Van Repossession On A Hire Purchase Agreement Not Regulated Under The CCA 1974

[howardino]

Hi, any advice regarding this matter would be much appreciated…

During April 2008 I bought a used van on Hire Purchase however it wasn’t until after the van had been repossessed in Mar’10’ did I realise the agreement was NOT regulated by the CCA 1974 but then that’s my fault for not reading the small print.

 

As my business was a Ltd company and had only been trading a year the finance company requested myself and an additional person (my mum) to act as ‘Guarantor and Indemnifier’ for the agreement.

 

The agreement;

Van purchase price-£9500

Initial deposit-£2000

Followed by 42 x £225 monthly payments

Broker arrangement fee-£100

 

I made 18x payments between May’08’ and Oct’09’ Then in November 2009 the company I’d been contracting thru went bust owing me £k’s. I contacted the finance company to explain my position and they agreed on a payment break of 3mths. During the 3mth break which I had in writing I still received endless default notices, repossession threats, phone calls which I was told to ignore as it was just an admin error in there accounts department.

 

The payments were due to resume 08/02/10 I was working away at the time and got home 04/03/10 to a pile of letters all of which are default notices from several creditors and it turned out nothing had been paid out of my business account?? Cut along story short it took a week to resolve and companies house had frozen the account which is another story for another day regarding bad accountants!

 

05/03/10 I phoned the finance company to explain the situation and offered to pay £900 over the phone to bring the accountant up to date however they refused my payment saying it was ‘too late’ and that they had already instructed a company to collect the van. There were some heated exchanges and so no surprises when two guys turn up later that same day to collect the van.

 

I just thought that as I’d paid over a third of my payments and there refusal to accept the phone payment then that would be the end of the matter, how naïve was I!

 

Oct 2010, some 7mths on from when they collected the van I receive a letter informing me that the van had since been sold at auction for £2k (which was well below its market value) and that there is still £4k outstanding which mum and myself are liable. The problem is I’ve just declared myself bankrupt and about to pass a £4k debt to my mum.

 

I’m livid about the whole saga and have managed to stall there solicitor for a week or two whilst I look for a possible way out and I think I might have something….

 

My signatures on the agreement and the ‘guarantor/indemnifier’ forms were supposed to have been witnessed. The witness signature was actually signed by somebody at the broker offices arranging the finance because I live 100mls away and so all the agreements were down thru the post. The witness person didn’t print there name under there signature, has given there address as being the brokers office plus I’ve since found a complement slip sent by the broker which is hand written and giving me instructions to sign the forms and then post them back and it’s the same handwriting as the person who states he witnessed my signatures!

 

The HP agreement is dated and signed 08/04/2008 however the guarantor/indem forms are all dated and signed 07/04/2008.

 

So I was never properly advised on the t+c’s of the agreement that I was signing and as a result misadvised my mum also.

 

Should I have been given a receipt or a vehicle condition form from the people collecting the van as anything could have happened to it during those 7mths, it could have been driven about, been damaged, had engine parts or tyres swapped over and so the whole procedure seems to be very one sided especially as the finance company still expect you to meet any shortfall once the vehicle is sold.

 

I can scan the documents and post a link for them if somebody wants to take a closer look however all the default notices have been binned. The HP was arranged with ‘Hermes’ who are now ‘SCAF’ (Singers Corporate Asset Finance Ltd)

[MARTIN3030]

Welcome to the site.will move this for thoughts.

[postggj]

what is the heading on the agreement

 

as a norm it should state

 

HIRE PURCHASE AGREEMENT REGULATED BY THE CCA 1974

 

you mention its not, they were for loans above 25 k but those regs have changed now

 

are you sure its an hp agreement and not say

 

CONTRACT HIRE OR PERSONAL LOAN AGREEMENT

 

is there a termination point figure on the agreement

 

thats the half way figure for which when you reach this point you can voluntry surender the vehicle

[howardino]

I will upload the agreement later today however it definately says "Hire Purchase Agreement Not Regulated by the Consumer Credit Act 1974"

There is no termination point on the agreement that I can make out. There is some small print on the rear of the agreement 'Your Liability on Termination' that states if I surrender the vehicle I am still liable for all the costs and shortfalls.

[howardino]

So if the total on my agreement is for less than £25k then I should be covered under the CCA 1974?? Which would then make the repossession illegal as I'd paid 18/42 payments which is more than one third....

[howardino]

The agreements have been attached....

[postggj]

can you re-do the links

 

they are to small to read even when i blow them up

 

i can confirm though when you took the agreement out

 

NON REGULATED LOANS ARE FOR LOANS ABOVE 25K

 

 

 

but i need to see the agreement before i comment more

[howardino]

oops the attachments are unreadable!! I will try something else.......

