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Santander consumer credit

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  • Santander consumer credit

    In July 2020, i took out a car finance in my name for my brother who'd had his car stolen and couldn't afford a new one on his credit. He had a private license number he'd been using and checked on TFL to see if he passed ULEZ and it was confirmed that he did with his new car details clearly shown.

    In August 2021 on his way to pick up his son from school before going to get a MOT done, he had stopped to go to the shop and upon coming back, the car had been clamped and he was told he owned money to TFL etc but he wasn't aware of this because he hadn't received any letter stating so. He needed to go get his son, so he just left them there....took a cab and went to get my nephew. Upon getting back to where he had parked the car, the car was gone! The bailiff was still there and my brother asked him where the car had gone and he was told "we contacted santander since the car was on finance, they paid your debt and came to collect the vehicle".

    Santander was contacted and the first things they asked for were driving license, logbook and insurance details along with an explanation of what happened. We of course sent it all to them and then they came back with "your car doesnt have MOT". It was explained that since my brother had been working from home and hadn't driven anywahere, the MOT had expired and that was actually his first time on the road to go pick up his son and head to the MOT shop. They said ok. Then they later came back saying we had violated the agreement because the car had been seized by the police and how they'd had to go to the inpound to collect it.

    We obviously argued that point because the bailiff had confirmed Santander sent someone to pick up the vehicle at the exact same location but our 500 calls got us nowhere and they just kept saying the same thing. They eventually said we can either cancel the agreement and pay the balance or have them sell the vehicle and pay off whatever balance is left over. We told them we didnt want to cancel the agreement as we didnt feel we had violated the agreement. Meanwhile, my brother had a few personal items in the vehicle and asked to go collect his stuff from the place they were keeping the car. Upon getting there, the car had been broken into and all his stuff was gone....they had ransacked the vehicle. My brother made a complaint about this....santander and the inpound keep playing pingpong with him and no one wanted to be responsible. Not even a month later and they had defaulted my account.

    Now, in March 2022, i received a letter to say they had sold the vehicle and we had a balance of over 6.5k. Shortly after, a letter from a solicitor arrived saying we had violated the agreement when "goods were seized by the police for being driven without valid insurance". Now, this was just surprising because 1) the vehicle was never stopped by the police and 2) the vehicle had valid insurance at the time. My brother contacted the police and they confirmed they had never seized the vehicle but we wanted something in writing, they told us to email in a request (still waiting for a response almost 2mths later). We responded to the solicitor explaining those 2 points and that we had verbal confirmation from the police too to say they never seized the vehicle.

    Last week, i received a CCF basically for money "owed". We plan to fight this with the hope of counter suing them for all the distress caused emotionally, mentally and financially. I believe we have a case against them but then again, i'm not a lawyer. Therefore, any advice would be very much appreciated as we can't afford a lawyer. I plan on sending the acknowlegement of service on friday
    Attached Files
    Tags: None

  • #2
    The first thing I should say is that you are already on sticky ground for entering into the agreement on behalf of your brother. Hire-purchase type agreements generally stipulate that only the person obtaining finance should be entitled to drive and use the car so unless you got a special exemption written into the contract that your brother had authorisation to use the car, you are already breaching the contract for that reason alone.

    Is this a claim issued by the Money Claims Online service or was it issued by the County Court Money Claims Centre? Either way, you need to acknowledge the claim but not file the defence yet.

    I am not entirely certain or sure you have a case without more information (although I have a couple of ideas where you may have an arguable counterclaim based on several points) so it would be helpful to know some more information (see below):

    1. Can you provide a copy of the terms and conditions, that will be the starting point as to Santander's rights.

    2. Did Santander send you a default notice at all? If so, can you provide a copy of that notice with any personal info redacted. The two pages of the particulars of claim you have uploaded only indicates they have terminated the agreement rather than send a default notice.

    3. If not default notice issued, do you have a copy of the notice of termination you can upload? Again, personal info redacted.

    4. Can you provide the full particulars of claim rather than a section of it. It is helpful to understand what exactly they are claiming and why.

    5. Can you confirm that the balance they are seeking to claim under the agreement is 6,699.40?

    6. I would suggest you get onto Santander and make a subject access request immediately and ask for all copies of data they hold about you including any correspondence they have issued to your address. Assuming your contract is with Santander Consumer Finance, you can make your request using the online form here Data subject access request Santander Consumer Finance

    7. Do you have the date the claim form was issued by the court? You have 28 days once you acknowledge the claim to file a defence, possibility for you to get longer time but more on that on the next post when you provide more info.

