Car repo Dunctons ****WON****

[rcl]

Hi

 

We took a car on hire purchase from Duncton No 1 in September 2008. The car was £10500, and we paid £2500 deposit.

 

We then put 12 months tax on the car and had a dog guard fitted.

 

The first payment of £350 didnt go thru as their bank lost the paperwork

 

The second payment didnt go thru as we only had enough money in the account for one payment and they tried to take 2 payments. Stupidly, we didnt make the payment manually

 

We flew off on holiday on 13th december 2008, Dunctons sent a termination notice to us on 12th december, which arrived when we were away. They then turned up and took the car on the back of a recovery vehicle, from our drive, also whilst we were on holiday

 

A friend of ours was watching the house, he is a policeman, reported the car as stolen for us and made some enquiries. he traced the car to the recovery firm, and consequently, rang us while we were on holiday to tell us what had happened

 

I rang Dunctons and offered to make payment by debit card of all the arrears, to which it was declined. i was told i would have to pay £16800 in order to get the vehicle back

 

I asked about my belongings (sat nav, tax, dog guard, hard hat, training workbooks, binoculars, kids car seat) and was told I have to go to Haydock to get them. I have subsequently been told there were no personal belongings in the car, despite the paperwork from the recovery co detailing bags, hard hat and car seat etc

 

Dunctons are now taking us to court, (my husband and I) for £8.5K The hearing is scheduled for June, fast track, unless we made an offer out of court now

 

However, on the paperwork, Dunctons are unable to find a copy of the agreement with both my husbands and my signature on it, only an agreement with mine on, so the case against my husband has been dropped and they are chasing me for the whole amount, despite the agreement being in both names

 

I dont remember receiving the defualt notice, however Dunctons have provided a copy of the one they sent

 

They did speak to my husband at work about the arrears, but never to me

 

Do I have any defence ?

[rcl]

Should also have mentioned the car has been sold at auction for £8800

 

Thanks

[rcl]

Hi

 

My husband and I entered in to a hire purchase agreement in September 2008 for a car

 

Their bank lost the paperwork for the first direct debit,

and we didnt have the money in the bank for the second payment.

 

 

they terminated the agreement and repossessed the car (80 days after we took delivery of the vehicle)

whilst we were out of the country (we hadnt received the termination notice before we went either)

 

Despite us offering to pay all arrears, they refused, sold the car, and then took us to court for £8.5K (all interest charges)

 

They have a copy of the consumer credit act agreement,

made out to me and hubby,

but only my signature on.

 

 

They acknowledge they dont have an agreement with both signatures on.

 

 

Therefore they have dropped the case against my husband and taking me to court for the whole amount

 

Can I do anything to defend this ?

[rcl]

HI

 

Yes, the car was repo'd in December 2008, and is scheduled for trial in June 2010. Initially it was against both me and my husband, now it is just against me.

 

Ive filed a defence which reads:-

 

1. The defendants admit that they signed the document refered to in the particularsof claim

 

2. The defendants deny the document constitutes a valid agreement enforceable by the claimant

 

3. The document purports to be an agreement redulated by the CCA and governed by the CCR 1983

 

4. The document was not properly executed contrary to Section 61 (1) of the act in that the document was not signed by the claimant contrary to section 61 (1) (a) therefore the agreement could only be enforced by order of the court

 

5. In breach of section 65 (a) of the act, the claimant sought to enforce the agreement without an order of the court and repossed the vehicle referred to in the particulars of the claim

 

6. If the claimant were entitled to enforece the agreement without an order of the court, the agreement was not enforceable by the claimant in that contrary to section 87 (1) of the act, the claimant failed to serve on the defendant a default notice. In the alternative contrary to section 88 of the act and regulation 2 (5) of the regs the statement in the default notice which are required to be in a form specified in a schedule to the regs were not afforded more prominence than other lettering in the notice and where words were shown in capital letters and underlined in the schedule to the regs, they were not afforded even more prominence in the default notice

 

7. Further and or in the alternative the defendants submit that despite the fact the claimants were not entitled to enfore the agreement the claimant repossessed the vehicle refered to in the particulars of claim prom premises belonging to the defendant without the defendants consent in breach of section 92 (1) of the act

 

8. By reason of the above breaches of the act and the regulations the claimant is not entitled to the sum claimed

 

 

 

The response was that they acknowledge they have a signed agreement with just my signature on it, so the claim is now against just me, not me and my husband.

 

Nothing at all in writing from the auction or the repo agents

 

Dunctons have submitted a list of correspondance made to us. They made phone calls to my husband x 3, and sent out a defualt notice to us, and then a temination notice which was not received as we were not in the country.

