Illegal repossession of car via the police

[meluca]

Hi

Needing advice regarding the illegal repossession of son's car that was on a hp finance agreement.
I will outline the basics of what has happened...
Son lost his job and fell behind with a payment ( due May)
Default notice sent requesting payment by 26/June balance outstanding £8318.16, paid £4473.20 (total £12791.36 which is the TAP on finance agreement) going of those figures then that suggests payments are up to date ?

So didn't make the payment by the due date and a termination notice was received dated 27th June but by the time the termination notice was received June's payment was also due.
Rang finance company to request a few days to get the two payments together and were refused unless they could have access to his bank account to check he was telling the truth and not just spending his money on things the company thought he shouldn't be.
On 3/July son refused access to his bank account and was told he had 24hours to make payment otherwise it would be the 2 payments plus £300 repossession fee.
On 4/July son receives a text and email from repo agents requesting a time to collect the vehicle.
5/July £449.46 owing according to finance company and £450 was paid.
7/July further messages from repo agent requesting the address to collect the car.
Contact finance company who confirm they have received the £450 but state the repossession fee still needs paying.
I dispute the fee as no repossession took place, son never voluntary surrendered and as a third had already been paid they could not repossess without a return of goods order from the court which they didn't have.
I informed repo agent that there had been no voluntary surrender and no court order ... Repo agent ceased contact.
Finance company refuse to back down on £300 charges and say if it's not paid then will be added to final balance.
Finance company then stopped corresponding.
July's payment was not made due to the dispute over the 300 and another default notice was received dated 31/7 for 1 months payment of £224.82. Figures on this default notice are outstanding £8162.16, paid £4923.20 which totals £13085.36 a difference of £294 of the TAP.
I contact finance company and tell them payment will be made when they give the correct figures, company insist figures are correct.
Another termination notice dated 21/8 is received.
During all this the finance company were told to correspond with myself on behalf of my son. They ignored this request but would speak on the phone with me.

Another default notice dated 30/8 received for arrears of £224.64 requesting payment by 15/9
Figures on this one, outstanding £7937.16 paid £5148.20 which total £13085.36 again so £294 over TAP.
Even though the balance paid between the last 2 default notices show a payment of £225 we aren't certain this payment was made as can't find a bank receipt for it and can't remember if it was paid.
25/9 son receives an email terminating the agreement. Email states as a company they no longer wish to do business with him and will be applying for a return of goods order via the courts.
Son didn't see this email untill a few days later and by then a further payment of £225 had been made.
29/9 another default notice for £224.46 .. Figures on this are outstanding £7712.16 paid £5373.20 again £294 over TAP
Payment was requested by 15/10.
27/10 a further email terminating the agreement again stating they will be applying for a court order to return the car.
By now we are sick to death of the way this company are dealing with the situation and we're prepared to go to court. Actually we thought going to court would be the best option.
We waited for the court papers to arrive.
6/11 son receives a phone call from the police stating the 'owners of the car have reported it stolen.
We inform the police it is not stolen and is parked outside the house that is on the finance agreement. We tell them it has been maliciously reported as stolen and send all the documentation to show the dispute and issues we have had.
Police look into and say investigation closed but will not remove it from the stolen database until dispute resolved.
The car was reported stolen on 30/10 by the finance company.
Son couldn't drive the car due to the chance of being stopped and arrested but the company as yet still haven't filed court papers.
On 16/11 we spoke with the police again asking for them to remove the car from the stolen database as this was a civil matter. Police again said there was nothing they could do. Police consequently recovered the 'stolen' vehicle from outside our home that night.
This finance company have utilised the police force to illegally repossess the vehicle.

If you have got this far a big thank you.

Does anyone have any advice as to a way forward please ? Or anything we should/could be doing ?

[R0b]

Hello

Here's my initial thoughts based on your post.

1. I'm sure it's not correct but you say that your son fell behind in May due to losing his job and then a default notice was issued for £8318.16. Default notices require you to pay the outstanding balance that was due, which would have been the monthly instalment for the month of May. Can you explain why he owes over £8k for one month when the TAP is circa £12k? I assume that's the total balance due if the default is not remedied and not the monthly outstanding balance but that isn't how you described it so I want to be sure i understand what you are saying.

2. Would have to see the default notice and the wording but typically, the DN will say you have 14 days to make payment of the outstanding balance and if you don't pay that balance, then the contract will automatically terminate. If that is true, then June's payment does not become due because the agreement already terminated.