    If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    LEGAL DISCLAIMER
    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

    Comment


    • #3
      Originally posted by R0b View Post
      The first thing I should say is that you are already on sticky ground for entering into the agreement on behalf of your brother. Hire-purchase type agreements generally stipulate that only the person obtaining finance should be entitled to drive and use the car so unless you got a special exemption written into the contract that your brother had authorisation to use the car, you are already breaching the contract for that reason alone.

      Is this a claim issued by the Money Claims Online service or was it issued by the County Court Money Claims Centre? Either way, you need to acknowledge the claim but not file the defence yet.

      I am not entirely certain or sure you have a case without more information (although I have a couple of ideas where you may have an arguable counterclaim based on several points) so it would be helpful to know some more information (see below):

      1. Can you provide a copy of the terms and conditions, that will be the starting point as to Santander's rights.

      2. Did Santander send you a default notice at all? If so, can you provide a copy of that notice with any personal info redacted. The two pages of the particulars of claim you have uploaded only indicates they have terminated the agreement rather than send a default notice.

      3. If not default notice issued, do you have a copy of the notice of termination you can upload? Again, personal info redacted.

      4. Can you provide the full particulars of claim rather than a section of it. It is helpful to understand what exactly they are claiming and why.

      5. Can you confirm that the balance they are seeking to claim under the agreement is 6,699.40?

      6. I would suggest you get onto Santander and make a subject access request immediately and ask for all copies of data they hold about you including any correspondence they have issued to your address. Assuming your contract is with Santander Consumer Finance, you can make your request using the online form here Data subject access request Santander Consumer Finance

      7. Do you have the date the claim form was issued by the court? You have 28 days once you acknowledge the claim to file a defence, possibility for you to get longer time but more on that on the next post when you provide more info.
      These are some of the letters i had received. The particular of claim i uploaded is exactly what was sent. When we took out the finance, the guy that sold us the vehicle was even the one that filled my brother's details for the logbook and i understand that reading the terms and condition of sale is our responsibility but at the time, we had no idea and nor were we advised against it. The claim was issued on 4th May 2022
      Attached Files

      Comment


      • #4
        The Particulars of Claim looks incomplete and only shows two pages with paragraph 10 looking like it runs onto another page as the sentence is also incomplete. I just want to be sure that what you are saying is that only these two pages were included with the claim form when you received it?
        That aside, it is interesting to note the last letter with Santander have indicated that by taking the vehicle it does not amount to a repossession but are rather 'storing' it to avoid any further charges. Unless there is any case law that I am not aware of, that would amount to a breach of section 90 of the Consumer Credit Act which says as long as you have paid at least 1/3 of the goods, they are 'protected goods' and cannot be retaken without an order of the court. Section 91 says that if they have unlawfully taken possession of the goods in breach of section 90, you are entitled to all of your monies back under the agreement.

        My immediate thoughts are:

        1. Santander had no right to pay the storage fees as the alleged debt was not in their name but rather the onus was on you to pay them as the registered keeper of the vehicle.

        2. Even if they were entitled to pay the storage fees, the suggestion that they paid the fees to prevent further charges and to store it for free is irrelevant and a bit of a red herring.

        - After paying the fees and their intention was not to take possession of the vehicle, why have they chosen to keep hold of the vehicle rather than make it available for you to collect or make arrangements for it to be towed back to your property and perhaps declared as a SORN or taken to the nearest garage for an MOT?

        - They have also indicated in the letter that they are keeping it whilst they serve you with a default notice but the notice given was an intention to terminate the agreement within 14 days. For the duration of that period and prior to it, you had no possession of the vehicle or use of it because Santander were keeping it. That is not indicative of Santander not repossessing the vehicle. Until the default notice expired and the contract had terminated, you had a right under the contract to possession of the vehicle and use of it. The vehicle should have been released to you following payment of the storage charges.

        - In my view, the actions taken by Santander when looking at the facts and their conduct, it implies they had no intention of returning the vehicle back to yourself but they kept the vehicle and it remained in their possession at all times even whilst the default notice was served with the intention of terminating the agreement. That is a clear definition of retaking the vehicle. The onus would be on them to show you abandoned the vehicle altogether or that you consented to the repossession.

