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Cab1ne-Lombard-Shoosmiths **Claim Recieved** - ***WON***


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A BASIC RUN DOWN OF EVENTS

23rd June 2006,

Approached a dealer regarding the purchase of a vehicle to use as a Taxi. The taxi was to be used by myself as a sole trader. (One man band)

28th June 2006

The dealer sent all the relevant paper work, Agreement signed and returned with a £500 deposit on the same day.

7th August 2006

Agreement signed by creditor

18th August 2006

Vehicle delivered.

7th September 2006

First payment took from bank account

12th July 2007

Default Notice sent by creditor (none compliant)

15th August 2007

Termination Notice sent by creditor.

4th October 2007

The creditor instructed agents to pay me a visit. The first visit took place on 12th October 2007, the agents were instructed to:

(1). collect arrears of £866.16

(2). collect the next instalment due on 7th October 2007

(3). collect a £100.00 late payment fee.

(4). finally the costs of the agents fee’s.

If these could not be paid in full, the agents were instructed to re-possess the vehicle.

However the agents did not re-posses the vehicle as it was parked on my drive, they came onto my drive and wheel clamped the vehicle instead. Returning 7 days later to remove the clamp on the payment of £1839.86

(All witnessed by the police, complete with incident numbers and statements)

18th October 2007

Started a complaint via the Financial Ombudsman Service

25th January 2008

Default Notice sent by creditor (none compliant)

18th February 2008

Termination Notice sent by creditor.

27th July 2009

Final decision from Financial Ombudsman Service

15th October 2009

Default Notice sent by creditor (compliant)

10th November 2009

Termination Notice sent by creditor.

19th November 2009

Link Financial became involved

10th February 2010

Link returned to creditor

18th February 2010

Anglia Uk Ltd were instructed to re-possess the vehicle

26th February 2010

Anglia Uk Ltd re-possessed the vehicle

9th June 2010

Shoosmiths became involved

26th August 2010

Claim received via Northampton County Court (not the bulk centre)

28th October 2010

Transferred to my local county court and an order of 1 month stay to enable the parties to attempt settlement

10th December 2010

Creditor Applied for Summary Judgement

1st February 2011

Application for Summary Judgement refused

8th February 2011

Notice of Allocation to Fast Track commencing between 23rd May 2011 and 30th June 2011 with a time estimate of 1 day

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  • 2 months later...
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UPDATE

 

The claimant has failed to adhere to the court directions.

 

List of documents had to be done by 1st March 2011.

i sent mine in time, they haven't sent theirs.

 

Witness statements had to be done by 20th April 2011.

i sent mine in time, they haven't sent theirs.

 

So i gave them a friendly phone call and asked them what was happening.

"long story short" i agreed to give them an extra 14 days to comply.

 

Two days later, they sent this.

 

CONSENTORDER.jpg

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REPLIED WITH With reference to your letter dated 14th April 2011, the contents which have been duly noted, 1. I did not agree to a consent order: 2. We do not need to vacate the trial window. 3. We do not need to stay the matter for 3 months. 4. We do not need mediation. 5. I have on many occasions tried to come to some sort of settlement with your client regarding the above agreement, but your client has always insisted I put forward my payment proposals. 6. For example, on the 28th October 2010 District Judge Toombs stayed the claim until 9th December 2010 to enable both parties to attempt settlement. However this did not happen, on the 2nd November 2010, shoosmiths wrote to me informing me, that if I did not put forward my payment proposals within the next 14 days, i.e. by 4pm on the 16th November 2010, it was your clients intention to apply for summary judgement on the whole of the claim. Showing absolutely no intention to settle this matter out of court. 7. What I did agree to was to give you an extra 14 days from 14th April 2011 to deliver your list of documents and witness statement. 8. A Copy of this letter and a copy of your letter dated 14th April 2011, complete with the unsigned consent order have been forwarded to the court along with my pre trial check list. (Which we must complete and return on or before the 20th April 2011

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REPLIED WITH With reference to your letter dated 14th April 2011, the contents which have been duly noted, 1. I did not agree to a consent order: 2. We do not need to vacate the trial window. 3. We do not need to stay the matter for 3 months. 4. We do not need mediation. 5. I have on many occasions tried to come to some sort of settlement with your client regarding the above agreement, but your client has always insisted I put forward my payment proposals. 6. For example, on the 28th October 2010 District Judge Toombs stayed the claim until 9th December 2010 to enable both parties to attempt settlement. However this did not happen, on the 2nd November 2010, shoosmiths wrote to me informing me, that if I did not put forward my payment proposals within the next 14 days, i.e. by 4pm on the 16th November 2010, it was your clients intention to apply for summary judgement on the whole of the claim. Showing absolutely no intention to settle this matter out of court. 7. What I did agree to was to give you an extra 14 days from 14th April 2011 to deliver your list of documents and witness statement. 8. A Copy of this letter and a copy of your letter dated 14th April 2011, complete with the unsigned consent order have been forwarded to the court along with my pre trial check list. (Which we must complete and return on or before the 20th April 2011

 

The cheeky little turds !!! another stalling tactic from them I see !Well worded reply by the way

Any advice I give, is given with the best intention of helping. I am not legally trained, so it is probably best to just ignore me;)

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CAB

 

I think you've got them on the ropes! Go for the jugular! When they thought they would win they showed you no mercy. Now it's your turn to make THEM squirm!

 

Surely they should be done for contempt of court - missing all these deadlines?

 

Keep on fighting - and best of luck!

 

BD

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CAB

 

I think you've got them on the ropes! Go for the jugular! When they thought they would win they showed you no mercy. Now it's your turn to make THEM squirm!

 

Surely they should be done for contempt of court - missing all these deadlines?

 

Keep on fighting - and best of luck!

