Barclays partnership finance PCP dispute

[R0b]

Okay, so I've had a good read through your post so let's look at it in stages.

1. As a reminder, you do not own the vehicle at any time until all payments have been made under the agreement. As you have exercised your right to VT the agreement, you are responsible for looking after it until it has been collected. With that in mind, I'm not sure why you signed the car over to A (I presume you mean that you transferred the V5C to A?) when you could have simply just allowed A to use the vehicle (taking the risk that unless you have permission from the lender, you aren't allowed to drive it).

There was no need to transfer the V5C to A and whilst I appreciate you didn't want to get any parking tickets etc. you could put something in writing to set out on what basis A is allowed to use the car. As you've now realised, you have put yourself in a rather sticky situation with no evidence to prove what has and hasn't been agreed.

2. I suspect that A might be arguing that the car was bought perhaps on the basis that A can rely on some legislation that says if a vehicle is bought in good faith and without knowledge that it was on finance, then the lender has no right to recover the carI'm not so sure DWF can argue you have breach the contract when in fact the contract has already been terminated via the VT process. However, they could probably argue that you are liable for wrongful interference with goods by conversion i.e. you have given the car away when you had no permission to do so. As it stands, I don't think you have a leg to stand on in relation to owing the lender, either the return of the car or the market value at the time of termination. Even if DWF succeed in recovering the car, you'll be on the on the hook for any damage caused to it as it was your responsibility to look after it.

3. You are right that there would be 2 separate claims to this: (1) lender claims against you and (2) you claim against A. If DWF issue a claim, that could probably be dealt with in one single hearing where you would counterclaim against A and bring A into the mix. The judge would then have to determine whether or not based on the facts that you sold the car to A - based on what you've said, A would need to prove what and how much was paid, though it doesn't help that you've transferred the V5C to A which is a schoolboy error and i'm sure you'll learn from it next time.

I'm slightly confused by DWF saying they are waiting for a court order and you might want to clarify whether an application has been submitted already and, if one has, whether that was a without notice application or not - without notice means what it says, that you don't get notified of the application but for something like this, that would be risky for DWF to do when there is probably no need to submit a without notice application.

As a means of trying to get the car back, you could report it stolen to the police, that you initially agreed for it to be used but is now refusing to hand it back and so it needs to be reported as stolen i.e. theft. The police might fob you off and say it is a civil matter but you should stick to your guns and make a complaint if they don't act on it. Difficulty with this route is that the V5C isn't in your name, though you could provide a copy of the HP agreement confirming the details of the vehicle and that it belongs to the lender.

I think I've covered everything but all in all, it's a real big mess.

[LBoot1694]

Thanks, Rob.

I wondered if it would be 2 separate issues and the one with DWF would still stand (I can’t see how they will ever evidence they’ve bought that vehicle, it’s me signing it over that’s the issue, which is a breach of contract as I understand now from reading up.

And the the person making the allegation would need to take me to court to try and evidence they bought it?

[R0b]

Morning,

I'll get back to you today once I've have a full read of your post but from skimming it, doesn't look good for you.

[LBoot1694]

Hi Rob,

This has just got a little bit further complex.

So, I allowed ‘A’ to drive this car to get to work. I consequently signed the car over to them, so I wasn’t not liable for speeding/parking fines just in case. The car was never sold to them.

They lives with me - before a relationship breakdown meant they left the property, taking my car with them. They’ve always refused to give it back and always said they only way it’ll be moved from their drive is if Barclays collect it (so I terminated the agreement, as you know).

However, they’ve since contacted DWF solicitors advising them that they BOUGHT the vehicle from me (this is the least I expected to be honest). However, DWF have given them, in my oppinion, too much information. They haven’t actually spoken to the registered keeper of this vehicle - they’ve spoken to their mum (I know, ridiculous!). They’ve disclosed that:

They are involved with myselr and BPF.

The case is on hold pending further information (which is something I wasn’t even aware of)

They have never issued any letter for the return of the vehicle.

There will be absolutely no no evidence that the vehicle was purchased - there is transactions from our bank accounts, however we were living in the same house and setting one up for the first time - So some of it is within the thousands.


dwf are now throwing at me I’ve breached my contact again and this is how they’re planning on getting the car back from me. They’re advising they’re just waiting for a court order, which doesn’t make sense - they don’t need one, I’ve told them to collect the vehicle, I’m not holding it away from them.

Any ideas on how to approach it now?

Its all just just turned into such a mess

[R0b]

I don't think you need to respond advising that your position remains the same. You could ask that they have failed to respond to the points made in your previous letter and you are seeking a specific response.

You can also send DWF the Torts notice and I would also send a copy to BPF as well so they can't say they never received it.

Good news on the credit file side of things, it's really frustrating and BPF should be on top of this as one day it will come back to bite them when someone chooses to issue legal proceedings and seek compensation - there's no excuse for it really.

[LBoot1694]

Hi Rob,

Still had no further correspondence from them. Should I respond to their email, advising I’m still sticking to that in which I said previously? Interestingly, I’ve just checked my credit file, and the loan has now gone to ‘settled’. Which means they’ve taken note of something?!

