Consumer credit debt under Charging Order sold on - next steps?

[CAGareBrilliant]

I have a CCJ hearing on Wednesday about an outsanding "finance gap" debt after repossession of a vehicle last year.

Would be grateful to hear of relevant precedents/case law.

 

I bought the vehicle under an HP scheme,

transferring in a part-ex finance gap from a previous car.

 

 

Payment problems after loss of business caused me to default and the vehicle was repossessed last October.

Court date is Wednesday.

 

 

My initial defence was that the price they gave for the auction figure cannot be sufficient,

that it is unjust to take their word and they had produced no hard evidence of the auction price. The finance co's solicitors have since come back with documents justifying the auction price.

 

I want to argue the 1/3 paid issue (repossession was without a court order and under some duress off private land

and without my consent, so there may be other issues to argue as well)

but there seem to be many views on what precisely constitutes the "1/3 paid".

 

These are the figures:

 

Original total price (April 09) £ 34,001

Part-ex in from previous vehicle £ 3,848

My initial deposit £ 7,500

 

Balance due (this was financed) £ 30,350

 

Charge for credit was £ 9,024

60 monthly payments of £ 650.15

 

Claimant's solicitor is arguing that I paid a deposit of only £ 3,651

as the remainder was to cover the previous finance gap from the part-ex vehicle.

This is almost certainly false, as the documentation clearly shows me paying a deposit of £7,500 regardless of how it was used.

 

Prior to repossession, I had repaid approx. £ 6,500 in installments. Therefore the total of my installments + initial deposit was roughly £ 13,500 which appears to be more than 1/3 of the total sale price.

 

Would be grateful for any suggestions!

[postggj]

http://www.consumeractiongroup.co.uk/forum/showthread.php?280822-Vehicle-repo-and-s.92-of-the-cca-1974

 

this may help on the repo

[CAGareBrilliant]

Thanks for that, postggj. I had read through that material already and am using the excellent suggestions in it as part of my defence. However, it is difficult from the information to determine what avenue to pursue for a remedy. I wonder if it's the sort of thing a no-win no-fee firm would be interested in taking on, what do you think?

[postggj]

if this is a hearing then what defense did you put in

[CAGareBrilliant]

Witness Statement – xxxxxxxxxxxxxxxxx

 

 

Background

 

I am currently unemployed and living off Job Seekers’ Allowance and I have no capital. I am not represented in court due to the changes in legal aid provision for civil cases. I have been unemployed since April 2010.

 

I purchased a new Land Rover xxxx xxx for my business on part-finance and part-deposit terms on 29 April 2009 under a CCA Regulated Agreement with Fiat Capital (FGA) from a main Land Rover dealer. The initial purchase price was £34,001.53 and an additional amount of £3,848.47 was added in from part-exchange of a previous vehicle, totalling £ 37,850. Against this I paid a deposit of £7,500, leaving £ 30,350 to finance. The charge for credit was £ 9,024 and the agreement stipulated 60 monthly payments of £ 650.15. A copy of the initial purchase information sheet is attached.

 

I intended to pay for the vehicle from my business, xxxxxxx Ltd, which paid the initial deposit and subsequently provided me with vehicle allowances monthly to pay the installments. Xxxxx Ltd also took over the previous vehicle from my brother’s business, xxxxxx Ltd and the dealer and finance company understood that they were dealing with business purchase. The vehicle appeared in xxxxxx Ltd books as a depreciating write-down capital item.

 

The business started to go into severe difficulties a few months after the initial purchase and was only able to make a total finance repayment of £ 7,801.80, with the last payment being made in June 2010. Adding this to the initial deposit of £ 7,500, a total of £ 15,301.80 was paid to FGA against the agreement.

 

Repossession from my private driveway by FGA capital without a court order and without my informed consent

 

It was very difficult attempting to make a revised time order or adjusted schedule of repayments with FGA. Letters were ignored and each time I called FGA, I was re-routed to Santander, who repetitively stated that there was no scope for adjusment of the payment shedule and threatened me almost immediately with repossession. They commenced these threats by phone less than one week after issuing a default notice, which is in breach of CCA guidance.

 

On 1 September I did manage to obtain agreement from Santander, who appear to act as agents or owners of FGA, that they would accept a new payment schedule of £500 p.c.m with the first payment to be made before the end of September.

 

On 9 September they broke this agreement and sent two individuals to my property. The vehicle was parked on my private land and not in the public road. They arrived at 0630 hours and blocked my vehicle in and made a number of threats to me. I was obviously in a disturbed and pressured situation having been awakened by pounding on my door and windows and in a state of some shock.

 

The repossession agents told me:

 

1/ That they would remain parked outside my property for many days.

