GKTP embarassed?

[Docman]

GK

 

I thought you had submitted your defence in Feb/March?

 

Hav you had any concact with the mediator? Might be an idea to check if the have tried to call you on an old number.

[GamekeeperToPoacher]

Docman,

Many thanks for the very prompt response I did PM you too.

I will send an email to the mediator person straight away although they did say they were not interested in mediation.

 

 

GK

[Docman]

BTW, what's the hearing on 9 Septemter for?

[GamekeeperToPoacher]

It is for the Hearing for the small claims track

[Guest janensteve]

have fun with this one !!!

[citizenB]

Gamekeeper, It is my understanding that any late payment charges/letter fees, etc cannot be included in a DN balance.

 

It might be a good idea if you put together a defence and pop it on here for people to have a look at.

[surfaceagentx20]

As I understand things the Claimant is not the party with whom you entered into a Consumer Credit Agreement. The creditor to the agreement is Fortis UK Lease Retail Limited. That is evident from the agreement. The Claimant is described as Fortis Lease UK Limited (company number 01881042). After straining my eyes, I think this company number appears on the covering letter. To be absolutely certain, I've checked the company registration number of the company 01881042 and it does not have a previous name of Fortis UK Lease Retail Limited.

 

On that basis the Claimant has no right to sue you unless the Claimant acquired its right by virtue of an assignment. If it claims such a right it would be a pre-condition of that right that there had been served upon you a notice of that assignment. Further I would expect to see reference to the assignment and to the delivery of notice of assignment in the Particulars of Claim. Moreover, after service of a Defence I would expect to see something similar advanced in a Reply. Nothing of that kind is mentioned there.

 

I am concerned the DN and especially the TN were issued by Fortis Lease UK Limited. As mentioned, Fortis Lease UK Limited are not a party to the agreement and incapable of terminating the agreement unless prior to termination there was an assignment and delivery of notice to you of that assignment. It may be possible to contend in any later proceedings that there was some form of agency whereby the DN and TN were notices delivered under instructions provided by Fortis UK Lease Retail Limited.

 

I would keep these issues very close to your chest and spring them at the hearing next month. The directions for the hearing will almost certainly direct that Fortis are to supply to you copies of the documents they intend to rely on. When these arrive let us know.

 

On the basis you have been sued by a disinterested party, all other defences fall by the wayside in the sense they are unnecessary for success. I have read you have attacked the interest claim for section 69 interest. It is right that the claim should be attacked because the right to section 69 interest is a discretionary right in the absence of a contractual right. Without reading the entire agreement I would imagine a term is incorporated whereby interest on late payments may be claimed. If so, the discretionary right fails and since there is no claim to contractual interest in the Particulars of Claim there is no right claimed to be entitled to interest at all.

 

x20

[lexis200]

CB, the charges included in DN balance thing has always confused me.

 

Is it wrong if it's in the balance, the arrears or both? (I assume if the balance is incorrect that's going to throw the arrears figure out?)

 

Also, are we talking about fees charged since any dispute/complaint has been bought to light, or just any fee within the whole period of the account?

 

I only ask, as if it's the latter then would that mean that one single charge levied throughout the life of the account and included within the balance on a DN would render it defunct? If so that's excellent for me and OH as all our accounts have at one time or another had a charge for something!

 

Ta muchly

 

Lexis:)

[Docman]

Well spotted X20. I agree fully.

 

It looks like the covering leter was on a letterhead from the English registered company, Fortis Lease UK Limited, but signed by Fortis Lease UK Retail Limited, a Scottish registered company. The agreement is in the name of the Scottish company but it is the Eglsh registered copmany that has sined the DN and termination.

 

I beleive that a defence has been filed which of course doesn't mention this point, so what is the best way of introducing this into a Small Claims case?

[surfaceagentx20]

As I understand it, the Defence was posted on 16 March 2009, pleading an 'embarrassed' defence which included a total denial of liability or cause of action or similar. I haven't actually been able to find the defence as filed on the thread. Is it here somewhere?

The total denial of liability will suffice even though the denial lacks particularity. It puts the Claimant to proof of the claim. They have to prove every last bit of it. I suggested the OP let us know when the Claimant has given disclosure because what is disclosed by them will form the basis of the documentary evidence to be relied upon and an assessment of the position can be made in light of that disclosure. At present I am not expecting the Claimant to disclose evidence of assignment. Whether that is so will become clear in time. Assuming there is no evidence, the way to tackle the position is at the hearing by reference to the agreement and the absence of a plea to a right by assignment or evidence of assignment. The penny should drop pretty swiftly at that hearing. That 'penny' being of course that the Claimant has no legal interest in the subject matter of the proceedings or demonstrable right to sue.

