PCP Mobilize

[WPUser16]

Hi Everyone,

Soooo yes I have defaulted on the payments, but ear me out first. I was 3/4 payments behind BUT I was still making payments since I got myself outta the mess I was in, the last payment made was December 7th, with another payment due this month. I've been with this company for about 10-12 years, well officially RCI not Mobilize. In september I had sent them an email regarding my financial situation and asked if there was anything we can do, what are my options, can I lower monthly payments etc to keep on track, I heard nothing back from this email so I assumed everything would be OK if I carried on the payments as usual. On the 16th January I received a termination notice saying they had cancelled the contract, I offered there and then to pay off the arrears, they wanted instead to do an affordability check which surprisingly come back declined since we have around 5k per month coming in, lots going out but I could still afford it. Bear in mind here I hadn't had anyting from them with regards a solution OR any help or advice regarding my then current situation. When they sent that letter I started looking for reasons why, and here's what I get. I have just learned about Voluntary Termination which can be done when 50% has been paid off "apparently", this was a 5 year PCP and I was 2 years in, HAD i have known about this earlier (they should have given me the option) I would have at that time taken this option. BUT now instead, since they have terminated the contract they get everything, the car and the remaining balance.

For me all this was a bit hasty from them, and today I have someone phoning to come collect the car.

My argument here is I am not disputing the missed/late payments but I'm someone who always pays for what they have BUT unfortunately giving the circumstance I couldn't and missed those payments, BUT again still continued to make payments on it. What I am really unhappy with was the lack of response and customer service from them, surely they should have given me some options here.... They did at one point say I could Voluntary Surrender the car BUT I never wanted to do that and again learnt more about this recently along with Voluntary Termination.

I'm just looking for a bit of advice on where I stand with this, yes I know with regards their terms and conditions I breached the contract and had 3 missed payments BUT surely there are ways/laws of doing things like this. I had NO OTHER options from them.

Thanks in advance.

[R0b]

Hi

When you say you defaulted on 3/4 payments, did you at any point receive a default notice letter from RCI telling you that you had to repay the arrears within a certain period or the contract may be terminated?

I have just learned about Voluntary Termination which can be done when 50% has been paid off "apparently"

This is wrong and an absolute misunderstanding across the industry. You have the right to terminate at any time before the final payment becomes due or the contract is terminated. Upon you giving notice to terminate and once the agreement has been terminated, you are liable to pay the remaining balance to make up the 50% liability.

[WPUser16]

Hi Rob,
I never received a letter for a default notice, nor did I receive any letters with their terms and conditions OR other options for me. I sent an email to them in September regarding my issues from which I never received a response from, I got myself outta the mess I was in and started to make payments again in November/December ON the 16th Jan I receieved a letter of termination (even though they could see I was paying) and I offered to clear the outstanding arrears which was like £800. This lead to the "affordability" check which they declined rapidly, and said someone will pick the car up....Today I received a call to pick the car up.

It all just seems a bit hasty to me, I feel they've been unethical about this. They NEVER mentioned anything about voluntary termination nor offered any other solutions, it's like they couldn't wait to terminate. They DID say in an email I could Voluntary Surrender the vehicle but I never wanted to do that, I wanted the car so this wasn't an option for me.

Like I say, it just all seems really hasty and unethical from their part to reach an agreement with me. Thing is now, they want to arrange the collection, they will sell the car and probably get around 8-9k from auction for it....The car is worth 12-15k easily.

[WPUser16]

I've been thinking about this, so basically because they've hastly terminated my contract there is nothing much I can do right ?

[R0b]

Hi sorry, I did not see your response yesterday.

I will take a proper look later this evening and let you know my thoughts.

[WPUser16]

no problem at all, thanks Rob. I appreciate it, a lot. I've been in a similar position when I was 18 (in50s now), it took them 6 months to collect the car, these are doing it in 6 days.

[R0b]

no problem at all, thanks Rob. I appreciate it, a lot. I've been in a similar position when I was 18 (in50s now), it took them 6 months to collect the car, these are doing it in 6 days.

Just following up on this. As we have limited information, it's difficult to say what exactly the best recourse is for you and the options available so it might be helpful if you work through some of the options and maybe decide what is best for you.

1. Lack of default notice served on you
For any regulated agreement under the Consumer Credit Act 1974 (which are typically agreements <£60k), it is a prerequisite for any lender to issue a default notice before they can do certain things such as terminate the agreement, recover possession of the goods and demand earlier payment of any monies.