 

2/ That they intended to knock on my neighbour’s doors and ask them for assistance in talking to me about the situation.

 

3/ That they intended to bring a tow truck if I refused to accept repossession.

 

4/ That additional charges of £5000 would be made for the use of the tow truck.

 

The repossession team did not have a court order and were not registered bailiffs. I was unaware of my rights.

 

I have recently learned that a creditor needs a court order under the CCA to enter 'any premises' to repossess HP goods of any type from private premises, regardless of whether the goods are 'protected' or not (i.e. the 1/3 rule) and that only registered bailiffs may lawfully execute such an order.

 

The case of Spring House v Mount Cook Land (CoA 2001) outlines that a private driveway is classed as premises. In that case it was clarified that the owner of the private premises must give informed consent. The FGA subcontracted repossession team entered my private property without my permission and I only gave them the keys under the above sustained blackmailing pressure. I did not sign their attached “Vehicle Receipt”. I did not give my informed consent or permission.

 

At minimum, this is Unlawful Recession of a Contract and I also believe I have a strong case for both Aggravated Trespass and recovery of the full amounts that I paid to FGA Capital.

 

I am seeking advice on the best way to proceed in these matters and if unable to come to an agreement now with Solicitors xxxxx, I will take the matter forwards as a basis for application to overturn any judgement and also the lodging of a new Claim against FGA for compensation.

 

Ownership of the vehicle

 

XXXXX solicitors are in my opinion seeking to obtain judgement against the wrong party.

 

Finance in my name was only arranged by the dealer as a convenience – the dealer was perfectly well aware at the time of the sale that a vehicle previously owned by a business was being incorporated into the finance arrangement as a part-exchange in connection with a business-to-business arrangement.

 

All costs of the vehicle, including the initial deposit, the monthly payments, maintenance and tyres and insurance were met by the company, xxxxx Ltd, of address xxxxx.

 

The vehicle xxxx xxx was registered at my home address purely as a convenience.

 

It is my contention that Solicitors xxxx should be suing xxxxxx Ltd for the balance and not myself as an individual.

 

 

Costs

 

The figure provided by Solicitors xxxxx of over £5000 remaining after auction appears to have been designed to produce a fee-charging situation. A number of letters were received by me adding charges by FGA – I am certain these come to more than £1000 as they also made a so-far unspecified charge for the repossession. I will bring forward a detailed analysis of all these costs and charges should judgement be given today to FGA as part of a request for the judgement to be overturned, if I am not given permission to go through the charges in detail at this hearing.

 

 

 

Request to the Court

 

1/ That Judgement not be given to FGA Capital on the basis that:

 

a/ I was not the owner of the vehicle but merely the driver.

 

b/ In any event, repossession of the vehicle was unlawfully obtained from private premises without a court order and that this nullifies any contractual obligations under the CCA on the debtor.

[postggj]

you need to go into court with these sectins of the cca 1974

 

s.92

s.132

s.140

 

the judge will prob ask nder what sections of the cca you are relying on and make exceptions to the fact you are not o fay with the court protocol

 

pleae confirm the agreement is hp and not a fixed sum loan agreement

[CAGareBrilliant]

Yes, it's a CCA-regulated HP agreement, not a fixed sum. Thanks for the notes on the CCA section numbers. Would you remind the DJ that I am a novice and unrepresented and ask for slack as a point? I am also wondering if I can claim an imbalance of powers here further down the track, as in EU law...

[postggj]

as you are representing yourself and not through a solicitor would be enough

 

i take it at the aq stage the judge allocated fast track

[CAGareBrilliant]

You can't have it both ways. If you contend that the hirer was not you personally but xxxxxx Limited then you can't claim breaches of the CCA because the CCA would not apply at all if xxxx Limited was the hirer. Also, check your terms and conditions in case there is a bit in there where you consent to FGA entering your premises to recover possession of the vehicle.

 

It doesn't specify about private premises - the Ts & Cs just say "you must return the property" if terminated. They demanded that I return it by post. As it's under the CCA, presumably the CCA would take precedence anyway over some terms and conditions document heavily biased in the lender's favour containing spurious clauses?

[Gaston Grimsdyke]

No you can agree to waive certain sections of the CCA - section 173 from memory - so a contractual term would override section 92. If that isn't in your terms and conditions they will no doubt say that you voluntarily allowed them to collect from your drive. If you could prove breach of s92, you would in reality only be entitled to minimal damages for trespass, £10 or so. Your better bet is to argue an unfair relationship under s140A (I think) of the CCA.

