Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
    Basic Account Holder joebar Novitiate

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    Exclamation car repossession unexpected response at court **Claim Dismissed & Costs**

    hi everyone and hello just a quick background first.

    i have been a member for around three years, avidly watching learning and putting into practice what information i gleaned from these forums i joined up after my divorceicon for guidance in dealing with financial matters left with me to deal with by runaway ex wife.

    thanks to the members i was able to educate myself to tackle credit cards from MBNAicon (mailer applications no cca) and by copying what others were advising i have brought them all to being unable to supply cca, in time i will post in the fullness of time on these battles.

    However my current fight is with Black Horse and an attempt to reposess my car, having met with the normal bullishness and inflexible reponses from black horse i have over the last three years used the advice from these forums andfought the credit agreement.

    this reached a climax when Black Horse issued a summons in the county courticon for return of goods and payment of outstanding balance.

    i used a cpr 31.14 request and when i recieved a response i filed a detailed defence document with the court and heard no more.

    when i went to court today the clerk of the court said your not on the list and you shouldnt be here, oh i said there must be some nistake and produced my copy of the summons.

    after a few moments enquiries the clerk returned to say the district judge had removed the case from the list. when i asked why i was told that Black Horse had withdrawn the matter as having recieved a copy of my defence they did not want the case to go before the district judge.

    i asked what does that mean and the clerk said there was a hearing f which i knew nothing and black horse had withdrawn from the case and she said she thought they were now going to pursue a money judgement and i should now go home and phone Black Horse

    i have no idea what any of this means, but if they didnt want to go before the court based on my defence and withdrew what does that mean and what shall i do now whats a money judgement

    your help would be appreciated

    thanks


  2. #2
    Basic Account Holder campari2 Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    Hi - I am not sure that the court were right in saying there was a hearing, can you double check that? BH might have written in and withdrawn their claim against you, and intend to re-issue something else instead. I am no expert but think you have spent time and money with your defence and their doing it this way is sneaky as you didnt get to ask the judge for your wasted costs so far - there might even be ramifications as to whether they can re-issue an identical claim as I dont think that is allowed either, so worth checking whatever you can. It seems that right now there is no case against you at all and you will have to wait and see as the ball is in their court. Hope this helps.


  3. #3
    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    thanks campari 2 for getting back to me, thats what i thought as well i just wasnt sure. the only reason i can see for BH not to wanting my defence to go before the court is because they would not be able to win and they would lose so they are mereley choosing to either walk away and leave me alone or try something else i have take n your advice and contacted the court today to seek clarification here is a copy of the defence I filed with the court That BH does not want the court to see which might help someone elseDefence


    1. I am the defendant in this action and make the following statement as my defence to the claim made by Black Horse Limited.


    2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.


    3. I am embarrassed at pleading to the particulars as the claimant has failed to fully comply with the Civil Procedureicon rules, in particular has failed to supply a complete copy of the written document which forms the basis of this claim.


    4. The claimant has failed to set out how the figures they claim, are calculated nor do they set out the nature and scope of any charges contained within the figure claimed


    5. . The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice.


    Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence


    6 Furthermore the claimant has failed to attach a copy of the deed of assignment and notice of assignment to comply with Section 196 of the Law of Property Act 1925. I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice


    7. I will now look at the important issues relating to this case which must be brought to the courts attentionPre-action protocols


    8. . The claimant Black Horse Limited has failed to follow the pre-action protocols insofar as they did not send any letter before actionicon as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues.

    Instead they steadfastly refused to acknowledge my complaints and sought to override the statute law that applied to deny the documentation requested against the will of parliament. Instead they have launched into vexatious litigation The Request for DisclosureA Copy of my CPR 31.14 request to black horse ltd. Is attached and also their response


    9. . I have repeatedly requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant and his agents. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interesticon, alleged repayments by myself and payments made by the original creditor.

    Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. . The claimant has failed to comply with repeated requests for documentation including a copy of a correctly executed credit agreement and a Subject access requesticon under data protection which still remains unfulfilled


    10 To Date the claimant has failed to supply the documentation requested under the CPR and I have not received all of the documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person


    11. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act existsThe Credit Agreement


    12 The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts


    13. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)


    14. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -


    15. A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:a). Number of repaymentsb) Amount of repaymentsc) Frequency and timing of repaymentsd) Dates of repaymentse) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable


    16. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order


    17. . Notwithstanding point 16, the agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order


    18. I requested a true copy of the credit agreement to which I genuinely expected to receive an exact copy of that which the claimant held in their records i.e. an actual "replica" of the agreement which is allegedly signed by me and the claimant’s representative.

