Deceased father's car finance default notice Alphera BMW finance

[Saxon_Rascal]

Hi all.

 

I'm hoping someone can direct or link me to the legal consumer blurb that states hire purchase agreements upon the death of the borrower. 

 

My father died a few months ago and he left no estate.

My mother is his representative and next of kin.

 

Dad had a car on HP and it is solely in his name.

My mum sent the death certificate to Alphera BMW finance and told them she would like them to close the account and collect the car.

She has no interest in taking on the remaining payments as she doesn't drive.

 

Alphera then sent my mum a letter asking her to sign a form saying she will take responsibility for the vehicle's care, but she told them she wasn't signing anything as that would mean she's accepting some form of liability for the car.

 

We heard nothing from Alphera for several weeks, until last week, when they sent my mum a Default Notice saying she's responsible for the arrears etc, and keeping payments up to date.

 

I'm confident this company are trying to pressure or frighten my mum into clearing the account on the car and I know that they have no right to do this.

 

Can someone please direct me to the legislation that outlines a borrower's responsibilities and rights when they die, regarding hire purchase agreements. 

 

Many thanks.

Craig

 

[unclebulgaria67]

HP solely in Dads name ? 

 

Period of the HP agreement ?

 

How many months have been paid ?

 

Will left or no will ? 

 

Who can confirm legally that there was no estate left ?

 

Any Insurances taken out to cover amounts owed ?

 

Once the car is taken back and the HP cancelled, there may be an amount owing, which is why the HP company will need some official letter stating no estate left.

 

http://www.legislation.gov.uk/ukpga/1964/53/section/16/enacted

 

 

[BankFodder]

high_level_prinicples_document_final.pdf

 

Especially page 7

[Ethel Street]

 Your mother is not personally responsible for your late father's debts (unless she was a joint party to the HP Agreement or had formally guaranteed it in some way - I assume neither of those circumstances are relevant here). Next of kin are not responsible for the debts of someone who has died. Your mother has provided proper proof that your father has died (death certificate).

 

However, any money owing is due from your father's Estate. You say he left no Estate. Literally he owned nothing? Not a single penny in a bank account? Even though he had a BMW on HP? That's unusual. Have you drawn up a schedule of his assets and liabilities?

 

If your mother has told Alphera that she is the administrator of his Estate they will ask her, as the administrator, to settle your father's debts from the Estate. If the Estate is insolvent they are entitled to ask for evidence of that (do some research online into 'insolvent estates').

 

1 hour ago, unclebulgaria67 said:

Once the car is taken back and the HP cancelled, there may be an amount owing, which is why the HP company will need some official letter stating no estate left.

 

I've never come across such a letter though. Who could write it? There is no official organisation that could certify that. Only the Executor/Administrator can say what the Estate value is, surely?

Edited October 27, 2019 by Ethel Street

[unclebulgaria67]

 

17 minutes ago, Ethel Street said:

Only the Executor/Administrator can say what the Estate value is, surely?

 

That is what I meant, someone who has some official capacity to confirm no estate left to pay any debt owing.  So the person writing to the HP finance company would need to confirm exactly what official position they hold to confirm no estate left.  

[Ethel Street]

Yes, as you say we need some more information from Saxon_Rascal. Was there a Will? He says "My mother is his representative..." , is that a formal representative? Executor with Probate/Administrator with Letters of Administration? Or just dealing with matters informally?

[AndyOrch]

Quote

We heard nothing from Alphera for several weeks, until last week, when they sent my mum a Default Notice saying she's responsible for the arrears etc, and keeping payments up to date.

Thread title updated

 

And that default notice is in your late Father's name ?

 

Andy

[Saxon_Rascal]

Hi everyone

 

Thanks so much for the responses. I wasn't expecting so many swift replies. I'll try to answer all the questions as best as I can in no particular order:

 

1. The agreement was only in my father's name.

2. My mother is the informal representative for handling his affairs.

3. Period of agreement was 48 months with about 30 months remaining.

4. He did not leave a will.

5. He had no payment insurance cover with agreement.

6. There is nobody who can verify he has no estate - in any legal sense.

7. Alphera specialises in BMW finance but the car was only a Renault Picasso 2014 plate.

8. An invoice was posted in my father's name (saying £85.00 is overdue) and the default notice was addressed to my mother (both arrived the same day). 

9. Dad died on July 3rd and his accounts were frozen. The bank took any money he did have for two personal loans he had.

10. Alphera have basically ignored my mother's request to take the vehicle and sell it but all they seem interested is in making her liable for the car.

