Sent SAR but today received Court Claim form

[lookinforinfo]

This type of loan agreement has been a particular gripe of mine for years.

You end up being locked into a contract that is riddled with terms that

should surely fail the UTCCR. Whenever i need to finance a car, I would now always go for one that recognised me as the owner from the outset.

This is the view of the OFT on hire purchase and Conditional Sales contracts-

"The weight of

bargaining power in such a situation is heavily weighted towards the lender."

 

And years ago, Lord Denning said this-"Lord Denning concurred and in giving his judgment reflected (at page 627) on the true

nature of an HP transaction if 'you were able to strip off the legal trappings in which it

has been dressed and see it in its native simplicity'. Lord Denning explained that to

express HP in simple terms (lending money with a charge on the goods as security)

would cause 'troubles of all sorts under the Bills of Sale Acts, the Sale of Goods Act

and the Moneylenders Acts' and 'in order to avoid these legal obstacles the finance

house has to discard its role of a lender of money on security and it has to become an

owner of the goods who lets them out to hire.' [He said this long before

the UTCCR and the CCA came into force.]

 

Libby, you said they repossessed your sons' car. In view of the amount he had

paid they would have required a Court Order unless your son agreed to

return the car anyway. Did your son offer to surrender the car before hand?

The reason I ask is that if he did volunteer, then your son should pay nothing

[except any missed payments and any damage to the car ] since he had

paid more than 50% off the cost. Indeed the OFT believe that even when

the car is not voluntarily returned, their is a case for not charging the

borrower when so 50% has already been paid.

I took this information from a pdf file issued by the Office Of Fair

Trading on voluntary termination of contracts, but there are still many

arguments you can use to counter the finance companys' claims.

There is quite a lot to wade through and I don't know how easy it

will be for you and your son to take their points and weave it into

your defence. In many ways, it might be an idea to include the

whole file to the Court as part of your defence, and let the judge

work it out for himself.

 

In addition, I am pretty sure that payment Protection Insurance was

added to the agreement. Check with your son that he agreed to it.

Also, make sure when you get the results of your S.A.R - (Subject Access Request), that the company

who insured the PPI is included and ask them for details of the

insurance as I understand from Citizens Advice, that policies are not

always set up, despite being charged for.

 

 

http://www.oft.gov.uk/NR/rdonlyres/1742CF1C-E663-4B61-BD55-717AD727BCFF/0/oft761.pdf

[lookinforinfo]

Libby, the extract below is taken from guidance notes by the Information Commissioner in relation to the Data Protection Act and while the Solicitors

are not data controllers, they will be well aware that they are acting as their

agents. Perhaps you could send a copy of your last email to the Information Commissioners Office asking for his assistance in dealing with the Solicitor since time is running out for your son and they appear to be deliberately stalling. And pointing out that the solicitors while well aware of the legal privilege afforded them from the outset, failed to disclose it until the month had elapsed.In addition it will have not gone unnoticed by the Information Commissioners Office that

companies use solicitors so that they can hide behind client privilege to

evade conforming to statutory requests.

 

" However, the Commissioner’s advice is that a data controller should act promptly in requesting the fee or any other further information necessary to fulfil the request. A deliberate delay on the part of the data controller is not acceptable.

The Commissioner might make an adverse assessment of a data controller where the data controller delays requesting payment of any required fee, or the provision of any further information to enable him to comply with the request, where such delays result

in the response to the subject access request being provided after forty days from receipt of the original subject access request."

 

JonCris is pefectly correct that it may well enable you to take legal action

yourself. Going through the Information Commissioners Office may be quicker and cheaper to achieve the

result you want.

 

You are free to take whatever action you think best of course.

 

 

Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire. SK9 5AF Telephone:01625 545 700 Facsimile: 01625 524510

e-mail: [email protected] Website: Information Commissioners Office – Information Commissioner's Office

[lookinforinfo]

Libby, the S.A.R - (Subject Access Request) should include their T&Cs. In it there will be a section devoted to what happens in the case of defaults. IE what they charge [if anything]

for missed direct debits, and under what circumstances they can

repossess the car. [it is possible that they did get a Court Order to repossess the car, which would explain the time lag you mentioned before they

recovered the car, and may help to explain the £800 odd charges they claimed. If they didn't get a Court order and there should be some reference to it in the S.A.R - (Subject Access Request) documents, and the T&Cs say they should have done so, then

one of two alternatives arise. Either they should not have repossessed the car, or your son voluntarily returned it. If the latter, your son has nothing to pay. Not sure what the former result would be, but I would assume that this

case would be possibly rejected, but others may know for sure.] ]

As your son repaid over half the amount, that should be covered in the

T&Cs-what does it say?

If the T&Cs are not included, write to the Court asking for a stay [delaying

the case] as you are awaiting further documents from OnLine, and others

they have sent were late arriving.

Whatever happens, your son must go to Court on the due date to argue

his case. If he doesn't, the Court may well virtually rubber stamp the £6000

odd claim against him. And it may be that he should not pay any money at all. So it is important that he goes.

His argument is

1] he has already paid over half.

2] some of their charges may not be a fair reflection of their liquidated damages.

3]the sale price of the car has not been included in the equation. And this

is relevant because they would have received far more from the sale of the car by selling it now, than they would if the contract had run its full course.

