Default/Volkswagen financial services

[Martin26]

Hi all, Had my vehicle seized for no insurance and default put against me by VWFS But was insured have proof to show and not sure what to do about it thank you

[R0b]

Hello

VW wouldn't have taken the step to seize your car lightly so I presume they put this in writing and gave their reasons with reference to the contract terms?

If so, can you upload a redacted copy of the letter so we can see exactly what was said. You sent me a PM with further info saying that your friend had driven it to Audi for a service, why didnt you do this? Was your friend a regular user of the car or was it a one off?

As for the default against your credit file, if you've not missed any payment up to the point of seizure then there is the question of whether they can record a default since they terminated the agreement and so your obligations to pay the instalments ceased.

Did they serve a default notice on your before putting the default on your credit file?

Would be helpful to see a copy of the terms and conditions too.

[Martin26]

Hi Rob,

Thank you for your reply.

My friend was doing this as a favour while I was out of the country as it was overdue for a service. When he was driving the vehicle the day before the service was due he was pulled by the police for no insurance and the car was seized by the police immediately, but the car was actually insured under my trade policy which I later proved to the police and VW.

So this was their reason initially for seizing the car and for vw saying I broke the contract then when I proved that was incorrect and provided them with the appropriate information, they said I had broke the contract anyway by letting someone else drive the car.

But before this conversation they told me they had come to the decision to release and go collect it from the police station, don’t cancel your dd etc this will carry on as normal. This conversation took place on a Thursday afternoon before Easter bank holiday so I couldn’t get the car until the following Tuesday.

When I arrived to collect the car the police man advised me I can’t collect the car because a senior colleague at VW had confirmed to him this morning that I can’t have the car and thats it.

Also I had been advised twice in the previous weeks leading up to this by 2 separate people at VW that the 19 day notice they had served at the beginning of this to pay £20k or get a default, was on hold until a decision was made. When I spoke to Tina Wilson the senior colleague who made this decision she would not explain to me why the decision was made to keep the car etc, why I had been to told to collect it and also advised me that this was the 19th day so I either had to pay £20k or the default was being put on my record.

I then spoke to someone else and they confirmed all this had been said as was on my notes. I have asked for all the recordings/notes but will be 30 days, I have requested tcs I will send them to you when I have them in 48 hours and the 19 day notice served aswell

Thanks again
Martin

[R0b]

Hi Martin, could you edit your post and split the block of text into paragraphs as it's difficult to follow.

[Martin26]

Thank you for your reply. My friend was doing this as a favour while I was out of the country as it was overdue for a service. When he was driving the vehicle the day before the service was due he was pulled by the police for no insurance and the car was seized by the police immediately, but the car was actually insured under my trade policy which I later proved to the police and VW.

So this was their reason initially for seizing the car and for vw saying I broke the contract, then when I proved that was incorrect and provided them with the appropriate information, they said I had broke the contract anyway by letting someone else drive the car.

But before this conversation they told me they had come to the decision to release and go collect it from the police station, don’t cancel your dd etc this will carry on as normal. This conversation took place on a Thursday afternoon before Easter bank holiday so I couldn’t get the car until the following Tuesday. When I arrived to collect the car the police man advised me I can’t collect the car because a senior colleague at VW had confirmed to him this morning that I can’t have the car and thats it.

Also I had been advised twice in the previous weeks leading up to this by 2 separate people at VW that the 19 day notice they had served at the beginning of this to pay £20k or get a default, was on hold until a decision was made.

When I spoke to Tina Wilson the senior colleague who made the final decision not to release my car she would not explain to me why the decision was made to keep the car etc, why I had been to told to collect it and also advised me that this was the 19th day so I either had to pay £20k or the default was being put on my record.

