Who is Simon?

Sounds like you used good judgement. You might have negotiated a lower total too if you'd gone in with a Tomlin proposal earlier in the process. Still a decent outcome though.

I think it was Loan no 8 the fees and interest were the worse.

Sorry...I mean in terms of the size of them and number relative to the short term. I recall it only lasted a few months before the next rewrite, but they blasted you with charges in that time. The cumulative total of charges on other loans were probably higher, yes.

Who knows what their reasoning was, but I recall the charges that were applied to that particular loan being the worst of all.

Maybe that was the reason for them excluding it, or maybe it was just an oversight.

It's not relevant now anyway.

As I see it, let's just agree which charges and fees can be legitimately offset against this balance, then hit them with the revised balance and tell them they'll not be receiving a Penny more.

Furthermore, tell them that as they've chosen to ignore your constant complaints on this specific matter, that you have no other option but to advise them of your position and that they are welcome (pardon the pun) to, finally, engage with you on the matter.

The side issue is the monthly repayment amount. I'd like Andy's view on this.

DX - do you have a view on what Cruz should be paying each month, assuming there is a balance after fees and interest have been removed?

If this were the case...

Yes, IF. It's for them to support that claim. Have they?

It also means that parking in that area is not authorised - so I cannot see how any contract can be created on that basis, as you have not parked under the terms of their signage, but on your own separate space. Perhaps EB can advise better.

Have they stated an observation time frame?

Just reading the appeal correspondence back again. They state that they are seeking Keeper liability in accordance with POFA, yet the NOK was issued 24 days after the event. A minimum of 28 days must pass. Therefore, they don't comply, and you could have them for breach of data protection too.

They mention that guests have parked in "no parking areas". If they're implying that you've parked in a "no parking area" then that is a forbidding term, so does not include an offer of any sort. It's not as if you're "obstructing" others or parking "inconsiderately as this", even if overhanging the invisible red line.

Actually, they do state that the vehicle was parked "over an area of no parking", which gives you something firm to grip onto on the forbidding term argument. There are case examples to support this.

Finally, before I bow out for the evening, they refer to the site map, and you being perked over the red line. How are you supposed to know where that line is situated, particularly when there isn't even a single sign fixed to that side of the "communal area"?

That's interesting. Have you advised them that your vehicles were not parked nor ticketed within the area they've identified as being under their management, and subject to the terms they're trying to enforce upon you?

sadly i'd lost the train of this..

no ..no link in a chain.

Ok, so only charges relating to the agreements from October 2006 onwards should be calculated by Cruz and deducted from the balance. Right?

Just checking we're all in agreement.

Didn't their appeal response state that the breach was "not parking within the confines of a marked bay", or words to that effect? They also mention something about yellow lines, which I failed to understand (unless it was to explain their logic behind a lack of signage).They don't appear to know what they're trying to pin you on though - seems a bit made up as they go along.

Do you have any pics of the bay and how the vehicles are positioned when parked as you do?

It would be interesting to see a map of the area they have an agreement to manage. I'd be surprised if it extends within the footprint of the building, essentially where your parking space is positioned.

Even if it does cover that area, the signage prevents you from parking in your own space, as your space is not "a marked bay". Yet they contradict that by stating that double parking isn't allowed, which in so doing, legitimises the position you parked as a bonafide parking space (despite not being marked).

Also, the signs are situated on the opposite side of the car park, next to what appear to be "marked bays" - therefore, you could reasonably argue that the parking terms apply to those spaces only. No signs on the entrance would support that argument, as how else can it be determined that the same terms apply to areas of the land other than where those signs are situated?

You'd have a field day if these chancers go the court route.

Yeah.

DX - are you including charges applied to previous loans that are not part of the current chain? I mean, anything pre-February 2006? This being the date that one loan was settled, then a break of eight months was had before a brand new loan was taken out, and subsequently culminated in becoming the first link of the chain that the current agreement.

The charges and interest from the October 2006 loan onwards wouldn't amount to the full balance. You most likely know all Cruz's loans better than me, so I'd like to hear your views.

...you pay what you have been ordered to pay by the court on the date stated.....dont take any self decided holiday payments as you have done in the past and stick to the court order rigidly.

 

Now on to Prime Credit.....they could send me all the letters in the word with what ever charges they like...I would totally ignore them and file them and when I got to 2033 I would pull out the original agreement with what I borrowed and the agreed interest and that total at that date less all the charges is what will be paid at the final redemption........not a penny more.