You claim that you never received a default notice and if that is true, then RCI would not be able to take any of the above actions. Equally, if they have terminated the agreement without having served a default notice, you could argue that they are in material breach by wrongly terminating the agreement when they had no right to do so. Therefore you may have a plausible defence to the termination.

However, the CCA also says that just because you never received it, doesn't mean that RCI never served it. The Act states that if the default notice is properly addressed to you by way of post or hand delivered to you, then it will be deemed served. It is not necessary for them to prove you actually received it but merely show it was posted out. You could try to flush this out by making a subject access request asking for all information they hold about you, including copies of documents and correspondence that was issued as well as a screenshot of the account history.

2. Have you paid 1/3 of the total price payable under the agreement?
If you have paid 1/3 of the total price payable which is the figure stated on the financial page detailing how much is owed after taking into account all charges, interest etc then RCI cannot take possession of the car without your consent or a court order. Consent in this case would be informed consent rather than done under duress. Do be aware that there is a presumption that handing over the keys to the agent would be deemed as consent in the eyes of the law.

3. Make a formal complaint to RCI
If you feel that RCI have not done all that the could have, you could make a formal complaint to them with a view to taking it further to the Financial Ombudsman. As a regulated entity, RCI are under certain duties when it comes to debt collection and arrears. The FCA Handbook sets out these rules for lenders under the Consumer Credit Sourcebook (CONC). You can access CONC by going to https://www.handbook.fca.org.uk/handbook > Specialist Sourcebooks > CONC and CONC 7 (Arrears, default and debt recovery) will be your primary section you would need to refer to. In particular, you may want to look more closely at CONC 7.3, CONC 7.5 and CONC 7.12.

Any section that has an "R" assigned to means that it is a rule and is mandatory for RCI to comply with. Where you see a "G" this is guidance and not mandatory but an example of the obligations the regulator expects to meet and will be taken into account as to whether there is a breach or not.

The rules dictate that RCI has 8 weeks to respond to the complaint before you can take your case the Financial Ombudsman unless they have issued you with a deadlock letter which says there is nothing further to discuss and you may now pursue it with the FOS. In my experience, the FOS are about as good as a chocolate teapot in most occasions but do not let that put you off. You are not required to accept the decision of the FOS. The downside to this is that it is a lengthy wait, although RCI should suspend all legal proceedings (if any) until you have exhausted your appeals.

Where you believe that RCI are in breach of CONC rules, you may have an action against them under Section 138D of the Financial Services and Markets Act 2000. This section essential says that if an authorised perons i.e. a regulated entity or individual has contravened the FCA rules is subject to legal action for damages by an individual who has suffered loss. This means breaches of relating to any part of CONC with a "G" are not actionable.

I should point out that this route is rarely seen in legal proceedings and would be sensible to seek further advice on this which may be used as a counterclaim to any proceedings that may be brought by RCI against you.

4. Consider making an application for a time order
A time order is something available under the CCA that is not used very much but could be a valuable tool for you. It essentially allows you extra time and to avoid repossession of the goods under the agreement. I'm not going to explain in detail here as National Debt Line have a nice factsheet about time orders so I am going to refer you to that for further reading.

https://nationaldebtline.org/fact-sh...e-purchase-ew/

5. Other things to be mindful of
I've noticed in more recent times that where debtors refuse to hand over the vehicle regardless of whether or not the debtor has a valid defence, lenders are now resorting to reporting the vehicles as stolen. There was a post not too long ago about a situation like this happened on a motorway which has now entered legal proceedings despite the debtor having a valid defence. Now the lender is denying they ever reported it stolen despite the debtor's evidence directly from the police contradicting that statement.

Unfortunately whatever action you wish to take must be something you decide bearing in mind the risk of a county court judgment being made against you if legal proceedings are issued and you lose in addition to any defaults being registered on your credit file with the possibility of hampering chances of credit or favourable rates.

Equally, if you feel justified that any of the above options gives you a valid defence, do not think you have to hand over the car to the agent. In fact you could even write to RCI and/or message or call the agent and say you are not consenting to the car being collected. Of course this might trigger them to start the legal process which could add costs to the case and potentially legal costs if you lose if the amount being claimed is over £10k. Note: consent is required only if the car is on private property either your own or someone else's. The requirement of consent does not apply to the car being on a public highway.

Happy to answer any questions but I suggest you take time to read and digest what I have said.

