CCJ from VWFS (Car Finance)

[Unknown2023]

Great, so as I understand it this is more of a general account of everything that has happened from my perspective. Using factual information and backing it up with evidence.

My first witness statement was similar to the one I have just shown you, the judge accepted it but from your point of view it was definitely not correct at all! Part of the parcel of being a ligitimate in person I suppose.

I will make some amendments today and let you know once filed.

[Unknown2023]

I've also just received the other sides witness statement.

Its written by another lawyer and very contradictory to the previous defence they laid out, gives me a good idea of what they are aiming to push in the hearing.

What do you think?

https://pdfupload.io/docs/a9e95564

[R0b]

Interesting. I have some comments but will probably post up later/tomorrow.

Still perplexed they are sticking to the line the 1/3 amount is £11k but I'll explain more when I post up

[Unknown2023]

No problem. I will look out for your reply. Just finalising the last few bits of evidence I managed to grab today (police shoulder numbers and names and a statement from the sales rep who sold me the car)

Will hold off until tomorrow lunchtime before I file it

[R0b]

So having a second read of the witness statement, it doesn't really add much, unless alot of it is in the evidence referred to.

Let's get the elephant in the room out the way first, which is whether 1/3 of the total price has been paid. i will try to simplify this because it's all set out in the legislation already discussed.

1.S90 of the CCA says in a round about way, you have to have paid 1/3 of the total price in order to be afforded the protection.

2. The definition of "total price" is in section 189 of the CCA which says that it is the total sum payable under the HP agreement including the option to purchase fee.

3. There is no definition of "total sum payable" in the CCA but there is a definition of the "total amount payable" under the the Consumer Credit (Agreements) Regulations 2010, in Schedule 1. You might remember the CCAR requires every lender to include certain information in the the HP agreement or it will be deemed improperly executed. Para. 12 of Schedule 1 defines "total amount payable" as:

the sum of the total amount of credit and the total charge for credit payable under the agreement as well as any advance payment.

4. Taken together, it's fairly obvious to say that the total sum payable under the HP agreement is made of the the 3 items above plus the option to purchase fee as set out in the definition of total price. It would be up to VWFS to argue a different definition, which I think they would struggle to persuade a judge in my opinion.

5. Back in the early stages of this thread, you uploaded some documents which included a page or two of your HP agreement with the fees and figures. On that page, you will find the following sentence in the paragraph immediately below the amount of credit calculation.

Screenshot_22-4-2024_205824_www.docdroid.net.jpeg
You will see that VWFS has calculated the total amount payable under the HP agreement as £39,587.25 which includes all of the items described in the definition of "total price" and "total amount payable" (leaving aside the incorrect advance payment for one moment).


6. You will also see further down the page that under the sub-heading "Repossession: Your Rights" it states the following

Screenshot_22-4-2024_21352_www.docdroid.net.jpeg

Given what the above states in the HP agreement, I would love to know how the lawyer acting on behalf VWFs has arrived at £11,194.08 and explain that one. Either the lawyer is wrong, or the the calculation of the figures in the HP agreement have been added up incorrectly, which is effectively an admission by VWFS thus leading to an improperly executed agreement. If VWFS admits the lawyer was wrong in the witness statement, then it must follow that they accept the total amount paid by you for the purposes of 1/3 price paid has to include the advance payment since it formed part of the total amount payable. You cannot argue one without the other.

7. Now, assuming the court accepts that your vehicle was a part exchange and therefore deemed to be an advance payment or deposit which, according to Schedule 1 of CCAR, ought to have been recorded in the advance payment box in addition to the £401 (or £1,000 as you might argue), the correct calculation for the total amount payable would be as follows:

Total amount Payable (£39,587.25) + Part exchange vehicle (£7,000) = £46,587.25 / 3 = £15,529.08.

Total amount paid under the HP agreement = £401 + £7,000 + £10,403.00 = £17,804.00 OR £18403.00 if you add the additional £599 you claim to have paid by card.

