Bought a car with outstanding finance, finance company going to repossess it

[R0b]

Its up to you whether you want to do that, personally I would just send it all as one rather than just messing around asking for the details and then sending one big reply, but its your dispute so there's no right or wrong way, just time and resource.

It's really about the battle of nerves and ultimately as you say, the finance company have not given you anything to suggest that Mr T's title to the goods was defective.

Out of curiosity, who is the finance company?

[hello405]

Its up to you whether you want to do that, personally I would just send it all as one rather than just messing around asking for the details and then sending one big reply, but its your dispute so there's no right or wrong way, just time and resource.

It's really about the battle of nerves and ultimately as you say, the finance company have not given you anything to suggest that Mr T's title to the goods was defective.

Out of curiosity, who is the finance company?

I feel like I can't say that they've refused to give it to me until I ask for it outright. Thus far I have only brought up the fact that they haven't provided this information, but I haven't actually requested that they give it to me.

It's MoneyBarn. I have no experience with these companies before but they seem pretty slimy.

[R0b]

Well if you haven't directly asked MoneyBarn for the evidence, you have mentioned that no information has been provided to support their claim so you can either ask the question or amend the wording to reflect that position. You could draft something along the lines of the below:

"As above, this provision makes it plainly clear that a private purchaser shall be deemed a purchaser without notice of a conditional sale agreement if no actual notice was given at the time. As per my previous response to you, Mr T has confirmed to me that he was unaware of any finance attached to the vehicle and there is nothing to suggest that Mr T has acted dishonestly. Accordingly and pursuant to 29(3), the burden of proof now rests with [finance company] to show that Mr T (or myself) had actual notice that the vehicle was subject to a conditional sale agreement; constructive notice is not enough. You will see that I have mentioned in previous correspondence that MoneyBarn have yet to supply me with evidence to support its claim to possession. To date, I have still not received any evidence in support and I have to question whether MoneyBarn possesses any evidence at all. If there were such evidence available, then I would have thought it to have been promptly handed over. Nonetheless, and in the absence of evidence to the contrary, it is perfectly reasonable for me to rely on Mr T’s statement that he did not receive actual notice concerning the conditional sale agreement."

P.s MoneyBarn are well known on here in relation to voluntary termination and are a second hand lender in that they offer high interest rates to those on poor credit.

p.p.s If you don't mind I intend to use these example responses and add them to my list of templates for future use of members in case this arises again.

[hello405]

We haven't sent anything back to them yet because we wanted to get evidence from Mr T, which we finally have now. We have a handwritten letter from him stating when he bought it (it was actually 18 months ago, which I didn't realize), whom he bought it from, how much it cost, and declaring that he did not know the guy previously and had no knowledge of a conditional sale agreement.

He swears that he did not ever get a letter from the finance company (and we believe him), which leads me to believe that perhaps they didn't bother contacting the first buyer because of the Hire Purchase Act, instead waiting for the second buyer because their case is so much harder to make. Is that too cynical?

[hello405]

R0b is there any reason we shouldn't just send them the letter we have from Mr T? It turns out he bought it earlier than we realized so the timeline now works perfectly and I am 99% certain that he bought it from MoneyBarn's client. So it seems like sending them his declaration may be prudent.

[R0b]

Entirely your choice whether you want to send the letter but I don't think there is any need. As already mentioned the onus is on Money Barn to prove otherwise and it seems that instead you are trying to prove it for them and doing their own due diligence. If it were me in your shoes, I would simply make reference in your response to Money Barn that you are now in receipt of a signed letter from Mr T confirming that he had no knowledge at all about the vehicle being subject to finance.

If they're not going to believe you are Mr T, I can't see how sending them a letter is going to change their mind. That is evidence to support your case in the event of legal proceedings but whether they have it or not, it probably won't affect their decision other than to perhaps harass and/or bully Mr T into submission or legal threats if they haven't done it already.

[hello405]

If they're not going to believe you are Mr T, I can't see how sending them a letter is going to change their mind. That is evidence to support your case in the event of legal proceedings but whether they have it or not, it probably won't affect their decision other than to perhaps harass and/or bully Mr T into submission or legal threats if they haven't done it already.

This is the thing I don't understand. Why haven't they harassed and/or bullied Mr T? He is adamant that he hasn't heard from them at all. I only wonder if it has to do with the fact that this was bought in Scotland and then we registered in England (are there laws that are somehow less favorable to us in England?), or if they didn't both contacting Mr T because as the first innocent buyer he had the easiest case to make. I assume it's whatever is most scummy...I have a pretty dim view of Moneybarn.

[hello405]

[I]You have referred to 27(1) of the Act and appear to suggest that only the first purchasers are afforded the protection under this section (because you refer to Mr T as the relevant purchaser and not myself) however, your interpretation is somewhat misguided. Whereas 27(3) protects the “first private purchaser” in situations involving a trade or finance purchaser transaction, 27(2) merely refers to a “private purchaser” for all other transactions. Given that no trade or finance purchaser was involved in the chain of transactions for the purchase of the vehicle, 27(2) would therefore apply. Furthermore, I can see nothing within 27(2) that supports the position that the protection under this section is limited to the first purchaser and not subsequent purchasers. If it was Parliament’s intention to only protect the first private purchaser for all transactions, then it would have explicitly said so as it did in 27(3). In my view, those who can claim protection are all private purchasers (in the case of 27(2)) or the first private purchaser (in cases involving trade or finance purchasers under 27(3)).

