-
Discharging liability with a BOE (q voucher)
Hi all,
In December 2020 I used a q voucher (BOE) to discharge a liability with Toyota finance. To date I sent around 16 Notices including irrevocable estoppels to the company’s, company’s agents and employee’s – they maintained the voucher was ‘not legal Australian currency’ and ‘not valid under Australian law’. They have never responded with proof of their claims.
The last notices I sent included invoices. These letters were sent to the company, various debt collectors, agents and employees with no response. They were now in default.
Despite all of the notices they still listed us as default debtors with Equifax.
I recently sent a few letters to Equifax as I wanted to wrap this up and force Toyota’s hand to finalise this once and for all. In these letters to Equifax, I instructed them to list Toyota as a default debtor. A week later Equifax notified me that the listing had been removed. I was happy about that outcome and thought I was making progress.
A few weeks after that I became aware that there was a claim submitted to the court 26<sup>th</sup> June 2022– we were never served however the company’s lawyer emailed me the claim well over a month or so later on about the 8<sup>th</sup> of August 2022.
I submitted the intention to defend and defence AND a notice to admit facts on the 22<sup>nd</sup> of august 2022. I was yet to submit our affidavits but all of this process takes a huge amount of time!!. I intended to get it in before the 28 days. I probably should have filed a defence and counterclaim straight away as Mark suggests however at least I managed to get in a defence.
A few days later at my work place a debt collector turned up with 3 local armed police with a tilt tray and repossessed my car!!! They claimed they had a valid court order. I did not consent to the removal of my property or the court order to remove my property and I took a video of the entire process. The senior police man told me the court order was lawful and that I would be arrested if I didn’t move away from the property. The court order was dated 26<sup>th</sup> of august 2022 and was made by a different lawyer at a different location from the lawyers that submitted the claim for the company……. This was in the car park at my work place. The gossip of course has spread rapidly – it’s a small town. However, we are still holding position.
We contacted Toyota to make a complaint and to ask if we could pay to receive back our property and they said, “we have the car, as far as we are concerned the sale will cover the debt”, you “should receive an email to say we have removed our claim”. A day later again contacted Toyota to ask if we could pay to receive back our property. They said there was already an active complaint in regards to our “account”. We did not get any remedy from this phone call. We recorded this call as well.
I have yet to see this email stating that they have removed the claim, however when looking it up on the court under the court number there is nothing listed. Despite this we also managed to get the affidavit for the defence and exhibits to the affidavit filed in to the court before the 28 days were up from the date of the email the lawyer sent us on the 8<sup>th</sup> of August 2022….. just in case they applied for a default judgement?? against us and didn’t remove the claim??? Forgive me I am learning on the run I don’t really know what I am saying!!
They also said we have 21 days before they are allowed to sell the car?
They have not responded to my notice to admit facts in the 14 days from the 22<sup>nd</sup> August 2022
They have not responded to my affidavit for the defence
Therefore I am still submitting an application for summary judgement with affidavit this week – even if there is apparently no claim on the court website.
Questions:
How do I get my car back? Is there a court document I need to submit?
Can they seize my car when there was a claim made by them and my Defence in the court in regards to the property?
Can they withdraw the claim when I have put documents in the court in regard to the claim?
Can they deny me remedy, keep the car and sell it?
Have a private meeting with Mark on Thursday but thought I’d put it out there to all. It’s nice to read through what other people are doing
Kate
-
17 Replies
-
I’m so glad you are having a meeting with Mark as it seems they are determined to act fraudulently and outside of their own rules. Mark will have some very good advice for you and may even know some one who would be able to take on the case for you.
-
Make sure you have all of your questions for Mark in a very precise, clear unequivocal and unambiguous form so he can give you the best advice possible. The more information you give him with each question the better. Have many small questions rather than one large question once you have given him an overview of the problem so he can give you very precise answers for each aspect of the issue. This will make communication between you flow much more productively.
-
Thank you very much for that information. I am wondering if there is a place to submit the questions and the background prior to the meeting to save Mark’s time?
-
-
You could try sending it to the team and asking them to pass it on to Mark prior to the meeting perhaps?
-
Ok great! Can I ask how I send it to the team. Is there an email address. Apologies if I have missed it in my readings.
-
Go to the … at the top of the page and click on that. Then you will see the contact tab. This is how you send the team an email.
-
Hai Kate, I was reading all that had gone on in this post and really interested in the outcome or if it is still on going. Are you able to share the process and what has transpired to your specific situation? Thank you for sharing your information. 🙂
-
Hi sojourner,
I am happy to give an update to this. These things seem to take a long time. So I had a meeting with Mark at the end of 2022 which was very helpful. It was suggested that this could be an interference in due process and that I could just make a claim against them along the lines of “have I NOT tendered payment in satisfaction of the liability” etc. With that in mind I have started a draft to pursue a claim, as you know these documents are extensive and require a lot of time and I am aware that the courts are not level playing grounds.
In the meantime I decided to complete a Notice of formal complaint. I attached an affidavit and exhibits to the affidavit of all the previous documents that I submitted to the court along with the USB of the repossession of my car, and the phone conversation I’d had with the manager of repossessions from the company in question, quite a pile of documents. I made 4 copies of the formal complaint and sent them to AFCA, ACCC, Legal Services commission and her honour Justice Helen Bowskill (QLD head judge).
