Application to strike out-case adjourned

[ukdarrenfan]

We have been to a hearing today with Direct Auto Finance as they were applying to have our claim struck out due to it being time barred. We were claiming the mistake route of Section 32 of the Limitations Act as I know of someone else in the exact same situation as us who was advised by the judge to argue the very same point.

The judge has told us to claim deliberate concealment and to provide more evidence not only to prove this fact, but also to prove that we could not reasonably have known any earlier than we did, as he said that was quite hard to prove when we purchased the car in 2002 but didn't realise until 2012.

As with most others we were told that the insurances were compulsory.if we didn't take the insurances we couldn't get a car. Nowhere on our agreement did it say that the insurances were optional, in fact, not on any of our paperwork so why would we have known? It was only when we were researching another PPI claim that we came across a couple of forums where people were talking about claiming from Yes Car Credit and they had all been told the same thing. As soon as we knew that fact we sent a Subject Access Request and started the ball rolling. It's only as I've looked into it further that I discovered the BBC documentary about them, but will they say that I should have known then even if I never watched it?

Its looking like its going to be really hard to prove this. Although we have argued that they included paperwork in their defence showing that the insurances were optional, we have none of those pages in our SAR. They say we would have received the Welcome to Yes Car Credit booklet, but we have proved that we didn't as it says in the back they were members of the FLA. I have an email to say they didn't join until a month after we bought our car. They also said that they took advice from Steve Plowman, who didn't even work for them when we bought our car!

Please help. I've worked solidly on this for months. They're trying to claim extortionate costs for a few hours work. I can prove by the things I've said that they're dodgy but if it gets struck out for being time barred none of that matters.

[ukdarrenfan]

Re: Application to strike out-case adjourned

Anybody?

[EXC]

Re: Application to strike out-case adjourned

There's a case summary of someone attempting to use sec 32 of the Limitations Act in a PPI claim somewhere. Hold on and I'll try and dig it up.

[Amethyst]

Re: Application to strike out-case adjourned

Your claim is for a refund of PPI on a car loan through DAF due to misselling (ie. told they were compulsory and without purchasing PPI you wouldn't get the loan)

Deliberate concealment doesn't seem to sit with that claim so I'm not sure what you/the judge mean on that point.

Here's your other thread on the same issue - http://www.legalbeagles.info/forums/...596#post357596 - for reference

We'll need to see your POC and their defence.

[EXC]

Re: Application to strike out-case adjourned

I hope you've not been advised to use sec 32 by CAG.

Here you go http://www.lexology.com/library/deta...7-52899ec1035e


The moral is that whether you're using a, b or c of sec 32, the crucial paragraph that applies is ''...or could with reasonable diligence have discovered it''.

In other words, regardless of what you were told verbally, there's bound to be something somewhere in the documentation you received during or shortly after the sale that the PPI was optional and that ''with reasonable diligence'' you could have discovered.

[Amethyst]

Re: Application to strike out-case adjourned

This was the original draft of the defence (from the other thread) - there is a part in there which explains why DAF applied for a strike under limitations as the TV programme is mentioned and it isn't clear that this was found during research. Good that the judge did adjourn for ukdarrenfan to get his argument for sec 32 organised. Presumably something further was entered to court in response to their strike out application ???

On 7th April 2002 the Claimant purchased a vehicle from Direct Auto Finance, trading as Yes Car Credit.

The agreement number is and is a multiple agreement under s18 (12) of the Consumer Credit Act 1974. The first agreement, for the purchase of the vehicle is a Conditional Sale Agreement within ss11 (a) and 12 (a) of the Act and the second part of the agreement (for the insurances) is a restricted use-debtor-creditor supplier agreement within ss 11 (b) and 12 (b) of the Act.

At the time of undertaking the credit agreement, the agent acting on behalf of the Defendant misled the Claimant into procuring Payment Protection Insurance, Mechanical Breakdown Insurance and Gap Insurance as part of the overall credit bargain.

The Claimant contends that:

Under Section 56 of the Consumer Credit Act 1974, the Claimant was misled and false information was given during the interview process on the day the agreement was made.

The insurances sold to the Claimant were neither defined nor explained and were not “optional” as the Defendant states. The Defendant’s agent misrepresented the fact that the insurance was compulsory and due to the financial restraints of the Claimant; the Claimant felt that there was no choice but to agree to the credit bargain, as he desperately needed a car and there were no other options open to him.

The insurances were mis-sold as the Claimant did not want or need them, but was told that due to his financial situation he needed to have them in order to purchase the vehicle. The Claimant and his wife were paying off their debts through a debt-management plan and also had a County Court Judgement against them. It was in their best interests to keep their costs as low as possible when purchasing the vehicle and this was explained to the agent. The Claimant was well covered by life insurance and work benefits that would have covered his payments in the event of accident, sickness or redundancy.

The Claimant contends that the agent for the Defendant was fully aware of the Claimant’s circumstances and had a vested interest in selling these policies so as to earn commissions, as a substantial monthly bonus was in place that rewarded staff if 90% of customers took out the insurance policies. The Claimant refers to the BBC ‘Whistleblower’ documentary, aired on the 16th March 2005, which clearly highlights sales staff force- selling policies to customers, with incorrect and false information being relayed to customers to ensure the insurances were taken out. Various online articles, such as ‘The Yes Car Nightmare’ and E How’s ‘About Yes Car Credit’ also highlight the way that sales staff deceived customers.

The Defendant states that the Claimant knew that the policies were optional and chose to purchase them on the day. The Claimant states that the only persons present on the day in question were himself, his wife and the sales person and, although there may have been guidelines in place that employees should have followed they were not adhered to that day.