3. Why do you think that because there was no repossession of the vehicle, the fee should not be paid by your son? If the lender has incurred the cost of instructing the repo agent then it becomes irrelevant as to whether or not the repossession has took place. The onus is on the lender to prove that cost was actually incurred before your son paid the default sums were due.

4. July's DN and payment is not due for the reasons I mentioned in point 2 above.

5. The lender is entitled to ignore your request to correspond with you unless they have received authority from your son confirming that they should be dealing with you. this authority would normally be a written (by email) or signed letter from your son authorising you to act on your behalf. Verbal is fine also but then that's difficult to evidence. If no authorisation given by your son, lender can ignore you telling them to correspond directly with you.

6. If, assuming your son has correctly paid at least 1/3 of the TAP then I would be inclined to agree with you that the lender has unlawfully repossessed the vehicle by falsely claiming that it was stolen when they knew that it was in the possession of your son. They have, are you correctly point out, repossessed the vehicle via indirect means. That is in breach of section 90 of the Consumer Credit Act 1974 for failing to obtain a court order to repossess the vehicle. the net effect is that under section 91 of the CCA, your son is now released from all liability. under the agreement and is entitled to recover all sums paid under the agreement. Your son should (unless you have absolutely confirmed that you have authority to act on his behalf but I would really suggest your son does this next part) write to the lender and explain the fact that because they are in breach of the section 91 of the CCA, your son considers that he is discharged from all liability and the lender now needs to repay you the sums paid being whatever amount has been calculated.

Failing that your son either needs to follow the complaints process to the Financial Ombudsman, or issue legal proceedings. If thinking of doing the latter, there are very specific requirements you need to follow when doing your particulars of claim. That means that your son needs to draft separate particulars of claim and not simply use the text box you would normally do on the money claims online website because the word count is insufficient. I can explain in more detail on that point if that route is preferred.

Feel free to post up any draft letter before sending off to the lender if you want feedback on it.

[meluca]

Thank you Rob for your reply.

I will try to clarify as best as I can ..

First default notice dated 8/6 requesting one month's payment of £224.64 by 26/6. Balances on that DN were correct at £8318.16 outstanding and paid to date £4473.20 which equals TAP of £12791.36.
Rang on 30/6 to make arrangement to pay. Company requested 2 payments as June's payment had become due even though they had terminated the hp agreement on 27/6.
Told company we would need a few days to get money together and requested a copy of the hp agreement & a statement. The hp agreement & statement were sent to the wrong email address so we never received them.
Son received message from a repo agent on 4/6 requesting a time & date to collect car. Son had not voluntary surrendered, had already paid a third at this point and the finance company did not obtain a court order for return of goods. Plus we had already said we were going to make payment of arrears.
Payment of £450 was made on 5/6, the arrears had been £449.46.
7/6 repo agent makes contact again saying company had told them we hadn't paid the full arrears and a further £300 was required. Repo agent ceased contact when we inform them that finance company don't have a court order nor has a voluntary surrender been agreed or signed.
Various emails to & from finance company .. we requested a breakdown of the £300 but they refused. We refuse to pay anything else as arrears had been paid.
Another default notice sent dated 31/7 requesting one month's payment of £224.82 by 18/8. Outstanding balance on that one was £8162.16 and paid balance of £4923.20.
As £450 had been paid previously the outstanding balance should have been £7868.16 .... £294 had not been deducted yet paid balance was correct. Made contact with company to remind them they had terminated the agreement but we're told the payment of £450 had reinstated the agreement yet we had no correspondence informing of that.
The final DN dated 29/9 again stating one month payment owed of £224.46 gives payments to date of £5373.20 and an outstanding balance of £7712.16 . Payments of £5373.20 should leave an outstanding balance of £7418.16, which shows payments haven't been deducted.

I don't think the fee for the repossession agent should be paid by my son as the finance company had no legal basis to repossess. They instructed the repo agent after a third had been paid without a court order to return goods or a voluntary surrender. They also have never provided any proof of the costs supposedly incurred.

Lender was given verbal and written correspondence from my son to direct all correspondence to myself on behalf of my son.

I will get son to send an email to the lender stating they are in breach of section 91 of the CCA , that he considers he is discharged from all liability and they need to repay all sums paid.
Is there a time limit we should include for them to comply by ?

I fully suspect that this will be ignored

I will post a draft letter once it's written for you to give feedback on before it's sent to the lender. Thanks, I really appreciate your help.