[R0b]

Well they did say that they would issue proceedings if not paid, so I would have expected them to have begun that process already. That's not to say they aren't but I suspect your reasons and counterclaim might have given them cause for concern, particularly as they failed to address your points about being notified and the longer time goes by, it seems like an empty threat.

You can make a request for the agreement under section 77 of the CCA by enclosing a £1 cheque or postal order. They have 12 working days (+2 days for delivery of letter) to provide you with a copy otherwise they can't enforce the agreement. I have an example template which you can find by clicking here although you may need to amend the title from Fixed Sum Loan to the type of agreement you have and needs to be sent to the finance co.

I would probably allow until the end of the month before responding to the solicitors and then ask them to confirm if they are going to issue proceedings.

[LBoot1694]

Hi Rob,

do you know roughly when i will have to respond to them by? I haven’t received any further correspondence.

Thanks

[LBoot1694]

Hi Rob,

i cant find this contract anywhere - can I request a new one from anywhere?

Thanks

[R0b]

Thanks I'll take a look when I can but theres two lines of argument, section 99 is an indefensible right to terminate without limitation, and if they refused to process your VT it's a repudiatory breach in which case there is some case law somewhere I'll try to dif it out where as a result of a repudiatory breach the court ordered that the car be transferred in the name of the debtor

[LBoot1694]

Hi Rob,

i will have yes. I’ll find that out later on and upload it ASAP. It’s funny how they’re saying their letter before action still stands, without actually giving me a deadline now (it’s passed their previous deadline) so are they saying let’s just keep arguing?

[R0b]

I'm out and about at the moment but I'm flabbergasted that they still seem to think that the contract wasnt terminated because you refused to sign their paperwork.

Really it's yoir choice what you want to do but I dont think they have a leg to stand on. Do you have a copy of the contract all of the terms? If you do can you upload it?

[LBoot1694]

Hi Rob, just got the response now. They’re not accepting wrong doing - here it is!

Dear Miss Boot,

Thank you for your email dated 4 January 2018, the contents of which have been noted.

Having reviewed your email I note that there are several issues you have raised, which are addressed below.

Non compliance with pre-action protocols
You are correct in that this is the first letter you will have received from ourselves, however prior to our involvement in this matter you will have received correspondence from our client, namely the notice of default and termination informing you of your breach of the contract. You will note that our initial letter introduces ourselves, who we are acting for and on what basis, and supplies our contact details.

I note your reference to Outcome 11.1 of the SRA Code of Conduct and the requirement to not take unfair advantage of third parties. Our Letter Before Action has been sent to put forward the options available to you and highlighted multiple organisations that are able to provide you assistance in this matter, should you require it. The style of the letter is in such a way to make the issues clear and understandable. This will allow you to clearly understand the position as it currently stands, the potential future action and allows time for you make any queries or disputes to ourselves.

The Pre-Action Protocol for Debt Claims (PAPDC) relates to matters claiming payment of a debt, whereas this is a claim for the return of a secured asset, as such PAPDC is not applicable in this matter. As indicated in our Letter Before Action the relevant guidance is contained in the Pre-Action Conduct and Protocols - Practice Direction (PACP).
In accordance with this Practice Direction we have provided the sufficient information required under paragraph 3 PACP. Our Letter Before Action details the basis on which our client's claim is being made, summarises the key facts and notes what our client is claiming. Furthermore, we have allowed 14 days which is a reasonable time for response.

Our client's claim
I note your denial of our client's claim that you breached the contract, on the basis that you exercised your right to voluntarily terminate the agreement under Section 99 Consumer Credit Act 1974. I understand my colleague has already provided an email response to your letter raising these points, however I will briefly highlight them again here.
Our client sent you the requisite paperwork in the post for you to complete in order to voluntarily terminate the agreement in May 2018, which you were required to complete and return in order to facilitate the return of the vehicle. As a result of the paperwork not being completed or returned, your agreement was not voluntarily terminated.
As your agreement was not voluntarily terminated you still had the responsibilities to insure and MOT the vehicle at all times, which were not maintained. As a result a default notice then subsequent termination notice were issued.
As you will note from our Letter Before Action, if you wish to return the vehicle to ourselves then you will be required to complete and return the voluntary surrender form.

As per your request, a copy of the default notice has been requested and will be supplied upon receipt.

Counterclaim
In regards to your intent to lodge a counterclaim, you are within your rights to do so and any such counterclaim will be addressed upon its receipt.


I hope this helps clarifies the issues you have raised and further clarifies both our and our client's current position. Should you have any further queries, or issues, then please do not hesitate to contact our office.

Please note that our Letter Before Action stands, therefore legal proceedings will commence if no satisfactory result can be determined.

Yours sincerely,

[R0b]

Hi LBOOT1694

any further update on this, have you received a response from DWF?

[R0b]

If they haven't called to contact you about collecting the vehicle within the allotted time, then you can use this template to give them notice of your intention to sell. The template is self explanatory and is commonly used where tenants have left their property behind but if you want more information on it you can have a read of this link.

If the vehicle is being held on your property then you could, if you so wished, to stipulate a daily charge until the vehicle is sold or collected. I think a reasonable amount could be £5 per day or even £10 if you wanted to try and claim that much.