Help - Mum being taken to court by Link Financial.

[someone_else]

First I hope this is the correct place, if not can someone move it.

 

Hi, I've been following the site for several months now, initialy over problems my mum has been having with her bank (but that is a different unrelated matter).

 

In July 2008, my mum received a Court Claim form from Link Financial (court issue date 21 July 2008 ) regarding a car loan my mum took out in August 2005, (Hire Purchase Agreement, Regulated by the Consumer Credit Act 1974), then in August 2006 the car was repossed after my mum ran into financial difficulties, and some time after the debt was presummably sold to Link Financial (no proof of the sale has been provided by the orignal creditor, just a letter from Link saying they have bought the debt), who after over six months of phoning nearly everyday issued court proceddings.

 

We submitted the Acknowledgment of Service online at the moneyclaim site, giving us 28 days to defend it (defense needs to be submited by the end of this week).

 

We then sent via recorded delivery the request for infomation letter (england) from "Basic Introduction to Consumer Credit litigation" thread post #3 (sorry won't let me post links) on the Friday to the address for sending documents on the court form (which according to Google Maps appears to be a warehouse in Wales), that was received and signed for according to the Royal Mail website (including a sig. on the site) on the Monday, giving them 14 days to respond.

 

They have now had 3 weeks and no response so far.

 

So we now need some advice on what to do next?

 

Is the fact that they have failed to respond a good enough defence in itself? (There are plenty of other things we can complain about if need be)

 

I've had a look through several other threads, and the closest letter that matches our circumstances is this one by pt2537 in the "Help with Court summons from Restons" thread post #54, I've also added in the two lines from post #56.

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due,or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from .../content.aspx?LegType=All+ Legislation&title=consume r+credit+act++2006&search Enacted=0&extentMatchOnly =0&confersPower=0&blanket Amendment=0&sortAlpha=0&T YPE=QS&PageNumber=1&NavFr om=0&parentActiveTextDocI d=2459360&ActiveTextDocId =2459451&filesize=643

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by.

 

 

The Request for Disclosure

 

9. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. 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, interest, 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,.

 

10. To Date the claimant has ignored my request under the CPR and I have not received any such 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 ( a copy of the request is attached to this Defence marked XXXXXX).

 

 

The importance of a copy of the credit agreement and its production before the court.

 

 

11. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

12. Firstly, the agreement must contain certain Prescribed 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).

 

13. 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: - 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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.

 

14. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document.

 

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

16. If the agreement does not contain these terms in the prescribed manner 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 13, 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. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

The courts power of enforcement

 

19. 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 with

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. Further more 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.

 

21. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor.

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

22. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

23. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

24. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic.the defendant notes that the Civil procedure rules also require the original documents to be made available under practice direction 32.

 

25. The defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss original or destruction of the credit agreement was central to the case and the defendant is under the belief that the outcome of the case was that where the original agreement could not be produced the claim could not succeed and that the appeal was successful.

 

26. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

The Need for a Default notice

 

27. 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.

 

28. It is neither admitted or 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 defendant.

 

29. Notwithstanding point 27, 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).

 

30. 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.

 

Conclusion

 

 

31. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

32. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

33. As laid out in point 23 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

34. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

35. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual.

 

 

Signed .....................

 

Date

Can anyone check to see if that is okay, also do we include a copy of the letter we sent to Link? and if we do, do we need to prove it was received by Link (is a copy of the recorded delivery card enough or is a printout from the Royal Mail site showing it signed for needed?)

 

Also what happens if they do by some chance provide the documents next week, are we able to ask for more time to read them?

 

Thanks for reading and any help you can offer (in addition to the letters you've already written).

[surfaceagentx20]

To assist properly it will be essential to know what is alleged against your mum, and the facts and matters relied upon, pretty much word for word.

 

If the claim was isued against you online, it shouldn't be too wordy. Please provide the text of the Particulars of Claim, making sure you delete any personal or other information which may assist in identifying you. Once these particulars are known we can start putting that defence together for you.

