Black Horse Car Finance (BH)

[surfaceagentx20]

This is a claim brought under CPR PD 7B. The procedure differs from ordinary CPR 7 claims in that for example, there is no requirement to acknowledge service and no default judgments.

 

The first thing to do is post up a copy of the Particulars of Claim and any documents served to accompany, minus any data which might serve to identify you. Sums are useful though. Identify £5,432.67 as just £5xxx.xx if you get my drift.

 

When's the hearing?

 

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[surfaceagentx20]

Do you have a copy of the agreement or of the default notice? Were you ever served with a default notice dated 20 September 2008 and since delivery of that default notice, if at all, did you receive, prior to the issue of proceedings, a notice of termination and/or a demand for the return of the vehicle?

 

What is this default notice you speak of dated 10 November 2008? Is that available to view?

 

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[surfaceagentx20]

A creditor wishing to invoke Consumer Credit Act 1974 section 87(1) by terminating a HP agreement, recovering possession of goods let on hire under a HP agreement and early payment of monies due under it, has an obligation to serve upon the debtor a default notice compliant with the provisions of section 88. (NB, where it says 7 days in section 88, the period is now 14 days).

 

If he doesn't but terminates and seeks possession of the goods, he gifts a defence to the debtor for everything claimed apart from the instalment arrears owing at the date of termination. Treat that date as 9 October 2008.

 

I recommend a Defence be filed in this case in which you assert a DN was never served. However, before committing yourself, I suggest you obtain copies of documents mentioned in the Particulars of Claim by writing this letter:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. In addition to providing me with a copy of this document, please explain to me why you regarded yourself as exempt from this obligation?

 

2 the default notice

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any versions to include an obligation to recover and preserve such versions which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make application to the court on 2 January 2009 for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I look forward to hearing from you.

 

yours faithfully

 

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[surfaceagentx20]

Send it 'signed for' to Sechiari, Clark & Mitchell and quote the solicitor's reference on the letter.

 

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[surfaceagentx20]

'there is no requirement to acknowledge service and no default judgments'

 

The usual procedure for claims is that if the Defendant intends to defend the claim he is required to acknowledge service of the claim form by returning to the court the form entitled Acknowledgement of Service within 14 days and indicating on the form that he intends to contest the proceedings. Where the Defendant fails to return the form the claimant is entitled to apply to the court for judgment on his claim in default of acknowledgment of serivce.

 

The words in bold are to inform you that the usual procedure is not followed in a case like yours and which attracts the procedure set out in CPR PD 7B. That procedure is set out at paragrah 5 of PD 7B and says:

 

The Consumer Credit Act procedure

 

5.1 In the types of claim to which paragraph 3 applies the court will fix a hearing date on the issue of the claim form.

 

5.2 The particulars of claim must be served with the claim form.

 

5.3 Where a claimant is using the Consumer Credit Act procedure, the defendant to the claim is not required to:

(1) serve an acknowledgment of service, or

(2) file a defence, although he may choose to do so.

 

5.4 Where a defendant intends to defend a claim, his defence should be filed within 14 days of service of the particulars of claim. If the defendant fails to file a defence within this period, but later relies on it, the court may take such a failure into account as a factor when deciding what order to make about costs.

 

5.5 Part 12 (default judgment) does not apply where the claimant is using the Consumer Credit Act procedure.

 

5.6 Each party must be given at least 28 days’ notice of the hearing date.

 

5.7 Where the claimant serves the claim form, he must serve notice of the hearing date at the same time, unless the hearing date is specified in the claim form

 

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[surfaceagentx20]

BC,

Got your PM and I've read throuh your Word attachments which are very useful. Two questions:

 

In your letter dated 14 April 2008, did you send the £1.00 fee and have you any evidence of delivery by chance?

Is the default notice dated 20 September 2008?

 

I'll be back later during daylight hours with further thoughts, but if you could answer the questions in the meantime please.

 

x20

[surfaceagentx20]

Run your eyes over this Defence for anything you like or dislike and let me know what you think.

 

DRAFT / DEFENCE

 

1 The Defendant admits entering into a hire purchase agreement with the Claimant in relation to the goods set out at paragraph 6 of the Particulars of Claim and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 Without prejudice to the generality of the facts and matters set out at paragraph 1, on 14 April 2008 the Defendant delivered by (method of posting) to the Claimant a request within the meaning of section 79 Consumer Credit Act 1974.

 

3 In default of the Claimant's obligations under section 79 aforeasaid, the Claimant failed to comply with the Request whether in prescribed form or at all in consequence of which and by reason of the provisions of section 79(3)(a) of the Act, the Claimant was not entitled whilst the default continued to enforce the agreement.

 

4 Notwithstanding the facts and matters set out at paragraph 3 of the Defence, on or about 20 September 2008 the Claimant issued to the Defendant a default notice in words intended to comply with the provisions of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and by which default notice, inter alia, the Defendant was informed of the following:

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

5 In the circumstances the default notice constituted 'enforcement action' and informed the Defendant that 'further Enforcement Action' would be taken if the Defendant failed to take the action required by the default notice. The purpose and intent of service of the notice was to enforce the Defendant's compliance with the agreement at a time when the Claimant was in default of the Act and prohibited from doing so by section 79(3)(a) of the Act.

 

6 Further and owing to prohibition aforesaid, the said default notice was ineffective for the purpose of giving rise to any of the entitlements set out under section 87(1) of the Act in the event that the Defendant failed to comply with it.

 

7 Paragraph 12 is denied. Without prejudice to the facts and matters set out at paragraphs 4 to 6 inclusive of the Defence, if the Claimant was entitled to serve the default notice (which is denied), the default notice was served upon the Defendant by second class post on a day long after 20 September 2008. Further, the notice failed to specify a date being a date 14 days after service of the notice by when the Defendant was required to comply with the notice. Alternatively, the date specified in the notice by when the Defendant was required to comply was before 9 October 2008 which was not a date which was 14 days after service of the notice.

 

8 Save that the Defendant admits and accepts the Claimant terminated the agreement on 9 October 2008 as alleged, paragraph 13 of the Particulars of Claim is denied. The Defendant denies that termination arose as of right. On the contrary the Defendant contends the termination of the agreement by the Claimant on 9 Ocober 2008 was in repudiatory breach of the agreement.

 

9 The claimant's claim to be entitled to late payment interest and/or to sums claimed for administration fees, late payment charges and like provisions is denied. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant or on which the Claiomant is entitled to raise a charge by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

10 Further and in any event, by reason of the matters set out herein and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 7 hereof were steps which the Claimant was not entitled to take.

 

11 In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

12 The Claimant’s claim to be entitled to the return of the goods, to money or any other relief following termination of the agremeent is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

Dated:

 

X20

[surfaceagentx20]

If you're happy with it, just file at court. No attachments and nothing fancy. If they want documents they can come back with a CPR 31.14 request of their own.

 

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[surfaceagentx20]

Can I just ask, in the 1st para, where it begins that there is no denial of signing, will the Court or BH take that as "well that's it you admit to taking our the agreement and now have to pay regardless"?

 

No. And that's because of what else is said in paragraph 1 and all the other paragraphs.

 

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[surfaceagentx20]

The letter is nothing to be concerned about. It is merely BH complying with new Consumer Credit regulations which came into play on 1 October and which compel creditors to keep debtors informed about arrears, default charges and other information about the running of the account.

 

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