[CAGareBrilliant]

Thanks - it does look as if Section 140(A) -1B does apply to me:

 

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;

 

Do the CCA sections not work as a whole, I mean why is it possible to write clauses that overcome the CCA if the Agreement is stated to be an HP Agreement under the CCA?

 

In fact, Section 173 appears to be the complete opposite of the concept that a local contract under the CCA can voluntarily cause the debtor to lose rights:

 

"A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act."

[Gaston Grimsdyke]

Yes s173(3) was the one I was thinking of. Almost impenetrable language, but what it actually says is that if a court order is required to take some action, then a person's consent will remove the need to get that court order. So a person can consent to the vehicle being taken from private premises. In the main, though, it is not permitted to contract out of the CCA so s173(3) is a limited exception.

[CAGareBrilliant]

I agree clause 3 has horrible language chopping in it:

 

"Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court ... only shall not be taken to prevent its being done at any time with that person’s consent given at that time, but the refusal of such consent shall not give rise to any liability

 

However, it seems to relate to things done either under court orders or with consent - I did not give my consent. Surely consent must imply something formal, such as consent in writing?

[Gaston Grimsdyke]

Consent doesn't have to be in writing, but for evidential purposes a creditor would be crazy to rely on verbal consent otherwise you end up with the "he said she said" scenario.

 

 

I had read your post as meaning that you did eventually allow them to repossess the vehicle from your drive

but only as a result of the threats that were made.

 

 

I think your better bet is whether they actually are in breach of s90,

i.e. had you paid more than one third of the total purchase price when it was repossessed?

 

 

I would be surprised if FGA/Santander (Santander merely administer FGA's finance book) fell foul of that one

- you definitely didn't sign a voluntary surrender?

[CAGareBrilliant]

No, i didn't sign anything - they pressured me to hand over the keys with various threats. I have a copy of the unsigned "Vehicle Receipt" they handed over.

 

Another point is that there was property of mine left in the vehicle which they later refused to discuss or acknowledge.

[Gaston Grimsdyke]

OK your first port of call is to look at your agreement,

identify the figure which represents one third of the total purchase price (which will be specifically set out on the front)

and see whether you have paid more than this.

 

 

From what you have said you have paid about 14K from a TPP of about 39K so it would appear so.

[CAGareBrilliant]

Thanks - in fact I've calculated tonight that I paid £ 7,801 in instalments

plus an initial deposit of £3,200,

totalling £11,000 against a total price of £34,001

- marginally less than 1/3.

 

 

However, this depends on the interpretation of "deposit".

The actual deposit paid was £7,500 and this was part-paid towards a transfer-in of a finance debt

from the part-ex vehicle previous finance loan, a remainder of £ 3,848.

 

 

I wonder if this in fact does not matter and what matters is that I began the contract with a stated TPP of £ 34,001

(this is clearly shown on the initial sales document) and against that paid £15,300.

[Gaston Grimsdyke]

It's the figures on the agreement that matter, i.e. what is the deposit stated on the agreement?

[CAGareBrilliant]

The deposit figure is not given in the HP agreement. Instead, it gives the initial amount of credit (I believe this is the figure used to calculate the 1/3) as £30,350.00. This is in fact the figure calculated from the original total price, less my deposit, plus the excess from the previous part-ex vehicle.

 

Is this in fact wrong - eg, is the 1/3 calculated from the finance figure, or is it from the Total Price of the goods?

 

This is a key point and I would be grateful for a clear answer on which figure the 1/3 is based on. Thanks.

[CAGareBrilliant]

Interestingly,

Santander/FGA made no progress in the hearing today.

 

 

Instead, the DJ gave me another month to prepare my case and an Allocation Hearing date in September.

This was on the main thrust of my defence that removal of the vehicle from my driveway

constituted an illegal repossession under S90.2 of the CCA.

He also reserved his costs ruling, although of course I could still get that.

 

I am thinking of a two-pronged defence based on

(1) that the claim is actually less than the £6.4K they claim I owe, on a range of issues.

At the very least, it is below £5K and therefore misallocated to Fast Track and no valid claim for their costs,

currently stated to be £800.

(2) that the repo was not done legally with a court order.

 

As this is a fairly quiet part of the forum, perhaps people could advise me on where else to place this thread

- Santander? General debt issues?

I have a list of fairly delicate legal points to raise and seek people's opinions on.

 

Many thanks.

[postggj]

pm me in a week and ill post up a draft defense for you

[CAGareBrilliant]

Wow - thank you!

[postggj]

can you send me a copy of the agreement if i pm you my email address and you can send it as an atachment

 

i need to confirm what sort of agreement it is with the T & C

[CAGareBrilliant]

OK, thanks! I will get it scanned in.

[raydetinu]

does CCA apply to a business loans or agreements?