RETURN OF GOODS/Court Claim Duncton/Moneybarn.....PLEASE HELP ME!!!!!

[citizenB]

Hi citizenB

 

Thanks for taking a look.

 

The date on the said default notice is 30th October. So it means they gave me 19 days, which is compliant. I'm hoping to get them on the formatting of the default.

 

That should do it

[InGodITrust]

That should do it

 

Thanks, I'm finally starting to see a light at the end of the tunnel. How does the credit agreement look to you?

[Peterbard]

Hi Peter

 

Forgive me, I am very new to all this so although I get the general idea of what your saying, I am still slightly confused.

 

I took out the agreement in April 2008. Why is it classed as a "pre April 2007 agreement"?

 

If I am mistaken and it is pre april 2007, because the payments are misstated, the agreement is still in breach of the act. As it is pre 2007, what must I do to claim that the agreement not enforceable? Do I just state this in my defence?

 

Also they say they terminated the agreement in December 2008. I am claiming that they did not do this lawfully as the default notice they claim to have sent me is not compliant. Can the court really order the ammendment of an agreement that they themselves said they terminated?

 

Also what is a "time order"?

 

Sorry I'm just a little confused.

 

Thanks

 

Sorry i meant post 07 was typing quicker thatn my brain was working. (not difficult)

 

The section of the 1974 act that was used for making an agreement that is improperly executed unenforceable(secrion 127(3-5)) was revoked by the 2006 consumer credit act.

This took effect on the 6th of April 2007 and effected all agreements dated after this.

The rest of the reply is OK though.

 

I didn;t mention a time order did i?

 

Sorry for the typo

Regards

Petr

Edited April 5, 2009 by Dodgeball

[Peterbard]

Hi

yes i have just whizzed through this thread and yes the court does have the power to ammend your agreement if it was proved to be improperly executed unrder 127(1)2.

The the prescribed terms are listed in the 1984/1553 agreement regulations in schedule 6.

Peter

[heliosfa]

Hi citizenB

 

Thanks for taking a look.

 

The date on the said default notice is 30th October.

So it means they gave me 19 days, which is compliant.

I'm hoping to get them on the formatting of the default.

 

Ah, but it is only compliant in the date field if they posted it on the 30th (or up to the 3rd) and you need to put them to strick proof of the date of posting (e.g. proof of postage).

 

All of the prescribed phrases for the Default are not in capital with the key words "BEFORE THE DATE SHOWN" emphasised further.

 

You also need to put them to strict proof that it costs them £25 to post a "Notice of Default" and if it really costs them £25 when you miss a payment.

The OFT "limit" for Credit Cards would be a good bit of info for this (£12 or below and the OFT won't investigate the charges. implies that a charge above £12 is unfair/penalty in nature).

 

If the charge is unfair or penalty in nature, then the fact that they have included it in the balance to rectify the Default makes the Default Notice invalid.

 

The default is only usefull as Toilet Paper to them.

Dodgy default plus the non-compliant agreement should be all that you need.

 

The normal bits of case-law apply here with relation to Defaults and Agreements.

 

Sorry my reply is a bit short - I am a little busy tonight and thought it better to have a look in response to you PM and post some initial thoughts

 

Hope some of this helps,

H

 

PS. I didn't see a scan of the POC anywhere, can you post one up?

Edited April 6, 2009 by heliosfa

[InGodITrust]

It's alright mate. I understand everyone on the forum is more than likely living a life outside of the forum, (besides me of late lol)

 

Unfortunately I sent of my defence this morning. Its due on the 9th but I didn't want to take any chances. In my defence I did state that I deny ever receiving a default notice and put them to strict proof it was actually sent and also the fact that the default in no way complies with the prescribed terms in the act for how the notice should be formatted.

 

What your saying about the postage costs is interesting. It's a shame I couldnt include this in my defence. Will there be a chance for me to bring this and any other points I may discover at any other stage after sending my defence?

 

Thanks Heliosfa!!!! This is definitley a big help

 

I will post up the POC tommorow at work

[heliosfa]

erm, you could send the claimant a CPR 18 request to proove that the £25 was a general pre-estimate of their costs.

 

Thanks,

H

[Peterbard]

Hi

 

Hi would be intersting in seeing the case law that refuses to accept inan incorrectly formated agreement could you give me the reference

 

Manay thanks in anticipation

PeterPeter

[Peterbard]

erm, you could send the claimant a CPR 18 request to proove that the £25 was a general pre-estimate of their costs.

 

Thanks,

H

 

Hi

wouldnt that defeat the object of claimng they were penalty charges an dunlawful under the utccs.