As you can see above, you have still met the 1/3 threshold. Not sure if the £10,403.00 includes the £401 advance payment or not, but even deducting that, you still meet the 1/3 total price paid whether or not the £599 is added or excluded.

[Unknown2023]

That sounds pretty spot on to me too Rob.

Only one thing I spotted was that under the definition of an advance payment as per the CCAR 2010, this does not include a repayment of any credit or insurance premium.

Perhaps they have used the 1000, not included the cost for the insurance premium which was 599 depending on which document you look at, giving them the 401.

However by my calculations that would still be total payable plus £7,401 as the scrappage discount needs to be included either way.

Giving you 46,988.25

Divide that by 3 still gives you 15,662.75 which I have still paid above

[R0b]

Only one thing I spotted was that under the definition of an advance payment as per the CCAR 2010, this does not include a repayment of any credit or insurance premium.

Maybe I've misunderstood you, but the CCAR says total credit. If the insurance premium is not paid there and then, it would be deemed credit for the purposes of the CCAR, or are you suggesting something else? As you say though, whatever way you look at it, you have met the 1/3 threshold.

It looks like the VWFS lawyer is banking on the argument that the total amount payable is simply the total credit of the cash price, but they have forgotten that there is also interest on the credit that has been charged which is a payable amount. Even the definition of "total price" refers to including option to purchase fee so it cannot be just the total credit of the cash price.

I'm beginning to think the VWFS lawyer may be a bit of a novice when it comes to consumer credit agreements and their understanding of the legislation because that's a blatant and obvious omission even for any competent lawyer to make.

[Unknown2023]

No you're right, I noticed this too. They have noted the total price as £33,582.23 which was the actual vehicle cash price and the amount of credit I was given.

Which has in turn led them to incorrectly calculate the 1/3 figure. They are now arguing figures which are not in the agreement so are themselves proving it to be improperly executed.

They have mucked up their sums and I hope it trips them over in Court.

Regarding the CCAR I was just trying to ascertain whether any payment for GAP insurance would be included, as it is an insurance product nonetheless and the CCAR states insurance is not to be included

[Unknown2023]

The other side have sent me today a case summary and draft index. Do I need to also do the same? Does this need to be filed under the same time constraints as the witness statement and evidence? Do I need to also make a trial bundle?

https://ibb.co/3d9jKgj

[R0b]

No the bundle does not need to be done to the same time constraints unless the court specifically makes an order saying as much. CPR states the trial bundle should be filed not more than 7 days but not less than 3 days before the hearing.

You should try to agree a mutual trial bundle because it will be very time consuming for you to make yourself. I would recommend you review the case summary very carefully and make any changes you think are necessary because once you agree to that, you won't be able to deviate if you then realise you made a mistake and should have said something different.

Not sure what they have made up on the index but I assume it contains their evidence, witness statement, and the relevant statements of case? Any case law they are referring to at all?

You need to do the same and add to that index to plug any missing gaps e.g. the relevant sections of the CCA, CCAR and any case law (there might be one or two to support your case but I would need to check).

A simple acknowledgement to say you will review the draft bundle and respond in due course if there are any updates you require.I strongly suggest you do not leave this at the last minute like you have with the witness statement or you might find yourself losing the case already as you step into the court room. Spend the next week or so focusing on this collecting your evidence and other references you need.

I might be able to help with the legislation as I already have PDFs of it form other matters I've worked on so that should save you some time.

[Unknown2023]

Thanks, sorry last minute panic there as there was nothing on the case directions regarding a summary or trial bundle so I had no idea what to expect.

I have attached the case summary and index for your information, no personals on there other than what you already know.

I take it this stage is similar to the directions again where we either agree or disagree and then the court will decide?

I won't leave it until last minute, I was actually really happy with my witness statement in the end. I managed to pack a lot more facts and evidence in it than the first draft, and I think there are some really good points in it which will support me on the day in 2 weeks time. Again thanks for your assistance with that too.

