Diddled into giving back car HELP PLEASE!! bluestone/close credit management

[applecart]

HI Apple

 

Firstly thanks fo the kind words although I am not sure they are justified on this particular instance.

 

My point was that the SOL depends on cause of action which in contractual terms is usually a breach, the termination of a contract is not a breach, the contract is either terminated or it isn't, if a contract is unlawfully terminated it just means that it wasn't terminated at all.(that is the argument anyway).

 

As for concealment, I see no reason why the unlawful repossession under the act could not be concealed if the OP was not aware that it was in fact unlawful. This is after all the basis of all belated claims under the SOL, in the case of illegal charges for instance.

 

Anyway just my opinion.

 

I see... don't under estimate that which I for one have taken from your posts.... and Thanks for the clarification above...

 

As I see it, the OP terminated the contract lawfully - the OP terminated prior to the end of the agreement term.

 

The crux is the lenders conduct since it took the notice, took the car, sold the car and conduct over the last 6 years or so....extorting monies over and above that which the law says it was entitled to - notwithstanding the fact that the agreement was void from the beginning....

 

But we will have to wait and see what the lender says in reply to the draft letter.... it will be interesting to see if they take on board the enormity of the issue about to upon them......and look to settle this with the OP without the need for court action....

 

Cheers

 

Apple

[applecart]

Ok thanks Apple, I'll send as is although I will enclose proof of sar request from last year too.

 

Brilliant, good idea... only send them a copy of the SAR request confirming a fee was paid previous - IMO, perhaps those that are more experienced will come on to let you know how and what to expect by way of reply to the SAR issue.... I'm more interested in seeing what they say to the letter itself.....

 

Hope this helps?

 

Apple

[Gaston Grimsdyke]

Hi Gaston,

 

I'm sorry, I admit, you have totally confused me...that is not unusual by the way - I'm easily confused these days.. I must be getting old - no need to respond to the 'getting old' bit by the way - lol

 

For the benefit of doubt, I have come to my conclusion based on the evidence shown in the account statement - not by what the OP is alleged to have said in posts alone....

 

The account statement confirms that the agreement was due to expire on the 28.06.2005....not in Jan 2005 as alleged....

 

The third way mark and the amount is shown on the Agreement itself (albeit the figure is erroneous)

 

The third way mark and confirmation that it was attained is show on the account statement as being the 22.04.2005

 

The OP signed a VS (lenders terms)...VS = notice of termination (debtors terms, Legal term within the provision of s.99) on the 09.06.2005.... there is nothing in section 99 that refers to the 'form' of the notice....

 

If you can point me to the legislation where it necessitates that the VS is considered 'correctly obtained'.. or not as the case may be.... I will of course look into it.

 

I think again, I will need your help further on the second point you make...

 

I don't think it is only section 91 that applies to the OP's circumstance....

 

The reason section 32 comes into it... and you may not agree... but hear me out.....is simply because what should have happened - is the lender should have ended the agreement on notice of termination(or VS if you prefer to use this term) and closed the account down....there should have been no liability past the 50% mark under any circumstance levied upon the OP....

 

Section 32.... and I repeat... is the OP's only opportunity.... given as you quite rightly point out... to bring a claim against the Lender....

 

The lender has clearly concealed the fact that the OP should not be paying any money to it and has concealed this fact since 2005!!!

 

Regrettably for the Lender, the OP has found out....and the right to bring a claim is extended in favor of the OP outside of the normal 6 yr limitation period....

 

I think where you say..."The right to VT was not concealed from the OP because the OP had no such right after Jan 2005" ........when in fact, the right to VT was at all times legally available to the OP since 22 April 2005 on an agreement that was not intended to expire until 26.06.2005??

 

It may be that you still feel the OP has no right to sue since June 2011.... but, I know I'm getting old.... and I accept that.... but, I think in this particular case the OP would best be guided to rely on the Law and the facts that can be evidenced as being the truth....

 

Hope this helps you see where I'm coming from?

 

Apple

 

Don't think the account statement is much use in determining when the term of the agreement expired, it shows the dates payments were made not when they were due. Unfortunately the copy agreement posted up seems to have the key dates redacted, but the OP makes it clear in the very first post that she missed the last 3 payments in Jan 2005 - in other words that the term of the agreement expired in Jan 2005. That being the case, the agreement cannot possibly have been terminated thereafter whether by the OP or by the creditor. You can't terminate something that has already come to an end (and anyway it makes it clear in the language of section 99 itself when it uses the expression "at any time before the final payment is due"). So there is no point even considering a VT in this case because it was never an option at the time the events in question took place. Whilst you are correct that there is no specific format a VT has to take (so long as it is in writing and is intended to end the agreement that is efficient), and I agree a VS could be construed as a VT because of its language, given that a creditor is only ever going to try to get a VS if it has terminated the agreement because of breach, or because the term of the agreement has expired the reality is that a VS cannot be a VT because the right to VT has already been lost by then.