Pette

[Peterbard]

Its schedule 2 regulation 2(2) Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

that should be the one!!!

 

HI

NO you said case law that is the DTN regs seen them

 

I can show you regs tht say if the word credit is the wrong colour but i doubt if a court would rule agains enforcing it.

 

Peter

 

Petr

[Peterbard]

HI

No don't think ther is in fact just lately it has been difficult gatting courts to admoit that ones with incorrect term are not acceptabel or am i just coming across a lot of particularily stupid DJs.

Peter

[InGodITrust]

HI

No don't think ther is in fact just lately it has been difficult gatting courts to admoit that ones with incorrect term are not acceptabel or am i just coming across a lot of particularily stupid DJs.

Peter

 

I think we have the Rankines to thank for this one Peter...your typical upper class Judge no longer empathises with the lower ranks wanting to 'wriggle out' of paying back their debts!

 

This has me very worried now as the wrong formatting of my DN is my main line of defence, and I don't know how solid my argument of the wrongly prescribed terms on the agreement are. Feels like I;m clutchin on straws now!!! :-|

[InGodITrust]

Hi

 

Unfortunately this is a pre april 2007 agreement so you cannot go for automatic unenforceability.

 

This is unfortunate because the payments are misstated and they are a prescribed term.

 

The agreement should read deposit 3183

 

first payment 225

 

47 payments 447.88

 

This then agrees with the APR

if the first payment was has they have stated then it would be a nonsence.

 

I don't know why the gap with the last payment it makes no differnce as far as i can see unless there was an option fee payable on the last day and that should be on the agreement so woul dyu let me kknow if this is the case.

 

THe misstated payments are still a breach of the act and would make the agreement enforceable only by order of the court,the court may even consider that it serious enough to warrent some ammendment of your agreement but this is as i say up to the court.

 

Howevwer if you are after making ourself a little time in order to get another plan together .

I should draft them a letter saying that the agreement is flawed in that the payments schedule does not correspond with the stated APR.

 

They will no doubt come back to you and tell you that it was your deposit + fee but all you have to say is that it does not say that on the agreement i signed it says it was the first installment and the cca 1974 says that these are prescribed terms and must be correct.

Best regards

Peter

 

Hi Peter

 

I've been looking over the these figures and I've confused myself again as to how you worked out that the payments didn't agree with the apr(I'm not great with maths!!!)

 

where it says "one month after the date of this agreement" should it say 225 instead of the stated 447.88? If this is correct then I think I get it Does it mean I've over paid for the first month?

 

also I missed your question about the gap with the last payment.

 

I don't know why the gap with the last payment it makes no differnce as far as i can see unless there was an option fee payable on the last day and that should be on the agreement so woul dyu let me kknow if this is the case.

 

I cant find where it mentions a gap with the last payment in agreement, where is this? There wasn't any option fee payable or any mention of such an option. How significant is this?

 

and one last question to your knowledgeable self sir;

 

I read in the act that the agreement should have;

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

 

In the case of my agreement is the "Amount of Credit" section meant as the credit limit?

 

Sorry for all the questions but after searching and searching for case law on wrongly formated DNs, I feel I should really push for a strong argument/defence for wrongly executed agreement.

comments are welcome from anyone and are very much appreciated!!

[Peterbard]

HI

From what i remember of your agreement

the first installment quoted was for the amount of the deposit +the fee.

The first payment being on the collection of the goods.

This is incorrect as the repayments should be repayng the loan and the deposit you paid is not part of the loan.

So the first payment should have been 225 which was the fee.

THe last payment again if i remember right was "0" that is what i found confusing because it would meen that the agreement was still active 1 month after the repayment period had finished i could see no reason for this.

Any way the upshot is no you have not paid to much and if the agreement was laid out in the way i outlined all the figures in it would be correct, but it wasn't and the repayments are a prescribed term that cannot be incorrect in any way if the agreement is to be correctly executed.

 

I think the exerpt you quoted was from the 1983 regs and was reffering to running account credt (credit cards).

the prescribed term for fixed sum credit is total credit

 

Regards

Peter

[Peterbard]

Thanks Peter, I completely understand now!!! I need to strap down now and find some case law references to use.

 

Hi

well there is all the usual sispects

wilson, hustanger (sorry i have a dislexic keyboard) etc they are all in the case law section or on the web.

 

Peter

[InGodITrust]

Hi everyone

 

I sent my defence off on Monday morning so all I am left to do for the time being is research, scour this forum for relevant info, and more research to build my defence.

