Finance: Default and repossession

... continued below

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Finance: Default and repossession ... continued from above

Default

The most likely reason that there has been a default under the contract is because a payment has not been made. Where a mortgage is held over goods (usually a car), other reasons may include:

• the borrower fails to maintain insurance;

• the borrower sells the goods;

• the borrower otherwise disposes of the goods;

• the borrower transfers the ownership to another person.

Legal proceedings

Although the credit provider has wide powers to begin legal action to recover a debt, in regulated contracts certain conditions must be first be satisfied:

• the debtor (the person who owes the money under the contract) is in arrears of their payments;

• an appropriate notice has been posted to the last known address of the debtor (or any guarantor);

• the debtor has been given the appropriate period to pay the debt.

For instance, where the credit provider has made reasonable efforts to contact the debtor and has been unable to do so. 

Remember, if this is a second or later default, the credit provider may have previously informed you that no further notice will be given. 

Get legal advice if proceedings have been instituted.

Extensions

Negotiation is often a good starting point. 

For instance, if you were unemployed for a period of time but are now in a position to make the repayments, this might allow an extension to be provided. 

Where larger sums are involved, it is important to get legal advice.

Refinancing

Repossession

However, repossession cannot place if:

• the amount still to be paid is less than 25% of the amount financed;

• the goods are stored on private property, unless a court or tribunal has made an appropriate order or with the borrower's (or occupier of the premises) consent. Following repossession under contracts regulated by the Consumer Credit Code, the borrower must be given notice of:

• the value of the goods;

• the repossession expenses; and

• the right to recover the goods by paying the debt or remedying the default.

Sale. The credit provider must get the best price possible for the goods. 

On the other hand, it is possible for the original borrower to introduce a buyer to the credit provider. 

If the best possible price has not been obtained (this may be difficult to prove if you did not have the goods valued prior to repossession), or the provider unreasonably refuses the person you introduced, you should seek professional advice.

Money owed after sale

Guarantors

• a judgement debt has been made against the borrower i.e. a borrower who has a court judgement against them that orders them to pay a sum of money to the credit provider; or

• the court has allowed the credit provider not to obtain a judgement against the borrower; or

• the borrower is insolvent or cannot be found. Get legal advice if you are the guarantor in this situation.

Unjust contracts

• harsh terms in the contract;

• the way the negotiations were conducted to induce the borrower to enter into the contract;

• a rate of interest that is excessive in the situation. It is important to get legal advice of you believe the contract is unjust because the issue must be adjudicated by a court or tribunal. Under the Consumer Credit Code the court may look into (amongst other things):

• the inequality of the bargaining situation;

• public interest;

• whether independent professional advice was obtained prior to signing;

• whether the borrower understood the terms of the contract;

• whether there were unfair tactics or unfair pressure applied to the borrower.

Reader comments about this article
By Debbie
we are currently in this situation initially due to job loss and medical expenses but it has been made worse by promises from brokers that say they have a loan for us then after several weeks we find out they haven't secured one at all. We even had the valuation thinking it was all go ahead. The bank was just as bad in the beginning taking months to finally tell us that they couldn't help. I understand that we have ourselves to blame but the situation has been made worse by empty promises. I am still trying to save the property but don't hold out much hope. There needs to be more information out there for people caught up in the cycle of debt as we made the mistake of paying off our credit cards thinking we were refinancing, instead of putting the money to the mortgage. In hindsight pay anything you have off your mortgage even if it is small. That was our biggest mistake. And get the promises in writing!! we have income, equity but no payment history and listed defaults therefore nothing.
By B C Owen
This article provides the facts in a straight forward manner specifically from the lender's point of view (legal). I would like to see an article written from the point of view of someone who is actually in the situation of having their home repossessed. Eg exactly what is the process- time to vacate, taking keys, possession of premises and household items. Many folk who find themselves in such a situation want information but do not know where to find it, cannot afford to contact a solicitor OR are too embarrassed to ask.
By Financial Services Online
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