I then spoke to someone else and they confirmed all this had been said as was on my notes. I have asked for all the recordings/notes but will be 30 days, I have requested tcs I will send them to you when I have them in 48 hours and the 19 day notice served aswell

Thanks

[Martin26]

Hi rob, sorry to bother you was just wondering if you had a chance to look at my case thank you

[R0b]

Hi Martin,
First of all, I think the starting point is to actually work out the reason for VW terminating the agreement. It sounds like they have given you verbal notice or that by their conduct (of informing the police not to release it to you) they have acted as if the agreement was terminated.

Once you understand the reason, you need to then determine if VW exercised their right to terminate. Under the usual hire-purchase terms, you are required to maintain insurance with a reputable insurer but I've not known one to be so specific that it must not be insured under a business insurance. Also, hire-purchase terms can vary saying that absolutely no-one other than yourself can use the car or in other situations it is silent.

You need to therefore check against the terms as to whether you were in breach and if so, did the terms say that VW were entitled to terminate the agreement.

As to any defence that you might argue against VW, here's a couple I can think of, depending on the outcome of the above:

1. Section 87 says that in order for creditors to terminate the agreement, they need to serve on you a default notice. If they never did this then it could be deemed a wrongful termination, though I suspect VW will say that they exercised their contractual right under common law. pt2537 Amethyst is there case law confirming that a creditor can terminate under contract without the need to issue a default notice?

2. Equally, a default notice is also required for the recovery of goods.

3. Under Section 90, if you have paid 1/3 of the goods then they become protected and so if the creditor takes control without an order of the court they could be in breach. I'm pretty certain there is some case law in favour of the consumer on this point.

4. You could apply for relief from forfeiture under section 132, which allows the court to grant you relief from your breach and revert to the position before termination took place. You would need to make an application to the court at your own cost.

Have you received your account notes from them yet? Did you ask for recordings of the call too as you may need that as evidence to prove what was said.

If you have a copy of the agreement that you can upload then we can take a look and give you some initial thoughts.

[Martin26]

Hi rob here is the default notice

[Martin26]

Hi rob here is copy of my terms & conditions I had to wait for them to send me sorry there late

[Martin26]

Final part

[R0b]

Hi Martin, I've looked at the documents and here's my thoughts.

1. It may be possible to argue that to contractual obligation to not allow the car to be seized or distrained was not breached. To 'not allow' by its ordinary meaning is to not permit something to happen. You didn't permit or allow the vehicle to be seized as the police, in exercising their powers under law had reason to seize it due to lack of insurance which turned out to be an incorrect suspicion after further investigation. You couldn't have prevented the seizure since to do so would have been an obstruction of police powers and would be a criminal offence. In other words, I think VW have acted acted too hastily without looking at the facts.

2. Even if the above argument didn't wash, you could potentially argue the term was unfair because in a situation like this where the police have got it wrong and you were not in breach of failing to provide insurance, it creates an imbalance in the rights and obligations. Maybe even an argument under Section 140 regarding the unfair relationship of W

3. Section 87 of the Consumer Credit Act says that for default notices, they must specify whether the breach is capable of remedy, and VW have said at point 3 that the breach isn't capable of remedy. However, I've always understood that whether a breach is capable of remedy is an objective one, not subjective.

4. Another argument in addition to 3 above is that if the breach is not capable of remedy, then they must specify the amount to be paid and by what time. Although they have set out the amount payable, I couldn't see that there was a reference to the date when it must be paid. The default notice does say that they will send a demand for money but it's too vague, and therefore not strictly in compliance with the default notice requirements. As the notice is defective and assuming they terminate the agreement on 24th, that could be a wrongful termination due to non-compliance.

The above is a non-exhaustive arguments you could make but I give no comment on how reasonable they are or prospects of success if the matter were to go to court.

Tagging pt2537 for any further input.

[Martin26]

Sorry for late reply I just want to say thank you so much for your help rob I have been so lost with this so thank you can you recommend any representatives to help assist me dealing with VWFS please or even your self would be even better. thanks again