        I would have to check but I am pretty certain there is some case law authority that says taking the vehicle from a third party amounts to repossession. I would say that the fact the vehicle has been seized and is accruing charges, does not allow Santander to go in and take the vehicle. They could have served you with a default notice first, terminated the agreement and then paid the charges and collected the car. Even in the extreme case the vehicle was going to be crushed or sold at auction, I don't think they would have had a right to retake it anyway as all they could have done was sue you for the balance remaining on the agreement. There is no exception to section 90 that allows a creditor to retake the vehicle in those circumstances - that is they need a court order, simple as that.

        3. As for the default notice, I would have to check if there is any authority, but it could be argued that it was wrong of Santander to suggest that the breach was not capable of remedy when in fact it was e.g. the payment of the charges for storage and to get the vehicle put through an MOT and passed or a SORN if the terms of the contract allowed. I believe there is an argument to say that this requirement is an objective test rather than a subjective one. They key point here is that if the breach is considered remediable, then Santander is obligated to specify and describe what action should be taken. The fact that there is a contractual right to terminate because the vehicle was seized does not override the CCA provisions and the CCA explicitly states that any terms contradicting the CCA are deemed void and unenforceable.

        What I mean by an objective test is that the question is whether the ordinary reasonable person considers that the breach can be remedied, not what Santander considers to be remediable. Again, I refer to the examples just mentioned above as ways in which the breach could have been cured.

        That's all I've got for now but I will try to give some next steps later today when I am less busy. In the meantime it would be helpful to see a copy of the Santander contract terms.
        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
        - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
        LEGAL DISCLAIMER
        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

        Comment


        • #5
          This is where the particular of claim ends. Just those 2 pages. The vehicle was never taken away by the police or taken to an inpound. As stated before, the bailiff person was still present at the scene when my brother got back there whom confirmed that the vehicle was collected by someone sent by santander. My brother has verbal confirmation from the police stating they don't have any record on their system for that vehicle and i doubt the police took payment for money owed to TLF.

          Also, i just found that in october 2021 in the default letter they sent me, they claimed the balance was 25507 and yet that had increased to over 30k by March 2022 when they sold the vehicle for over 23k
          Attached Files
          Last edited by DXE1; 12th May 2022, 14:25:PM.

          Comment


          • #6
            I think based on what you've provided so far, there are good arguable grounds to suggest that Santander have made a boo boo and there is a valid counterclaim based on breach of section 90 of the CCA and wrongful termination by terminating the agreement on grounds that never existed (that the grounds for termination was seizure of the vehicle by the police as opposed to bailiff clamping the vehicle).

            There's a load of questions that need answering and we could spend days going through them but I think you need to start with the immediate issues as you don't have a lot of time. I've described a checklist below that I would recommend you do but some are optional and I've marked them out as such.

            1. Have you acknowledged the claim? If not, get that done ASAP.

            2. [OPTIONAL] The particulars of claim are not valid in their current form, it's missing a statement of truth and seems that they are incomplete if you have only received 2 pages. Suggest you get onto the court Northampton CCBC and explain that you believe you have a copy of incomplete particulars of claim. Ask them to confirm how many pages the POC are that they received. It might be useful to also query this with DWF (see point number 2 below).

            3. CPR 15.5 allows the parties to extend time by up to 28 days, I suggest you write to DWF who are acting as Santander's legal representatives and ask them for an extension of time of 28 days. I've drafted an example email/letter below as an example you can send but tweak it however you like. It looks like there is an email address on that DWF letter so you can send an email and make sure to put their reference number in the subject line, something like "Santander Consumer Finance v YOU (Your ref:XXXXXXX)".

            4. The next step is to prepare your defence and what you are going to say. I'm happy to help and turn your response into something more formal, but you will need to do the initial legwork. You need to go through each paragraph on the POC and decide whether you accept or deny what they are saying but it is probably best to do this in a word document. If you deny their allegations then you need to explain why you do not agree with them. If you only accept what they say partially but deny other elements then say so and explain. Once you've done this if you upload your responses on here then we can take a look and tweak it so you put forward a strong defence.

            5. You need to consider whether you want to make a counterclaim. If you claim a breach of section 90 of the CCA, then section 92 allows you to recover all instalments paid to do including any deposit put down. I'm not sure how much that is but bear in mind if it is over 10,000 then it will not go into the small claims track and it means legal costs would be recoverable. You will need to pay the fees depending on how much you are claiming.