 

Side note: A few weeks ago she received a letter requesting her signature and return post. I told her not to sign it because the contents of the letter asked her to acknowledge that she now accepts personal responsibility for any damage, payments, and anything else the vehicle incurs. The letter was very suspicious and she had no intentions of signing it anyway. 

 

My mum has never driven or owned a vehicle and she's not bothered how much it's worth or what they do with it. All she wants is for Alphera to collect the vehicle and do as they wish. All of dad's other affairs have been relatively straight forward in settling, but this company is something else.

 

Again, many thanks for any help you can give me.

Craig  

[unclebulgaria67]

How did they get your Mums name ?

 

I am assuming the default notices are in your Dads name.

 

In this situation, perhaps post by recorded delivery all keys and vehicle documents to Alphera, with a covering letter, just confirming where the vehicle in kept and advising they can collect it at any time by arrangement by calling x person on x number.  In the letter confirm whether the car is insured, taxed, MOT. And state the situation regarding Fathers estate, that no will was left, there there is nothing left for any creditors that may exist.

 

 

 

 

 

 

[Saxon_Rascal]

Hi unclebulgaria

 

Thanks for the response. That's a great idea! I'll discuss this option with my mother tonight and see what she says. Seems the only assured way of dealing with this unless we drive the car to one of their offices.

We contacted all dad's creditors after his passing as we're obliged to do, and told them mum would be handling his affairs as the next of kin.

 

Cheers again.

Craig.

[Ethel Street]

I'd also make clear that your mother has not been formally appointed as Executor or Administrator and is only acting informally to assist creditors. Reason I say that is a formally appointed Executor or Administrator has a legal duty to safeguard the assets of the Estate, which is probably the reason why Alphera tried to get her to sign a letter saying she is responsible for taking care of the vehicle. Absolutely she should not sign any such letter and should make it clear she is not accepting responsibility for the vehicle until they collect it.

 

It would do no harm to mention that she does not drive and so cannot deliver the vehicle to them, they must collect it. I wouldn't drive it anywhere if I were you, make clear they must collect. All sorts of problems could arise if someone drove into you while you were driving it.

 

Is the car on the public road or on your mother's own driveway?

[Saxon_Rascal]

Hi Ethel

 

Aha. Maybe that will be the reason then for the letter(s). I'll make sure she tells them that she is not an official legal appointee as advised.

Yes, Alphera are already aware she doesn't drive and has no need for the vehicle. The car is currently on her drive (and SORNed as far as I'm aware).

 

Cheers.

Craig 

[AndyOrch]

Quote

8. An invoice was posted in my father's name (saying £85.00 is overdue) and the default notice was addressed to my mother (both arrived the same day). 

 

But not in your mothers name...therefore the Default Notice is irrelevant.Ignore the rest ...make sure they collect the vehicle...do not admit or accept anything.

 

Andy

[Saxon_Rascal]

Hi Andy

 

Thanks for the reply. I may have got things confused, I apologise, let me explain. The mail from the finance company contained two letters:

One addressed my father, Robert in the heading (an invoice with arrears total) The accompanying letter was addressed to my mother, ####### Personal Representative of the Late ########. 

 

The letter says,

Dear Mrs ##### ########, Personal Representative of the late ####### #########

You are now in breach of the Terms and Conditions of your Contract Purchase Agreement.

We now enclose a Default Notice in accordance with section 87(1) of the Consumer Credit Act 1974.

                                                           ~~~~~~~Blurb~~~~~~~~

If you do not take action set out in the default notice before the date shown (25/10/2019) we will:

 

1. Terminate agreement and take steps to recover the amount due. May also include repossessing vehicle.

2. Record a Default on your credit file with Credit Reference Agencies after 28 days from the date of this letter (above).

May affect your ability to obtain credit from other lenders for 6 years.

 

I cannot believe they're being so brazen. Surely, this needs following up even after this is resolved? This company must know it's in breach of its own business practices and many people must have fallen into this - what I consider - is a [problem].

 

Many thanks.

Craig

 

[AndyOrch]

Well thats their intention to confuse you...doesn't confuse us we have seen it all before.

 

Your Mother is not the Personal Representative of the late xxxxxxxxx

 

They cant register a default on your mothers credit file...she does not have  an agreement with them...so they cant default her.

 

The point I am trying to get at and this is the third time of asking......not who the letters were addressed to....