 

BD

 

Thanx BD,

 

i understand what you are saying and i agree with you,

 

however i am getting just a tadd frustrated.

 

Ok,i have many arguments with these (whatever you want to call them) so i'll just Highlight My main Argument.(Briefly)

 

Conditional sale agreement Dated August 2006 (Pre April 2007)

 

Section 60 (1) of the Act.

 

The Secretary of State shall make regulations as to the form and content of Documents embodying regulated agreements.

 

Section 61 (1) (a)

 

A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms.

 

Section 65 (1) of the 1974 Act.

 

Provides that an improperly executed regulated agreement is enforceable against the debtor on an order of the court only.

 

Section 127 of the Act.

 

Sets out the powers of the court upon an application for an enforcement order.

 

Section 127(1) of the Act.

 

Provides that the court shall dismiss the application if, but only if.

 

Section 127(2) of the Act.

 

Empowers the court (if it appears just to do so) to reduce or discharge any sum payable by the debtor.

 

Section 127(3) and (4). of the Act.

 

Sets out circumstances in which the court shall not make an enforcement order.

 

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).

 

Section 113 (1) of the Act.

 

Provides (so far as material) that: Where a security is provided in relation to an actual or prospective regulated agreement, the security shall not be enforced so as to benefit the creditor directly or indirectly.

 

 

 

My Argument As in Wilson V First County Trust, 2000, 2001, 2003

 

If the court is barred from making an enforcement order, then the vehicle that provided the security for the agreement cannot be enforced.

 

 

 

Return of all monies paid and replace the vehicle or cash equivalent???? (Hope so)

 

However, I was at the time a sole trader, the vehicle was purchased for that purpose and the creditor was fully aware of that at all times.

 

This is were i could do with some “HELP”.

 

What Damages could i go for without being unreasonable.

Edited by cab1ne
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  • 3 weeks later...

Ask them for wasted costs. And then start your own claim against them for the money you have paid under the agreement

Any advice I give, is given with the best intention of helping. I am not legally trained, so it is probably best to just ignore me;)

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Ask them for wasted costs. And then start your own claim against them for the money you have paid under the agreement

 

thanks for the reply rcl,

 

however. would it not be better to set aside the discontinuance.

 

there is more to it than the money i have paid.

 

1, section 127(3)(4). return of all monies paid.

 

2, section 113. return of the vevicle or the value

 

3, section 87. invalid default notice and breach of the terms and conditions

 

4, section 92. took vehicle from private property

 

5, put me out of business, ruined my reputation,

 

dave

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Does anybody know how to or advise me on how to set aside a notice of discontinuance??????

 

Also would a summary judgement be classed as a "JUDGEMENT" thus requiring the claimant to seek permission from the court to discontinue.

 

dave

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also, the claimant has not complied with the court directions. i wrote to them and copied to the court giving them an extra 14 days to comply, and they still havent complied. would that be enough to have the discontinuance set aside.

 

dave

Edited by cab1ne
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Did you decide if you want to go ahead with setting aside the discontinuance or you just going for wasted costs instead?

 

Good Morning Wannabee.

64 million dollar question, well i think i might not need to go for set aside as it may be denied.

 

1. summary judgement

2. set for trial

3. failing to comply with directions.

 

my research so far tells me that due to 1 and 2, they would need my consent or leave of the court,

 

as for 3, that would gauruntee a set aside if needed.

 

however, if i went for the wasted costs what options would i be left with.

 

dave

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Dave,

 

I am not sure that you can apply to the court for a set-aside on their discontinuance. Certainly the form you have included above does not say that, and normally court forms do tell you what you can and cannot do. I notice the only real option is that they may have been required to have your permission to discontinue (from the top of the form), but they feel that is not needed.

 

Did you ever in your defence put in a counterclaim for the restitution which you feel you are entitled to? If so I would have thought that since there is effectively a case still to be heard (yours against them), that might prevent their unilateral discontinuance.

 

Perhaps you need to telephone the court and ask them what you can do? Also perhaps flag your thread up for the input of one of the knowledgeable members of the site team?

Edited by IainHL
Grammar
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Hi Iain, and thanx.

 

the notice above is the claimants notice to the court and myself, not from the court to me.

 

PROCEDURE FOR DISCONTINUING

 

38.3

(1)To discontinue a claim or part of a claim, a claimant must --

 

(a)file a notice of discontinuance; and

(b)serve a copy of it on every other party to the proceedings.

(2)The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.

 

(3)Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.

 

(4)Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

 

 

RIGHT TO APPLY TO HAVE NOTICE OF DISCONTINUANCE SET ASIDE

 

38.4

 

(1)Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).

 

(2)The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

 

 

 

 

the claimant did mention at the summary judgement with regards to counterclaims, and the judge shocked me a bit with his reply.

 

if the court found in the defendants favor regarding s127(3) and (4) as the defendant has stated in his defence, you must give back all the monies paid and s113 you must return the goods. (as in wilson v first county trust) i dont see were a deferndant would need to counterclaim, the court would be compelled to do that, the defendant has provided me with quite a lot of caselaw and you have not.

 

Southern PacificSecurities V Walker and another 7 July 2010.

 

26. As we see it, in order to succeed in this appeal, the borrowers would have to persuade the court that Wilson v First County was wrongly decided. However, in our opinion it was not.

 

dave

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  • 1 month later...

can this thread be marked up as **WON** please so i can move on,

 

after a lot of consideration and loads of reding up on recent cases (regarding pre 7th april 2007 agreements) i have decided to take them to court and change my status to claimant.

 

new thread will be started soon.

 

a great big THANKYOU to all the caggers out there with all the help they have provided.

 

dave

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That is a big step you are taking cab1ne.. Best of luck :)

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