Andy, I've been discussing aspects of this with Cruz in the background off and on as we've gone along. Can I have your view on something please?

You mention 2033 - this being the year when the loan should be paid up. If Cruz makes the agreed monthly repayment amounts, the current balance will be paid up around 2025. This is because the account is currently being charged Zero interest.

However, the agreement states something along the lines of "monthly repayment amount, to include capital and interest". Also, WF fluctuated the amounts they were taking via DD, and ran a positive arrears balance. Therefore, there seemed to be very little adherence by the creditor to repayments being a set amount every month.

In view of the above, would you take the "...to include capital and interest" literally, and maintain the capital repayment aspect up until 2033 - as per the agreed term? This would considerably reduce the sum being demanded each month.

Furthermore, would you also deduct charges and interest at this stage - and then base repayments until 2033 on that figure?

The alternative is to pay the monthly repayment sum stated on the agreement, which would settle the account well ahead of the agreed term.

Of relevance is the fact that Cruz, when arguing that his PPI refund was effectively an advance repayment on the account in defence of the recent claim, introduced the argument that the number of months he was paid up in advance for should be calculated as the remaining account balance split over the remaining months until 2033.

The judge determined that the 'agreed' sum should be used (i.e. the higher sum figure) when calculating the number of advance months paid up - but the important point being that there were no arrears, thus the claim was dismissed.

However, information given to me by Cruz suggested that the judge wasn't interested in hearing this argument of the monthly repayment sums in any real detail, and stated something along the lines of "that's for the defendant to take up with the claimant".

The judge was only standing in at the very end of a long and and protracted process, as the original judge had retired.

There didn't appear to be any appetite to examine the finer arguments in any real detail - plus there was so much (arguably needless) content submitted in evidence along the way, that I'm sure it was difficult to capture any real enthusiasm.

So, what do you think?

Deduct what is believed to be the total of charges and interest, then repay at £231 per month until settled?

Or deduct charges and interest and repay the balance in equal payments until 2033?

Many thanks!

Sham

Could you give me some idea as to what needs removing? I’d appreciate any comments.

See bits marked as red below.

Dear Sirs,

Thank you for your letter of claimicon dated 19th December 2018 regarding being “parked outside of marked bay”. It certainly gave us something to laugh about!

I am writing to inform you that I have no intention whatsoever in paying your fictitious invoice and I welcome seeing yourselves and Simon in court.

I’m sure you are aware that your initial legal costs aren’t worth the paper they are written on and to date, you have still failed to create liability.

I hope this will be the last waste of paper I see from yourselves however, if not I am more than happy to defend this matter in court. I would also like to make you aware that I intend on raising a counterclaim should this reach court for damages.

If you had been bothered to do the tiniest bit of due diligence, you would have seen that not only does the driver enjoy supremacy of contract but to put the icing on the cake has a written agreement from your clients to park as they did". And right at the end "Obviously I will request full costs due to unreasonable behaviour (Civil Procedureicon Rule 27.14(2)(g))

There are bits in that which need to be removed. I'm sure you're on top of it, but thought I'd mention it anyway

....so it can only be a notice to keeper chasing a payment.

Precisely. Your defence becomes a simple case of "I am the Keeper, not the Driver. Any contract, if one actually exists, is with the Driver. Therefore, please provide evidence that the Defendant is the Driver."

There will be other arguments besides, and you could actually drawn upon POFA anyway to support your position that "I am the Keeper, therefore, cannot be liable because...".

You need to read and read on this. We're all busy people, but it's such valuable knowledge to have, so worth reading up in any spare time you have.

Thanks for your thoughts shamrocker. Note that they did previously offer me a full an final discount of about 20% which was ignored.

I'm going to submit the defence. If I do offer a full and final, when would be the best timing to do that?

Definitely submit a defence.

This is what will make them take note of potential work and costs to take this forward.

Don't submit the defence until you post it here first for feedback.

The timing is up to you, but I'd suggest that Mediation stage is the first opportunity to try them with something.

After that, I'd personally leave it until about three weeks before witness statements are supposed to be submitted.

You're looking to make them take a commercial view of it, so hit them before they've started working on the case properly, but at a time where they're mindful that work will have to be done pretty soon (and costs incurred).

They'll also be aware of your challenge on any default charges, which will erode their claim further.

It's just a case of making them question the worth of taking it all the way.

Others will advise differently, but the above is aimed at obtaining maximum gain for least amount of effort.

That said, they still need to comply in respect of serving a valid DN.

