FCA Automotive services (now CA auto finance) Claimform - Shortfall after Car Repo.

[Fangio of the nineties]

I'm currently facing court action in relation to Car finance - an HP agreement.

The car was repossessed and sold at undervalue at auction as the mileage was reported as twice that as the car had covered. This resulted in a shortfall which the lender is now pursuing me for.

There were a number of issues relating to the lenders handling of my account which I believe broke FCA rules, in addition to the mishandling of the sale. They are making a debt claim and contend that they are under no duty to mitigate their loss.

Had they been prepared to write off the debt then I'd have been happy to leave it there, and I made it clear that I disputed the amount they claimed - though didn't lodge a "formal complaint"

I did submit a complaint to the FOS however - and informed the lender. Nevertheless they started court action. (against FCA rules I believe - where a complaint has been submitted.)

Because there was "live" court proceedings the FOS told me they could not investigate - I think as it was then competing jurisdiction.. However a Stay of proceedings would have allowed that process to proceed.

The Lender refused to stay. - As part of the Pre action Protocol (which recommends  the FOS is an appropriate means of ADR) I again asked them to stay proceedings - they refused.

I'm preparing my defence, and from what I can gather I cannot use their breach of any FCA rules. 

BUT... Looking at the original agreement it states under a heading "IMPORTANT" ...

“If you are not a business debtor, you have the right to refer complaints to the Financial Ombudsman Service…..”

Now, It seems to me that my right to have the FOS look into this is protected in the agreement... And as the lenders behaviour has prohibited the FOS proceeding with any complaint investigation then that right has been removed..

I think I can reasonably demonstrate that the lender has deliberately sought to avoid FOS scrutiny here - and failed to use the FOS as ADR... and of course now that time has lapsed the original complaint has "timed out" on what the FOS can look into... So there is really no way back to that - even if the court directed that there should be.

 

Question....?  Is the lenders behaviour in avoiding that "right" to the FOS fatal to their case ?

 

 

[dx100uk]

forget it not the way to deal with a court claim .

why have you come here SOOO late!!

please complete this:

 

[Fangio of the nineties]

I realise its a bit late in the day.. and a variety of reasons why I'm late to the party - mental health amongst them. - However we are where we are and I'm too far down the road to start from scratch with a defence here.

I've not been on this site for many years and the last time I had some very helpful advice from some lawyerly types, was hoping for more of the same.

This isn't the only debt I've had to deal with recently, but by far the biggest.. My experience is that various lenders play fast and loose with the FCA rules - and game the system to avoid FOS scrutiny.. Which is precisely what the lender has done in this case.

The question really remains -  if by their behaviour they have prevented the FOS investigating - and the right of the customer to complain to the FOS is a term of the agreement. Then have they damaged their chances of enforcing the debt through the courts ?

[dx100uk]

to late for all that. up tree wrong barking.

please do the sticky then we know who/what you are ever going on about.

 

[BankFodder]

Please follow the instructions above – but also can you tell us what pre-action protocol the claimants followed.

How long ago did they contact you and warn you about the forthcoming action – and please post up their communication to you about this in PDF format.

Also, if you were in the middle of an FOS investigation and the lender knew about this, then it seems to me that they are not treating you fairly and you would have the basis of a counterclaim under the conduct of business rules – COBS which requires that they treat you fairly and communicate with you fairly.
That, apart from anything else.

Also, I notice that you haven't identified the lender. Is there a reason for that? Are you trying to protect them?

[Fangio of the nineties]

I'm not protecting the lenders identity its FCA Automotive services (now CA auto finance) - merely my own, and you never know who's looking at these posts..

Theres a mountain of correspondence and I wouldn't expect anyone else too wade through it.

Some weeks after the  result of the auction was known the lender sent me the usual final demands etc for the shortfall and I'm pretty sure in terms of their paperwork they are ok.

I was furious at the time and responded accordingly - pretty much telling them to stuff it.

The car was auctioned in a trade only auction specific to that manufacturer. The big issue was that they advertised it as covering 27,000 miles more than it had done... Which makes a big difference to the value of a nearly new car - esp that make and model. So the car was massively undersold. It was resold by the buyer within the trade a few days later at a big profit and retailed by another dealer within a few weeks again at a profit above that.

Now, - they claim that they could do what they liked with the car, the sale was entirely at their discretion . They had no duty to mitigate loss, and essentially all the shortfall, costs etc were indemnified by me under the agreement.. (and that might technically be correct in law too). - There were other issues around the repossession and subsequent sale that weren't quite right too, and I was misled in their communications at that point.

The clause I was hoping to rely on is in CONC - which is the sourcebook covering HP agreements I think. and its  clause 7.15.10. which says .. “A lender must not initiate legal proceedings in relation to a regulated credit agreement where the lender is aware that the customer has submitted a valid complaint or what appears to the firm may be a valid complaint relating to the agreement in question that is being considered by the Financial Ombudsman service.”