Hi R0b, I am working on our response based off of your suggested letter and I'm reading the Hire Purchase Act again and I'm not sure if I understand your interpretation of it. It looks like section 27(2) doesn't refer specifically to the *first* private purchaser, but the way I am reading it, it seems to say that it only applies to people 'where the disposition referred to in subsection (1)' ie, when the debtor 'disposes of the vehicle to another person'. I don't see how it would count for the second person who bought it, because it seems to specify that it applies to the specific disposition from the debtor.

What do you think?

[R0b]

Your view is certainly one way of looking at it.

However, on the other side of the fence, the title of the section states "Protection of purchasers ..." and given that "purchasers" is plural you could argue that it could extend to subsequent purchasers of the vehicle. Again it comes back to the example wording you've highlighted and begs the question why would Parliament refer to the first private purchaser in one sub-section and not all applicable sub-sections?

If I were to read and interpret Section 27(1), it is merely a confirmation that purchasers can only rely on this particular section if it is the debtor disposed of the vehicle to another person. So if the vehicle was sold by someone other than the debtor, then the purchaser is unable to rely on the Section 27 as a defence (but note the presumptions under Section 28).

At the end of the day, unless it is blatantly obvious that something when read is not correct, there is no harm in arguing the opposite to what is being claimed if it is reasonable to suggest that the wording could be interpreted in more than one way. There is no harm in having 2 or 3 alternative arguments to support your case and in really complex cases, there can sometimes be 5 or more different lines of argument.

But generally up to 3 defence arguments is reasonable to put forward and you'll see on the next paragraph I've then gone on to state the alternative argument:

Even if you are correct (which I do not agree with) that it is the first private purchaser who is protected under Section 27, Mr T was nonetheless entitled to dispose of the vehicle to myself, as he did not have actual notice that the vehicle was subject to a conditional sale agreement. Contrary to you maintaining that the burden of proof lay with Mr T, Section 29(3) states the following:

Don't worry too much if its wrong or right, your end goal is to put enough doubt into your opponents mind to think twice before decided to act and eventually give in.

[hello405]

Okay, sent it off. The more I learn about Moneybarn the more furious about this I am. They are claiming this is our fault for being negligent for not knowing about HPI checks. Meanwhile, their entire business model is to give loans to people who can't afford them. Their entire business model is negligence.

[R0b]

The negligence allegations is clutching at straws. If they really thought they had a chance of recovering the vehicle then they would have no hesitation in issuing legal proceedings and hashing it out in court as opposed to going through a third party to repossess it, which of course opens them up to being liable anyway if they are deemed to have unlawfully repossessed the vehicle.

Let's see what their response is but it wouldn't be worthwhile sending correspondence back and forth. If they continue to maintain that they will repossess the vehicle, then there's no point engaging further because you've already put them on notice about making a claim against them if they do so and its really up to them as to whether they want to take the risk.

[hello405]

I am interested to see how this plays out and I wonder why if they think they have a real claim they haven't sent their repo men to our home yet.

If they do decide to drop their claim, our next step is to ask them to remove their claim on the HPI check so we have clear title. I wonder if they will make us go to court for that.

[hello405]

The negligence allegations is clutching at straws. If they really thought they had a chance of recovering the vehicle then they would have no hesitation in issuing legal proceedings and hashing it out in court as opposed to going through a third party to repossess it, which of course opens them up to being liable anyway if they are deemed to have unlawfully repossessed the vehicle.

Let's see what their response is but it wouldn't be worthwhile sending correspondence back and forth. If they continue to maintain that they will repossess the vehicle, then there's no point engaging further because you've already put them on notice about making a claim against them if they do so and its really up to them as to whether they want to take the risk.

We sent the letter last month and never heard back. Tonight they sent someone to take the car. We did not give permission or give them the keys. What should our next steps be?

[R0b]

Hello

Just got your private message. So the car is currently still sitting where it is and they are sitting outside?

I wouldn't hand the keys over but if it were me, I would go outside, take a note of the tow-truck and tell them that if they take the car you will report it to the police as stolen by them.

Tomorrow, I would call Moneybarn direct, tell them what has happened and also put them on notice that if that vehicle gets taken you will take them to court, apply for an immediate injunction from the Court to return the vehicle pending a claim from you for trespass to goods.

You should follow that phone call up with a email too. I actually can't believe Money Barn pushing their luck with this. I suspect they think you won't go to court but if vehicle does get taken (perhaps overnight) then you really need to look at going to court over this, otherwise you will look a bit silly if you do nothing, but its ultimately your choice whether you do or not. Injunction isn't necessary but it could allow the return of the vehicle for the time being.

There will be a cost involved I'm afraid if the vehicle does get taken but I can see no reason why or how Money Barn are entitled to take their vehicle, they need to be suing the debtor who sold it on, not you.

Presumably you have belongings in the car too?

[hello405]

He's waiting for a different truck because he's not equipped to take the car if we don't give him the keys. So it will be taken in the next hour.

You say we should apply for an immediate injunction, how do we do that? I'd like to start whatever we need to do to sue them, but I don't know what we do next.