Edited February 18, 2011 by howardino

[howardino]

I've re-scanned all the agreements and so fingers x'd they should all now be readable

hpagreement-front.pdf

hpagreement-back-tc.pdf

guarantor-indemnity.pdf

compslip-hp.pdf

[howardino]

The way I'm reading the CCA is that a 'Private Ltd Company' is not covered under the act?? or is it because my mum and myself acted as individual 'guarantor/indemnity' on the agreement that we are then covered?? I'm confused:???:

[wannabedebtfreesoon]

The way I'm reading the CCA is that a 'Private Ltd Company' is not covered under the act?? or is it because my mum and myself acted as individual 'guarantor/indemnity' on the agreement that we are then covered?? I'm confused:???:

I was just looking into this for you. The regulation used to be that any agreement entered into for the sole purpose of business was not regulated, but I know that there were some amendments made to this in the 2006 Act, and as your agreement is dated 2 days after the initial commencement date there may be something that relates to your situation.

Just having a look now and I'll get back to you shortly.

[wannabedebtfreesoon]

The way I'm reading the CCA is that a 'Private Ltd Company' is not covered under the act?? or is it because my mum and myself acted as individual 'guarantor/indemnity' on the agreement that we are then covered?? I'm confused:???:

Which part of the Act are you referring to that says about being a PLC? Sorry I can't find it

[howardino]

oops my reply has gone missing! Thanks for the reply, it might be that I've read something all wrong so I will go away and have a look for it!

[howardino]

I was wrong the changes to the CCA 2006 which came into effect 06/04/2008 do apply to my agreement which was signed 08/04/2008.

[howardino]

update.....the finance company solicitor says 'No' the agreement does not come under the changes made to the cca 06.04.08??? Anybody want to comment further!

[postggj]

what reason did he give

[howardino]

Quote 'The agreement was entered into between Herm*s Group Ltd ("H****s) and H*******z Limited. The provisions of the Act do not apply to credit agreements entered into with companies, because they do not come within the definition of "individuals" within the scheme of the Act. As stated above, the Agreement was entered into between Herm*s and Ha***** Limited: it was not entered into between Herm*s and yourself. The agreement was not therefore, regulated.

[postggj]

was the agreement entered under your company or personal name

 

please confirm

[howardino]

the agreement was entered into under my company name 'H********z Limited'

 

I acted as guarantee/Indemnity and so did my mum.

 

The witness signature on the HP agreement was signed by the guy arranging the finance and he did so in his office and then sent a copy of the form back. I've given there solicitor the eveidence and they propose not to comment on it at this time! The evidence can be seen when u open the compliment slip which was uploaded on a previous post.

[postggj]

Originally Posted by howardino

The way I'm reading the CCA is that a 'Private Ltd Company' is not covered under the act?? or is it because my mum and myself acted as individual 'guarantor/indemnity' on the agreement that we are then covered?? I'm confused:???:

 

 

 

Which part of the Act are you referring to that says about being a PLC? Sorry I can't find it

 

 

ditto

 

can you post a link to that part of the act

[postggj]

any updates

[howardino]

I can't find the document and I've got a feeling I was reading the act before the changes took place??

 

So I've downloaded the OFT guide CCA 2006 that defines an 'Individual' page 6....

 

So is it correct to assume from the statement below that a private limited company comes under the definition 'individual'

 

1-Definition of “individual” In section 189(1) of the 1974 Act (definitions) for the definition of “individual” substitute— “‘individual’ includes— (a)a partnership consisting of two or three persons not all of whom are bodies corporate; and(b)an unincorporated body of persons which does not consist entirely of bodies corporate and is not a partnership;”.

CCA-REGULATEDANDEXEMPTAGREEMENTS.pdf

[howardino]

does it even matter if its regulated or not as the agreement was never executed lawfully, which I'll explain....

 

1> The guy who arranged the HP agreement sent me all the documents to sign in the post

 

2> I have the 'compliment slip' he sent me and includes his hand written instructions asking my mum and myself to sign the documents and then post them straight back to him

 

3> The same guy has then signed and dated all the documents saying that he 'witnessed' our signatures being made and then posted me back a copy of the then completed agreement

 

If the agreement was entered into unlawfully then surely Herm*s t+c's are not worth the paper there written on?

 

After all the 'Guarantee and Idemnity' is a 'Deed' that requires an attesting witness who should be present at that time the document was signed unlike the joker I've got here who thinks its ok to act as a witness via the royal mail!!

 

I even made this allegation to there solicitor who denied any wrong doing and that there client has done everything to the book

 

They continued with there claim and my mum received a summons from the court last week for the outstanding £4k which I have not yet sent back.....

 

comments please

[howardino]

any updates???

[sir_gilmour]

Hi

Welcome to The Consumer Action Group.

 

 

I am just letting you know that as you haven't had any replies to your post yet, it might be better if you post your message again in an appropriate sub-forum. You will get lots of help there.

 

Also take some time to read around the forum and get used to the layout. It is a big forum and takes a lot of getting used to.

 

 

Once you start to find your way, you will soon realise that it is fairly easy to get round and to get the help you need.

 

It can be bit confusing at first.