 

x20

[someone_else]

Right sorry, this is what is contained within the Particulars of Claim Box:

 

"The Claimant claims all sums due upon the termination of an Agreement made with the Defendant in writing and dated 16/08/2005.

The Agreement was terminated by the Creditor after the Defendant had failed to comply with the terms of the Agreement and the default noticed served upon them. The Agreement has been lagally assigned to the Claimant subsequent to termination."

 

signed LINK FINANCIAL LIMITED

 

It's from Northampton County Court Bulk Centre (blue letter).

 

I don't have a scanner, but have a Digital Camera that should be able to take pics of any documents that are needed.

[surfaceagentx20]

The Particulars of Claim are typically devoid of any useful information. You can not be expected to 'second guess' what Link might be referring to where the claim is based merely on an agreement your mum made on 16 August 2005. The ParticulArs do not even tell you with whom your mum made the agreement. Your mum may have entered into half a dozen agreements on 16 August 2005. You do not have to fill in the blanks with information if Link choose to leave it out. You can only plead to facts which are revealed.

 

Accordingly the defence you need serve is correspondingly vague, excusing the vagueness on the absence of detail from the Claimant.

Set out below is a brief defence which meets the requirements:

 

IN THE (NAME) COUNTY COURT Case No

BETWEEN:

 

LINK FINANCIAL LIMITED (Claimant)

 

and

 

(YOUR MUM - GIVE NAME) (Defendant)

 

 

DEFENCE

 

 

1 The Defendant denies that the Claimant is entitled to any of the relief claimed or at all.

 

2 For want of any or any adequate particularity apertaining to the allegations concerning the agreement, the Defendant's default, its termination and assignment, the Defendant is embarrassed and unable to further plead to the Particulars of Claim.

 

DATED:

 

SIGNED:

 

Because Northampton is operating here as a bulk centre, Northampton will do nothing more with the case other than automatically transfer the case out to your mum's local county court. Your mum will receive at her address given in the Acknowledgement of Serivce, a notice saying to which court the case has been transfered.

 

When you defend you attack. Once the notice of transfer has been received alert me or start a new thread. I'll then lead you through the first assault.

 

x20

[pt2537]

I would consider an application under CPR 3.4 as the statement of case discloses no grounds for bringing the claim and is an abuse of the process

[someone_else]

Right so I take it we don't need most of that long winded letter - we just need to say we dispute the debt as Link haven't provided any infomation and want it striking out under CPR 3.4 [under paragraph(2), (a) and (b)?], do we need to say we have sent a request for infomation under CPR? but with no response.

 

Also do the claims from Link on the court form have to be 100% accurate - as the agreement date they stated (16/08/05) differs to the one on the original paperwork my mum has. (What is the legal date for the start of an agreement - the day you sign an agreement, the day the contract is printed or some other date that the creditor gets to decide?)

 

They have also added £102 (plus the court fee) to the total since the last letter we received in May 08. (Not that they have provided any infomation saying how they got to the original figure).

 

After having had a look at the CPR on the justice.gov.uk website Section 16.5 states this:

 

(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

(2) Where the defendant denies an allegation –

(a) he must state his reasons for doing so; and

Are we best off saying we deny the allegation due to the date being wrong and don't agree with the amount (it says under 16.5 (6) we need to say why - is it enough that they haven't provided a breakdown of where they got this figure from?)

Or is it best just to say we cannot admit or deny due to the vagueness of the PoC?

 

If we go with the not enough info defence, once/if they provide the infomation do we get a chance to dispute it later?

 

Thanks.

[surfaceagentx20]

Correct, you don’t need to say any more than I drafted. Your Defence is necessarily confined to dealing with the statement of facts (however inadequate it may be) as they appear in the Particulars of Claim. You don’t need to and should not say in your Defence (that’s a capital D meaning the Defence document) that you want the case struck out under CPR 3.4. Not now at any rate.

If the penny drops and Link recognise that it would be a good idea to amend their case, on receving their Amended Particulars of Claim, you will be allowed to serve an Amended Defence.