    To date, no such agreement has ever been sent; however the claimant has sent me fob-off attempts to satisfy my request, which unfortunately fail in an attempt to enforce this. This account is clearly unenforceable in line with s.127(3) Consumer Credit Act 1974, which, for ease and clarity, is quoted below;


    19 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).


    20 As is clear from the above, without an original "true copy" of the signed agreement encompassing the prescribed terms and duly containing my name and address, this account is lawfully deemed unenforceable and no formal action can be taken so long as this remains the case


    21 The claimant has confirmed in writing that the document in their possession is unsignedAnd therefore not compliant as explained above


    22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).


    The recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA. In MBNA v McCullagh; the Judge ruled;"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"The claimant has not produced terms and conditions for the agreement and has nothing in the document that refers to them reconstituted or otherwise


    23. The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced


    24. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1) (a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signatureicon of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."


    25. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumersThe Default Notice

    24. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement


    25. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant26. Notwithstanding point 25, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.


    The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)27. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

    The Assignment of the debt

    28. As stated in point 6, no notice of assignment has been delivered to me prior to instigation of legal action. consequently, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925


    29. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly


    30. If no Deed of Assignment can be produced it is requested that the court strike out the claimants’ case as the claimant will not have a right to bring this action against me in their nameConclusion


    31. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim


    32. I further ask the court consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly


    33. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly


    34. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the court’s permission to amend my statement of case accordingl


    35. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.The claimant has failed to attach any terms and conditions that were applicable when this alleged account was opened.


    Statement of Truth I believe the above statement to be true and factualSigned............ .........Date

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  4. #4
    Basic Account Holder campari2 Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    hi - lol - so when they've trawled through that lot you might get another claim but you do seem to have put in a lot of good work - all the best


  5. #5
    Basic Account Holder joebar Novitiate

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    Exclamation Re: so what now? car repossession unexpected response at court

    hi can someone help me with some advice i have heard from the court today with a date for a hearing as the claimant has now amended particulars of claim to a money judgement order

    what is a money judgement order

    any help appreciated


  6. #6
    Basic Account Holder millitant Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    was the claim withdrawn after a defence had been exchanged

    IE

    You put in a defence and they responded to the defence via a witness statement

    you mention ammending perticulars of claim, did black horse put in an application noticeicon to do this, the judge has to ok this, black horse just cant do it again if they fracked up


  7. #7
    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    hi militant thanks for getting back to me
    when i went to court the clerk said the district judge had removed the case from the list. when i asked why i was told that Black Horse had withdrawn the matter as having recieved a copy of my defence they did not want the case to go before the district judge.

    i asked what does that mean and the clerk said there was a hearing f which i knew nothing and black horse had withdrawn from the case and she said she thought they were now going to pursue a money judgement and i should now go home and phone Black Horse

    what i have recieved today is two "general form of judgement or order " documents

    the first is dated 2 days before the original court hearing and simply says IT IS ORDERED THAT the hearing be adjourned untill 25 june

    the second dated 15 may says IT IS ORDERED THAT the claimant haspermission to amend the original particulars of claim in to obtain a monetary judgement order against the defendant


  8. #8
    Site Team Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn Highly authoritative Ell-enn's Avatar

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    Default Re: so what now? car repossession unexpected response at court

    I think they are after a CCJ for the amount they claim you owe them, rather than a return of goods order. If they obtain a CCJ and you don't pay them they can then enforce the order by instructing court bailiffs to collect goods to the value of the order and that will more than likely be your car!

    I'll ask the team to have a look and advise further.

