Repo order help with defence needed.

[cosalt]

Thanks again everyone, so is it enough then to send a letter to the court ( a copy to the claimant as well presumably ?) Stating something like -

 

' with reference to the latest information that the claimant has submitted, I note that the claimant is relying on a certified copy of a default notice. However I have in my possesion an original copy of this default notice and it would appear the claimant has altered information on the certified copy in an attempt to make the default notice conform to the requirements laid out in the CCA1974.

 

As the claimant has clearly falsified documents in order to assist with there claim, they are clearly aware that the original default notice received by myself was totally inadequate, therefore this has resulted in the unlawful termination of the agreement.

 

Based on the above I would ask that the case be struck out. '

[emandcole]

Hi Cosalt, as Patrick states above you cannot keep this document a secret and then pull it out in court to a fanfare of 'in your face' whilst spitfires fly in formation above and the dancing girls do the can-can behind you , as much as I would like to see that !

 

So...disclosure as soon as possible really is needed or the other side can use your trump card against you. At this stage I would compose a letter to the other side, copying it to the court and ensuring it gets there, inviting them to discontinue immediately. I would also propose that they meet all of your wasted costs including your time (@ £9.25 hour for an Lip).

 

Your acceptance of their discontinuation will also require them to confirm in writing that this alleged debt will not be sold on so that the matter is closed in entirety, you also require all data registered with third party credit reference agencies to be removed.

 

Your letter example you added here is great, just keep it simple whilst detailing the exact situation. You are quite right to state that if the court learns of this attempt to effectively falsify documents they will be in a great deal of difficulty. You could also remind them that unless they accept you will submit a revised defence and counterclaim for unlawful rescission and injury to credit etc.

 

As I stated earlier you are in a strong position to compose a counter claim, given their very exposed and vulnerable position they would be daft to pursue this and a counter claim of your own would really put them on the back foot. I suspect very strongly that they would not wish this to go to court (especially if you have a copy of the default they claim was the original) and you could benefit from an out of court settlement in your favour, no doubt offered at the last minute.

 

I'll read back through your thread as I'm a bit confused as to what's happened in your case to date .

[cosalt]

Thanks so much again, so basically a letter to the court ( with a copy to the claimant ) stating the facts should be sufficient ? Do I need to write it in 'legal talk' or will plain and simple english be enough. Also should I send a copy of the default notice ?

 

I am due in court next friday and really don't want to lose because of an error on my part at this late stage, so any help in getting this right is really appreciated.

 

Cosalt

[cosalt]

Just a note, on the original defence they refer to the DN but say they required the default to be remedied within '12 days from date of service' However there was no copy of the DN

[cosalt]

I have now noticed other alterations on the copy of the DN they refer to. On the bottom of the second page of the original it says ' A CHARGE OF £35 HAS BEEN MADE FOR THIS SERVICE' on the copy of the dn it has changed to £12 Also the have added the sentence 'note that if you end this agreement, this will not necessarily terminate any insurance finance agreements that are linked to this agreement'

[patrickq1]

it is plain to see in the DN 1 AND DN2 that they have a very big credibility problem in facing the judge with this case....are you paying PPI as well ?

if so this needs to be looked at in detail....has a commission been paid out on this PPI if so to whome ? and if so you are paying for this with extra charges...

[cosalt]

it is plain to see in the DN 1 AND DN2 that they have a very big credibility problem in facing the judge with this case....are you paying PPI as well ?

if so this needs to be looked at in detail....has a commission been paid out on this PPI if so to whome ? and if so you are paying for this with extra charges...

 

 

No there is no PPI on this agreement.

[cosalt]

Is anyone able to give some further guidance on this matter, I am due in court on friday and would like to move it forward asap.

 

Thanks

[maroondevo52]

Thread moved to Legal Issues.

[cosalt]

Thank you

[cosalt]

Ok so will they accept a letter to the court basically saying that the claimant has responded to my defence with a copy of the refered to DN, however the copy they have sent has been altered from the original ( which I have, enclose copy ) in an attempt to make it comply with the CCA1974.

 

Should I ask for the case to be struck out, and if so how?

Should I send a copy to the claimants solicitor ?

Do I need to quote the relevant parts of the CCA1974 to show that my DN is incorrect and they have changed the numbers ?

Is it ok to just send a letter ?

 

Anything else I need to know, please help !

[emandcole]

Hi Cosalt, will come back tomorrow and we can go over a few bits

[emandcole]

Ok so will they accept a letter to the court basically saying that the claimant has responded to my defence with a copy of the refered to DN, however the copy they have sent has been altered from the original ( which I have, enclose copy ) in an attempt to make it comply with the CCA1974.

 

Should I ask for the case to be struck out, and if so how?