 

I've been reading various threads where people have been up against judges that are not at all empathetic to non-compliant DNs and agreements, so with your help I really want to show up with a tight defence!!!

 

Here is an update of my scanned documents which now include my POC. PeterBard has already been a big help with my agreement not having the correct prescribed terms, but is there anything that seems out of place with this POC guys?

 

In March literally a day after sending them a CPR request I recieved a "notice of arrears" dated March 16th. It says it is "given in compliance with section 86b(2)a...." what is a notice of arrears supposed to be? are they required to send one under the act? and can they really send me notices of arrears relating to a terminated contract?

 

The last thing is a letter I found buried underneath some personal paperwork. It is some sort of termination notice which is interesting because it is on properly headed paper and dated as february where as the Termination notice I recieved from the CPR request is completely different, not on headed paper and dated november 20th. Does this look like a termination notice to you?

 

I also have another interesting document. If you've read this thread from the beginning you'll probably know I didnt recieve a default notice. I CPR requested this and recieved a non-compliant copy of a DN they claim they sent.

 

I was also served a different DN a month before on september of 2008 but was able to pay the amount in arrears immediately and did so.

The thing is I still have that original DN notice and it is not at all similiar to the one they claimed they sent me. The one I recieved form the CPR request was not on headed paper and wasn't even close to the prescribed format set out by the act.

 

It is my belief that the DN (dated september) I have uploaded is their official DN. They never sent a DN (and never had one for me) or a termination notice but when I requested a copy of the originals someone mish mashed these together and posted it through. Please have a look at it guys and let me know what you think!!!!!

 

Is the old DN useful in trying to convince the court they never sent me a DN at all and help in proving the DN they claim they sent me is not compliant and therefore they terminated the agreement in breach of the act!!

 

sorry for the long post!!!

 

POC (4 pages)

 

http://img21.imageshack.us/img21/8089/poc1.jpg

 

http://img17.imageshack.us/img17/8792/poc2k.jpg

 

http://img11.imageshack.us/img11/3362/poc3.jpg

 

http://img165.imageshack.us/img165/1563/poc4.jpg

 

 

Notice of Arrears

 

http://img228.imageshack.us/img228/760/arrearsnotice.jpg

 

 

February Termination/Demand for goods notice?

 

http://img220.imageshack.us/img220/2590/confirmterm.jpg

 

The old DN I mentioned (sepetember 2008)

 

http://img152.imageshack.us/img152/5852/xligdn.jpg

 

http://img512.imageshack.us/img512/9607/ligdn1.jpg

 

___________________________

 

the originally uploaded docs;

 

The Agreement (3 Pages)

 

http://img19.imageshack.us/img19/7063/xagreementpg1.jpg

 

http://img6.imageshack.us/img6/6095/dagreementpg2.jpg

 

http://img5.imageshack.us/img5/2573/dagreementpg3.jpg

 

 

 

(CPR)The Default Notice (2 Pages)

 

http://img165.imageshack.us/img165/9...aultnotice.jpg

 

http://img171.imageshack.us/img171/5...tnoticepg2.jpg

 

 

(CPR)The Termination Notice (1 Page)

 

http://img21.imageshack.us/img21/863...tionnotice.jpg

Edited April 8, 2009 by InGodITrust

[Peterbard]

HI

 

just while i remember the tems of repayment say 48 months yet it isn't is it it is 47 months, i think i said earlier that this makes no difference to the APR but i was wrong,the way they lay it out confuses you .If you do the calculation with the last payment atr 0 then it makes no difference, but what they are saying is that the are giving you 48 months to repay your loan and in fact they are not. If this were the case the repayments would have to be differnt in order to maintain the same APR.

At best this could be said to be very confusing to a buyer and at worst a form of cleaverly missrepresenting the worth of the bargain (APR)

 

Peter

[Peterbard]

No it is another string to your bow.

The repayment details are not only incorrect in form but the also give you a fals sence of the worth of the "credit bargain" in that the APR was not a reflection af a loan of ** over 48 months but on a shorter perid. So in other words you were not getting as good a deal as you were lead to believe this would be a breach of section 127(1) in that you were predudiced in your purchasing decision by an incorrect statment on the agreement.

 

You see since we lost the automatic unenforceability provision of section 127(3) we have to find methods of proving that the creditors mistakes will predudice or restrict our rights under the act and this does.

 

Peter

[Peterbard]

Hi

Yes it is a related point it all ties in with the improper execution of the agreement. One of your points was the misstated repayments this is a drect consequence of that.