 

On the Default Notice....issued pursuant to section 87(1) of the Consumer Credit Act 1974. It must have a name on (The name of the debtor) and details of the HP agreement...is that name your fathers or your mums ?

[Ethel Street]

Their letter looks like some standard template they send whenever they are notified of someone's death and had entirely ignores what you have told them so far.

 

Your mother is not the Personal Representative of your late father. "Personal Representative" has a specific legal meaning. It means the person formally appointed as Executor under a Will, or the person formally named as the Administrator  in a Grant of Letters of Administration by the Probate Registry. See these two links to legal websites that confirm this.

 

https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2017/when-there-is-no-will-who-is-the-personal-representative/

 

https://www.shoosmiths.co.uk/services/probate-administration-estate-14218.aspx

 

The law which those two websites are confirming is in section 55, para (xi), of the Administration of Estates Act 1925

 

http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/55

 

Although it is standard practice for organisations to write to the 'Personal Representatives' of the deceased when they don't know who has been appointed Executor or Administrator, in this case there are no Personal Representatives. I would state in my letter to them something on the lines "... I am not the Personal Representative of (the deceased). He left no Will. No Administrator has been appointed by the Probate Registry and I am not intending to apply to be appointed Administrator.  Any assistance to creditors is solely in a voluntary and informal capacity."

Edited October 28, 2019 by Ethel Street

[Saxon_Rascal]

Hi Andyorch and Ethel.

 

Thanks. As in the transcript of the letter I've outlined above. The finance company appear to be passing new liability of the debt onto my mum as the next of kin.

I can confirm that she is merely the widowed wife naturally looking after his affairs. Thank you for the help and links for legal documentation that will certainly help put them straight and in the picture. She's stated from the outset that she isn't part of any legal team looking after an estate, and I genuinely believe they're either ignorant or just bullying her. Either way, she's not intending to take any BS from them. I'll be compiling a letter and email copy for them to keep on their records. Phone calls just don't seem to work.

 

Andyorch - the Default Notice is in my mum's name but she is not the borrower, guarantor or on any joint loan with the company. 

 

Thanks again folks.

Craig

 

 

[unclebulgaria67]

They are not legally allowed to issue any default in your Mums name, as she is   Not a debtor, has no financial relationship with the creditor and has not consented to having data processed in her name. Clear breach of Data Protection Act.

 

Suggest a strongly worded complaint letter to them, posted by recorded delivery, sending back keys and any important documents for the car. 

[AndyOrch]

Quote

Andyorch - the Default Notice is in my mum's name but she is not the borrower, guarantor or on any joint loan with the company. 

 

I would be contacting the following and inform them they are falsifying documents after bereavement to shift liability on a credit agreement.

 

 https://register.fca.org.uk/ShPo_FirmDetailsPage?id=001b000000MfQbiAAF

 

And also...

 

https://ico.org.uk/make-a-complaint/

[Hammy1962]

I think you are all making this way to complicated. In similar circumstances with a deceased relative a couple of years ago we just asked the Dealer who sold the car to our relative to buy it back and clear the finance.

 

They did, No fuss, No complaints, just a friendly chat with the original helpful Salesman.

 

They arranged a pick -up, sorted out all the documentation and it was all good within a few days. We received confirmation the finance was cleared.

 

They may have even made money on the subsequent sale.

 

Don't send them the documents and/or keys. If you do you will have a car on your property with no documents or keys!

 

H

[AndyOrch]

I think you need to spend a day in the Debt Collection Agencies and Financial Legal Issues Forum Hammy then you will see the lengths these companies will go to to mislead consumers.

 

You cant issue a Default Notice to a person that does not have a credit agreement with the creditor.......you cant shift a credit agreement from one person to another do you understand Data Protection and the CCA1974 ?

 

This is why we have FInancial regulation such as the FCA and ICO

 

Andy

[Ethel Street]

49 minutes ago, Hammy1962 said:

 In similar circumstances with a deceased relative a couple of years ago we just asked the Dealer who sold the car to our relative to buy it back and clear the finance.

 

 

 

 

This is a Hire Purchase Agreement. You cannot do that with a car on HP. It's owned by the finance company, you can't sell it without their agreement. Even if OP's father could have sold it OP's mother can't, she has no legal title (as she's neither Executor nor officially appointed Administrator).

 

I agree best to keep keys and documents until they come to collect it. And keep a photocopy of all the documents and get a receipt from whoever collects it.

Edited October 29, 2019 by Ethel Street