Secure Trust Bank t/a Moneyway - no executed agreement

[YorkshireRose]

My 21 year old son entered into an HP agreement with MoneyWay in December 2016 to buy a used car, they approved a 5 year loan of £8,500 total repayable £15,033.
I don't believe they lent responsibly however The Ombudsman complaint he made seemed to support the steps taken by the lender.
Long story short he lost his job the following March so couldn't make his payments. When he got a new job in June Moneyway wanted him to bring the account up to date in 6 weeks - as he couldn't afford this, they terminated the agreement and said they would arrange collection of the car.
The car was repossessed in August and sold at auction for £4,820.
My son is being pursued for £10,570 at the last count.
The debt has now been passed to Debt Managers, part of the Secure Trust Bank Group.
On at least 3 occasions Secure Trust bank have been asked to provide a full copy of the executed agreement as my son's copy constitutes a single A4 sheet from which clauses 1-20 of the agreement are missing, on each occasion Secure Trust bank have only provided the same single sheet of A4.
1) Is the agreement enforceable where a complete copy of the executed agreement can't be produced
2) Is the original balance still payable in these circumstances or should a discount be applied as the debt will not run for the intended 5 year term.
Any advice would be greatly appreciated.
Thanks

[YorkshireRose]

Hi. I would be really grateful if someone could respond on the issue of the creditor not be able to produce a full copy of the executed agreement.
Thanks in advance

[R0b]

Hello

Unfortunately without you providing any documentation, none of us can really say whether the agreement is enforceable or not. I would suggest you upload the one page document (personal info removed) so we can see what you currently have in your possession.

The starting point is that the agreement is enforceable, however if you can prove that the agreement was executed improperly, you may be able to argue that the credit agreement is unenforceable and may only be enforced by an order of the court. Moneyway could of course apply to the court for the agreement to be enforceable but in your son's defence, he would have to argue that where a trader has failed to meet the statutory requirements by failing to properly execute an agreement, then Moneyway ought to be penalised for that by not being able to recover the sum of money outstanding.

You said that the Ombudsman sided with Moneyway in relation to your son's complaint. It would be helpful to see a copy of that final decision and the reasons why they sided with Moneyway in this instance. Why do you think Moneyway have been irresponsible in lending to your son?

You also say that Moneyway terminated the agreement because he couldn't afford to repay the 6 weeks' worth of debt. Did he offer a reduced payment plan or offer to pay a reduced amount? Did Moneyway send him a default notice when he failed to make the repayments?

There seems to be a lot of gaps in your son's story so until we have the full picture, we can't really make a judgment as to what prospects your son has of defending any case.

[YorkshireRose]

Thank you Rob for your comments.

If you need anything else please let me know

I attach the only 2 pages of the HP agreement that have ever been supplied

Irresponsible Lending?

D was 21 years old at the time of the application to Secure Trust Bank. He had had multiple defaults recorded on his credit file within the last 2 years. His bank account has repeatedly been overdrawn to the extent that Lloyds applied their “Control” facility to his account in August 2016 to prevent him incurring further bank charges.
D lost his job in August 2016 and was out of work until the last week in September 2016.
On 9 December 2016, D applied for car finance via Jigsaw Finance Ltd. He was declined credit due to the length of time in his current job.
D subsequently applied for finance at a different dealership. This was processed via Moneyway who approved a 5 year loan of £8,500, total repayable £15,033.40.
The only evidence the firm confirm they have seen in respect of D application, is proof that he was employed at the time of his application, verified by a payslip dated 7 December (£332.94). Moneyway stated his salary was “sufficient to pass the required affordability checks”.
I do not accept that one weekly payslip is adequate evidence of income. His bank statements evidence his wages in the preceding three weeks were £159.34, £176.94 and £360.14.
I believe the firm’s actions fail to satisfy the requirements of the Consumer Credit Handbook, CONC 5 - Responsible Lending rules, or that they acted in accordance with the FLA Lending Code.

D became unemployed in March 2017 and fell into arrears with his payments.
On 20 June 2017, having found employment, D telephoned the firm. The staff member he spoke to insisted that D make payment of £156.50 for the next 8 weeks to bring the account up to date.
As the amount requested was almost 60% of his weekly wage D immediately submitted a complaint via the firm’s website asking if a new repayment arrangements could be agreed. No response or acknowledgment was ever received.
On 29 June D received a letter stating that as he had failed to comply with the statutory default dated 28 May 2017, they had terminated his agreement with immediate effect and for him to return the vehicle by 06 July.
On getting this letter D telephoned the firm and I took over the call, in an attempt to negotiate a repayment arrangement. The lady, after taking down details of D’s income and expenditure remarked that he couldn’t afford the repayments, and as such the agreement was to be terminated.
The lady I spoke to said if we couldn’t return the vehicle to Wilsons auctioneers in Maidstone, then they would instruct agents to collect it. As the car auction site was 125 miles away I said it was not feasible for us to return the car to that location.
On 3 August 2017 a sheet of paper was hand delivered through our letterbox, minus an envelope. The document was from Anglia UK asking D to contact them on a mobile number. The letter made no mention that this was in relation to his account with Secure Trust Bank.The car was repossessed on Friday 31 August. Then sold at auction in October for £4,820.
The debt is now assigned to Debt Mangers Service Ltd and the balance outstanding is now £10,570.62

Ombudsman Complaint
The FOS complaint never got the actual Ombudsman, I have copied the email and attached this to this post. As I didn't have any further evidence to provide to the FOS this was where the correspondence ended

moneywaypage1.png
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[R0b]

Morning,

First of all I would suggest removing the two documents for the time being and redacting any personal data on there. I can see Amethyst has attempted to do this but the personal info in the Moneyway Agreement still shows through the blackout. This is a public forum so you should not be uploading personal details unless you want someone to steal yours or your son's information for fraudulent purposes.

