Barclays partnership finance PCP dispute

[LBoot1694]

I just guess love does craziest things to us to be honest.

Im not really sure why I did that. I remember a conversation about insurance and it being more expensive for him if I didn’t sign it over, which resulted in them not being able to get work. Just absolutely stupid basically. To be honest with you, it had not even really occurred to me that I had done that until more recently. I’m looking through text messages etc now to see what I’ve got going back that far.

I don’t know whether it’s worth the court stress to at least try and explain that I’ve never sold it and get it settled that way, or to just pay it off get BPF off my back and argue it more privately. This isn’t the first thing that’s going before a judge in relation to this individual so maybe I should just ‘add it on’ that way.

I will update the forum so others are able to see the outcome and how I managed it. However, I can imagine I’m going to be significantly out of pocket for the next few years - which I suppose is better than what’s happening now.

[R0b]

That's a question only you can decide and not one of us on here. We all make mistakes and we learn from them, so I'm sure if you are ever in this situation again, you are not likely to go about it in the same way.

Just one thing to bear in mind, if the lender does look to taking you to court over it and the judge finds in favour of the lender, you only have one month from the date of the judgment to pay the amount otherwise you will have a CCJ on your credit file for the next 6 years. If you can't afford to pay the judgment amount (which will include court fee costs of a few hundred pounds but if over £10k then it will likely include legal costs on top), you might be wise approaching them and coming to a repayment plan.

FCA rules dictate that lenders can't force you to pay the outstanding amount in one lump sum as that would go against their obligations. You could stall things somewhat by putting in a formal complaint if they don't accept your offer which needs to be reasonable and means you have further time to look at what arrangements could be made.

[LBoot1694]

Hi Rob,

I think I will just contact them and pay the 4K in full instead. Not that I have that kind of money laying around however I will sort something.

Im still to hear from them, which I find a bit weird, they were giving the information over 3 weeks ago now. When I emailed the solicitor involved with the case, he made no comment on that information he had received and just advised he was waiting for instructions from his client still.

I havent had a response about my complaint RE confidentiality, after they wrongly suggested they’d spoken to the current registered keeper of the vehicle. They hadn’t spoken to the registered keeper at all - they’d spoken to his mother. I feel it’s pretty poor if anyone in the country can contact them and they are able confirm they’re in a legal dispute with me at the very least. She has no involvement with this vehicle.

I will email them and ask what theyre wanting from me in order to settle it with them and go from there and keep the forum updated.

Thanks for all your help it’s been wholly appreciated.

[LBoot1694]

Hi Rob,

so ive has some correspondence from DWF today. Bizarrely, they haven’t mentioned the signing over of the vehicle!?

Theyve said they terminated the agreement because I let the account go into arrears - I’ll post the letter in a second. That’s now their reasoning for wanting payment from me in the next 14 days, and they’ve sent the voluntary surrender form again.

Theyve advised they they made a ‘clerical error’ in the previous letter.

[LBoot1694]

Here it is - I’m really confused.

[R0b]

Based on that letter, are they saying you allegedly breached the agreement in October and subsequently terminated the agreement in December? So I would say that from that letter they have, by implication, rejected your notice of termination. They don't seem to have given any reason why the notice of termination was rejected and on that basis I think you could very well argue repudiatory breach by way of wrongful termination. That should discharge you from all liabilities and in fact it is you who should be compensated, with the general rule being that you should have been put in the position had the contract been properly performed, including any loss of bargain.

Out of curiosity, did you receive a default notice by Barclays?

[LBoot1694]

Nope, the default notice I’ve got I had to ask them to post out ‘again’. They’re claiming they sent that in October. Like I say, I was in hospital for the whole of October with a poorly baby, however my house was unoccupied so I can’t see why I wouldn’t have seen that letter when I returned. It’s not like I opened anything that would have been more important than a letter as such either. That letter also says Id breached contract by failing to tax and MOT, not that I’d allowed the account go into arrears.

Its all a massive mess - I don’t know what they’re trying to do. I terminated this agreement in May 2018, why would they be claiming that 5 months after sending me a letter advising I owed £0?

I will I’ll email them again, advising them I don’t accept what they’re saying. To be honest, they don’t seem to know what they’re doing?!

[R0b]

You would be wise to submit a subject access request to Barclays and ask for all information they hold on you including account notes, account summary and letters or notices sent out to you. This seems to be an underhand tactic by Barclays which for some reason I have no idea why - I would be amazed if this was run past their legal team and approved because they must surely know they are on to a loser. I suspect its likely to come from some debt collection manager who thinks that using a firm of solicitors might frighten you into paying up, which could in fact backfire and result in them walking with their tail between their legs.