[WPUser16]

Hi Rob,
I did reply to this earlier but for some reason I can't see it in here now, Ill write it again If I can remember some of it.

WOW! Thanks so much for your time, I appreciate that so much.

The CONC guidelines and rules are definitely interesting, and I'm more than confident that they didn't follow some of these with regards to treating their customers fairly. When I say this I mean, they terminated my contract even though they could see a recent payment AND was fully aware of my financial situation.

I'm stuck as to what I should actually do here though! I'm leaning towards at the moment giving the car back as requested and then seeking legal advice to claim against them for their terrible treatment and lack of advice.

Honestly not sure, I can honestly say though that they definitely did not treat me fairly with regards a termination of contract. The only reason I believe they would do this is that they were scared and assumed I was going to voluntary terminate the contract, which for them would make sense because they appear to not lose as much money.

MMMM...what to do now is the question, I guess.

Thanks again Rob

[WPUser16]

OK, thought I'd just update on this. As you can see from above messages I've been trying to contact them or get in touch with someone regarding my issue since they sent the "declined/termination" email.

Today I got a call, well I got a voice mail since my phone blocks "witheld" numbers from someone called "blank" (no names), I phoned back and said "Can I speak to "blank" please. Reply - "sorry I don't know who that is, I'll need to take you through a security check" ..... I give them my name, house number, address, post code, where I bought the car from AND then the final one " what year did you get the car " -- me "2022" ....reply " what month?" ..... me " Ohhh i honestly can't remember what month" ..... reply "Sorry, you failed the security check" ...HANGS UP!

WHAT THE HELL AM I DEALING WITH HERE! (sorry if this seems like a rant, but it's good for other people to be aware of similar situations)..

So I'm seriously considering just handing the car back at this point Rob, BUT I don't want to do anything here that would hinder my defense OR anything to do with me seeking legal advice to claim against them.

Any further advice or assistance would be greatly appreciated.

[WPUser16]

OK, so something wierd happened a couple of hours later afer my last post. They finally called, the lady I spoke with didn't really seem interested AT ALL with my complaint regarding the issue surrounding the termination letter/contract. Literally said "what we'll do for you is set-up an arrangement for the monthly payments and you get to keep the car" ..... OK, this sounds all good but why wasn't she interested in my complaint at all, AND does this mean anything with regards the contract being reinstated ??

Now I'm confused! I think im more confused now than I was before.

[WPUser16]

Hi Rob,

Your assistance here would be good. The agreement she sent over is actually for another 5 years, this was a PCP on 5 years and Im 2 years in. Why have they done this, it's no HP the car it's PCP.

Are they allowed to do that ?

Thanks

[WPUser16]

Can anyone jump in on this ? I really need some guidance/advice regarding this, they're now trying to make me pay for the car for the next 5 years which seems absolutely mental considering I was 2 years in to a 5yr PCP.

Thanks in advance.

[R0b]

Hi

Have you asked them why they are sending over a new PCP agreement for a 5 year term? It's a bit pointless asking us the question if we don't know the reason behind what they are doing.

Just an FYI, a PCP is a HP agreement, just a variation of it. They are not two entirely different concepts.

[WPUser16]

Hi Rob,

It's because of the above Rob, what you've already helped with basically. They said they terminated the contract, I was disputing this demanding to speak with someone. When I finally spoke to someone there they said "We'll set up a payment agreement" which was fine BUT then when they sent it over it was for the full amount AND for 5 more years, well my PCP was up 3yrs. At the end of the 3 years I could have handed the car back and got another one.

Does this make sense?

[R0b]

I get what you are saying but I don't get what they are trying to do.

Are they trying to set up a new PCP agreement for the outstanding balance over a new 5 year term? None of it makes sense to me as I don't know how that would work unless you retained possession of the car under the new agreement. Is that really what you want?

If you don't understand then you need them to clarify what they are trying to achieve, as it's no good simply saying we will set up a payment plan because what you are describing is not a payment plan in my view.

You also need to be careful what you do or don't say. You originally disputed their right to terminate the agreement and now they are offering a payment plan which, if you have agreed you may have inadvertently admitted liability for the debt and thereby overriding any objection or dispute you had in the first place. You should really be making clear that any agreement to a settlement or payment plan is subject to the condition that you are agreeing to it without any admission of liability. You then enable yourself to reserve the right to defend it at a later date if things ever went south. Preferably you need that in writing for evidential reasons.