Furthermore, on being advised to check his agreement thoroughly, the Claimant discovered that the deposit of £1001.00 that he put down on the vehicle had subsequently been allocated by the Defendant to the additional insurance products and not the cost of the vehicle. This then prejudiced the 50% termination cost, interest rate and total amount payable. It also then changed the cost of the PPI and subsequent warranties (with interest) to £3199.52.

The Defendant continues to state that there was “no express agreement” to allocate the deposit to the vehicle price, so they have taken it upon themselves to allocate it where they saw fit.
The Claimant contends that if he paid a deposit on a vehicle he would expect it to reduce the price of that vehicle and would never have thought it necessary to state this. In fact, documentation received by the Claimant in his Subject Access Request shows a Vehicle Sales Invoice with the deposit being deducted from the cost of this vehicle, leaving a remaining balance of £4799.00. This is not then reflected in the Conditional Sale Agreement.

[ukdarrenfan]

Re: Application to strike out-case adjourned

We did send a witness statement in response to their strike out application. In their defence they had provided evidence that we supposedly knew the insurances were optional. We had not received any of this in our Subject Access Request. In fact they provided 2 pages and a booklet that we had not received. We intend to print and send the whole of our SAR request (which has absolutely NO mention anywhere of the insurances being optional) to prove that these pages were not given to us. We have already proved that we did not receive the booklet as it mentions at the end that they were members of the Finance and Leasing Association. We included a copy of an email from the FLA to show that DAFS only became members from May 2002, which was after we purchased our car.

They also said that they took advice from Steve Plowman. I also included the dates that he worked for DAFS, which was over a year after we purchased our car, so how could he give them advice about what would have happened when he didn't work there at the time?

When we purchased the car, the sales person told us that the insurances were part of the package. We couldn't not have them. He basically said they were a good deal and very useful, but if we didn't want them we couldn't get a car from Yes Car Credit as they weren't optional. Our Conditional Sale Agreement only states that these are Additional Insurances, nowhere does it state that they are optional anywhere.

They say that we have ticked all the boxes and signed the agreement to say that we apply for all the insurances, but why would we not? As it is, we didn't tick the boxes the sales person did. Of course we signed, we couldn't get the car otherwise and we needed one desperately. With a debt-management plan and a CCJ against us we couldn't exactly go anywhere else.

We didn't know that we had been mis-sold these insurances at the time and I don't see how we could have been expected to find out if we didn't know in the first place. Everything about Yes Car Credit was different to how you normally went about buying a car. From the APR being higher than we had expected, the deposit we had to pay being much higher than we'd been told, to then being told the insurances were part of the package, why would we know that was not meant to happen? We'd never been in debt before or had to go somewhere like Yes Car Credit to know what to expect. We just thought that perhaps that's what happened when you couldn't get a car elsewhere.

We didn't even know when they closed for good. Our direct debit came out as normal, nothing changed. We got a statement at the end to say it had finished. We threw the agreement away and got on with our lives and getting out of debt. It was only when we were researching another PPI bank claim that we realised that other people were claiming against Yes Car Credit and they had all been told the same thing as us. That's when we realised that it hadn't been the truth. Once we started researching we uncovered all the articles and the websites etc, but we wouldn't have even gone looking for this if we didn't know that we had no idea that they hadn't told us the truth. Does that make sense?

I don't understand how they can say we could have reasonably found out earlier than we did. It wasn't major news when Yes Car Credit went under, and even if it was a few lines in a National newspaper it would only have said that they went under with lots of debt. We had far more going on in our lives to care about that at the time. If there had been some major headline in a newspaper or on the news that said about how Yes Car Credit lied to their customers then we might have been expected to see it, maybe, but there wasn't. We didn't see the documentary, but as far as I can read, most of it concentrated on the checks on the cars that weren't done. It's only on reading the press release from my research that it mentions it highlights the force-selling of policies to customers. Like I said, you don't go looking for something that you don't know exists until you know there is a problem in the first place.

Sorry it's a bit of a ramble....I hope I haven't bored you!

[Amethyst]

Re: Application to strike out-case adjourned

Feel free to ramble, makes complete sense and I am utterly behind you. Your problem is going to be the limitations act.

Can you post up your witness statement please.

What is the basis of the adjournment ? ie. what do you need to do now ? amend your POC ?

[EXC]

Re: Application to strike out-case adjourned

We did send a witness statement in response to their strike out application. In their defence they had provided evidence that we supposedly knew the insurances were optional. We had not received any of this in our Subject Access Request. In fact they provided 2 pages and a booklet that we had not received.

I'm not sure that a generic booklet (which would describe the PPI as optional) would have been captured by the SAR, which after all only covers personal information about yourself. In my view Daf/Yes Car would only have to prove that as a matter of normal practice the booklets are given customers for it to be difficult for you to argue that you didn't receive it at the time.


What is the value of the claim?

[ukdarrenfan]

Re: Application to strike out-case adjourned

They could argue that they have given us the booklet, only we have already proved that they can't have done as it mentions they are members of the Finance and Leasing Association. They weren't when we bought our car and I have an email to prove that.

Believe me our SAR was VERY detailed. Every little thing in there. Details of all the benefits of the insurance, commission sheets, finance sheets, direct debit guarantees, statements. You wouldn't have thought they would miss anything out at all from what they put in there. There was lots of stuff we hadn't even seen before. I hardly think when they have included everything else that they would miss out all the important stuff-which just so happens to be what they are relying on to prove their point that we knew the insurances were optional.
Funny how it would only be those sheets that they missed out, when none of the rest of it mentions it being optional.

The total value of the claim as it stands at the moment is around £6500.