 

So, assuming the VS was not genuine because the OP was bullied into signing it, that is a clear breach of s90 and the OP could have recovered all her monies under s91. The cause of action is a breach of statutory duty and probably a breach of contract as well, and that cause of action arose when she was bullied into signing the VT in June 2005. Limitation is 6 years for both causes of action, and that time has gone. Section 32 of the Limitation Act is not going to help for 2 reasons:

 

1. It is concealment of the facts not the law that must be established. What were the facts? The fact that the agent bullied the OP, and when did the OP realise this? Immediately of course. What it is alleged was concealed was that this bullying was illegal, which is a matter of law and not relevant. It is exactly the same as the host of PPI cases which have lost on limitation recently when the customers have tried to rely on section 14A of the Limitation Act to extend the primary limitation period. They have all lost because they knew of the facts giving rise to the mis-selling (i.e. that they were self-employed at the time, or whatever) when the PPI was sold; the argument that they didn't realise until later (when they read articles in the papers) that these facts gave them a claim against the seller fails because that is the date of knowledge of the law which is irrelevant. Here's an article on it: http://www.lexology.com/library/detail.aspx?g=a3dd684e-bb83-452e-bb27-52899ec1035e

 

2. It's an objective test anyway, i.e. not the date the OP discovered the alleged concealment, but the date a reasonable consumer would have discovered it. And what would a reasonable consumer have done after being browbeaten into signing the VS? Gone and got advice of course, which would have immediately identified a claim against the creditor. The fact the OP left it for more than 6 years is fatal.

[Peterbard]

I must admit I had not looked closely at the statements until Apple pointed them out, I must dissagree with Grim ,I think they are very relevant. They state that the balloon payment was due in late June 2005 this would be the final payment under the contract, so even if the OP signed the VS earlier in that month it would still be within the agreement term, I was somewhat flummoxed when the OP said that she had signed the form after termination, the facts seem to bare out what Apple is saying.

 

As for the SB issue, I still do not think it is relevant in this scenario, particularly so if the OP is just defending the creditors action to recover funds and even so , I think section 1© of section 32 covers a concealment in the regard of duty under statute, as well as anything else, I would certainly argue such in any case.

[Gaston Grimsdyke]

Perhaps the OP could clarify exactly what the agreement date was and its term i.e. 36 months or whatever. Would save going down any blind alleys about VTs.

 

She has no defence on limitation to a claim by the creditor because she has extended limitation to another 6 years every time she made a payment after the car went back. Might have an estoppel defence though, and quite possibly a claim of her own to the return of payments made in the last 6 years as payments made by mistake (no payments being due because the agreement came to an end the moment the creditor took possession of protected goods), on the assumption a court accepts that the VS was not a genuine VS but was illicitly obtained by the repo agent.

 

Again, s32 won't help her because her "mistake" in not knowing the agreement came to an end when goods were repossessed illegally is not a mistake someone who had acted with reasonable diligence would have made. No court will accept that being ignorant of the law is a good reason. It's an objective not a subjective test.

[Peterbard]

Perhaps the OP could clarify exactly what the agreement date was and its term i.e. 36 months or whatever. Would save going down any blind alleys about VTs.

 

She has no defence on limitation to a claim by the creditor because she has extended limitation to another 6 years every time she made a payment after the car went back. Might have an estoppel defence though, and quite possibly a claim of her own to the return of payments made in the last 6 years as payments made by mistake (no payments being due because the agreement came to an end the moment the creditor took possession of protected goods), on the assumption a court accepts that the VS was not a genuine VS but was illicitly obtained by the repo agent.

 

Again, s32 won't help her because her "mistake" in not knowing the agreement came to an end when goods were repossessed illegally is not a mistake someone who had acted with reasonable diligence would have made. No court will accept that being ignorant of the law is a good reason. It's an objective not a subjective test.

 

not sure reasonable diligence, (ie man in Clapham omnibus), would include an in depth understanding of voluntary termination legislation. However it would be good to get the dates on the agreement sorted.

