Finance company taking me to court

[debt_mountain]

I have a 48 month HP agreement (just done the CCA and SAR) but I know they will have it that was due to be paid up in 5 months time. But the account has about 4 months worth of payments that are made up of charges.

 

I have not been in a position to make payments for the last few months but have no problems with fighting this one out.

 

The agreement was governed by English law but I received a letter from a local Glasgow firm of solicitors telling me to pay up of its off to sherrif court. Can they do this with an English governed agreement?

 

They have never issued a default notice (or atleast I never got any that were sent by recorded) and the last time I called them they said the agreement had been terminated.

 

So, what is my best line of attack?

 

I was thinking of letting them take it to court and then partially defending on the grounds that 1 a large part is made up from bank charges, they never sent a default notice 2. it should be under english law 3.

 

I also thought of asking the court to stay it (sist - I think it is in scotland) pending the OFT claim. This would give me a good few months to delay things.

 

Any ideas / advice.

[debt_mountain]

another 2 key points.

 

In sept last year the lenders collections department took 400 quid from my debit card without my permission.

 

plus the number plate for the car they are threatening to take me to court for has since been changed. So if they do raise the claim and only quote the car reg can I claim it is not my car? if they quote the chassis number then that is different.

 

just want to play this as much as I can.

 

Thankfully the limit for small claims in Scotland has risen so it should remain small claims with limited or no costs.

[debt_mountain]

I sent a letter disputing the debt, asking for the CCA include the quid and asked for the SAR included the tenner. sent recorded.

 

just have to wait now.

 

I only have a single sheet of the agreement that was faxed to garage for signing and never got to view the other documents.

 

the agreement say i have to refer to page 4 para 4.i for the dpa stuff. I never saw the t/c when i signed.

 

I even thin that the person who signed was the garage salesman, who said they had never dealt with this firm before. Can they do this? do they not need to have written proof/authority to sign on behalf of the creditor?

[car2403]

It sounds to me like you don't dispute the debt, so I'm not sure why you are planning to defend in Court when you can simply make repayment arrangements with the creditor to avoid Court action altogether?

 

What exactly is it that you are trying to achieve here?

[debt_mountain]

CAR2403: they are claiming 4k for a debt that should only be about 1.5k all due to unlawful charges added to the account. i do not dispute the debt but I do dispute these charges and intend working them hard before I pay them another penny.

 

They have treated me like .... well rubbish so I am not going to make this easy for them.

[car2403]

In that case you should admit the part of the claim you don't dispute, making an offer of repayment, and enter a defence for the remainder.

 

Has the account been Defaulted? If it has, with these penalty charges being included, that could give you a complete defence against enforcement of the entire debt.

[rory32]

The agreement was governed by English law but I received a letter from a local Glasgow firm of solicitors telling me to pay up of its off to sherrif court. Can they do this with an English governed agreement?

 

It depends on where you reside. If you reside in Scotland then Scots Law applies.

[debt_mountain]

thanks folks.

 

I will need to dig out the last letter and see what amount they stated. I will check what my credit file says too.

 

Rory. does the fact I signed the form in England in the garage make any difference? do the t/cs have to state it is scottish law if resident in scotland?

[debt_mountain]

Checked the paper wor and credit file and they have defaulted the full amount including charges.

 

So can you point me to more info on pushing this full thing as not enforceable. Why it cab be made not enforceable.

 

This gets better by the minute.

 

I have also remembered that after a couple of months arrears I called and made an arrangement withthem. Then about an hour later they called back and said the arrangement had just been cancelled.

 

These people really are unhelpful.

[car2403]

I can, but you'd be better off reading some of the ongoing threads in the forums.

 

I have plenty you can have a go at for a start;

 

http://www.consumeractiongroup.co.uk/forum/search.php?do=process&showposts=0&starteronly=1&exactname=1&searchuser=car2403

[debt_mountain]

I have read your thread and it is inspiring. My hat is off to you my friend. And am sub'd to it for insperation.

 

I got a letter from them confirming receipt of the complaint, sar and cca

 

 

 

I can, but you'd be better off reading some of the ongoing threads in the forums.

 

I have plenty you can have a go at for a start;

 

http://www.consumeractiongroup.co.uk/forum/search.php?do=process&showposts=0&starteronly=1&exactname=1&searchuser=car2403

[RFC1872]

,.,.,.,.,.,.,..,.,.,.,.,.,.,.,.,.,.,.

[rory32]

Rory. does the fact I signed the form in England in the garage make any difference? do the t/cs have to state it is scottish law if resident in scotland?