I received a reply from legal services commission saying that I needed to fill out their template and specify the lawyer with whom I had a complaint. I have not responded to that as yet. The second reply was from Helen’s “office” basically saying that they cannot make a decision with this and that I should get legal advice. AFCA and ACCC have not replied as yet. AFCA has let me know that all the docs were sent to the company in question and that I had been allocated a case manager. I do know that when a complaint is with AFCA the company in question cannot do ANYTHING, like sell my property/car. My previous experiences with AFCA is that they usually just come back and say something like sorry we cannot make a decision or its out of our jurisdiction. In saying that though this is the first time I have made a proper notice of formal complaint WITH affidavit and evidence. The previous times I’d just written a quick dot point on their website. With this in mind though I am not holding my breathe for any sort of remedy here but you never know.
In the meantime I just spoke to a litigation lawyer yesterday for a quick 30min free consult on whether I had a case for anything regarding the fact that a court order was made whilst another proceeding was in place in another court. I also mentioned that I was never personally served court docs and only heard about the claim when the lawyer for the company in question emailed me the claim. Info I received was:
-they really aren’t allowed to make a decision ex parte without giving me an opportunity to appear.
-someone would have had to have sworn an affidavit of service – an affidavit of service would have had to have been filed for being served! Remember I was never personally served any docs prior to this court order.
-If you haven’t been served it’s a rebuttable presumption. That means that the burden of proof is on them. So if I can prove that I was never served documents with receipts, working etc then it could be contempt of court process. This would mean the server will be in a bit of hot water.
-It was suggested that we should obtain the affidavit of service to find out what was actually said on the affidavit e.g. what date they said I was served or words they used
I am in the process of getting all the court docs from the case that the court order was made. I rang yesterday and the court said no problem send an email and we’ll send you the documents since you are a party to the matter.
Outcome: I might then be able to file an application to set aside the order. This might mean that they might have to give back my car. Of course if they don’t agree……. I might have to go to court.
It’s been 2 years since I had started with these processes and it’s certainly one heck of a ride. It’s not easy and it take a lot of hours to get words on the paper. You’ve really got to love this sort of stuff. This case is one of 4 that I took on at the end of 2022. I will say this, I recommend taking on only one thing at a time otherwise it is way too much!
I am learning so much along the way and its nice to read about where other people are at and what they are achieving.
That’s all to date
Kate
-
WOW, your a rock star. 🎸 Thank you so much for the detailed reply. It is a lot of paper work for sure. I have been involved in two cases my self for two and half years myself, everything has been filed and I am just waiting now. I am getting ready to jump into a promissory note, I have been studying the process for about 6 months now and I really want to make sure I know what I am doing before pulling the pin.
I look forward to the results of your hard work, good luck.
-
-
-
-
-
Wow what a mountain of work you have completed. You certainly deserve your remedy. Well done you are a real warrior for justice!!
-
Hi Kate,
Do you have any updates. Interested in your journey and how you are going with the process? Yes it is challenging. I am currently working through the same process.
-
Hi all, I have an update to our journey with the q voucher.
As you know I was seeking advice from a mainstream Lawyer and just received their response yesterday which I will attach. I guess it was exactly what we expected. They did bring up one argument that I did not consider regarding making a claim around irresponsible lending.
Thus, the only thing I got from the money I spent was to not proceed….
Regardless of whether the voucher is a subset of a BOE Toyota did “accept something offered” and “a payment refused discharges the liability”. So, whilst I was waiting for the lawyer’s response, I came up with a few options that we have to hold our position.
1. Do an application to set aside a default judgement based on not being served and around the questionable affidavit that was used to secure the court order to repossess the car. See court docs and the commercial agent (Mr Foster). This talks about whether they can allow a hearing ex parte or without service on the respondents.
2. Do a creditors statutory demand for payment of debt based on the invoices I sent to Toyota and their lawyer
3. Place a claim in the court as the secured party creditor – I filed a UCC1 financing statement thus have the highest lien position.
4. Place a claim in the court asking them to provide evidence of their claim that the voucher is “of no legal consequence” and “is not effective under Australian Law.
I have attached:
– Mainstream lawyer response to advice on best way to proceed to get our car back – cost me $1300
-AFCA response to my formal complaint – I have until 23rd of March to contest this outcome. The author has made several claims in this letter.
– The court claim to repossess the car. I have only attached the affidavit made by Mr Robert Foster the commercial agent used by Toyota. Remember they got this court order whilst they had a separate claim in a separate court we were responding to. Note: The mainstream lawyer in his letter of advice stated this is not unusual. I would like to provide a copy of all of the court documents they used to repossess our car, but it is quite a large amount to blot out etc. May be Mark could advise a way to give others access?
– Copy of other court docs I found relating to the same commercial agent Toyota used to complete an affidavit to secure the court order for our car. It appears Mr Foster might provide his services for repossession and affidavits all of the time??!! Big business it seems. – will attach in another reply as you are only allowed to upload 3 docs at a time.
I have attached these docs and hope they help in some way and remind us to hold our position.
To the admin: If I have not correctly deleted names, please let me know.
Any suggestions welcome, especially from Mark 🙂
Kate
-
This is the extra court doc I found interesting as Mr Foster appears to aid in repossessions regularly by writing affidavits. The findings were around ruling ex parte and respondents not being served.
-
There is a Q and A tonight at 7 pm. Mark will be available to answer questions then.
-
-
Thanks for sharing your information and experience, it is very valuable to have insight into how they work within the system to try to keep you a sheeple waiting to be shorn.
-
Hi Kate,
I just found this thread.
Very interesting how deceitful, and fraudulent they’re openly willing to be.
Could you please provide and update on what happened, or where you’re at with it now?
Regards,
R.
-
Hi Kate,
Great update. I appreciate that immensely!
I hope it has been finalised in you favour!