 

Don't suppose you have heard from Information Commissioners Office yet. Ask them their views on the

repo in view of the amount paid, and the amount they are demanding.

[lookinforinfo]

Libby, you will have to ask for the case to be delayed I think. They are

giving you so much new information so late to be able to come up with your best defence and strongest arguments. To be on the safe side, if you can, it

might be better to deliver the papers by hand as the post may not be back to normal, and its vital that your son has as much info as he can get before he

goes to Court.

 

If Online have sold it, who is Shoosmith acting on behalf of? It should be

on the summons from Court. Also, when a contract is assigned, the new owner should inform you, since they need your permission to continue the

contract at the same terms as under the oriinal creditor. And you can

refuse [ok your son can.] Is the interest rate the same as before? When you

issue a CA request, interest charges on the account should cease. If

you don't know who owns the debt, you can't CCA them. They took a long

time to take away the car and advise you of the oustanding yet-so why should your son be liable for that inrerest when they gave him no opportunity

to repay?

Why was it not explained when the car repossessed that he would still have to pay for the car? Now he has the worst of both worlds-paying for a car he hasn't got-indeed paying more than if he still had the car.

Why is he being charged insurance for 60 months when the car has been sold

Why were £700 of charges refunded. Have they been deducted from the

outstanding balance?

[lookinforinfo]

Libby, there was no mention of the £1900 reduction on your bill on the first

page of this thread-the total came to £5230. Difficult to know yet, but they

should have already included the sale of the car in your S.A.R - (Subject Access Request), but the £1900

may be a gross figure before they pay commission to the auctioneer-assuming

it was sold by auction [you should be told that too]. But even if they only

cleared £1600, that would bring the debt down to £3630, If that is the

case, then interest for a year should only be around £500 at 14% odd.

 

To get the Court to delay the case, you write to The Court asking for more time because the solicitors etc have been too slow in supplying you with the

details necessary to mount your defence. Show them the papers they have sent, plus detail some of the others they haven't yet sent-eg sale price of

the car and its final price after deductions. Also there appears to be no

final total bill that includes the reduction from the sale of the car, and that

the interest charges are all wrong therefore. Nor is it clear who owns the debt. And any other reason why it should be delayed that you can think of.

[lookinforinfo]

Working out time scales Libby, I realise that you will be better going to Coourt

on the 28th and asking then for the case to be put back. If the Judge says

no, at least you will be there in person to argue your case. if you do get a deferment, ask if you could have it transferred to your local Court please.

 

PS I wouldn't worry about the income/expenditure form too much. The Court will supply one there and he will have time to fill it up-it

shouldn't take long. He knows how much he earns and probably most of

the bills that he has to pay.

In other words don't waste your time writing, just go there on the 28th.

[lookinforinfo]

Libby, I am sorry. I have misread the letters from Shoosmiths as that the

Court case will be heard on the 28th, not that they will commence proceedings at the end of the day.

You have not received a summons yet have you? There will be nothing online yet as Shoosmiths still haven't applied. And when they do, it will probably be about sometime mid January at the earliest before thae case can be heard.

Once again, sorry about the panic.

 

Might be worthwhile asking Shoosmiths for details of the Court Order that

they needed to repossess the car.

Have you received the T&Cs from anyone yet, so that you can see what

happens when things go wrong/

[lookinforinfo]

If you can scan the agreement on to your computer, copy and paste it to Notepad, you can then go to Format, and increase the font size making it

much easier to read.

What I hope you find is info on your sons' situation-ie -ie having paid more than half the amount.

[lookinforinfo]

Libby, I have asked before, but I now realise that it was a more important question that I thought at the time-did they get a Court Order?

 

Under the Consumer Credit Act -this is what section 90 says-

90.—(1) At any time when—

(a) the debtor is in breach of a regulated hire-purchase or a regulated conditional

sale agreement relating to goods, and

(b) the debtor has paid to the creditor one-third or more of the total price of the

goods, and

© the property in the goods remains in the creditor,

the creditor is not entitled to recover possession of the goods from the debtor except on an order of the court.

 

If they did not get a Court Order, and while it may be dependent on whether

your son did agree to them repossessing the car then section 91 says this-

 

91. If goods are recovered by the creditor in contravention of section 90 (a) the

regulated agreement, if not previous terminated, shall terminate, and (b) the debtor

shall be released from all liability under the agreement, and shall be entitled to recover

from the creditor all sums paid by the debtor under the agreement.

 

PS Before they can apply for a Court Order, they would have had to send your son a default notice.

[lookinforinfo]

Also found this on this url-http://www.adviceguide.org.uk/index/life/debt/credit.htm#Cancellingacreditagreement and the relevant part for you is this-

 

" If you have bought goods under a hire purchase or a conditional sale agreement (see under heading Types of credit) and have already made some payments, you can end the agreement by returning the goods. However, you may still have to pay any arrears and an amount of money which, when added to the amount of money paid already, comes to half the total price of the goods, if the agreement is regulated under the Consumer Credit Act (see under heading Regulated credit agreements).

 

So it does look as if your son has no need to pay them any more money. In

fact, they may well be trying it on to get more money out of him using scare

tactics, and do not intend to take him to Court at all.

 

If they are doing that, then maybe you should consider a visit to Trading

Standards............