As I said earlier, this case is running out of Northampton as a Bulk Production Centre. As a result the Centre has limited functions and different procedures apply. In the Centre, cases don’t come before Judges. Once your Defence has been filed the Centre will send a copy of it to Link and tell them that they should notify the Centre whether they wish the claim to proceed. Any reply from Link must be received back at the Centre within 28 days. If no reply is received, the Centre will stay the proceedings and send you a letter saying that the case has been stayed. A stay means the case just lies there collecting dust until Link asks for the case to get going again – it doesn’t mean the claim is struck out. If Link reply within the time that they do want to carry on with the case, the Centre will then transfer the case out to your mum’s local county court (where there are Judges). To read up on this see CPR PD 7C Para 5.

This is why I was saying before that once the case is transferred out to your mum’s local county court, it’s at that time that we get moving again. And yes PT is correct in that one of the things to be hurled in Link’s direction is a move to have the claim struck out under CPR 3.4 / CPR PD 3A.

On your other questions, the function of the court will be to determine the real issue between the parties and will not allow court time to be wasted on minutiae, By that I mean if there’s one agreement in issue, the court will determine the issue regarding that agreement and will not get bogged down because the date has been misstated. Besides, there are rules governing amendments as I was discussing in para 2 above) and so by the time the case does come on for a proper hearing (if ever it does) things like date mistatement ought to have been cleared up. If not cleared up, the court will turn a blind eye and construe the date of the agreement as the proper date, unless the other party can present an argument that they have been so misled by the date misstatement they have been prejudiced.

As for the date of the agreement, the date your mum signed will be treated as her offer to take finance and the date the creditor signed will be treated as the date the creditor accepted the offer. The acceptance constitutes the making of the agreement (the creditor could have said ‘no thanks’ in which event no agreement at all). The date of acceptance is therefore the date of the agreement.

Hope this clarifies things.

x20

[someone_else]

Hi sorry for the delay in repling I wasn't well yesterday.

 

We haven't done this before, I'm just making sure we do it right (advice my mum got from the debtline, consumerdirect etc... was useless and pretty much amounted to the banks//loan/debt companies can do what they want and your best off paying what they want).

 

So basicly the Northampton Court in these cases just act as a premlinary, we submit an initial defence, they tell Link we are defending Link then decide whether to continue or not, if they continue it gets passed to our local court and we get to defend the claim properly.

 

So we just submit the defence you wrote below to the moneyclaim website, and then await Links response.

 

Thanks.

[AndyOrch]

Correct follow Surfaceagents advice.

 

 

 

Regards

 

Andy:)

Edited May 28, 2009 by Andyorch

[someone_else]

Alright we submitted our defence earlier tonight.

 

Thanks for everyones help so far, and I'll update the thread when/if Link or the court provide a response.

[someone_else]

Hi again Link have finally sent us some documents we requested six weeks ago (conviently after they'd recieved our defence).

 

However they haven't sent a copy of everything - we have various letters that they and Ford Credit have sent in the past, that they didn't feel the need to include (they also haven't provided any documentation of any phonecalls, or even a list of dates when calls were made/answered).

 

The Documents they sent include (I'll try and take a photo of any that need a look at)

 

- Photocopy of the Particulars of Claim.

- Letter from Link saying they have bought the debt.

- Pages 1 and 2 of the 4 page Contract.

- Direct Debit Instruction letter.

- 3 pages that make up the invoice for the car.

- Two Default notices.

- A Repossession Ticklist printout.

- A Customer Accounts Repossession Advice Fax.

- Repossession Control Sheet - stating the amount the car was sold for.

- Calc Sheet - showing amount of credit and payments received.

- Another printout from Ford(?) signed by a Team Leader who I assumed approved the repossesion.

 

The Particulars of Claim with these letters is different to the one on the court form - the wording is different and they have added a bit about wanting interest for the last six months - are they allowed to change this? It's still vague though.

 

There is nothing from Ford that the debt has been sold to Link - are we just expected to take Links word they bought it and didn't fish the paperwork out of a bin behind Ford's offices.

 

The letter from Link saying they have bought the debt is dated 1st May 2008 - but the new POC says December 2007?