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  9. #9
    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    thanks ell en,

    does that mean they will not have to provide particulars of claim or have my defence thrown out ?

    will wait to hear from you

    thanks


  10. #10
    Basic Account Holder cheekone Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    i went through the same thing with honda, and blackhorse was the lender and honda had 41k out of me for a car that should of cost 23k

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  11. #11
    Basic Account Holder joebar Novitiate

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    Exclamation Re: so what now? car repossession imminent hearing please can anyone Help

    Hi Everyone urgent help needed

    ok to update the situation the claimant has issued amended particulars of claim acknowledging "infringement" of docs being not signed by them and seeking an order to enforce return of goods anyway under section 127 cca1974.

    they have also now provided a set of terms and conditions which they have historically been unable to provide even under SARicon requests and did not provide in my cpr request prior to the first adjourned hearing. these trems and conditions are dated 2007 and are not linked as being part of the 2005 document they seek to enforce if anything they just appear to be generic. they have also copied the docs i submitted in my defence and marked them as exhibits in thier own bundle.

    i need to know how to fight them next week in court under s127 anyone able to help


  12. #12
    Site Team slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132 Highly authoritative slick132's Avatar

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    Default Re: so what now? car repossession unexpected response at court

    You need to post up a copy of the new POCicon's but hide anything that identifies you personally.

    Also put up a copy of the T&C's that they've provided along with the Credit Agreement.

    Use DX's guide for posting up doc'ts :-

    Courtesy of DX100

    scan the required letters/agreements/sheets
    as a picture[jpg] file
    don't forget you can use a mobile phone
    or a digital camera too!!
    or convert them to .PDF
    ENSURE: remove all pers info inc barcodes etc using paint program
    but leave all figures and dates.

    goto one of the many free online pdf converter websites
    it would be better to upload a multipage pdf
    than many single ones
    or if you have PDF as an installed printer drive use that
    or use word and save as pdf
    open a new msg box here
    hit go advanced below the msg box
    hit manage attachments below that box
    hit the add files button on the top right
    hit select files, navigate to your file[s] on your pc
    hit upload files
    NB:you can set where it goes in the post by hitting insert inline.
    then hit reply button



    Link 1. OFT Debt Coll'n Guide - http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf
    Link 2. Checking your credit Agreement - http://www.consumeractiongroup.co.uk...greements.html
    Link 3. Interest Tutorial - http://www.consumerwiki.co.uk/index....erest_Tutorial
    Link 4. OFT Guide re s.78 CCA1974 Requests - http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

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  13. #13
    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    Hi Slick 132

    ok docs attached, these are the financial docs to which they refer and the amended POCicon

    thanks in advance beginning to think they have an advantage i dont know about

    Attached Files

  14. #14
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    Default Re: so what now? car repossession unexpected response at court

    Hi joe, site team are aware of your request. Someone will get back to you as soon as they can.

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    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    hi
    thanks for getting back to me. any help greatly appreciated the clock is ticking now and i would appreciate your help in forming my stratrgy

    thanks


  16. #16
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    Default Re: so what now? car repossession unexpected response at court

    Joe, I will bring this to the attention of the site team again.

    Meanwhile, did you ever receive a copy of the default notice ? Have they provided a copy of it. I see they say it was sent by 2nd class post.

    A default notice should give 14 clear days for you to remedy the DN.

    I see from above that it was dated 22.12.2011 - have they sent you a copy of that Notice ? I particularly need to know the date of remedy

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    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    hi thanks for getting back to me
    they have sent me a copy of it i will scan and post it in a moment


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    Default Re: so what now? car repossession unexpected response at court

    Excellent - I see they have also sent the T&cs from 2007 - these can in no way be relevant to an agreement taken out in 2005 ?

    In order to comply with s78 - they must send you copy of the agreement - terms and conditions from inception and also current - plus a statement of account. I would hope that a court would see that they have not complied with the request.

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  19. #19
    Basic Account Holder joebar Novitiate

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    Default Re: so what now? car repossession unexpected response at court

    thanks citizen b,

    so can i ask the court to rule the cca as unenforceable and should they have to have the original, only after i had submitted the defence which is earlier in the thread did these terms and conditions appear, i dont know how they can say i have not been prejudiced because they are reporting to the credit reference agencys on an incorrectly executed cca that the original lender did not sign

    shall i continue with the defence i have posted and shall i ask for costs on the day ?

    thanks


  20. #20
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    Default Re: so what now? car repossession unexpected response at court

    Hi Joe

    Schedule 3 section 11 of the CCA 2006 makes it clear that S127(3-5) are not repealed for agreements entered into before 6th April 2007 therefore your agreement without all the prescribed terms is unenforcible without a Court Order.

    Also as you have paid more than one third of the total price they are not allowed to recover the goods either, again without a Court Order.

    Also have you checked the validity of the GAP Insurance ?

    The DN may be invalid.


    Regards

    Andy

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