Can I be sued in England? | free help from Govan Law Centre , Glasgow

[car2403]

Can I be sued in England? | free help from Govan Law Centre , Glasgow

 

That's a "no", then

[rory32]

A definite no

[debt_mountain]

update:

 

Posted papers to the court today and prelim will be next week.

 

to date they have

 

-failed to supply the CCA - in default now.

-failed to provide the S.A.R - (Subject Access Request) - £300 damages requested in counterclaim

-80% of the amount they are claiming is actually charges going by my calculations.

-signature for man in garage was not an authorised signatory from the finance company.

- no t/c attahced to form when I signed

- mis use of my debit card as payment taken without my concent. they had kept card detailed on their system after me telling them no.

- no default notices ever sent

- no termination notice ever sent

- default amount is wildly wrong

- as agreement is alegedly terminated how can they still share my info.

- statutory notice to desist was ignored

- court papers are claiming the original agreement was for the wrong amount.

 

i am sure there is more but can't remember.

 

I emailed a copy of the counter claim to the solicitors too, so lets see if they contact me before the prelim.

 

there is 1 other thing that I have on them but that is an off the record item as it is currently new and as yet untested.

[debt_mountain]

Well, I seam to have their attention now. I got a call within 2 hours of the counter claim being emailed and they are a little concerned about its contents and the items I have listed.

 

They intend calling back today once they have reviewed if further.

 

they even talked about asking the solicitors to have the hearing delayed.....hahahahahahaha

 

 

Lets see what they throw at me.

 

The last point in my previous post really has them thinking

 

"there is 1 other thing that I have on them but that is an off the record item as it is currently new and as yet untested.".

 

Can't wait until I can discuss it in more detail.

[Bigmac versus]

Without the contract they cant get a decree also if they turn up with the said contract your defence would be that you have been put at a disadvantage to building a counterclaim due to their failure to comply with your CCA and S.A.R - (Subject Access Request) and that you consider their actions to be foolish as they have pursued this to court and then supplied the agreement and could have avoided court action at an earlier stage.

You have three choices on how to defend this IF they supply the agreement. No agreement no problem.

 

1. Ask the court to apply a sist pending the outcome of the test case.

2. Continuance to allow you to put together your counterclaim.

3. Go down the road with what you said in your pm.

 

I would go with 3 to start with and see how that goes, if it fails ask for 1

(if the charges arent more than is owed) then 2.

 

 

When it comes to the case don't labour to heavily on the summary criminal offence. You are in a civil court so the sheriff won't be overly interested. The "He is not entitled, while the default continues, to enforce the agreement" is the important bit in a civil court.

[debt_mountain]

Cheers BigMac. Much appreciated. I will update my thread as the days pass. They have been in contact twice now and are currently having their solicitors see what should be done. The last time to give an update on supplying me the info for the CCA and SAR, but they have been told it all has to go through their solicitors.

 

My take on this claim is that they expect most people would bury their heads in the sand and hope the court case disappears. But thanks to CAG we know differently.By default they would then get to claim back everything they can plus the legal costs for doing so. Thus the consumer has to pay up of have some form of arrestment put in place. I bet in 80% of cases that is how it goes, so in their eyes worth a shot.....

 

The last thing the plan for is someone with CAG behind them.

 

Option 3 it is .... lets see what they throw at me.

[Seahorse]

Dontcha just know we're all waiting with baited breath to see how they extract themselves from this one. :D:D:D:D:D

[debt_mountain]

Here is the Particulars they have put in the claim form.....don't look too hot to me.

 

I am in court tomorrow, can someone give me some pointers on shooting them down over the lack of information in the form.

 

"

 

1. The defender resides at the address as stated in the instance which is within the territory of this court and has been so resident for more than three months immediately prior to the raising of this action and is domiciled there. This court accordingly has jurisdiction. To the knowledge of the pursuer no proceedings are pending before any other court involving the present cause of action between the parties hereto nor is there any agreement between the parties prorogating jurisdiction over the subject matter of the present cause to another court. The nature and circumstances of the defender's residence are that he has a substantial connection with Scotland.

2. On or around 14/4/04 the pursuers on the instructions of the defender supplied goods and services in the form of *** MY CAR DETAILS***at a total cost of £3500 There is a balance outstanding of £3500 which is the sum sued for. The pursuers have made repeated requests to the defender for payment but the defender has refused or at least delaed to make payment and this action is therefore rendered necessary."

 

You will see they are saying that the car only cost £3500 when I got it 4 years ago, it was actually £13,000 yet another mistake.

 

yip that's all folks!!!!!!!!!!!