If it were me, I would be thinking carefully what you are going to say next and I wouldn't rush into responding back to them in a hasty fashion because, get it wrong, you could still be held liable for the car. Your ideal situation is to extinguish all liabilities under the agreement and put you in pole position, assuming that's what you want to do.

DWF have referred to arrears but have failed to actually describe what these arrears are, so that's the first thing you would want to know along with a copy of that default notice. Barclays used to (and possibly continue to) run the argument that you should still be required to make the monthly instalments until the vehicle was collected and if that is what they are relying on, I think it's a very very poor one.

You are right, you gave notice to terminate the agreement some 5 months earlier, you received a notice confirming receipt and an outline that it was reasonable to assume that Barclays had accepted your notice of termination. It seems, however, that they have rejected your statutory right to terminate albeit without any justifiable reason and instead, have sought to terminate the agreement themselves based on alleged arrears.

If I was in the position you were in, I would be thinking of replying along the same lines as what was already responded to, together with an explanation of the arrears with a breakdown, and a copy of the default notice. If you are serious about defending yourself on this, you should consider re-iterating the fact that the right to terminate under Section 99 of the CCA is a unilateral one and Barclays had no right reject it without any lawful basis. It might assist for you to explain that you were in hospital in October last year and upon your return no default notice was received in your pile of post. I would likely repeat the above that, by implication, Barclays have committed a repudiatory breach and you are accepting that breach which extinguishes your obligations liabilities under the agreement.

You could further suggest that you are now considering damages which includes loss of bargain and invite DWF to make an offer of settlement. Further pursuit of the matter by Barclays will result in a counterclaim for the transfer of ownership of the vehicle or the option to purchase price in lieu, either of which would have been the position had the contract been properly performed.

I guess now, the question is whether you want to pay up still which would be considered an admission of liability, or defend it and see what DWF's response is going to be; call their bluff and see what happens. Your alternative argument to repudiatory breach is that the agreement nevertheless terminated in May, not October so there is no cause of action for breach of contract.

[LBoot1694]

Dear Miss Boot

Thank you for your email below.

I now have conduct of this matter. I am taking my clients instructions and will come back to you as soon as possible.

Regards



This is their response in full.

[R0b]

So what did you say to them?

Have they switched lawyers (internally)?

Perhaps they may be taking you more seriously.

[LBoot1694]

Hi Rob,

I didnt reply to that one - they’ve just sent me this.


Dear Miss Boot

Further to my email below, can you confirm for the record that you are still in control and possession of the vehicle?

I look forward to hearing from you.

Regards

[R0b]

So what exactly did you say to them since my last post #38?

Have you responded to that email?

Have you sent a subject access request to Barclays?

[LBoot1694]

I will post up the reply in a second, it was basically what you have written the first time however I tweeked it to include what you had advised.

I haven’t replied to that one, no, not quite sure how to go ahead with it.

Ive submitted the request yes, may have those returned today actually.

[LBoot1694]

Dear Sir or Madam,



Re: Your client’s alleged debt claim



I am writing with reference to your letter received with the above identification number and my response to that letter is set out below.



Your client’s claim

In short, your client’s claim for breach of contract is denied in its entirety. It is accepted that I entered into an agreement with your client but it was not a conditional sale agreement as wrong alleged again, rather it was a personal contract purchase agreement.

Turning to the issue of the default notice that your client supposedly issued on 15 October 2018, advising that the account had gone in arrears, this was never received and I therefore ask that you provide a copy of that default notice. In any event, your client’s default notice was ineffective and, for the reasons below, your client also did not terminate the agreement on 11 December 2018.



I also require a detailed account from yourselves describing what these arrears allegedly are and how you believe they have occurred.



I will explain that I was situated in the Leicester Royal Hospital for many weeks throughout September until the end of October, however on my return home, this apparent breach was not received. I have no reason to believe this letter would not have been at my home address on my return.



On 21/05/2018 I wrote to your client exercising my right to terminate the agreement pursuant to Section 99 of the Consumer Credit Act 1974 (the “Act”). The contents of the letter stated that the agreement was to be terminated effective immediately and required your client to collect the vehicle within 14 days from the date of the letter, from the address provided.