 

x20

[GamekeeperToPoacher]

Hi X20,

 

Many thanks for your assistance the defence I sent is here

I was considering this action over night as I seem to organise my thoughts best when I am horizontal. I am wondering if it would be best to hold back on this as it would appear that the faulty DN and TN should perhaps be sufficient. Particularly as I understand that they may have used the wrong type of DN.

 

The agreement is a fixed sum agreement but they appear to be using the terms of a Hire purchase agreement as they are demanding the return of the vehicle in the DN and TN.

 

 

I am confused as to what the result of the action can be there has already been comment about the possibility of 'another hearing'. If the case is thrown out on this point then am I correct in believing that the Creditor could just start over again - reissue DN correctly followed by correct TN and wham bam thank you mam! Case closed. Pay up!

 

Now if the case goes through and I am successful then , at most, I could be forced to pay the arrears balance on the DN.

If I am unsuccessful on the day then the court could order that I have to pay the total plus interest plus costs etc. Would it not be useful at that juncture to leave and 'review the case in retrospect' and 'find' this massive error and then appeal?

 

Please note: I have not received any Notices of Assignment at any time.

 

Of course this would prevent me from seeing the faces of their barrister when he realises the error.

 

If, however, they spot the error prior to the case and amend the POC or go for a discontinuance where does that leave me?

 

Many thanks

 

GK

[GamekeeperToPoacher]

GK

 

I thought you had submitted your defence in Feb/March?

 

Hav you had any concact with the mediator? Might be an idea to check if the have tried to call you on an old number.

Hi I have just received the following:

 

I have contacted the Claimants' solicitors twice and left messages with a Mrs xxxx and most recently on 22nd July Mr xxxx .I am afraid there has been no response since then and as your hearing date is fast approaching on 9th September there is now not enough time to arrange an appointment 14 days before this date.The mediator is on leave for the next two weeks.

I am sorry we have not been able to help this time but would encourage you to contact the Claimants solicitors direct to try to resolve the matter.

 

Would you a0 recommend talking to their solicitor?

and b) mention these attempts to contact in my defence?

 

GK

[Guest janensteve]

i would not recommend discussing with solicitor nor mediation. you want their claim struck out and costs awarded against them.

 

a mistake i made in respect of Litigant in person costs was to charge £35 per hour. what i should have done is charge £9.25 and put down 4 times longer to do everything including research. It just means that whenever i engage a laimant, i have to start from scratch on the swotting up if you know what i mean......

[surfaceagentx20]

Your Defence adequately deals with the situation by saying the claim fails to disclose a cause of action. That is, it fails to disclose a right to sue vesting in the named Claimant.

 

This is where technically, the notion the creditor could 'start all over' is false. The creditor has not yet sued at all! If the creditor begun proceedings it may be possible to say the DN and TN were notices issued by the Claimant as agent for the creditor. How else, in the absence of assignment did the Claimant puport to have a right to send those notices out?

 

You could run the Defence ignoring the lack of a cause of action and concentrating on the DN and TN, but you haven't pleaded anything like that. Not that that is a fatal bar, but even if accepted, it is not a complete defence. It is only a defence to claims over and above arrears and a couple or so CAGgers have come a cropper on a defence pleading the DN was defective and unlawfully terminated.

You would most likely be refused permission to appeal against a finding of the court on an issue you had not raised. Don't let the issue about the right to sue slip through the net. It must be raised at the hearing next month and ideally, not before.

 

The Claimants are free to discontinue or apply to the court for permission to substitute the creditor as Claimant. If the case is discontinued that's an end to it. If they apply to amend let's see what they say in the application notice. Whether this happens remains to be seen. They haven't clocked it yet, hence keep your cards close to your chest. Do not alert them.

 

x20

[Docman]

Hi GK,

 

No, I would keep the message (letter or email) and hand it to the judge at the hearing to show that the claimant hasn't been interested in mediation. Normally, you might be expected to take up the mediator's suggestion and contact the claimant's solicitor directly. However, in view of the comments above from X20 regarding the status of the claimant, you might like to hold off contactig the soicitor and surprise them on the day. Your call really.

 

Whilst you should be able to succeed on 9 Sept if you follow X20's advice, I think you are correct that Fortis could start the whole process again using the correct company. If Fortis did start again (and they may not), I believe you would be in a stronger position to negotiate. At a second attempt, Fortis will know that you are not a push over, that you cost them money in legal costs that they couldn't reclaim in the Small Claims court, and that they will have to incurr the legal costs again. They could well be more open to a realistic settlement offer.

[Guest janensteve]

or you could tell me to go forth and multiply ! but i would claim costs but not demand if they left you alone, a sort of trade off if you see my drift.

