Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

If you draft something up then I will take a look at it yes

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

[MENTION=71570]R0b[/MENTION], would you be willing to help me write a letter with regards to making a payment under protest, or at the very least look ever it once I've written something?

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

I would say that unless you can prove it was fraudulent, the limitation period is 6 years.

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

Do you know if their is a time limit on issue proceeding to claim back a payment made under protest?

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

You are not going to get a response from the court by 8 November that's for sure. Just because it goes to Link Financial does not mean they are going to take immediate action against you. They would more likely than not threaten court action against you and issue proceedings which ultimately would save you any money.

All I can really say is that if you are really that worried, then pay up and then you could try and seek to claim it back through the court by issuing proceedings, but bearing in mind the risks as pointed out above. If you do pay up then you need to make it clear that the payment is being made under protest of duress/undue influence in that you are effectively being forced to make payment in order to avoid any adverse effect on your credit rating, and in due course you will be seeking further advice on bringing an action against Ford for the recovery of such sums.

Also in mind if you do issue a claim against Ford for the recovery of monies paid, expect them to have a lawyer in court representing them.

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

Is it possible to just invoice them for an amount and take their tactics?

How long would it take to submit a application to the court to get a declaration from them? I only have until the 8th of November before they sell my dept to link.

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

If you want to go down that route then I would advise with caution. There is no general principle that if money for a debt was paid when in fact it wasn't due it must be returned, but it may be returned in certain circumstances such as mistake or duress or undue influence. Paying money then reclaiming it back is always much harder than to challenge it, so if you do go down this route then it does come with its risks.

Another alternative for the above is to obtain a declaration from the court that Ford is not entitled to the sums owed. This does not require you to go to court but you can make an application and submit your evidence on paper which the judge will consider based on the contract and the legislation related to it. That route will then allow you at least get a legal opinion as to what the judge thinks would be the correct route.

Equally, if a default was applied on your credit file then you could bring a claim for inaccurate data to remove the default and damages on top especially if you are looking to buy a house at some point in the future.

The decision is of course yours if you want to pay under protest and try to recover it but it could be difficult, or the alternative is to request a declaration from the court that the charges are unenforceable.

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

[MENTION=71570]R0b[/MENTION],

Good Morning. I have had a good think over the weekend and also discussed with my partner. We think the best step of us at this moment in time is to do what you said in your last post and pay the excess mileage charge but do so under duress or undue influence to prevent any issue when it come to us wanting to buy a house. To be honest I'm not 100% sure of the procedure of doing so or what it means exactly and will need to look into it a bit. If you are willing to asset me I would really appreciate it although I understand that this may be a bit of a waist of time for you.

It is very frustrating that a creditor can just charge you an amount, to which by law you are not liable, and basically use threats of dept collectors and bad credit history to make you pay because they know that most people are either ignorant or scared. And like you said, if it were such a clear cut dept case why do you they go about it this way. Their tactics however has worked on me in this instance and I am sure many other before and after me.

I think I am going to contact ford (phone call or letter) to tell them that their figures in that last letter does not add up and that they need to give a breakdown for exactly what I am being charged for and how they have calculated these amount.

I will then write to them to offer payment but do so under duress and undue influence and hopefully be able to get the money back.

Do you agree with my method?

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

No worries

The only other alternative I can think of is that you agree to pay but is paid under duress or undue influence and reserve the right to bring a claim for unjust enrichment at a later date through court proceedings (if you wanted to argue in court) but other than that, its a case of pay up or carry on challenging and hopefully, they will just write it off and take no further action.

One thing to note is that claims brought by lenders for excess mileage is pretty much non-existant, wouldn't you think that an amount such as £700 would be worth pursuing if its a clear cut debt case? Perhaps the reason why no claims are brought is because they are aware that they have no basis to bring a claim and rely on those who are scared and end up paying eventually.

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

[MENTION=71570]R0b[/MENTION]

I think I should have a good think about it over the weekend. I'll get back in touch with you on Monday.

Thank you for all your help. It is really appreciated.

