

(a)the payment by the debtor or hirer or any surety of any sum owed under a regulated agreement or a security by such instalments, payable at such times, as the court, having regard to the means of the debtor or hirer and any surety, considers reasonable;

(b)the remedying by the debtor or hirer of any breach of a regulated agreement (other than non-payment of money) within such period as the court may specify.

[F3(3)Where in Scotland a time to pay direction or a time to pay order has been made in relation to a debt, it shall not thereafter be competent to make a time order in relation to the same debt.]

 

129ADebtor or hirer to give notice of intent etc. to creditor or owner

 

(1)A debtor or hirer may make an application under section 129(1)(ba) in relation to a regulated agreement only if—

 

(a)following his being given the notice under section 86B or 86C, he gave a notice within subsection (2) to the creditor or owner; and

 

(b)a period of at least 14 days has elapsed after the day on which he gave that notice to the creditor or owner.

 

(2)A notice is within this subsection if it—

 

(a)indicates that the debtor or hirer intends to make the application;

 

(b)indicates that he wants to make a proposal to the creditor or owner in relation to his making of payments under the agreement; and

 

©gives details of that proposal.]

 

130 Supplemental provisions about time orders.

 

(1)Where in accordance with rules of court an offer to pay any sum by instalments is made by the debtor or hirer and accepted by the creditor or owner, the court may in accordance with rules of court make a time order under section 129(2)(a) giving effect to the offer without hearing evidence of means.

 

(2)In the case of a hire-purchase or conditional sale agreement only, a time order under section 129(2)(a) may deal with sums which, although not payable by the debtor at the time the order is made, would if the agreement continued in force become payable under it subsequently.

 

(3)A time order under section 129(2)(a) shall not be made where the regulated agreement is secured by a pledge if, by virtue of regulations made under section 76(5), 87(4) or 98(5), service of a notice is not necessary for enforcement of the pledge.

 

(4)Where, following the making of a time order in relation to a regulated hire-purchase or conditional sale agreement or a regulated consumer hire agreement, the debtor or hirer is in possession of the goods, he shall be treated (except in the case of a debtor to whom the creditor’s title has passed) as a bailee or (in Scotland) a custodier of the goods under the terms of the agreement, notwithstanding that the agreement has been terminated.

 

(5)Without prejudice to anything done by the creditor or owner before the commencement of the period specified in a time order made under section 129(2)(b) ( “the relevant period ”),—

 

(a)he shall not while the relevant period subsists take in relation to the agreement any action such as is mentioned in section 87(1);

 

(b)where—

 

(i)a provision of the agreement ( “the secondary provision ”) becomes operative only on breach of another provision of the agreement ( “the primary provision ”), and

 

(ii)the time order provides for the remedying of such a breach of the primary provision within the relevant period,

 

he shall not treat the secondary provision as operative before the end of that period;

 

©if while the relevant period subsists the breach to which the order relates is remedied it shall be treated as not having occurred.

 

(6)On the application of any person affected by a time order, the court may vary or revoke the order.

[mischiefmaker]

Right, I am hoping someone can shed some light on this.

 

 

I have just had a sheriff officer at my door serving me a citation for court.

 

To give an update,

after last speaking to TLT, I continued and made the following months payment plus an additional £30.

 

 

I received a letter from TLT a few days later saying that Barclays had said that my last payment that I had queried with them had arrived a few days late

and that is why they cancelled the agreement.

 

I called TLT and said that this wasn't what I was asking,

I was asking for them to accept for me to continue making full payments.

 

 

She said she had asked them but had not heard back from them and she would contact them again an acknowledged the payment I had made.

She also said she would advise them to accept my proposal.

 

I never heard anything again until today.

 

Now the interesting part......

 

In the claim that was served on me, it seeks possession of my car with the correct registration.

However, the credit agreement that they have attached is not the correct one.

It is for a totally different car with a different registration plate,

along with incorrect monthly payments and total value.

 

The agreement they have sent was cancelled as the car that is on it was sold before the payment was agreed and finalised.

 

They have also included a Time for Payment form which I intend on filling out

but I am interested to see where I stand with the documentation that has been served on me!

 

All help greatly appreciated.

[dx100uk]

whats the citation say?

 

 

small claim?

summary?

return of goods?

 

 

whats it number?

[mischiefmaker]

It asks for the court to grant an order to return the car, failing that to grant them a warrant to take the car, or if they are unable to get the car, to grant a decree for the oustanding balance.

 

On further inspection, I note that the car registration, and chasis number on the writ is correct, however the credit agreement number specified in the writ is incorrect and contains the incorrect value.

 

I'm not sure what you mean by the number?

 

Many thanks!

[dx100uk]

that's ok order of return of goods is what we needed.

without the org signed agreement

they are are stuffed.

and they'll need a compliant default notice etc too.

 

 

however as you are making payment I very much doubt the judge will entertain this,

 

 

when is the hearing?

 

 

dx

[mischiefmaker]

I can't see a date for the hearing.

It appears as if I have 21 days to notify the court if I intend to defend or to apply for a time order.

It says the expiry date is the 3rd of August.

 

The bit that really annoys me is in the 'Condesendence' of the writ,

the fourth and final point is

 

 

"The pursuers have called upon the defender to return the goods and to make payment of the arrears under the agreements.

The defender refuses or at least delays to do so. This action is accordingly necessary"

 

I offered to clear the arrears and make the payments on multiple occasions and each time they have never responded!

[dx100uk]

that ok don't worry about the wording

that is standard for the citation, they have a strict format in Scotland.

and it cant be varied.

 

 

let the oldrouge comment

 

 

but to me the time order as he stated earlier is the way to go.

 

 

dx

[mischiefmaker]

When I submit my form for the time order, for the suggested monthly payment, do I just put the original monthly payment amount? Also, the amount that is on the writ, doesn't include payments that I had made since first being written to by TLT. By admitting the debt, does that not mean I am going to be paying more than what I should be?

[theoldrouge]

The monthly payment plus any arrears divided by the amount of months remaining on the agreement

 

The time order gives you the protection of the court