Should I send a copy to the claimants solicitor ?

Do I need to quote the relevant parts of the CCA1974 to show that my DN is incorrect and they have changed the numbers ?

Is it ok to just send a letter ?

 

Anything else I need to know, please help !

 

You could apply for the case to be struck out but it will cost you and as time is pressing I'm not sure it would be processed in time anyway - not sure here. Assume AQ's have been and gone, you could have requested strike out here for free but not sure what you may have put here.

 

I would certainly send a copy of the default you have to the claimant explaining how it differs to their own and asking them to explain why they have submitted a supposed 'original' DN that is clearly very different to the actual original. Yours is the original remember as it was sent to you, theirs is not. If you can persuade them to discontinue that would be a whole lot easier and quicker for you. As detailed in my earlier post invite them to discontinue insisting on the other points I added too.

 

Heck, if they wish to go to court when you can show that 'somehow' (you can't make an accusation of fraud really) the supposed DN they have is different to the actual one you have that's up to them. It undermines their case and their credibility immediately.

 

As for quoting CCA law you need to have it all in your defence so you can refer to it. Ideally in your defence you would have composed it in a logical order with the 'Default Notice' having its own section. This is where you would detail the requirements of a DN and explain how the DN they have issued is invalid, again backed up. You would also put the claimant to strict proof that the DN they sent was valid.

 

If they produce the 'new one' you can ask the judge to compare it to the original you have and coyly ask the claimant to explain why the one they have submitted differs to the actual original and comment that this new one appears to be different 'as if its been amended to try and make it compliant'. You don't need to appear accusatory, the facts speak for themselves.

 

Sometimes you need to lead the horse to the water, the vast majority of the time the horse will start to drink and if it doesn't just point them in the right direction as the horse is almost always thirsty .

 

You can always send a letter, communication is always welcomed and in essence if you can reach settlement without court intervention all the better in most cases. Just make sure both the court and the other side are equally informed. Also, and given the unique nature of the claimants' gaff in your case the fact you've offered the claimant a sporting opportunity to discontinue with the declaration of this default notice issue before the hearing is favourable to you on a costs basis too. You couldn't have been more reasonable basically.

 

Just ensure in your defence (in case the claimant is daft enough to view this DN issue as unimportant) that you are absolutely up to speed on the importance of the Default Notice. It's a legal document etc, has to be correct in order for the claimant to enjoy certain rights, invalid default means claimant has no right to action etc.

 

Have you read up on this? How good is your defence? Is all of this stated clearly and referenced? Have you produced three copies of your paperwork, one for you in court, one for the judge and one for the other side?

[cosalt]

Below is a copy of their witness statement....

 

 

 

1. I am employed as a Collections Manager by Carlyle Finance of Lambourne House, Lambourne Crescent, Llanishen, Cardiff, CF14 5GL. I have complete Authority to act on behalf of the Claimant and have full access to file details.

2. On or around the 25th July 2006 the Defendant entered into a Hire Purchase Agreement (“the Agreement”) numbered -------- with the Claimant in respect Of a Iveco Daily commercial vehichle (“the Vehicle”) registration number ----

3. Under the terms of the Agreement, the cash price of the vehicle was £8,225.00 Following the addition of interest, credit facility fee and a completion fee, the Total balance repayable was £9, 280.08. A Deposit of £1,925.00 was paid by The Defendant, and the balance payable under the Agreement was £7,355.08. This balance was to be discharged by means of 35 consecutive monthly Repayments in the sum of £204.03 commencing one month after the date of The Agreement followed by one final payment of £214.03 commencing 36 months after the Agreement date. I now refer to a copy of the Agreement produced and shown to me marked “CRI”.

4. The Defendant maintained payments on account of the Agreement until December 2008 after which time payments ceased and arrears were accrued on account in breach of the terms of the Agreement. It must be noted that no further payments have been received to date. I now refer to a Statement of account produced and shown to me marked “CR2”.

5. By way of letter dated 1st March 2009, the Claimant was forced to issue a Default Notice served pursuant to section 87(1) of the Consumer Credit Act. The Defendant failed to remedy the breach and the Claimant terminated the Agreement on a date after the specified 18 days had expired. I now refer to a copy of the Default Notice and letter of Termination produced and shown to Me marked “CR3”.

6. The Defendant avers that the 4 working days must be required allowing for service of the Default notice. The Claimant contends that the Consumer Credit Act 1974 amended 2006 does not specify any required time to allow service of the said Notice and that 18 days is suitably compliant. In any event, the Claimant did not terminate the Agreement until a date after the 18 days and at no time has the Defendant attempted to remedy the breach detailed within that Notice.