It would appear from what you have provided, that there may be grounds for arguing irresponsible lending by virtue of Rule 5 of CONC. I'm curious why you / your son decided not to proceed with getting a final decision from the Ombudsman? Just because the initial investigator takes a negative view of your evidence, doesn't mean the Ombudsman will side with that view.

Ultimately its a case of how you present the evidence and the arguments. I suspect that as you didn't request a final decision, your son may be out of time now to bring a complaint to the FOS on the same grounds. Therefore the only way would be to pursue this to court and ask a judge to make an order to that effect.

As the requirement of responsible lending is a rule and not guidance (sections marked with an "R" are rules which are mandatory whereas those marked with "G" are simply guidance) then your son could bring a claim for damages under Section 138D of the Financial Services and Markets Act 2000. There may also be an argument for an unfair relationship under the Consumer Credit Act 1974 but as you've not answers all of my previous questions in the last post, its difficult to say. If an unfair relationship is found by the court, then it has the power to set aside any obligation that your son might owe in respect of the outstanding balance. I'm not entirely sure if you could argue that a breach of the rules in Chapter 5 of CONC would amount to an unfair relationship.

Can you confirm if a default notice was given to your son when he couldn't afford the repayments?

It might be worth your son making a subject access request to see what information they hold about your son which should include any copies of the credit agreement. Quite clearly the 2 pages you have uploaded do not seem to be the full agreement because it refers to clause 22 so there must be other pages before that. Again, a subject access request should flush that out and if you click here there are some GDPR templates that you can use.

[Amethyst]

I'd only looked at docs on my phone and the blacking out looked okay on there, have done it now and replaced the originals xx Thanks Rob

[YorkshireRose]

Hi Rob
Thanks so much for the reply and for blacking out the documents I uploaded x

There was a default notice was issued on 30 May 2017, this was three weeks prior to D calling Moneyway to discuss bringing the account up to date in June

[R0b]

Is there any excuse as to why your son has sat on the default notice 3 weeks before deciding to call them up? He should have really contacted them as soon as he was unable to meet the required payment.

This point is unlikely to go in favour of your son, but wouldn't stop your son from perhaps bring an action against Moneyway for breach of their obligations under the FCA rules. The difficult is that the amount he is being pursued for is slightly over the small claims threshold so any legal proceedings means there is the risk that he could be liable to pay legal fees should he wish to pursue it. It might be worth checking to see if the amount being claimed has been inflated by any unlawful charges or fees which might bring it down under the £10,000 limit.

Otherwise your son needs to carefully consider what action might be best and that might mean

[YorkshireRose]

Hi Rob
D fell into arrears back in early March, he quit his job (stupid move) and couldn't make any payment to Moneyway. I'm guessing he didn't ring them on receipt of the default as he was still out of work at that point and with a £0 income couldn't have made any repayment arrangement. I appreciate he should have maintained regular communication with Moneyway, however I'm not sure this would have changed things in the longer term.

There are multiple fees added to the account in respect of the repossession, I will have to check back through the documentation but these add up to several hundreds of pounds.

Excuse my ignorance, but can D use irresponsible lending and unfair relationship as a defence if Debt Managers ultimately issue proceeding to collect the outstanding debt

[YorkshireRose]

There is £858 of collection charges incorporated in the outstanding debt balance of £10,570.62,

[R0b]

The collection charges seems to be extremely high, have they given a breakdown of what these charges relate to? That's something your son might wish to make inquiries if not.

As for your question of whether he can rely on irresponsible lending / unfair relationship, the answer is yes he can try but there is no guarantee that he would be successful. He would have to argue his case and then ask the court to effectively quash the claim for the balance outstanding due to Moneyway's failure to carry out a proper affordability check.

[YorkshireRose]

The collection charges are individually £180, £264, £300 and £114, these sums may be details on the missing sections of the HP agreement.

We are going to make a data subject access request to see if Moneyway actually have a complete copy of the agreement. In addition I am going to contact the FOS and try and have the complaint looked at by an Ombudsman.

My belief is Moneyway have lent irresponsibly; that the relationship has been grossly unfair in regards to the way the arrears were handled and the subsequent actions of the collection agents who failed to comply with CONC 9

I don't believe that D was given a complete copy of the HP agreement at the point of sale, and certainly hasn't been provided a full copy since. What happens if Moneyway can't produce a complete HP agreement, does this make the contact unenforceable?

[Amethyst]

Your Son should send a CCA request CCA Requestand read s. 77 http://www.legislation.gov.uk/ukpga/1974/39/section/77 paras 1 and 4 ( and section 79 para 1 and 3 )
And have a read of s.61 http://www.legislation.gov.uk/ukpga/1974/39/section/61 and 61a after.

Clause 13 is referred to and seems clauses up to 20 are missing. There is a part which mentions some charges £8 for a returned DD and £5 for arrears letters but presumably the rest is in the missing sections

Send the SAR as well as that should details the application and information originally given and any checks that were carried out.

CONC wise there's a little on http://legalbeagles.info/forums/foru...3-pcp-contract thread.