 

The Respossession Ticklist states all options were discussed - including arragnement and private sale - Link haven't provided any info about this phonecall, Ford turned down an offer of payment, and actually advised my mum to sell the car over the phone, even though the contract clearly states "you must not sell the goods" (though I did initialy think the contract said written consent was required), and apparently my mum was advised verbally of action and that was noted in Debt Manager (I don't know what that is as they haven't included whatever that is)

 

The Repossession Advice fax states that the car had a major defect with the Near Side Rear Wing being Dented - but it wasn't (I cannot remember if the car had a minor dent, but it certainly didn't have a Major one - we didn't even know about this until these documents arrrived last week), the fax also has some calculations at the bottom without stating what they are.

 

The Repo Control Sheet - states the car was sold at auction with the first bid, but the form isn't even filled in correctly - how are we sussposed to know a fair price was obtained for the car?

 

On the Calc Sheet - I cannot get the values to match the amount Link are claiming - possibly because they are missing a letter Ford sent us adding extra charges, they haven't even included a letter from Link we have saying Link will be charging us some more money to take it to court in addition to the Court Fee.

 

They also conveintly forget to include any mention of the fact that Ford or Link employed a detective agency to find the car as they thought we were hiding it - even though they'd taken the car. They also didn't bother to include the Termination notice giving them authority to reposs the car.

 

So I was wondering what our next step is, do we write back to Link stating they have failed to comply with section 77/78 due to it not being complete - also anyone we can report them for taking six weeks to repsond with incomplete infomation.

 

Or do we ignore Link and wait for instructions from the court?

 

Also can we request docs from the detective agency, my mum did forward them a budget when they contacted her, but we don't have much info from them or the dates they were involved - I remember they sent a unmarked vague postcard (which was worrying as we have relatives where the detective agency is from, who we have no contact with), we managed to find the unmarked one from Link (that they also didn't include a copy of) but not the detective agency one yet.

 

I'll try and photo the docs they sent so people can have a look at them, whilst I'll compare them to the ones we have to see if they have changed them.

 

I'll also check my mums statements to see if the amounts my mum paid match what they say.

 

Thanks for any help anyone can provide.

[someone_else]

Hi sorry for the delay in getting back - I tried to take photos of the docs but they weren't readable, however I picked up a cheap scanner over the weekend and have managed to scan all the docs that Link sent us, we also have received an Allocation Questionnaire from the court, so may need some help filling that in later in the week (it needs to be in by the 13th October).

 

POC Image

Sale of Debt Letter

contract page one

contract page two - This copy differs to the orignal as this one had a line through the Proposal No (before I blanked it on the scan) whilst the orignal contract didn't have a line through it.

Default letter from Feb06 page one and page two

Also Default Letter from July06 Page One and Page Two - the copy my mum originaly received had on page two option 3 b circled, but the copy they have provided doesn't.

Repo Advice form

Auction form

Repo Ticklist One and Two

and finally calculation sheet (there was also three pages for the invoice of the car and a DD letter).

 

So the initial points to defend are:

 

- No contract was signed on the 16 august 2008. (Does this also not mean that the two default notices served on my mum were invalid due to having an incorrect contract date?)

- The amount is under dispute as from the docs provided I cannot get to £3554.99.

- Amount of interest is under dispute as 1. they didn't include it on the POC from the court and 2. they are claiming interest from the 12/12/07 but the Sale of debt letter is dated 01/05/08.

- They haven't fully responsed to the CCA77/78 request - various letters we have from Link, ford and the detective agency weren't included, nor were the various phonecalls offering a payment that were turned down. (Is a partial response to a CCA77/78 request enough?, do we have to prove they have 'lost' docs and if we produce docs that link/ford sent can they be used against us?)

- There is no proof from ford saying they have sold the debt to link, surely a letter from Link isn't good enough?

- They also haven't included anything about Ford saying they are going to reposs the car and confirmation it has been sold.

 

Also is it worth including a budget plan showing that my mum cannot afford to pay anything as when they took the car she lost her job, forcing her to take a lower paid job that got her into trouble with other creditors that she now has agreements with most.

 

If anyone could provide somemore help/advise/insight it would help thanks in advance.

[TheChancellor]

subbing.