7. The Defendant claims that the arrears detailed with the Default notice is incorrect and states that two installments totalling £408.06 were due. The Claimant joins issue that two installments were outstanding but the Defendant fails to take into account the contractual charge applied to the Agreement account in the sum of £3.20 relating to the delinquent status of the account And further states that the arrears sum stated of £411.26 is correct.

8. The Defendant states that the total amount paid as shown on the notice of £7,637.65 is incorrect maintaining that he had paid the sum of £7637.84. The Claimant refers to CR2 and specifically the entry of 23 February 2009 being a journal of £0.19 relating to a VAT adjustment, this being the difference in amount. In the circumstances the Claimant contends that the aforesaid journal does offset against monies received against the Agreement account and the outstanding balance shown on the Notice of £1,679.14 is therefore correct.

9. The Claimant asserts that it Default Notice meets all criteria required of it and that the Defendants assertions do not constitute and real defence of the Claim.

10. The Claimants Claim against the Defendant is twofold. Firstly, it claims the return of its goods and secondly monies due under the Agreement. The Claimant believes that, as the Defendant does not dispute that it has failed to maintain payments as agreed, there can be no Defence to the Claimants right To immediate possession of the goods and therefore to an Order made for their return. The monetary claim cannot be ascertained until the goods have been recovered and disposed of and the sale proceeds credited to the Defendants account.

11. The Claimant argues that all material times the Defendant was made aware of the action required by him in order to resolve the situation, indeed his failure to remedy the breach detailed with the Default notice directly lead to the Claimants acceptance of the Defendants repudiation of the Agreement and to this subsequent action.

12. The Defendant does not dispute that monies remain due and owing in respect of the Agreement account and the despite the Defendants protestations, no payment has been received against the Agreement account since the Default notice was issued.

13. In the circumstances, I respectfully request this Honourable Court to dismiss the Counterclaim and grant Judgement in favour of the Claimant for the forthwith return of its goods and for its monetary claim be adjourned generally pending the recovery, resale and crediting of the net proceeds of sale to the Defendant account.

[emandcole]

Great...will review as soon as I can and offer my opinion. Aware of your time restrictions...

[cosalt]

________

Edited April 18, 2010 by cosalt

[cosalt]

Update time, went for repo hearing, adjourned for both parties to submit any further documents and for the judge to look up the satute on default notices and termination.

 

Have been trying to negotiate settlement with the claimant but they are not interested in anything but a few pounds off.

 

So back in court for a 1 hour hearing this afternoon. !!

 

Have tried to limit the details I post because of 'guests', but with reading lots of info and help from a fellow cagger feel reasonably well prepared to win this.

 

However I am aware despite a faulty DN being, according to most people, a perfect defence, I am aware the judge could still be difficult and losing is a posibility.

 

cosalt

[frettful38]

subbing

[citizenB]

Good luck, Cosalt..

[BeauBrummie]

Subbing with great interest.......Good Luck Cosalt:)

 

Beau

[Lord_Alcohol]

I can't bear the suspense....

[cosalt]

Well......I lost, basically the judge said the default notice was more than adequate as it carried the title 'default notice' so it was clear what it meant.

 

He asked me if I owed the money and I said yes prior to the claimant unlawfully terminating the agreement. He then said could I pay the balance I said no, he then ordered a judgement against me for immediate repo of the vehicle.

 

I did all my homework, quoted for the CCA but he didnt care.

 

Beware anyone who is depending on a dodgy DN as it clearly doesnt matter.

 

Appeal ? Probably not, at the moment I am just sick to death of it all.

 

I am now waiting for all the posters to say I must have done something wrong, I wonder how many of them have actually sat in front of the judge?????

 

Cosalt

[cosalt]

Oh yes forgot to say, I asked if I could appeal and he said no as I had admitted I owed the money.

[citizenB]

Well looks like my agreement is terminated, the 14 days has passed and they said if I did not pay within that time then this default notice is formal notice that they will terminate.

 

So to summarise,

 

1/ I have an agreement where I have been charged interest on the arrangement fee, but there are no prescribed terms.

 

2/ I have been defaulted and terminated with only 11 days notice.

 

3/ The default notice is worded incorrectly

 

4/ The arrears amount is higher than the payments I have missed

 

 

What do you think I should do next ? Wait and see if they take court action or write and tell them of the errors, after all they can't reinstate a terminated agreement.

 

Cosalt

 

Sorry to hear this cosalt.. :(however, I dont understand how.. if the dn was dodgy then that in itself was a complete defence. Perhaps wait for others to comment.

[cosalt]

Hi CB, thanks for the support.

 

The problem is he said the DN was not faulty, I had laid out the relevant sections of the CCA in a way a child could understand in every step of my defence and followed all the procedures however he obviously read it but didnt care.