The answer to your question really depends on whether the money owed for the car is a fixed-sum loan agreement or a hire purchase agreement.
If the loan is a fixed sum loan agreement then the creditor has no security on the vehicle. This means that they would not be able to reclaim the goods under any circumstances, regardless of the IVA.
If the loan on the car is a Hire Purchase (HP) agreement then the monies owed for the car are secured against the vehicle, much the same way as a mortgage on a property. In effect, the finance company owns the vehicle until you repay a certain amount of the monies borrowed, as defined by the original agreement. After the predefined amount had been repaid, the company would need a court order to repossess the goods. Before this amount has been paid, they would be able to reclaim the vehicle as soon as your account fell into default (three missed payments).
The fact a rep has been out to seize thee goods implies to me this is indeed a HP agreement. As such, the creditor is a secured creditor and SHOULD NOT have been included in the IVA, as any secured debts would need to be services outside of the VA (these debts are treated as expenses, much the same way as a mortgage). This suggests one of two things to me, either a) your creditor has not been included in the IVA but you have not been informed by your IP you need to carry on making the payments towards this loan and thus they are repossessing your vehicle due to default or b) your IP has included the debt as a shortfall debt in the arrangement. This means they have notified the creditor to reclaim the vehicle and sell it. After the sale, the creditor will deduct the proceeds from the outstatding balance and this amount will be included as a creditor in the VA. However, it seems unlikely your IP would not inform you of this as usually HP will only be handled in this way if it is either excessive monthly repayments OR you have informed your IP you do not wish to keep the vehicle. Could it be possible your IP has not checked the type of this debt i.e. di they request you send them the agreement for the car loan?
The only other possibility is that the debt has not been included in the VA but have received notification as required by legislation. Recently, some companies have included into their terms and conditions that they will repossess immediately upon approval of a VA. Again, your IP should be aware who these companies are and should have checked your HP agreement in full to protect you from such clauses.
This information is very general but I hope it is of use. You need to check the list of included, excluded and secured creditors in your VA and see where the car loan appears. You also need to check your agreement from the loan, the type of debt it is (HP or fixed sum) will usually be in bold capitals at the top of the agreement.
Ultimately, you really need to discuss this matter with your IP as it appears there has been either an error or misscommunication of how the car will be effected by the VA.
I have checked the agreement and says a fixed sum agreement. This was the original agreement when we purchased the car, since then Santander took the loan over from GE Money. I had a letter from Santander saying nothing would change to the agreement and i had nothing to change or sign just the name on the Direct Debit would change from GE Money to Santander
Thanks
Last edited by Robert.Sn on Mon May 31, 2010 1:20 pm, edited 1 time in total.
On the agreement, it should have a section headed 'Repossession: Your rights'. Does it state in here that they have the right to repossess before a certain sum has been repaid?
The Santander/GE Money crossover is one of the particular area's of difficulty in the HP field at the moment. My IP will not allow any proposal to be prepared without documentation due to these discrepancies.
Untilmately, if it does not state they have any rights to repossession on the agreement and it is showing as a fixed sum loan agreement they do not have the right to repossess the vehicle without your consent or a court order enabling them to do so.
There is nothing stating repossession the only thing on there is a section called YOUR RIGHTS TO REPAY THE LOAN EARLY. this states the cash loan amount and any warranty and then the totals. And yes is defiantly states FIXED SUM LOAN on the front page.
When I started the IVA all my debts were put on the table but santander have not replied to any correspondence or creditors meeting at all. I had enough creditors vote yes to agree the IVA so I thought they would be obliged to leave me alone ?
We are VERY WORRIED they turn up on my door step again at 7am in the morning like they did on Saturday !!
Based on what you have told me it sounds as if they have no right to repossess your vehicle.
It is possible that Santander beleive the debt you had with GE money was a HP when it is actually just an unsecured debt. Santander have as much right to repossess your car as I do!
Your IP needs to discuss this issue with Santander ASAP. I would advise you to keep the original agreement and the letter stating there were no changes to the agreement when Santander purchased the debt from GE Money to hand. As with all repossessions, it is the responsibility of the creditor to prove they have the right to repossess goods. If anyone does come to your property, show them the agreement and ask them to show you what clause they are exercising by repossessing the vehicle. If they are unable to do so they are tresspassing on your property therefore inform them you will be calling the police to have them removed.
I advise you to fax a copy of all documents available relating to the debt to your IP first thing tomorrow and ask them to deal with this on your behalf as I can understand your distress at the situation.
Thanks for your advise and help, That is a possibility them thinking it is on HP and not a fixed sum loan. I assume for Santander to make any changes to the original contract when taking it on I would have had to sign something to agree the changes ? I will be contacting my IP first thing in the morning.
Correct. If santander had made changes to your agreement, you would have had to consent to them by signing a new agreement, exactly the same way as if your employer changes your salery or working hours.
If it is a fixed sum loan agreement then the creditor has no right to repossess your vehicle. Many firms try it on, and some vulnerable people may succumb. I suggest that you engage your own IP, who has detailed knowledge of your case, to take this up with Santander directly.
My IP has been in touch with santander and they said that there agreement states its a HP loan but my original contract from GE Money before Santander took it over states its a Fixed sum loan.
Could these people get hold of the car while he is not there? For example, it's on his drive way and they just chuck the car on a back of a trailor and away they go? If they can, might be an idea to find some where else to park it until its sorted.
If Football was meant to have been played in the air then God would have put Grass in the Sky
I would request that Santander send a copy of the agreement to you, showing your signature. In response, I would also send to Santander a copy of the agreement that you currently hold. Also, it may be worth checking your credit file to see if the debt is registered as a loan or a HP agreement.
My IP is doing just that and we are awaiting the response from Santander. What there saying it looks like there is 2 signed contracts for the same loan. Santander's saying HP and my original contract saying Fixed sum loan !!
Thanks
Robert
Last edited by Robert.Sn on Wed Jun 02, 2010 3:44 pm, edited 1 time in total.
