Startline Finance

[R0b]

I'll take a proper look at lunch time and get back to you. By the way are you based in Scotland or somewhere else

[Scot-lad]

Yes Rob, West of Scotland i am.

[R0b]

Yes Rob, West of Scotland i am.

I've had a look at their response and also the T&Cs. Quite frankly, they are talking out of their a**** and the typical crap they spout out. In reality, when you terminate the agreement, you become an involuntary bailee (someone in possession of goods involuntarily). You only need to make he vehicle available to them and if not, you have the right to give them notice to collect otherwise you can sell the vehicle and account to them for the proceeds of the sale less any costs involved in selling it.

If it were, I'd respond to them but just for clarity, I've set out a fairly lengthy response example below. it's only a draft example but you may wish to use some or all of it, that's entirely your choice but have a read, adapt it to suit your needs and its pretty self-explanatory.

I also attach the word version of the document for ease.

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

Dear Sir or Madam,

Voluntary Termination of Hire-Purchase Agreement dated <insert date>

I am writing in response to your email which was sent to me on <insert date>. In that email you made several points to which my response is set out below in the same order.

Having read and digested your email, I can see it is alleged by Startline that, despite termination of the hire-purchase agreement (which was effected on <insert date>), I am liable for the following:

(a) to return the vehicle at my own expense;

(b) to maintain comprehensive insurance until the vehicle is in the possession of Startline or its agent; and

(c) that I must continue to pay my monthly instalments until the vehicle has been returned to you.

Returning the vehicle at my own expense
Dealing with the first issue as regards to the return of the vehicle at my own expense, I should point out that Startline’s reliance on Section 11.1 of the hire-purchase agreement is not enforceable, mainly for two reasons. First, I would refer you to Section 100(1) of the Consumer Credit Act (the “CCA”) which, in plain English, states that my liability is the aggregate of the sums paid under the hire-purchase agreement and any sums due immediately before termination, limited to one half of the total price payable. The phrase ‘total price’ has a specific meaning under the CCA and that meaning can be found in the definitions at Section 189. More specifically, ‘total price’ means:

the total sum payable by the debtor under a hire-purchase agreement or a conditional sale agreement, including any sum payable on the exercise of an option to purchase, but excluding any sum payable as a penalty or as compensation or damages for a breach of the agreement;
I also refer you to Section 173 of the CCA which says the following:

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

In my view, the above provisions have been clearly drafted with the intention of:

(a) limiting my liability to one half of the total price payable which explicitly excludes the recovery of compensation or damages for breach of the agreement; and

(2) any contractual term that seeks to impose additional expense, costs, charges or otherwise and which is beyond the capped liability set out in Section 100(1), will be deemed void and unenforceable.

In addition to the above, your reference to Condition 11.1 of the hire-purchase agreement refers to the heading “termination by you” but there is no heading on the front page by that name. Presumably, this is an error on your part (but an error nonetheless) and you in fact meant to refer to the heading “TERMINATION: YOUR RIGHTS” which in turn refers to Condition 11.1 of the terms and conditions. Unfortunately, what you might not have appreciated is that the statement under this heading is governed by the Consumer Credit (Agreements) Regulations 2010. These Regulations apply to all consumer credit agreements with certain exceptions that do not apply in this case.

The form and content of consumer credit agreements are set out in Regulation 3, requiring agreements to insert all information (where applicable) set out in Schedules 1 and 2. The heading “TERMINATION: YOUR RIGHTS” is a form of statement of protection and remedy set out in Schedule 2 (see form 9) to which Regulation 7 also applies. This Regulation confirms that the wording of the specified forms in Schedule 2 must be reproduced without alteration (emphasis added) and, because you have altered the wording of that statement so as to incorporate Condition 11.1 in breach of Regulation 7, the obligations you seek to rely on are of no legal effect.

In light of the above, I am finding it difficult to understand why Startline remain of the belief that Section 11.1 is enforceable. Though I acknowledge Startline are entitled to their own view on what is and what isn't recoverable, I can see nothing within the CCA that supports that line of argument. It is also puzzling that Startline seem to believe that the terms of the hire-purchase agreement somehow prevails against statutory law such as the CCA and which is enacted by Parliament. As far as the hierarchy of laws in this country goes, statutory legislation takes precedence over common law contract terms and, as a business operating in a highly regulated industry, I would have thought that you would have known this.

Maintaining insurance certificates and road fund tax
As regards to the issue of maintaining the applicable insurance certificates and road fund tax, I can only repeat what I have said above in that what you are suggesting imposes additional liability contrary to Section 173 of the CCA and so it is void and unenforceable. Also, on closer inspection of the hire-purchase terms and conditions, nothing in there implies or suggests that I must continue to pay the road fund tax and insurance beyond termination of the agreement nor is there any survival clause to that effect.

The obligation to maintain my monthly instalments post-termination
In your email, you say that “you must maintain all payments until the vehicle is back in our possession.” That statement is both misleading and a misrepresentation of the law. There is nothing within the CCA that suggests or gives the impression that debtors must continue their monthly instalments until the vehicle is returned. In fact, having reviewed the terms and conditions of the hire-purchase agreement, there is no mention of having to maintain all payments following termination of the agreement (which in any event would be void as per Section 173 above). Please explain to me the legal basis on which I am required to maintain all payments until the return of the vehicle.