Now, They submitted the claim to the court on 10th October 21

They were aware of my dispute back in March the same year.

In early September the possibility of an FOS investigation was mentioned

And at the end of september their solicitors were informed that a complaint to the FOS had been made.

By 09/10 the FOS had responded allocating the claim a reference number..

So the dates are tight .. but nonetheless.

Following that the lender then decided that they were unaware of my original complaint. - Despite me having a "final position" confirmation email from their solicitors in late September. - Their reasoning that I had not followed their complaints procedure..And that in the FOS view needed to be done before they could move on.

So I submitted a formal complaint, which they responded to within 28hrs,  finding that they'd done nothing wrong. (obviously) - Though they had completely mis characterised my complaint and addressed the different less important issues that I had raised alongside the meat of my issue.

The Court proceedings rumbled on - the claim not having been withdrawn alongside this. Following that the FOS informed me that it would be "inappropriate" to continue whilst legal action was "live". They were prepared to continue if a Stay could be agreed - and I attempted to agree this with the lenders solicitor - to no avail.

I then corresponded with their lawyers pointing out that we were required to seek ADR and that I was happy for the FOS to continue their enquiry. A stay however would be required. 

I was using HMGOV justice dept guidelines for Pre-action protocol for debt claims - Where at 6.2 the FOS is specifically given as an appropriate solution. I suggested this. the response was that "mediation" was a formal and expensive process and not suitable and the lender would not agree to Stay for the FOS to continue.

So we are at pretty much trial day soon.. Witness statements and evidence are exchanged and I've been working my skeleton argument, which has I think some merit.. The bones of it being that the Agreement and all the correspondence not that the lender is regulated by the FCA etc.. Which is in itself a form of guarantee of fair dealing with a complaints process by the FOS if things go wrong.. 

Research reveal however that a customer cannot use the basic rules under PRIN in the FCA handbook as a basis for a damages claim.. Though most of COBS and indeed CONC - which I think apply here are actionable.

But that still leaves me a bit thin. So looking at the original agreement again - and as this is a Financial services dept of a major manufacturer is likely to be tight, fairly generic and fit for purpose. I am reminded of a clause in the agreement under the heading "IMPORTANT"  and it says :- 

“If you are not a business debtor, you have the right to refer complaints to the Financial Ombudsman Service…..”

Their conduct, has effectively made it impossible for me to exercise that right.

Whilst there are aspects of their behaviour that are not actionable in a court of law, they would i'm certain have breached fundamental principles that the FOS could rule on.

They effectively removed that right by issuing a claim having been notified of an FOS complaint.

Knowing then that the FOS could not investigate whilst action was "live" they refused to agree a stay to facilitate it.

They didn't regard the FOS as an appropriate mediator (despite MOJ recommendation)

They knew that the FOS had no power to make them withdraw the court action.

And - If they were now to agree to FOS investigation the the FOS would tell me "sorry mate, but your complaint has timed out..."

So.. Is the prevention of a right of redress that was included in the original agreement likely to be fatal to their case ?

 

Waddya think ?

Screenshot 2023-10-11 at 18.41.21.pdf

[dx100uk]

please help us to help you...

there has NEVER been a case here whereby posted info has been used against a member in court.

fill out the sticky 

post up the defence you filed

post up yours and their WS 

when did you take out the agreement?

how much had you ACTUALLY paid at the date they repo'd?

where was the car when it was repo'd (on a private drive or the public highway)?

did you sign anything when it was repo'd?

did you received a default notice at least 14 days prior to the repo?

dx

 

 

[BankFodder]

As long as you are honest and straight dealing then there is no information here that would ever prejudice you. Don't forget at court cases you would be required to disclose in advance any information you are going to rely upon so there is no question of ambushing the other side.
Disclose information here and we can help you.
Interesting that you are proposing to rely on CONC. It has been so long since I put that out I had forgotten all about it. It will be very seem to see what you say about it and what they say about it.
However does a breach of the CONC rule confer a direct flight of action to private citizens? You need to check this because there are lots of FCA regulations which sound great but actions in respect of those can only be taken directly by the FCA and there are no private rights of action.

Even if you are able to cite CONC in a counterclaim, you should absolutely cite COBS because there is definitely a right of action for individuals in respect of failure to treat you fairly or communicate with you fairly. There is nothing to stop you relying on both of these sets of regulations in a counterclaim – and you should do.
I suggest that you draft your defence and also your counterclaim and post it up here so we can have a look.

Don't worry about the other side seeing it. Who cares? What can they do if they suddenly see it a week or so before they actually receive it through the post?

If you have to rely on surprise and ambushed then frankly it means that you don't have much of a case to argue