            There is also a possible claim against the bailiff himself under the tort of causing loss by unlawful means where someone interferes with a contractual relationship with the intention of causing a person to suffer loss. This is probably a harder argument to bring and also you would need to know the name and address of the bailiff in order to send them the claim documents which might be difficult after a couple of years.

            Finally, you don't have much time to do this so if you really are bothered about defending/counterclaiming then you need to put some serious work into this. Only doing a half arsed job and leaving it last minute will lead to mistake, errors and missing out things you want to include which could ultimately jeopardise your case. I'm willing to help as far as I can, but I won't help if you are not that bothered about it.

            Once we have got through the above, we can look at next steps form there - any questions let me know.

            ------------------------

            Dear Sir or Madam,

            I am writing to request, pursuant to CPR 15.5, an extension of time to file my defence and counterclaim. The extension is required in order for me to properly investigate the allegations made in your client's claim and to draft the contents of my counterclaim.

            In accordance with the overriding objective, an agreement to extend time would save unnecessary costs as well as court resources which are already stretched and so I will not need to apply to the court for an order of for extension of time. Since we are at the early stages of proceedings, I do not consider that an extension of time will impede upon any hearing date or otherwise disrupt proceedings.

            Should you refuse to consent to an extension of time, good reasons should be put provided as to why such an extension of time is not appropriate. I would also remind you that, where a court later considers that it would have been reasonable to grant an extension of time, an adverse costs order may be awarded against your client.

            On a relevant but separate note, I have received the particulars of claim but it appears the copy I have received is incomplete in that there are only two pages of the document going up to paragraph 11. There is no statement of truth and on the face of it, the particulars of claim I received are invalid. I am making enquiries as to what documents were filed but in the meantime I would be grateful if you could provide me with a copy of the particulars of claim you filed with the court.

            Yours faithfully,

            Your name

            Last edited by R0b; 12th May 2022, 20:23:PM.
            If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
            - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
            LEGAL DISCLAIMER
            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

            Comment


            • #7
              Originally posted by R0b View Post
              I think based on what you've provided so far, there are good arguable grounds to suggest that Santander have made a boo boo and there is a valid counterclaim based on breach of section 90 of the CCA and wrongful termination by terminating the agreement on grounds that never existed (that the grounds for termination was seizure of the vehicle by the police as opposed to bailiff clamping the vehicle).

              There's a load of questions that need answering and we could spend days going through them but I think you need to start with the immediate issues as you don't have a lot of time. I've described a checklist below that I would recommend you do but some are optional and I've marked them out as such.

              1. Have you acknowledged the claim? If not, get that done ASAP.

              2. [OPTIONAL] The particulars of claim are not valid in their current form, it's missing a statement of truth and seems that they are incomplete if you have only received 2 pages. Suggest you get onto the court Northampton CCBC and explain that you believe you have a copy of incomplete particulars of claim. Ask them to confirm how many pages the POC are that they received. It might be useful to also query this with DWF (see point number 2 below).

              3. CPR 15.5 allows the parties to extend time by up to 28 days, I suggest you write to DWF who are acting as Santander's legal representatives and ask them for an extension of time of 28 days. I've drafted an example email/letter below as an example you can send but tweak it however you like. It looks like there is an email address on that DWF letter so you can send an email and make sure to put their reference number in the subject line, something like "Santander Consumer Finance v YOU (Your ref:XXXXXXX)".

              4. The next step is to prepare your defence and what you are going to say. I'm happy to help and turn your response into something more formal, but you will need to do the initial legwork. You need to go through each paragraph on the POC and decide whether you accept or deny what they are saying but it is probably best to do this in a word document. If you deny their allegations then you need to explain why you do not agree with them. If you only accept what they say partially but deny other elements then say so and explain. Once you've done this if you upload your responses on here then we can take a look and tweak it so you put forward a strong defence.

              5. You need to consider whether you want to make a counterclaim. If you claim a breach of section 90 of the CCA, then section 92 allows you to recover all instalments paid to do including any deposit put down. I'm not sure how much that is but bear in mind if it is over 10,000 then it will not go into the small claims track and it means legal costs would be recoverable. You will need to pay the fees depending on how much you are claiming.