Threat of debt collection and recording of a default
I note Startline’s intention to assign the alleged debt to a third party debt collection agency in the event that I should refuse to pay and that a default would be recorded on my credit file. I should point out that such an action will likely amount to a breach of the Data Protection Act 1998 and refer you to the Principles for the Reporting of Arrears, Arrangements and Defaults at Credit Reference Agencies. This guidance note was published in July 2016 and created in consultation with the Information Commissioners Office (http://www.scoronline.co.uk/key-documents). At page 7 of the document, it stipulates that a default should not be filed “if the amount outstanding is solely made up of fees or charges.”

Therefore, by reporting the collection or other fees as a default, Startline will be in breach of Principle 1 (processing data fairly and lawfully) and Principle 4 (keeping data accurate and up to date) of the Data Protection Act 1998. Indeed, I also wonder whether the assignment of the purported debt along with my personal data may also amount a breach of data protection (I shall reserve all rights in that respect). To my mind, this threatening approach taken by Startline is without merit, and an aggressive commercial practice contrary to the Unfair Trading Regulations 2014. I am therefore minded to inform the relevant regulators of your conduct and ask that they look into this as soon as possible.

Notice to sell the vehicle pursuant to the Torts (Interference with Goods) Act 1977
As you know, the vehicle which currently remains on my drive uncollected, despite the hire-purchase agreement being terminated on <insert date>. I had hoped for a more collaborative approach between myself and Startline, and in the spirit of that approach, I have, in good faith, maintained all applicable road fund tax and vehicle insurance (at my own cost and expense) on the premise that the vehicle would be collected soon after the agreement had been terminated.

However, it is clear that Startline are refusing point blank to collect the vehicle. I am afraid that I have now reached a point where I am no longer prepared to continue the maintenance of the road fund tax and vehicle insurance and so this letter serves as notice that, in accordance with Section 12 of the Torts (Interference with Goods) Act 1977, unless the vehicle is collected from my premises (the address at the top of this letter) by 4pm on <14 days from date of letter> which I consider to be a reasonable period of time, then I will make arrangements to sell the vehicle at auction. Furthermore, I am lawfully entitled to deduct from the proceeds any costs or expenses incurred as a result of the vehicle being sold. Once the vehicle has been sold, I will contact you further to arrange for the remaining proceeds to be transferred to a bank account of your choosing. To ensure there are no delays, I would suggest that you contact me as soon as possible on <mobile number> in order to arrange a suitable time.

As regards your comments relating to how or where I seek assistance or support, I think it is or no relevance to Startline and, quite frankly, is none of its business. Given that Startline have made allegations which it is not able to back up or explain (i.e. my obligation to continue paying the monthly instalments), it seems to me that they are employing a double standard, don’t you think?

I look forward to hearing from you in due course concerning the collection of the vehicle.

Yours faithfully,

<insert name>

[Phaeton]

Very trivial point but there is no Road Fund Tax, it is Vehicle Excise Duty

[R0b]

Thank you, I knew someone would pick it up, I could t remember what it was called so went with road fund tax

[Scot-lad]

Thanks for that Rob, ive emailed them although they have probably seen it on here! Lol. Shall await a response

[R0b]

Did you send all of it, including the last bit about selling the car? If you did, then you should follow through with it and you shouldn't make statements or threats if you won't go ahead with them. Part of me wishes it does get to that stage as I would love to see Startline try to argue that you've mishandled and unlawfully sold their goods - that would be a total non-starter in my eyes!

Anyway, I hope you checked the wording before you sent it, I noticed a couple of errors in the example, particularly the use of interchangeable words like "Section" and "Condition"

[Scot-lad]

I did go over it and to my eyes it looked ok. I did send the full thing and have given them until Friday 11th May to collect the vehicle.

[Scot-lad]

I am actually getting really fed up with it all now. I just want their car gone out my hair! It is starting to drag me down and i shall be more than happy to take whatever course of action i need to, to conclude it now. I threatened to implement storage charges as of tomorrow, so i may just do that until i get written confirmation of a time and date when it will be collected.
I will carry out the notice of selling it, unless they stop being silly and just come and get it!

[R0b]

Well you have given notice to them of your intention to sell so you just need to sit tight for the next two weeks and see whether they call your bluff.

[Scot-lad]

Well, 1 week has passed and no response from Startline. I did have a guy chap my door and ask if the car was for sale (said he had noticed, it hadn’t moved in 3 weeks) so, if they don’t hurry up, there is an interest in the vehicle.

[Scot-lad]

Posted the above comment at 09:47, 2 hours later they phoned me!

[R0b]

And what did they say?

[Scot-lad]

That I had to pay the collection fee! I said No obviously, and reiterated to them that they only have until Friday 11th at the latest or I will proceed with selling the vehicle. The girl then said she would get straight onto Mannheim auctions to arrange collection. We’ll see!

[Scot-lad]

Rob, I have had an offer for the car by way of someone knocking on my door, asking if it was for sale, now, what is my position with regard to selling it? Do I need to try and get as much as possible for example, or do I just accept whatever is offered?