Not sure what evidence I would need to attach to the index it seems pretty straight forward unless I'm missing something?

https://ibb.co/jTG6KKv https://ibb.co/m0dNfvN

[R0b]

Looks like that Case Summary in point 3 seems to be missing the point about the improperly executed agreement. I think that could be beefed up a little bit with references to the relevant sections and regulations. I also think the case summary can be a little more explained around the 3 issues for the court to determine i.e. spell it out.

Anyway, in the meantime, I've packaged together all of the relevant sections, schedules and regulations that are applicable and support your position on the 3 issues in question. Some of these I've not mentioned before but suggest you have a read of them all and familiarise yourself with them and tomorrow I'll cover the ones you are not aware of and why I would want to have them included if I were in your shoes.

There is also a Court of Appeal case that will assist you in regards to the default notice and the inaccuracies. Again, have a read but I have highlighted some sections of the judgment that fit particularly well which you should be referencing and guiding the judge to when you are making your case on that particular point.

I'll explain more about it tomorrow.. been a long day.

[R0b]

A very quick and dirty mock up as I'm still awake, but if I was writing a case summary, I might draft it something like the below.

The reason I would want the issue around the part exchange resolved first, is because the defences on both sides hinge on whether or not that part exchange should have been recorded. If the answer is no, everything falls away on your side and if the answer is yes, everything falls away on VWFS side.

1. This action arises out of a hire purchase agreement (the “Agreement”) entered into between the Claimant and the Defendant relating to a motor vehicle with the registration number XXXXX (the “Vehicle”).

2. The Agreement is a regulated agreement subject to the Consumer Credit Act 1974 (the “CCA”) together with associated regulations pursuant to the CCA, namely the Consumer Credit (Agreements) Regulations 2010 (“CCAR”) and The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (“CC(EDTN)”).

The disputed facts
3. The Claimant served a default notice on the Defendant alleging non-payment in breach of the Agreement. Subsequently, the Claimant served a notice of termination on the Defendant.

4. On XX/XX/XXXX the Defendant was Driving the vehicle stopped on the [motorway name] by [name of police]. The officers explained to the Defendant that the Vehicle was to be seized as it had been reported as stolen by the Claimant, an allegation the Claimant denies. Following the seizure, the Claimant collected the Vehicle from [name of police] and sold it at auction.

5. The Defendant claims that the vehicle he part-exchanged as part of the transaction, was either a deposit or an advance payment against the Vehicle cash price, which ought to have been recorded in the Agreement. The Claimant argues that the part exchange was neither a deposit nor an advance payment for the purposes of the Agreement but a 'scrappage scheme discount' which it was not required to record in the Agreement.

Each party’'s case
5. It is the Claimant’s case that the Defendant was in breach of the terms of the Agreement, and, following service of a valid default notice pursuant to sections 87 and 88 of the CCA, it validly terminated the Agreement.

6. The Defendant’s case is threefold:

(i) Contrary to paragraphs 5 and 12 of the CC(A)R the Claimant, the Claimant failed to record the value of the Defendant’s part-exchanged vehicle in the advance payment section of the Agreement. As a consequence of this omission, the figures stated in the Agreement have been wrongly calculated. The Agreement is an improperly executed pursuant to section 65 of the CCA and cannot be enforced without an order of the court;

(ii) by virtue of the wrongly calculated figures specified in the Agreement, it follows that the default notice was wrongly calculated. The inaccuracies of the default notice rendered it an invalid notice. The notice of termination by the Claimant was a wrongful termination in breach of section 87 of the CCA, so the Claimant is not entitled to the sums it is claiming

(iii) the Claimant unlawfully took possession of the Vehicle in breach of section 90 of the CCA on the basis that the Defendant had paid one third of the total price payable under the Agreement. Accordingly, the Defendant is discharged from all liability under the Agreement and entitled to recover all sums paid under the Agreement pursuant to section 91 of the CCA.