              There is also a possible claim against the bailiff himself under the tort of causing loss by unlawful means where someone interferes with a contractual relationship with the intention of causing a person to suffer loss. This is probably a harder argument to bring and also you would need to know the name and address of the bailiff in order to send them the claim documents which might be difficult after a couple of years.

              Finally, you don't have much time to do this so if you really are bothered about defending/counterclaiming then you need to put some serious work into this. Only doing a half arsed job and leaving it last minute will lead to mistake, errors and missing out things you want to include which could ultimately jeopardise your case. I'm willing to help as far as I can, but I won't help if you are not that bothered about it.

              Once we have got through the above, we can look at next steps form there - any questions let me know.

              ------------------------

              Dear Sir or Madam,

              I am writing to request, pursuant to CPR 15.5, an extension of time to file my defence and counterclaim. The extension is required in order for me to properly investigate the allegations made in your client's claim and to draft the contents of my counterclaim.

              In accordance with the overriding objective, an agreement to extend time would save unnecessary costs as well as court resources which are already stretched and so I will not need to apply to the court for an order of for extension of time. Since we are at the early stages of proceedings, I do not consider that an extension of time will impede upon any hearing date or otherwise disrupt proceedings.

              Should you refuse to consent to an extension of time, good reasons should be put provided as to why such an extension of time is not appropriate. I would also remind you that, where a court later considers that it would have been reasonable to grant an extension of time, an adverse costs order may be awarded against your client.

              On a relevant but separate note, I have received the particulars of claim but it appears the copy I have received is incomplete in that there are only two pages of the document going up to paragraph 11. There is no statement of truth and on the face of it, the particulars of claim I received are invalid. I am making enquiries as to what documents were filed but in the meantime I would be grateful if you could provide me with a copy of the particulars of claim you filed with the court.

              Yours faithfully,

              Your name
              Apologies, i found the statement of truth. I have also sent the request for extension via email and will be sending a paper copy too via post.
              Attached Files

              Comment


              • #8
                My defense is due on Monday and i haven't received a confimation of extension. I called them yesterday and they said they hadn't received feedback from their client hence why they hadn't responded yet. Do i have to file my defense on monday or do i still have time for them to grant me the extension?

                Comment


                • #9
                  you follow court instruction every time, no delays file defence

                  Comment


                  • #10
                    I have typed up my defense which i need to submit today since i haven't received a response in regards to my extension. I've also attached the agreement. Please help me review. Sorry this seems last minute but i spoke to them last week in regards to the extension hoping they'd grant it

                    IN THE COUNTY COURT CLAIM MONEY CLAIMS CENTRE CLAIM NO:XXXXX

                    BETWEEN:-

                    MY NAME
                    DEFENDANT

                    AND

                    SANTANDER CONSUMER
                    CLAIMANT




                    Defense refers/response to particulars of claim.
                    No admissions are made unless specifically stated