[GamekeeperToPoacher]

Many thanks to all although I am still concerned about what defence to put together. I am minded (I do love that phrase!) to present the defence of bad Dn TN etc and then on the day hit em!

 

I intend to work over the next few days putting a defence together then I will post it for assistance.

 

Any comments on the comment someone made about it being the wrong DN as it asks for vehicle when it is a fixed sum finance agreement.

 

Does anyone know how I can get a free/cheap HPI check. I have not tried to sell the car as I believe that it has a charge recorded on it.

 

Once again many thanks.

 

GK

[GamekeeperToPoacher]

Hi I am really sorry as I am trying to look at my defence/witness statement and I think that there is my problem.

 

I am unsure what I need to produce from the Notice of Allocation

 

If anyone can suggest a framework defence/witness statement I would sell my granny (may she rest in peace)

 

TIA

 

GK

[citizenB]

Hi I am really sorry as I am trying to look at my defence/witness statement and I think that there is my problem.

 

I am unsure what I need to produce from the Notice of Allocation

 

If anyone can suggest a framework defence/witness statement I would sell my granny (may she rest in peace)

 

TIA

 

GK

 

You will find loads of WS / Defences around.. but .. you must remember they are all individual.

 

I have linked you to one being formatted at the moment, if you read on from the WS then you will find links to the regulations and stuff that you might need.

 

Witness statement in post 116... A witness statement is a beefed up Defence.

 

 

http://www.consumeractiongroup.co.uk/forum/mbna/195498-mbna-restons-12.html#post2358598

 

HTH

[GamekeeperToPoacher]

Enlightenment!! Once again CB I am in your debt.

 

So I need a WS

 

Back to the grindstone

 

Thanks

 

GK

[GamekeeperToPoacher]

You will find loads of WS / Defences around.. but .. you must remember they are all individual.

 

I have linked you to one being formatted at the moment, if you read on from the WS then you will find links to the regulations and stuff that you might need.

 

Witness statement in post 116... A witness statement is a beefed up Defence.

 

 

http://www.consumeractiongroup.co.uk/forum/mbna/195498-mbna-restons-12.html#post2358598

 

HTH

 

 

Hi CB,

 

I have just looked at the above thread and found this in Post 118:

What the agreement must contain

 

 

1 A heading in one of the following forms of words shown prominently on the first page:

 

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

 

or

 

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

 

or, in any other case,

 

Credit Agreement regulated by the Consumer Credit Act 1974.

 

 

Where the document embodies an agreement, of which at least one part is a credit agreement not regulated by the Act, the word ‘partly’ must be inserted before ‘regulated’ in the heading – unless the regulated and unregulated parts of the agreement can be clearly seen to be separate.

 

 

My 'agreement' says Fixed-Sum Loan Agreement regulated by the Consumer Credit Act 1974 which to my mind significantly differs from the quoted. How do they define prominent?

 

I also have had no response from anyone about the demand for the vehicle on the DN and TN which surely would make the 'agreement' a hire purchase agreement. How is the difference defined? Can we make use of this.

 

I know I am paranoid but I know if I was working still in debt recovery I would be on here constantly doing searches for my companies name and making notes which means I am loathe to discuss a couple of points yet but will be more than happy to post after the case.

Is there any way around this?

 

GK

[GamekeeperToPoacher]

I have just noticed something else that had passed me by before and I have not noticed on other DN threads

 

I received as DN from Co A but the TN is from Co B "acting on behalf of Co A" and they consider my failure to comply as a repudiation by me of our agreement" Is this compliant? I have no agreement with Co B.

 

This is becoming increasingly bizarre.

 

GK

[citizenB]

oh heck, GKTP, I really have no idea.. I think you will need the assist of someone like, andyorch, creditcardmug.. I see janensteve has subscribed.. perhaps they will be able to answer your questions in the last two posts.

[GamekeeperToPoacher]

Many thanks CB,

 

I am sure that someone will be along shortly - perhaps my guest will assist?

I do worry about these gusts as I have now read 2 posts where the barristers have admitted looking at fora.

 

This will bump any way

 

GK

[GamekeeperToPoacher]

Hi All,

 

I am getting worried as I seem to be coming up with more and more faults with this case - Theirs I hasten to add!

 

I have now looked at The information that I am working with and it appears that I have made a grave error and I have been quoting the information that I have NOT what they sent. They have sent only 2 pages as a copy of the agreement as follows:

 

Page 1 of CCA

 

Page 2 of CCA

 

There are no T&Cs and no sig box for the creditor is it compliant? and in view of the other 'situation' how do I put it into my defence without revealing everything?

 

Looking for help as my head is about exploding - I was going to say that lawyers earn their money but if they can make this many errors with a 35 year old statute I am glad the death penalty was abolished.

 

GK