[Gaston Grimsdyke]

To repeat, it's concealment of facts, not law. The facts in question being the repossession of the vehicle and how much had been paid under the agreement, which of course were facts known to the OP at the time. Whether knowledge that those facts amounted to a breach of the law and a cause of action is not relevant for limitation purposes. That's why all the CMCs are getting hammered on PPI claims right now.

[Peterbard]

Don't agree. Leave it at that.

[applecart]

Hi Gaston,

 

The Account statement lends itself to more than just the payments made, charged etc - in fact it states this:

 

‘Inception Date’ as ..........................28.05.02

‘Expiry Date’ as ............................. 28.06.05.

‘Original Amt’as: .............................12,113.62

The Arrears are stated as .....................849.68

‘cons arrears’ as................................. 849.68

‘Balance’ as .....................................5224.85

 

I do not ignore your point with regard to section 32 at all, your points made will of course be taken into account to ensure that when the claim is being framed for court action, that we keep within its re-mit in the circumstances of this particular case.

 

Apple

[applecart]

To repeat, it's concealment of facts, not law. The facts in question being the repossession of the vehicle and how much had been paid under the agreement, which of course were facts known to the OP at the time. Whether knowledge that those facts amounted to a breach of the law and a cause of action is not relevant for limitation purposes. That's why all the CMCs are getting hammered on PPI claims right now.

 

Hi Gaston

 

I see your comments above as much the same as your previous comments - which may be taken as ' words of caution' for the unwary...

 

The OP's openess in this matter so far - goes a long way to persuade me that the OP may not be sure of the Law, but is making the necessary efforts to find out - that is expressing signs of 'due diligence'

 

That 'due diligence' has shown that the OP's 'hunch' that all was not above board - appears to be true.... and worthy of time out from CaG members to do what they can to assist in a positive way....

 

I'm not yet convinced that section 32 is redundant in this case - certainly not on the facts as I see them or the evidence posted by the OP - not yet, anyway...

 

But, it has to be said - I agree with any words of caution - and they are just as relevant here as they would be in similar circumstances - without a doubt...

 

Apple

[Gaston Grimsdyke]

The OP's openess in this matter so far - goes a long way to persuade me that the OP may not be sure of the Law, but is making the necessary efforts to find out - that is expressing signs of 'due diligence'

 

That 'due diligence' has shown that the OP's 'hunch' that all was not above board - appears to be true.... and worthy of time out from CaG members to do what they can to assist in a positive way....

 

 

Again, it is not a question of knowledge of the law, it is a question of knowledge of the facts. Not sure if it is up on Bailii, but the Court of Appeal decision in Ginn v First Plus might be instructive.

[Peterbard]

Ths is intesting

 

CAVE

(RESPONDENT)

v.

ROBINSON JARVIS & ROLF (A FIRM)

(APPELLANTS)

ON 25 APRIL 2002

[2002] UKHL 18

 

 

10. In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.

11. Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)

"the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

12. On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent

[bhall]

Again, it is not a question of knowledge of the law, it is a question of knowledge of the facts. Not sure if it is up on Bailii, but the Court of Appeal decision in Ginn v First Plus might be instructive.

 

For those not familiar to the case referenced above -

 

http://www.sghmartineau.com/publication_event/updates/DRG-Bulletin-The-Limits-of-the-Limitation-Act-December-2012.pdf

 

"They also raised s.14A of the Limitation Act, which has the potential to extend the primary 6 year limitation period to a date 3 years from when the Claimants either had knowledge of their prospective claim or should have known about it. Finally, the Ginns also raised s.32 of the Limitation Act, which only applies in the event of deliberate concealment of the matters complained of, and which would allow the claim to then be brought within 6 years of the date of actual or deemed knowledge.

 

The Ginns claimed an extension on grounds that they did not have knowledge of the events now complained of until after the agreement had been entered into and they had received legal advice. They also claimed that there had been concealment of those factors under s.32 of the Limitation Act, such that the period of limitation should be extended. The Recorder rejected those arguments. In his judgment, the cause of action had clearly accrued in 2004 and there could be no serious argument that the Ginns could not have discovered the matters about which they complained at that time."

Edited June 30, 2013 by bhall

[applecart]

Ths is intesting

 

CAVE

(RESPONDENT)

v.

