Barclays partnership finance PCP dispute

[LBoot1694]

Hi,

i temrinated a PCP agreement on 21st May 2018. This was acknowledged and I received a response from Barclays on 1st June 2018 advising that I owed £0, but they had sent a pre written termination agreement on the overleaf which basically manipulated my legal rights as a consumer. Therefore, I obviously didn’t sign it.
My temrination letter advised that I was ending the agreement and it gave them the address and 14 days to collect the car.


Without getting too personal, I had some pregnancy issues and remained in hospital for quite a significant amount of time, to which my son was born and he then stayed in hospital due to ill health, therefore it wasn’t really a priority of mine.

Therefore, this has literally been the last thing on my mind. However, I received a letter the other day from DWF solicitors who advised that I had failed to rectify a breach (tax and insurance) on the vehicle and that Barclays had ended the agreement on 11th December 2018 and that they were advising signed the paper work to have the car repossessed.

Ive responded, advising that I have fulfilled my legal obligations (they outlined these themselves their response letter that I was obliged to pay 50% of the total amount payable) and that I was unhappy with the marker on my credit file, further advising them that this was a breach of principle D of the GDPR regulations, as the information was inaccurate. I’ve advised that they come and collect the car still and I’m holding my stance with them, but I just wondered if I was in my rights to do this?

Thanks in advance.

[R0b]

So just to clarify, you paid 50% of the total price?

It would be helpful to see thecorrespondence from DWF to understand what they are arguing.

So long as you've paid half the total price, there isn't anything they can do about any breach of tax. If Barclays have marked your credit account the only real way is to take them to court over it.

[LBoot1694]

Hi Rob,

so the letter is as follows:

“On 10th July 2014 you entered a into a fixed sum agreement referenced above. In breach of the terms of the agreement, you failed to insure and MOT the vehicle. On October 15th 2018, our client sent a default notice to you in accordance with section 87 (1) of the Consumer Credit Act 1974, demanding that you remedy the breach in relation to the agreement. Due to your failure to remedy the breach, the agreement was terminated on 11 December 2018.

Our client has instructed us to recover the goods from you unless you discharge the balance outstanding on the agreement in full within the next 14 days.

as the agreement is regulated by the consumer credit act, our client cannot repossess the goods without a court order, expect with your written consent. If you are prepared to consent to the repossession of goods, please complete and return the attached voluntary surrender form”

yes, I definitely paid the 50%, they sent me a letter back advising I owed them £0 to voluntarily terminate on 01/06/2018. I’ve had no correspondence for why they haven’t collected the car though.

Am am I able to send images of the correspondence?

[LBoot1694]

Here’s their correspondence, I can’t find any other letters about the breach, but we wasn’t discharged from
hospital until the 01/11/18, so it could be anywhere.

[R0b]

Hello,

Apologies I've not replied, due to holidays and all.

A lot of errors in DWF's letter there. First of all they suggest it was a fixed sum agreement and if that were the case, there would be no terms and conditions that require you to tax the car because the car would belong to you. Plus the option to VT would not be available either. They haven't pointed out what clause in this supposed agreement that you've breached.

Second, they have also failed to comply with the pre action protocol for debt claims. DWF should be well aware of the protocols and you could say that it seems their failure to comply and threats of legal action could be an attempt to take advantage of someone without legal knowledge, in breach of their SRA codes of conduct.

Third, you could robustly defend their allegations based on what you've got so far I.e. the agreement t terminated way back in 2018 before this alleged breach occurred. Barclays have no claim at all in my eyes and you could also propose to counter claim against Barclays for malicious prosecution of civil proceedings as well as harassment.

It really depends on how you want to play this out but my view is that you do need a robust response.

Is there an email address on the letter so you can reply to them by email?

If you haven't already, I would suggest you start drafting a response based on the reasons why you deny any liability and post a draft of it up on here.

[LBoot1694]

Thank you for this, it’s very helpful to know, not only because it confirms my thinking but also because I had not picked up on the things you have.

I wilk write a response now and post up asap, I’ll get it emailed over to them - I have sent a letter outlining as and when I terminated the agreement etc, however I’ll send it again via email to make sure it arrives before the 4th anyhow.

Should I include all you’ve said RE the breach of pre action protocols?

Thanks again.

[R0b]

Include as much or as little as you want, though it might be helpful to outline your response by splitting it into two headings: their client's claim and your counterclaim. That way you are not overlapping or criss-crossing between the two and ensures that your response is clear.

Do remember, if you intend on including anything I've said above, you will have to put it into suitable sentences and do not try to be overly aggressive with your response a sit doesn't help either side.

The pre-action protocols is a key point that should be included as it puts them on the back foot and will have to explain why they never complied with it at all. You could even suggest in your letter that you seek their confirmation that they will refrain from issuing proceeding until they have properly complied with the pre-action protocol for debt claims. If they decide to go ahead and issue a claim then it is up to you to either make an application to stay the claim whilst they comply (and seek the cost of the application) or just go ahead and file a defence / counterclaim.

One other thing you could include in your response is an application for summary judgment. Again this costs you and there is a potential risk of paying costs of attendance if you lose but I couldn't see how Barclays have any claim especially when you have evidence that they acknowledge receipt of your termination letter and further confirmed that the outstanding balance is zero, but to then claim that they are suddenly owed over £4,000 is somewhat strange.