                    1. Paragraph 1 is admitted.
                    2. Paragraph 2 is admitted.
                    3. Paragraph 3 is admitted.
                    4. Paragraph 4 is admitted.
                    5. Paragraph 5 is denied. The defendant has no knowledge regarding the Claimants claim that the vehicle was stopped under the Traffic management Act 2004 and awaits disclosure.
                    6. Paragraph 6 is denied. The defendant did indeed receive a default notice but the nature of the breach stated that the vehicle had been seized by the police under section 165A Road Traffic Act 1988 which contradicts the particulars of claim. The default notice issued by the Claimant to the defendant dated 12th October 2021 does not comply with Clause 7 "Our rights if you break any term of this agreement" of the Conditional Sale Agreement regulated by the Consumer Credit Act 1974 [The Agreement]. Clause 7 states that the claimant has a right to break any term of the agreement if the defendant falls into arrears concerning repayment of this agreement. At the time the Claimant took possession of the goods, the defendant was not in arrears. Furthermore, the default notice served by the Claimant does not identify any outstanding arrears. The default notice stated that the Claimant had taken the goods and placed it in safe custody but then refused to release it to the Defendant afterwards which in fact means the Claimant had already taken possession of the goods before a "Action to be taken on or after 2 November 2021" was served to the Defendant. Until the default notice expired and the contract had terminated, the Defendant had a right under the contract to possession of the vehicle and use of it. Section 87 of the CCA sets out the requirement for a default notice to be served, including where the creditor wants to terminate the agreement. Section 88 dictates the contents of the default notice and in particular, it requires consideration as to whether the breach is capable of remedy. In the default notice, the Claimant stated that the breach cannot be remedied but failed to explain why it cannot be remedied. The default notice stated that the vehicle had been seized by the police for being driven without valid or current insurance and/or a valid Road Tax. At the time the Claimant took possession of the good, it was requested that the Defendant send over a few documents with proof of insurance being one of them. The vehicle was insured and had a valid Road tax which proved there was no breach of the law. The alledged breach was in fact capable of remedy because (a) the Defendant provided evidence of the car being insured. The defendant submits that at the time the Claimant refused to release the goods and served the default notice, they were in breach of the agreement as no effort was made to remedy any alledged breach. The defendant was in constant communication via telephone and email to try to find a solution and the Claimant gave no sufficient opportunity to remedy the alledged breach.The default notice was defective and therefore the Claimant wrongfully terminated the agreement resulting in a repudiatory breach on their part.
                    7. Paragraph 7 is denied.
                    8. Paragraph 8 is denied as Defendant has no knowledge of sale nor was the Defendant present to witness the sale. The Defendant also denies any money is owed to the Claimant.
                    9. Paragraph 9 is admitted.
                    10. Paragraph 10 is denied. The defendant received the Claimant's solicitors letter on 17th March 2022 and sent a reply via special delivery which was received and signed for at the Claimant's solictors office. The defendant tried to explain the situation in hopes of opening a communication channel to resolve the matter but no response was received. The defendant submits that proceedings has been issued prematurely by the Claimant's solicitor.
                    11. Paragraph 11 is denied. The defendant thinks the Claimant broke the agreement first and therefore no money is owed to the Claimant.
                    12. The defendant also sent 2 emails and a letter requesting an extension for defense. The Claimant's solicitor did not reply.
                    13. The defendant sent an email on 13th May 2022 seeking clarification on Paragraph 6 in the particulars of claim from the Claimant's solicitor, no response was received.
                    14. The defendant contacted the police requesting clarification on the alledged seizure and has received a response stating that they have until 14th June 2022 to address the request.
                    Attached Files
                    Last edited by DXE1; 6th June 2022, 13:45:PM.

                    Comment


                    • #11
                      R0b
                      @R0B

                      Comment


                      • #12
                        Sorry I am not sure I can be much help as you have left it to the last second. Not sure why you decided to wait and see if they would agree to an extension and I did say in an earlier post that you should get writing your defence regardless.

                        The draft defence you have put up here in my view, doesn't appear to be sufficient in order to successfully defend the claim. Some of the points made are not particularly relevant to the claim (such as para. 14.) and other points are not correct from a procedural point of view - for example, some of the paragraphs you mention that they are "noted" but noted does not have a meaning in legal proceedings for the purposes of filing a defence. Your defence must state whether you admit or deny the allegations set out in the particulars of claim.

                        I will provide a quick high level summary of the things missing from your defence and it is your choice on whether you want to include/expand on them before the deadline - I just don't have any time to add anything more in the couple of hours you need before you are officially out of time for filing a defence.

                        1. It would appear that clause 4.5 is the relevant clause that Santander are relying on for the basis of taking custody of the car and also terminating the agreement. However, my observations are:

                        a. Clause 4.5 refers to taking the car into safe custody if the car is seized. As I mentioned previously, if you have paid 1/3 of the total price payable under the agreement, then section 90 of the Consumer Credit Act states that the creditor cannot take possession of the car without a court order and if they do, then you are entitled to be refunded all sums paid under the agreement. Santander might argue that they didn't take possession so the question will hinge on what is meant by safe custody. In its simplest form I would say safe custody is another way of saying they are taking possession. It is also clear from the facts that they failed to return the vehicle or make it available for collection and their letter to you confirms if not implies it. The onus is on them to prove a court order was obtained prior to the taking possession of the car and in the absence of that evidence, they have breached section 90 of the CCA.

                        b. Your paragraph 6 is a good point in that there is nothing to suggest they have a right to terminate the agreement where the car has been seized. Perhaps it could be better worded but the gist is there I think.