You'll probably not know much about this until they serve their WS,

by which time it may no longer be the best time to negotiate the best deal,

and you'll also have to go through the hassle of writing a WS yourself.

They might even trip up at that stage.

All ifs and buts.

It's a bit like a game of poker in some ways

- and you just need to decide on how best to play your hand.

Torch - your understanding of how best to handle this doesn't seem very strong.

That places you in a tricky predicament, particularly in view of the documentation that the claimant has produced.

You could press on and defend this in the hope that they cannot comply on the DN point, but even that requires some understanding and skill.

Nevertheless, rather than admit defeat (as a worst case scenario), I'd be thinking about entering a standard CAG defence (which will include a challenge on the DN), then set about working how best to negotiate the best possible deal for yourself.

It will cost the claimant to take this all the way to court, so it would make sense at the very least to come up with an estimate of what that would cost, and knock at least that amount off the total.

Next, I'd work out how many default charges the account has incurred, plus any interest.

Knock that off the total too.

You could consider hitting them with a that as a full and final settlement offer on an affordable monthly repayment plan as part of a Tomlin Order, which would avoid a CCJ, so long as you keep maintain the repayments.

It would save you no end of stress too.

They'd have to accept the offer though - but I know from experience that they are open to that sort of approach.

Sham

I'd be pretty confident of not hearing anything more, but keep your eyes peeled just in case.

That's not the whole NTK. Time and date etc are needed too, amongst others. Hide anything identifiable though.

Wait for Ericsbrother to offer advice on what to do next.

Be ready to provide a lot of information on the background to your situation.

It's ultimately your choice. Say "definitely wasn't me, sir" then. The fact remains that it is their burden to provide proof of who the driver was. In any case, it's only relevant if they are not relying on POFA to pursue the keeper.

Before you get to who was driving, you have the important matter of establishing whether a contract was actually formed with the driver. Only then, and assuming there is no reliance on POFA, does the identity of the driver become properly relevant.

 

I will be speaking on her behalf because she isn't really able or confident enough to do this on her own... The judge will ask me if I was the driver... what do I say if this happens??

The judge may not ask you who was driving, but you never admit to being the driver. Personally, I would simply say that "Respectfully Sir/Madam - I'm not willing to disclose the identity of the driver. The burden of proof is on the claimant to provide evidence of the driver's identity in support of their claim. They should have done that, but have failed to do so."

Also, don't forget that, IF they rely on POFA, and IF they comply, they can only chase you for the charge on the signs plus court fees. That should be your worst case scenario.

Finally, just to agree with what DX said, my immediate feeling was that the judge is letting this go ahead because the writing is already on the wall. It would be easier for the court to just have you come along as scheduled and hopefully then dismiss the claim. Saves the potential extra admin and possibility of having to argue with the claimant.

Don't try to be clever in front of the judge. Be humble and respectful, no matter what you're asked or told. Get your arguments straight in your head and simply convey them to the judge. Don't mention 'justice', 'legal', etc....just state concisely why the claimant does not have any grounds to claim against YOU as the KEEPER.

Things to consider...

- Was any contract created with the driver in the first instance? If not, there are no monies owed by anybody. The sign I saw in the Google Street View looked 'forbidding' to me - therefore, no contract is created with 'unauthorised' persons.

- Is signage adequate? No signage at the entrance should be a strong enough argument.

- Do they rely on POFA in pursuing you for the debt? If not, they have no claim against you, but will probably try to make out that you were the driver. One problem - you weren't!

- If they're relying on POFA and have stated this in their WS, are they compliant? If not, no claim!

- Have they got planning permission for the signs?

- Have they got a got authority to manage the land and request monies that arise in the course of that activity? If not, they cannot pursue you as the keeper, because POFA required them to have authority. They may try to make out rubbish about "I can offer to sell you Buckingham Palace....etc", but that might wash if you were the driver, but POFA requires them to have the authority of the landowner.

Those are just the main points that come to mind. There will be others, no doubt. They're likely to trip up on at least one point - albeit, they will attempt to blag it. This is why it's so important to read and read and then read some more on this stuff so the arguments become clear.

P.S. A contract does not need to be physically signed. If you read up on the main aspects of this whole private parking subject, you would know that the signage plays a big part in forming a contract with the driver.

I thought it might be heading this way.

 

I've already said that I won't be using the hire vehicles or pool cars again but that restricts me from doing my job so I need to tread carefully.

So, you've got an agreement with your employer to be held liable in the event that such a charge is incurred by you during the course of your work - no questions asked?

Have you got their address? I'll send them a few random invoices. Christmas is coming.