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

It's unlikely that Ford will take you to court however I have seen from other letters stating that if it is not paid then they will pass the debt onto Link Financial who are debt purchasers. Perhaps Link might try their luck and issue proceedings in an attempt to scare you and pay up but as I said, not seen anyone on here taken to court so far but doesn't mean to say it never will happen.

When you say people coming to take your goods I assume you mean bailiffs. No they won't come because they can only use bailiffs if they have obtained a CCJ against you and you refuse to pay up. If for whatever reason you lose at court then you would be liable for the excess mileage and the application fees of about £150 as it is a small claims matter and recovery of fees are restricted. You don't require a lawyer as you won;t be able to recover the costs if you win but it is possible that the other side could employ one again for scare tactics. Even if you lose at court you have a window of 30 days to pay them the money before you have a CCJ applied on your credit file.

I appreciate if you are looking to buy a house and that of course is something you need to take into account as to whether or not you want to continue to challenge the excess mileage or pay up now. Again lenders have the upper hand and can use that to their advantage to get the payment they need.

If you want to understand where I am coming from you can look at the section on the law relating to VT on this link -> http://www.legalbeagles.info/forums/...on-Your-rights

The sections I have referenced have to be read together and not individually in order to understand how voluntary termination and liability works. Lenders will argue that section 99 says that terminating does not affect liability accrued before termination but actually the charges only accrued after you terminated and as I said it needs to be read in conjunction with section 100.

When you look at section 100 it sets out a debtor's liability when they VT and it limits the liability. If you replaced the words "total price" with its real definition in section 189 then you would have the following definition (my interpretation):

The debtor shall be liable to pay the creditor one half of the (1) total amount payable which includes the option to purchase price, plus (2) any arrears due immediately before termination. The debtor is not liable for any other sums which are owed to the creditor as a penalty or for a breach of any of the terms under the agreement that were not already due prior to the termination.

Section 173 basically clarifies that if there is a contractual term in the agreement which seeks to override your rights or attempts to increase your liability under the CCA then it cannot be enforced.

The only way a lender can argue that the excess mileage is owed, is if they actually came out and checked your mileage on an annual basis realised you are over and then billed you for breach of your agreement. If you then terminated after they have billed you then you would also owe those charges because they have accrued before termination. But of course that will cost them money to send someone out on a yearly basis so they wouldn't do that.

Hope that makes sense.

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

[MENTION=71570]R0b[/MENTION],

Thank you for looking into the letter form me. I checked my credit report and my account with them still remains open (unchanged). No VT marker either. (Says the record was last updated on 02/10/16.

To be completely honest I, I am a bit scared of the unknown.

What would happen if they decide to pursue the court route and I lose my case. Will I have dept collects turning up at my home and threaten my family or threaten to take goods? Will I need to employ a legal adviser or a solicitor if we do go to court and is there a possibility of the charges increasing and or receiving a CCJ. I am looking to buy a house in the not too distant future and worried what implications this may have on my future and credit report.

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

Standard Letter from Ford. It does not seem worth to complain to the Ombudsman as they just look at the terms of the contract and not the bigger picture as seen from previous people complaining. That does not however stop you from challenging the excess mileage. Ford will sell the debt onto Link Financial and it is up to them as to whether they want to take court action. Unfortunately I think the law is clear on your liability which is restricted to 50% and any contractual terms which seek to override that position are not enforceable.

As you can see from the numerous posts here, people end up paying the excess mileage for one reason or another but whether you choose to is up to you. If you want to defend it I will assist you as best I can but I'd be surprised if it ever goes to court. Happy to draft up some sort of response for you but if your end goal is to pay up or come to a settlement when push comes to shove then it would be wasting my time so think about what you want to do first of all.

In the meantime, check your credit file to see if Ford have closed the account down or if they have kept it open.

[Jacques]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

Hi [MENTION=71570]R0b[/MENTION], thank you for your quick response.

I have attacted the letter as requested.

[IMG] free picture upload[/IMG]

[R0b]

Re: Voluntary Termination of a Hire purchase or conditional loan under the CCA 1974

Hi Jacques, is it possible for you to upload a copy of the letter with personal info removed?

You can upload photos from here if its easier - www.postimage.org