ROBINSON JARVIS & ROLF (A FIRM)

(APPELLANTS)

ON 25 APRIL 2002

[2002] UKHL 18

 

 

10. In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.

11. Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)

"the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

12. On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent

 

Thanks Dodgeball : )

 

Apple

[applecart]

For those not familiar to the case referenced above -

 

http://www.sghmartineau.com/publication_event/updates/DRG-Bulletin-The-Limits-of-the-Limitation-Act-December-2012.pdf

 

"They also raised s.14A of the Limitation Act, which has the potential to extend the primary 6 year limitation period to a date 3 years from when the Claimants either had knowledge of their prospective claim or should have known about it. Finally, the Ginns also raised s.32 of the Limitation Act, which only applies in the event of deliberate concealment of the matters complained of, and which would allow the claim to then be brought within 6 years of the date of actual or deemed knowledge.

 

The Ginns claimed an extension on grounds that they did not have knowledge of the events now complained of until after the agreement had been entered into and they had received legal advice. They also claimed that there had been concealment of those factors under s.32 of the Limitation Act, such that the period of limitation should be extended. The Recorder rejected those arguments. In his judgment, the cause of action had clearly accrued in 2004 and there could be no serious argument that the Ginns could not have discovered the matters about which they complained at that time."

 

Cheers Ben : )

 

Apple

[Peterbard]

Cheers Ben : )

 

Apple

 

Yes it is that paragraph which is one of the factors which distinguishes it from the OPs case in my opinion.

[HadEnough]

I appreciate that I was at fault for not being aware of my rights under the consumer credit act however, the advisors on the phone as well as the debt collecter (described as an 'advisor' to me prior to the visit) denied that I had any rights or options other than to VS when I asked.

Also, (although this may not be relevant) they were aware that I was attempting to sell the car to pay the debt. They never said I could't as the agreement was terminated.

At that naive time in my life I took the 'advisors' word as they were supposed to be helping me to resolve my issue in the best possible way for me, or so they said...

They lied to gain the best possible outcome for themselves and surely this is wrong despite my ignorance.

[Peterbard]

I appreciate that I was at fault for not being aware of my rights under the consumer credit act however, the advisors on the phone as well as the debt collecter (described as an 'advisor' to me prior to the visit) denied that I had any rights or options other than to VS when I asked.

Also, (although this may not be relevant) they were aware that I was attempting to sell the car to pay the debt. They never said I could't as the agreement was terminated.

At that naive time in my life I took the 'advisors' word as they were supposed to be helping me to resolve my issue in the best possible way for me, or so they said...

They lied to gain the best possible outcome for themselves and surely this is wrong despite my ignorance.

 

HE

 

You do not have to be aware of your rights under the law to be protected by it, to suggest you do is frankly absurd.

[applecart]

HE

 

You do not have to be aware of your rights under the law to be protected by it, to suggest you do is frankly absurd.

 

I could not have put it better myself....HE, let's wait for the response from Ms Gannon et al....

 

Don't be 'put off' by some of the comments you see on your thread that may appear to be adverse towards you - they are well intentioned and cautionary - they alert myself and others to cover your back from all angles...which is important for you to know as well...it helps to give you, me and others... an all round better understanding of the pros and cons...

 

You have been honest...you are doing the right thing...the law looks to protect you just as Dodgeball says...even though you were unaware at the time...

 

Apple

[BRIGADIER2JCS]

not sure reasonable diligence, (ie man in Clapham omnibus), would include an in depth understanding of voluntary termination legislation. However it would be good to get the dates on the agreement sorted.

 

''Due Diligence'' has no relationship to the ''Man on the Clapham Omnibus'' statement which is reference to what the 'common man' may see as fair and reasonable'.

[HadEnough]

Ok, i've sent the letter you have done. Thanks yet again.

I have included a letter from them stating that they were looking for the paperwork to comply with the sar and the letter that refuses to comply due to Statute limitations as evidence of the sar request. Might even nip to banl and get a photo copy of cheque...

[applecart]

Coooool, let's wait now for what they say : )

 

Apple

[applecart]

Any response yet???

 

Apple

[HadEnough]

Any response yet???

 

Apple

 

Yes today I received a response. i will attach the letter.

With it came all documents they hold on me. There is still no car auction sales info, evidence of termination of agreement or anything to state that they now own the debt.

They state original agreement ended in April but i have no evidence of that and have never been told.

[ATTACH=CONFIG]45396[/ATTACH]

[applecart]

Hi HE

 

I have viewed the response - Thank you.

 

Just a few quick questions - Within the 'bundle' of documents sent to you ...Is there a copy of the purported 'letter of Termination'? ....Are there any copies of the DN's they refer to?... do you have any copies of DN's within your own records...if so, what dates are stated on them??

 

 

 

Apple