 

I am about to submit documents to the court and dunctons which i will use as my defence, these include a holiday invoice to proove i wasnt in the country, evidence of personal belongings in the car, but other than that i am not sure what else to do, apart from a witness statement from my husband saying he dealt with dunctons and i wasnt aware we had missed 2 payments

 

 

 

As far as I can make out, I did miss 2 payments and I should have checked the bank to see if payments had gone out However, they breached the agreement

Section 61 (1) agreement not executed properly

Section 65 (1) repossessed incorrectly

Section 87 (1) default notice didnt have prominent lettering

Section 92 (1) trespass on privae property to take vehicle

 

Also breached Section 10 Financial Services regs 2004 as they didnt give me 14 days notice to cancel (distance selling regs )

 

im out of my depth, and dont know what to do from here

[rcl]

I dont have a court date yet, but defence has been filed

 

I do have a copy of the agreement. it has been signed by me, and them. the space where husbands signature should be is blank

 

There was never a court order made for the repossession. They claim a business was run from the property, so they could take it. Ive challenged them on this, and denied any business has been run from the property, and they said the burden of proof is on me. All I can do is offer a photograph of the front of my house, which is just a normal 3 bed detached house

 

They have disclosed which documents they are relying on, some of which i dont have copies, so i have sent a letter today asking for relevnt copies

 

I also suggested a date of 31st May to exchange witness statements, as this has still not been done. The only statement I am going to have is mine, and my husbands. I will claim that all communication made by telepone was done ith him, and he didnt tell me about it, which he will confirm.

 

Also I will state I never received the defualt notice, although they have a copy of the one they supposidly sent, and the termination notice arrived when i was out of the country, and a copy of the holiday booking can confirm this

 

am i missing anything >

[rcl]

Thankyou for posting the relevant links too Martin x

[rcl]

can anyone please please help x

[rcl]

Hi

 

I am in court in July as the defendant, as Dunctons took my car, sold it, and are now chasing me for interest for nearly £9K. I have a couple of questions, and would be really grateful if someone could clarify this for me. (Less than 1/3rd was paid on the agreement)

 

1. There were 2 defendants, me and my husband. They now acknowledge they dont have my husbands signature on the CCA agreement and have dropped the case against him, and are proceeding against me alone. Their communication list shows they only ever spoke to my husband with regard to arrears. Will this help me ?

 

2. The termination notice arrived whilst I was on holiday. Ive provided a holiday invoice as evidence. Will this help ?

 

3. the car was then taken from my driveway whilst I was on holiday. (7 days after the termnation notice was sent) The entry on their communications list shows that it was taken from my driveway, which I have shown as evidence. However on their same communications list, they have removed the entry to show it was taken from a driveway. Are they allowed to take it from my drive while I am not there ?

 

4. My possessions were in the car. The repo note shows personal possessions in the car, and their communication list shows i made a call about my belongings 3 days after they took the car but my stuff hs never been returned

 

Thanks in advance for any assistance you may be able to give me

[rcl]

HI wannabe

 

Yes, on Dunctons own cummunications list it states '18/12/08 Jim from peak collections advises car is on driveway.... curtains closed, looks like the owners are on holiday'

In their witness statement they say 'car was repossessed on 18/12/08, no keys)

I have submitted a holiday invoice from virgin holidays showing I was on holiday from13th december until 4th january.

The repo collection note shows there was belongings in the vehicle

Dunctons communiations list shows I made a call to them on 22nd december about the possessions in my car

Dunctons communications list shows that they e mailed peak collections regarding th goods in my car

A letter from Dunctons to me dated 9th January states my belongings are at Peak Collections in Haydock if I would like to go and collect them

 

thanks for your assistance x

[rcl]

I hope your right !

 

There was a space in the original agreement for us both to sign, however, husband didnt. therefore, they have dropped the case against him, and continued against me alone.

 

Will post on my original thread thanks x

 

I was reading your thread this morning with interest. you certainly have your wits about you Good Luck - although you wont need it !

[rcl]

1. There were 2 defendants, me and my husband. They now acknowledge they dont have my husbands signature on the CCA agreement and have dropped the case against him, and are proceeding against me alone. Their communication list shows they only ever spoke to my husband with regard to arrears. Will this help me ?

 

2. The termination notice arrived whilst I was on holiday. Ive provided a holiday invoice as evidence. Will this help ?

 

3. the car was then taken from my driveway whilst I was on holiday. (7 days after the termnation notice was sent) The entry on their communications list shows that it was taken from my driveway, which I have shown as evidence. However on their same communications list, they have removed the entry to show it was taken from a driveway. Are they allowed to take it from my drive while I am not there ?

 

4. My possessions were in the car. The repo note shows personal possessions in the car, and their communication list shows i made a call about my belongings 3 days after they took the car but my stuff hs never been returned

 

Thanks in advance for any assistance you may be able to give me x

[rcl]

thankyou for merging and your assistance so far, can anyone help with the questions earlier please x

[rcl]

Thanks everyone for your help. Will keep you informed and good luck on your individual claims too.

[rcl]

If, (and I know it is a big IF) I win, can I claim any costs back for my time, and the time I have had to take off work etc

[rcl]

GOOD GOD YES!!!!!!