                        c. The default notice was defective and therefore Santander wrongfully terminated the agreement resulting in a repudiatory breach on their part. Section 87 of the CCA sets out the requirement for a default notice to be served, including where the creditor wants to terminate the agreement. Section 88 dictates the contents of the default notice and in particular, it requires consideration as to whether the breach is capable of remedy - this in my view is an objective test rather than a subjective one. In the default notice, Santander have stated that the breach cannot be remedied but have failed to explain why it cannot be remedied. Your argument should be along the lines that the breach was in fact capable of remedy because (a) you could have provided evidence of the car being taxed/insured and if it was found not to be taxed or insured, you could have taken steps to have the car taxed and insured - had you done this, there would no longer be a breach of the applicable laws. Equally, if the car was seized and impounded pending the relevant documents to be proved that it is taxed/insured, that was also capable of remedy and if you complied then you would no longer be in breach of the law. Santander could have issued the default notice stating that you were required to comply with this to bring yourself back into line within 14 days but they didn't. So they need to show why what I have described above was not capable of remedying the breach.

                        d. Anything else I've missed I suggest you refer back to post #4 where I set out a few things that are relevant.
                        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
                        - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                        LEGAL DISCLAIMER
                        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                        Comment


                        • #13
                          Originally posted by R0b View Post
                          Sorry I am not sure I can be much help as you have left it to the last second. Not sure why you decided to wait and see if they would agree to an extension and I did say in an earlier post that you should get writing your defence regardless.

                          The draft defence you have put up here in my view, doesn't appear to be sufficient in order to successfully defend the claim. Some of the points made are not particularly relevant to the claim (such as para. 14.) and other points are not correct from a procedural point of view - for example, some of the paragraphs you mention that they are "noted" but noted does not have a meaning in legal proceedings for the purposes of filing a defence. Your defence must state whether you admit or deny the allegations set out in the particulars of claim.

                          I will provide a quick high level summary of the things missing from your defence and it is your choice on whether you want to include/expand on them before the deadline - I just don't have any time to add anything more in the couple of hours you need before you are officially out of time for filing a defence.

                          1. It would appear that clause 4.5 is the relevant clause that Santander are relying on for the basis of taking custody of the car and also terminating the agreement. However, my observations are:

                          a. Clause 4.5 refers to taking the car into safe custody if the car is seized. As I mentioned previously, if you have paid 1/3 of the total price payable under the agreement, then section 90 of the Consumer Credit Act states that the creditor cannot take possession of the car without a court order and if they do, then you are entitled to be refunded all sums paid under the agreement. Santander might argue that they didn't take possession so the question will hinge on what is meant by safe custody. In its simplest form I would say safe custody is another way of saying they are taking possession. It is also clear from the facts that they failed to return the vehicle or make it available for collection and their letter to you confirms if not implies it. The onus is on them to prove a court order was obtained prior to the taking possession of the car and in the absence of that evidence, they have breached section 90 of the CCA.

                          b. Your paragraph 6 is a good point in that there is nothing to suggest they have a right to terminate the agreement where the car has been seized. Perhaps it could be better worded but the gist is there I think.

                          c. The default notice was defective and therefore Santander wrongfully terminated the agreement resulting in a repudiatory breach on their part. Section 87 of the CCA sets out the requirement for a default notice to be served, including where the creditor wants to terminate the agreement. Section 88 dictates the contents of the default notice and in particular, it requires consideration as to whether the breach is capable of remedy - this in my view is an objective test rather than a subjective one. In the default notice, Santander have stated that the breach cannot be remedied but have failed to explain why it cannot be remedied. Your argument should be along the lines that the breach was in fact capable of remedy because (a) you could have provided evidence of the car being taxed/insured and if it was found not to be taxed or insured, you could have taken steps to have the car taxed and insured - had you done this, there would no longer be a breach of the applicable laws. Equally, if the car was seized and impounded pending the relevant documents to be proved that it is taxed/insured, that was also capable of remedy and if you complied then you would no longer be in breach of the law. Santander could have issued the default notice stating that you were required to comply with this to bring yourself back into line within 14 days but they didn't. So they need to show why what I have described above was not capable of remedying the breach.

                          d. Anything else I've missed I suggest you refer back to post #4 where I set out a few things that are relevant.
                          Thank you for this. I understand i've left it last minute and apologise for that. I will amend the defense to reflect what you have stated above. Unfortunately, 1/3rd of the payment hadn't been made yet when the incident occured.

                          Comment


                          • #14
                            In that case you can exclude the arguments around that and focus on the default notice not being compliant/santander in breach of contract by unlawfully terminating in accordance with the CCA 1974.
                            If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
                            - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                            LEGAL DISCLAIMER
                            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                            Comment

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