The issues

7. Did the part-exchange of the Defendant’s vehicle amount to a “deposit” under Section 189 of the CCA or an “advance payment” under Regulation 1(3) of the CC(A)R. If yes, then:

(i) was the Agreement an improperly executed agreement as a result of the Claimant’s failure to record the correct amount in the advance payment section of the Agreement as required by paragraphs 5 and 12 of the CC(A)R.

(ii) did the Claimant serve a valid default notice pursuant to sections 87 and 88 of the CCA and the CC(EDTN) notwithstanding any inaccuracies of the figures that may have been stated in the default notice.

(iii) did the Claimant repossess the vehicle contrary to section 90 of the CCA.

Damages
8. The Claimant claims £10,599.67 plus interest and costs.

9. The Defendant counterclaims £XXXXX.XX plus £7,000 being the value assigned to the Defendant’s vehicle that was part exchanged as part of the transaction together with interest, court fees and costs.

[Unknown2023]

Thanks so much, I feel bad please don't feel like you have to spend all your free time looking at my case!

Shall I send this vase summary to the other side and see what they say?

It does worry me that the whole case is basically riding on the judge accepting the part exchange as a deposit or some form of part payment.

But my gut feeling is that he must do. No matter how much the Claimant tries to persuade him that it's a manufacturer's contribution, it physically can't be as in some way or form it was directly linked to me by way of giving my car up.

The way I see it is that would I have got a 7k discount if I hadn't part exchanged a vehicle, as say a manufacturer's discount as a gesture of goodwill? Absolutely not.

But then if the judge does immediately rule in favour of the claimant and that in some way he sees it as a contribution by VWFS, then what on Earth will we spend the next three hours discussing in court!

Also regarding the documents you have sent me, surely I can't use any of this as it wasn't included in my evidence yesterday?

[R0b]

First of all, your witness statement is your factual evidence and as I have already mentioned, not your legal arguments, so the legislation and case law still need to be appended to the bundle. If they are not willing to do that, then you need to create your own supplemental bundle and send it to the court and the claimant.

It is absolutely imperative that you get these documents in the bundle otherwise how are you going to show the judge the relevant sections of the legislation? He or she isn't going to wait around for you to go and print them off, you are expected to be ready with everything submitted otherwise you only argue what you have in front of you which is basically nothing since a lot of the case hinges on the legislation.

Sometimes disputes do hang off one specific issue and then what usually happens is settlement discussions take place, but maybe not in this case as the judge may want to hear everything unless they have heard enough to make a judgment. You need to remind yourself that it doesn't matter what they call it, discount, contribution etc. the key question is for the purposes of the agreement transaction, was it an advance payament or a deposit as defined in the legislation. If yes, then VWFS needed to add this to the calculations which they failed to do. I would be flabbergasted if the judge found in favour of VWFS if you manged to get all of your arguments across.

There may be a few more documents I can suggest but if you want to rush off and send what you have already, that's up to you as it's your dispute not mine. In the meantime I have also uploaded another court of appeal case, which is a discussion around the 1/3 price and whether that threshold has been met. It will assist with your arguments on that point. Why don't you hold off until end of day tomorrow and then decide what ytou want to submit if I don't have anything else to add.

As for the index, I absolutely think that the HP agreement should be a separate reference which is what you are both going to be relying on and so you don't want to be referring the judge to a witness statement exhibit if that is where it is housed, doesn't make sense.

Don't know why Section D is needed to be honest, this is about the alleged debt, not a charging order. Regardless, I would want to add two more sections to the bundle so you can add what you need.

Section E - Legislation

Section F - Authorities

The HP agreement could probably go in Section C.

If I were you, I would start preparing a supplementary bundle based on the additions of what you want to include just on the off chance the other side refuses to include what you want, because you will need to submit these to the court if you want to win.