 

 

 

I'm being very positive here and I'm really, really hoping my individual claim pans out the way I want it to. IF IT DOES I'd be over the moon to let you use the final decision of my claim in your defence :grin:

 

 

Thanks wanna, your as helpful as ever ! I hope your claim pans out well too after all the work you have put in to it,

 

Im just waiting for a court bundle now, and i think we are scheduled for either the 8th or 9th of July for trial

[rcl]

If things went my way on the day, Would I just ask for costs then. (Ive already submitted a piece of paper saying that loss of deposit and personal belongings has cost me in excess of £3K)

 

I cant imagine they would discontinue or settle out of court at this late stage, as there was a telephone conference/directions hearing with the judge last week, scheduling trial and asking them to submit their court bundle.

 

Also, I realised, that in their statement, they made ref to the CCA agreement I signed being 3 pages long, and on the third page it allegedly states 'if contract terminated i am liable for all costs and interest payable in full, as if the agreement had run full term

 

My copy of the CCA agreement is only 2 pages long, the CCA agreement given to me under the sar request is only 2 pages long, and the agreement submitted with their statement as evidence is only 2 pages long, all having my signature on the first page, and my initials on the second page.

 

At the hearing last week I pointed out to the judge that I only had 2 pages, so he gave them 7 days to submit page 3

 

I am 100% certain there has never been a page 3, hence i have never agreed to pay all the money should the contract be terminated

[rcl]

Have they submitted page 3 yet???? When is the last date they've got to submit it?? If they don't file on time you have options to force them to comply

 

On the contrary, most companies that settle or discontinue do so at the very last minute. They need to push you and their luck as far as possible before they fold in the vain hope that you'll get scared and give in!

 

You'll need to prepare a Statement of Costs Summary Assessment to take with you on the day so you're prepared and you know what to ask for.

 

 

Page three is due to be with me before Thursday this week

 

Can you help me with a Statement of Costs summary assessment ? Is there a template I can use ?

 

I am waiting for a court bundle ? what will this likely to consist of ! I feel I still have a load of reading to get thru to manage this !

[rcl]

P.S. I see that they're relying on the terms of the CCA for their case, have they answered any of the points you raised in your defence though???

 

 

They say the default notice was sent and is compliant. (However, still no default on my credit file at all, and I dont recall receiving it.

 

about the car being taken from my drive - the burden of proof lies with me on this matter (going to use their paperwork which states it was on the drive)

 

Their witness statement says they made numerous phone calls to defendant 1 (who is my husband and they have now dropped the case against)

 

If they DO decide to drop the case against me, can I still claim costs lol

[rcl]

thanks again Wanna, you help is invaluable

[rcl]

Last Thursday at the directions hearing I told the judge that I was missing page 3 of the agreement (This is the part that allegedly states if the agreement is teminated, I will pay the creditor all the interest and charges, totally £8K)

 

Bearing in mind, I only have 2 pages from the start, the SAR provided 2 pages, and in their evidence, they present 2 pages, but mention 3 pages in their witness statement, and in my evidence i show 2 pages.

 

Judge asked them to send me a copy of page 3 within 7 days. that was last thursday

 

Just been home to check the post, still no Page 3 in the post

 

Now this file was sat in front of Dunctons last Thursday, when the judge asked her to send me a copy within 7 days. Why on earth didnt she copy it immediately ? Im speculating that Page 3 doesnt exist

 

On the agreement, Page one, I have signed, and Page 2 I have initialled to confirm I have read it, so I expect Page 3 to have my initials on too, if and when it is presented.

 

Should i inform the court that I still havent had it ?

[rcl]

I'd wait til tomorrow or even friday just to be sure. I'll have a look into this but I think if they fail to comply with court orders you can take it further, and the court can instruct them to comply or have their case struck out. I will check though

 

 

Dont worry, thanks anyway. I think I can apply for an unless order, but by the time it is filed and actioned, we will probably be past the actual trial date, so its a bit pointless

[rcl]

Hi Markie, thanks for your advice. what damages could i claim for the repo from drive ? Would it just be a punitive amount ?

 

I definately need to draw attention to the missing page 3, Im hoping it doesnt turn up at all. but even if it does, i can state it has been missing from my original contract, and the sar request. Thats also the important page that states i will pay loads of money if the agreement is terminated

 

I get the impression your are experienced in court ? Is this your job ?

[rcl]

RCL

 

Who is the termination notice addressed to, you alone or both of you. Haydock are not the smartest operators when it comes to paperwork and default notices.

 

 

one sent to me and another sent to hubby

 

Page 3 of the contract turned up today too

 

never mind, i still have the fact that they took it from the drive, that i didnt receive the termination notice, and potentially the dn is dodgy, and there was no communication with me when they took it, however im not as confident as i was

[rcl]

If they had only sent a notice to your hubby and are suing you then they would be in some difficulty.

 

 

thanks anyway, was worth a try x

[rcl]

What I would stress to the Court when you show the log and the "altered" log, is how can the Court trust any documentation that the Claimant has produced given the clear alteration of one of the key parts. Remember the Court will decide on the balance of probabilities, not beyond reasonable doubt. You'll be fine I'm sure!

 

 

Thankyou mm, I will definately do that.

 

Should I be receiving my court bundle soon (trial date is 2 weeks on thursday)

 

wanna - am i right in thinking from your thread that if I win, I can claim my costs, the money i have paid under the agreement and the cost of the car