 

Good Luck SE

[surfaceagentx20]

The date of the agreement is 19 August 2005.

 

The vehicle was repod on what seems to be the 9 August 2006 against a default notice dated 11 July 2006, presumably sent out in the post with a deemed date of receipt of 13 July 2006 and which required compliance before 25 July 2006. If so, the defaault notice was invalid for its failure to provide not less than 14 days after service to comply.

 

The right to terminate the agreement, demand earlier payment and recover possession of goods let on hire is restricted to circumstacnes where a compliant default notice has been served. Since the notice was not compliant no such right arose and the retaking of the vehicle was unlawful. That fact may give rise to a claim in damages representing all monies paid by your mother to the creditor on the basis of an unreported decision in a case known as Chartered Trust v King [2001] brief reference to which appears in this article which on its face looks promising. As I say, this is an unreported decision and I am hopeful that the judgment or a reliable reference to it may be available in authorative texts. I'll send out a couple of PMs to people who may have access to better works than I have.

 

Either way, the DN kicks the chair from under them and will be your mither's shield. With luck, King will be her sword.

 

x20

[pt2537]

Hi,

 

Sorry to say , the 14 day time frame came into effect on 19th December 2006

 

 

Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)

 

 

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

Para 6: words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

so as long as the notice conferred a minimum of 7 days at that time it would be compliant

 

As a side issue, i have the case of Chartered Trust v King as well should you require a copy

[surfaceagentx20]

Thanks very much for that PT and I only hope mum didn't whoop for joy after reading my ill-researched opinion. The weird thing is that I was conscious the required time changed from 7 to 14 days during 2006 and kinda hoped (given the reference to the 14 in the DN) I was the right side of the fence.

 

Weirder still is that your reference to The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006 (No. 3094) says the change from 7 to 14 comes into effect on 19 December 2006, yet The Consumer Credit Act 2006 (Commencement No. 1) Order 2006 Schedule 2 records the coming into effect of Consumer Credit Act 2006 section 14(1) as 1 October 2006!

 

Unless I've made two booboos side by side, there would appear to have been some anomaly going on during the period 1 October to 18 December 2006 perhaps.

 

I'd love a copy of Chartered Trust v King, thanks very much.

 

I'll re-examine the case someone else, and see how else to protect your mum's back.

 

x20

[pt2537]

X20, if you want to PM me your email addy, i will forward you the case of CT v King

[The_Grumlin]

I think the notice of assignment (sale of your debt) letter is wrong. It is my understanding under law of contracts a trading name can not enter into a contract unless it is in the name of the legal company.

 

i.e. it should read FCE Bank plc trading as Ford Credit Europe (as there is no listing at companies house for that company so no plc) has assigned etc.. This shoudl also be the same in the deed.

 

Anyone know if this is correct?

Edited October 6, 2008 by The_Grumlin
Spelling

[TheChancellor]

Sounds very plausable TG & I'd be interested to find out so I'll bump it for you.

[someone_else]

I think the notice of assignment (sale of your debt) letter is wrong. It is my understanding under law of contracts a trading name can not enter into a contract unless it is in the name of the legal company.

 

i.e. it should read FCE Bank plc trading as Ford Credit Europe (as there is no listing at companies house for that company so no plc) has assigned etc.. This shoudl also be the same in the deed.

 

Anyone know if this is correct?

 

I've just checked all the docs we have, the names on the docs from Ford are Ford Credit and FCE Bank plc, the only people who mention Ford Credit Europe plc are Link, though according to companieshouse.gov.uk FCE weere previously known as Ford Credit Europe plc from 1993-1998 so clearly no contract was taken out with Ford Credit Europe plc - Link have included that name on each letter apart from the final letter they sent on the 8th may where they put their name down as the company.

 

Also did Link have to send the Sale of Debt letter before they could threaten court action - as the SoD letter is dated 1 May 2008, but on the 13 Feb 2008 they send a letter demanding payment or they'd go to court (another letter they didn't bother to include with the request for all paperwork).

 

Is there a certain format that a Sale of Debt letter needs to be in, and does the orignal creditor need to provide us with anything?