[LBoot1694]

I have just written this rather quickly -

Firstly, I would like to start by highlighting that I did not enter a fixed sum agreement with Clydesdale Financial Services on 10th July 2014. This was a PCP agreement, hence my legal rights to terminate the agreement.




I am shocked at your inability to follow pre action protocols for debt claims. I most certainly have received now other correspondence from DWF in relation to this debt recovery claim.




I am confused as to which clause in the agreement that I have allegedly failed to comply with on 11th December 2018.




The PCP agreement was terminated on 21st May 2018 by myself, requesting that Clydesdale Financial Services collect their vehicle within 14 days of that letter. I consequently received an acknowledgment on 1st June 2018, advising that to settle the PCP agreement I had to pay £0.




However, on the over leaf of the letter, it was the wish of Clydesdale Financial Services that I signed and agreed to their prewritten termination agreement, which manipulated my legal rights as a consumer. As you will be aware, I am under no legal obligation to pay any further charges to return the vehicle, under section 99 of the Consumer Credit Act 1974, following my termination of the PCP agreement. It is in my view that 14 days was a reasonable amount of time for their vehicle to be collected.




My legal obligations were highlighted by Clydesdale Financial Services themselves in this letter, which only included paying 50% of the total amount payable.




It makes no logical sense that I have allegedly breached a clause in this agreement, 29 weeks and 1 day following my termination of the agreement.




I have still not received any correspondence advising why the car has not been collected and I deny liability to continue taxing and insuring a vehicle I do not own at my own expense, 29 weeks and 1 day after I had terminated the agreement.




The arrogant and threatening manner in which I have received this letter is indisputable. I will not accept scaremongering as a reasonable course of action. I am concerned this is an ill attempt to take advantage of an individual you assumed had no legal knowledge. I am aware this is a breach of your SRA codes of conduct. I will be considering legal action following this due to the malicious prosecution of civil proceedings and harassment.




I am further concerned that a negative marker has been placed in my credit file, which is a breach of the General Data Protection Regulations, principle D, as you have failed to record accurate information in regards to myself. I have never missed a payment for this vehicle and I owe Clydesdale Financial Services no further payments. I expect that this will be rectified immediately.




I wish to file a formal complaint in regards to yourselves and your client and I will require the necessary information to allow me to pursue this.




I look forward to your response in writing.


Firstly, I would like to start by highlighting that I did not enter a fixed sum agreement with Clydesdale Financial Services on 10th July 2014. This was a PCP agreement, hence my legal rights to terminate the agreement.




I am shocked at your inability to follow pre action protocols for debt claims. I most certainly have received now other correspondence from DWF in relation to this debt recovery claim.




I am confused as to which clause in the agreement that I have allegedly failed to comply with on 11th December 2018.




The PCP agreement was terminated on 21st May 2018 by myself, requesting that Clydesdale Financial Services collect their vehicle within 14 days of that letter. I consequently received an acknowledgment on 1st June 2018, advising that to settle the PCP agreement I had to pay £0.




However, on the over leaf of the letter, it was the wish of Clydesdale Financial Services that I signed and agreed to their prewritten termination agreement, which manipulated my legal rights as a consumer. As you will be aware, I am under no legal obligation to pay any further charges to return the vehicle, under section 99 of the Consumer Credit Act 1974, following my termination of the PCP agreement. It is in my view that 14 days was a reasonable amount of time for their vehicle to be collected.




My legal obligations were highlighted by Clydesdale Financial Services themselves in this letter, which only included paying 50% of the total amount payable.




It makes no logical sense that I have allegedly breached a clause in this agreement, 29 weeks and 1 day following my termination of the agreement.




I have still not received any correspondence advising why the car has not been collected and I deny liability to continue taxing and insuring a vehicle I do not own at my own expense, 29 weeks and 1 day after I had terminated the agreement.




The arrogant and threatening manner in which I have received this letter is indisputable. I will not accept scaremongering as a reasonable course of action. I am concerned this is an ill attempt to take advantage of an individual you assumed had no legal knowledge. I am aware this is a breach of your SRA codes of conduct. I will be considering legal action following this due to the malicious prosecution of civil proceedings and harassment.




I am further concerned that a negative marker has been placed in my credit file, which is a breach of the General Data Protection Regulations, principle D, as you have failed to record accurate information in regards to myself. I have never missed a payment for this vehicle and I owe Clydesdale Financial Services no further payments. I expect that this will be rectified immediately.




I wish to file a formal complaint in regards to yourselves and your client and I will require the necessary information to allow me to pursue this.




I look forward to your response in writing.

[R0b]

Morning, I'll have a look at this and get back to you with any feedback, probably early afternoon

[LBoot1694]

Thank you. It’s not as you advised as I wrote it before I read to split it into separate headings.

[R0b]

I've attached an example based on your original draft, there's a few things you need to insert as highlighted as I don't know the answers. Please note it isn't perfect but an example of how you might respond to to DWF.

I also added the point about writing to the Financial Ombudsman and also the FCA which I really think you should do regardless of the outcome of this dispute. It's absolutely appalling that Clydesdale are being threatening in this manner and I think the FCA should know because they are in breach of their obligations which may or may not be given a sanction of sorts.

[LBoot1694]

Thank you so much for this. I have sent it off to them, hopefully they leave me now.

Can you just explain the whole sellinng if the vehicle to me? What do I have to do if they haven’t collected it within 14 days?

Thanks

[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.

[R0b]

Hi LBOOT1694

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

[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,