Accordingly, upon termination of the agreement in accordance with Section 99 of the Act, my liability under Section 100(1) is limited to one half of the total price payable only. Furthermore, Section 173 of the Act confirms that any contractual term which is inconsistent with the provisions of any rights or remedies under the Act shall be deemed void and unenforceable.



On 01/06/2018 an acknowledgment of my letter was sent by your client confirming that I had paid one half of the total price and there was zero balance to pay. In the circumstances, your client cannot deny that it received my termination letter nor could it have terminated the agreement on 11 December 2018 as it was already terminated some months earlier.



With regard to the vehicle being in my possession, your client has taken no steps to contact me to make arrangements for the collection of it which is why the payments for the vehicle were stopped. Any obligation to continue paying were discharged when the agreement was terminated on 21/05/2018. The vehicle continues to remain in my possession and your client is free to contact me to make arrangements for a suitable date and time to collect it. If I do not hear from your client by 19/03/2019 , I will consider issuing a notice of intention to sell the vehicle pursuant to Section 12 of the Torts (Interference with Goods) Act 1977.



Counterclaim

For the reasons already mentioned, it is my view that your client’s claim is at best hopeless and there is no merit whatsoever. Therefore, if your client insists on pursuing me, I will have no choice but to counterclaim for malicious prosecution of civil proceedings together with harassment. I will also consider, if appropriate, to make an application for summary judgment and seek all costs incidental to any application or counterclaim.



I am considering damages in reference to this dispute. The impact of the persistent harassment from your client has led to increased and unnecessary stress, following what has already been a personally traumatic 9 months. The contractual termination is somewhat simple and I am struggling to understand why your client is reluctant to accept this.



My claim would be in reference to the loss of bargain and any further pursuit from your client will result in me requesting transfer of ownership of this vehicle or the option to purchase the price in lieu, the latter would have been optional if this contract had been properly performed. I am within my legal rights to pursue this as your client has actually committed a repudiatory breach.



It is concerning that you have failed to give a legally binding reason for why the termination of this contract was not accepted and my assumption is that this is because you are not in a legal position to be able to refuse the termination. My right to terminate this agreement under section 99 of the Consumer Credit Act is a unilateral one. I disagree that I was legally liable to sign the manipulative termination letter sent by your client, when I had in fact sent a completely acceptable termination letter myself. I therefore request you explain this decision with reference to the relevant legal frameworks, as any contractual obligations were void as from 21/05/2018.



The information needed to retrieve the vehicle was clearly provided in my termination letter, dated 21/05/2018. I am completely flabbergasted that your client has made no further attempts to contact myself to collect their vehicle, nor have they understood the consequences of this repudiatory breach by wrongful termination. I should not be in such a position and I will raise this concern in a legal arena.



I should also make you aware that I am further concerned that your client has placed an adverse marker on my credit file, as evidenced via Experian, in connection with this dispute. This is clearly a breach of the General Data Protection Regulation as the adverse marker is both inaccurate and misleading. I am therefore considering taking further action against your client for compensation unless it immediately removes this adverse marker within the next 7 days. You have previously advised that I take up this concern with your client personally, however you have advised me that all correspondence is to go through yourself. For the avoidance of doubt in the legal arena, I request that you raise this concern as a matter of urgency with your client and respond to myself accordingly.



In summary, your client has, quite frankly, conducted itself in an aggressive and appalling manner. I reiterate my point that your client has committed a repudiatory breach. I am accepting this breach and understand that my obligations and liabilities under this agreement are now extinguished as a result.



I have made a formal complaint to the Financial Ombudsman Service as well as the Financial Conduct Authority in respect of a number of breaches of rules under the Consumer Credit Sourcebook.



I trust this clarifies my position and I look forward to hearing from you in due course confirming that your client has decided to not pursue this groundless claim.



Yours faithfully,





Lauren Boot.

[R0b]

You could make an attempt to skirt around the question given the current situation and respond by saying something along the lines of, you fail to see the relevance of the question you are asking. As per your previous correspondence, the issue is that their client has committed a repudiatory breach and, despite inviting them to make an offer of settlement, they appear to have disregarded the position.

You could make a further request and if not substantive response is forthcoming then your next step will be to consider the commencement of legal proceedings against their client for repudiatory breach without further notice to them.

Of course you need to be careful how you approach it because you will need to decide how far you want to take this. You've reserved your position on commencing legal proceedings, so if you don't follow through with it then they may not take you that seriously. Alternatively you could simply keep avoiding further correspondence and call their bluff as to whether they will issue proceedings against you and take it from there.

Ultimately, you still need to resolve the car issue if you can.