[someone_else]

The date of the agreement is 19 August 2005.

 

The vehicle was repod on what seems to be the 9 August 2006 against a default notice dated 11 July 2006, presumably sent out in the post with a deemed date of receipt of 13 July 2006 and which required compliance before 25 July 2006. If so, the defaault notice was invalid for its failure to provide not less than 14 days after service to comply.

 

The right to terminate the agreement, demand earlier payment and recover possession of goods let on hire is restricted to circumstacnes where a compliant default notice has been served. Since the notice was not compliant no such right arose and the retaking of the vehicle was unlawful. That fact may give rise to a claim in damages representing all monies paid by your mother to the creditor on the basis of an unreported decision in a case known as Chartered Trust v King [2001] brief reference to which appears in this article which on its face looks promising. As I say, this is an unreported decision and I am hopeful that the judgment or a reliable reference to it may be available in authorative texts. I'll send out a couple of PMs to people who may have access to better works than I have.

 

Either way, the DN kicks the chair from under them and will be your mither's shield. With luck, King will be her sword.

 

x20

 

Whilst unfortantley it seems it doesn't come under the 14 day rule (thanks for the effort though) is the fact that the date on the default notice is wrong not enough in itself - my mum signed it on the 17th, Ford signed it on the 19th, noone signed anything on the 16th.

 

Also having had a look at pt2537's post about what is a default notice did they need to include some info from parts 8, 8A and possibly the non-bold bit from part 9, they also didn't include anything from part 10A about the OFT or their leaflet?

[someone_else]

sorry for another post, just reading up on the CCA74 Section 77/78 and it states "shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it"

 

Now Link have only provided pages 1 and 2 of the contract that was four pages long, surely pages 3 and 4 should also be included for them to comply with the request - they are part of the agreement and are documents referred to in the agreement - the bottom of the pages state page 1 of 4 and page 2 of 4 so to me pages 3 and 4 are clearly referred to and should have been included, does this not make the debt unenforcable until they are provided?

 

Also the covering letter that Link provided with the request says "Please find enclosed all documents relating to the agreement..." - So does the fact that they haven't included copies of letters from themselves and ford that we have copies of also men they failed to comply, or is just providing anything good enough?

[TheChancellor]

Hi SE

 

My thoughts would be that the missing 2 pages would be required to comply.Were the first two attached together (stapled?) etc & wonder if the tea boy lost them on the way to the post room or are they totally lost? Is the signature anywhere on the first two pages?

I would query that part.

 

They only need to supply a true copy of the original agreement (with prescribed terms,etc) & I think you would need to SAR to get all the later paper trail.

[TheChancellor]

Just re-read the thread (apologies for being half asleep!).

 

Was a full copy of the agreement not attached to the court paper work they served on your mum?

[someone_else]

One copy of the original contract my mum has is stapled together (for some reason she has two versions of the same contract names 1st customer copy and 2nd customer copy - the only difference being the 2nd copy is stapled and signed by Ford aswell, whilst the 1st copy isn't signed by Ford or stapled - so I'd assume Ford would have stapled their copy aswell).

 

the signatures are on the bottom of page two (a copy of the contract provided by Link was scanned into one of my posts on the first page), pages 3 and 4 are just the terms and conditions - however the terms in pages 1 and 2 don't say anything about FCE being able to reposs the car, it states the payments to be made, the interest rate etc, how much we have to settle/terminate and that a court order has to be obtained past a certain amount (which wasn't reached), the missing payments section just states "Missing Payments could have severe consequences and make obtaining credit more difficult". Pages 3 and 4 cover their rights regarding ending the agreement.

 

It seems to me from a laymans position that pages 3 and 4 are part of the contract, I've also just noticed that in the bottom signature box it states my mum was given a "Pre-Contract Information" document, whatever that was they haven't bothered to include either - that's three things they haven't bothered to include that make up the agreement.

 

Is a partial agreement without the referenced documents enough to satsify CCA74 s77/78?

 

(And as an aside how is it legal for you to agree to terms and condition when they come after the signature box on a contract? Most other contracts have the signature at the end stating you agree to the above).