 

Peter

[heliosfa]

Hi

well there is all the usual sispects

wilson, hustanger (sorry i have a dislexic keyboard) etc they are all in the case law section or on the web.

 

Peter

 

I know that feeling Peter, I have a dyslexic head

 

I got your PM InGod and I am affraid there is not much else to add. Peter is doing a very good job and seems to have it all covered!

 

 

Thanks,

H

[InGodITrust]

Hi everyone

 

I sent my defence off on Monday morning so all I am left to do for the time being is research, scour this forum for relevant info, and more research to build my defence.

 

I've been reading various threads where people have been up against judges that are not at all empathetic to non-compliant DNs and agreements, so with your help I really want to show up with a tight defence!!!

 

Here is an update of my scanned documents which now include my POC. PeterBard has already been a big help with my agreement not having the correct prescribed terms, but is there anything that seems out of place with this POC guys?

 

In March literally a day after sending them a CPR request I recieved a "notice of arrears" dated March 16th. It says it is "given in compliance with section 86b(2)a...." what is a notice of arrears supposed to be? are they required to send one under the act? and can they really send me notices of arrears relating to a terminated contract?

 

The last thing is a letter I found buried underneath some personal paperwork. It is some sort of termination notice which is interesting because it is on properly headed paper and dated as february where as the Termination notice I recieved from the CPR request is completely different, not on headed paper and dated november 20th. Does this look like a termination notice to you?

 

I also have another interesting document. If you've read this thread from the beginning you'll probably know I didnt recieve a default notice. I CPR requested this and recieved a non-compliant copy of a DN they claim they sent.

 

I was also served a different DN a month before on september of 2008 but was able to pay the amount in arrears immediately and did so.

The thing is I still have that original DN notice and it is not at all similiar to the one they claimed they sent me. The one I recieved form the CPR request was not on headed paper and wasn't even close to the prescribed format set out by the act.

 

It is my belief that the DN (dated september) I have uploaded is their official DN. They never sent a DN (and never had one for me) or a termination notice but when I requested a copy of the originals someone mish mashed these together and posted it through. Please have a look at it guys and let me know what you think!!!!!

 

Is the old DN useful as an example in trying to convince the court they never sent me a DN at all and help in proving the DN they claim they sent me is not compliant and therefore they terminated the agreement in breach of the act!!

 

sorry for the long post!!!

 

POC (4 pages)

 

http://img21.imageshack.us/img21/8089/poc1.jpg

 

http://img17.imageshack.us/img17/8792/poc2k.jpg

 

http://img11.imageshack.us/img11/3362/poc3.jpg

 

http://img165.imageshack.us/img165/1563/poc4.jpg

 

 

Notice of Arrears

 

http://img228.imageshack.us/img228/7...earsnotice.jpg

 

 

February Termination/Demand for goods notice?

 

http://img220.imageshack.us/img220/2590/confirmterm.jpg

 

The old DN I mentioned (sepetember 200:cool:

 

http://img152.imageshack.us/img152/5852/xligdn.jpg

 

http://img512.imageshack.us/img512/9607/ligdn1.jpg

 

_________________________ __

 

the originally uploaded docs;

 

The Agreement (3 Pages)

 

http://img19.imageshack.us/img19/7063/xagreementpg1.jpg

 

http://img6.imageshack.us/img6/6095/dagreementpg2.jpg

 

http://img5.imageshack.us/img5/2573/dagreementpg3.jpg

 

 

 

(CPR)The Default Notice (2 Pages)

 

http://img165.imageshack.us/img165/9...aultnotice.jpg

 

http://img171.imageshack.us/img171/5...tnoticepg2.jpg

 

 

(CPR)The Termination Notice (1 Page)

 

http://img21.imageshack.us/img21/863...tionnotice.jpg

[InGodITrust]

Hi CAGers

 

My court hearing is next week Thursday but I am yet to hear anything from the court since sending my defence. The other party sent me a copy of their witness statement last week. I understand at this stage I should have been sent an allocation questionnaire but I haven't received anything from the court with any sort of instructions.

 

What should I do?

[ncf355]

Hi mate,

 

you need to call the court and ask them if anything has been sent out to you regards an AQ or other info

[InGodITrust]

:!:

My car has just been repossessed literally an hour ago. I haven't paid a third of the full amount but are they allowed to repossess the vehicle whilst the claim is still dispute? The court hearing is this week Thursday!!!!

 

 

Urgent help please!!!!!!!!!

[42man]

I thought they were allowed to repossess, but only with a court order !!!?? I presume you have got a default notice and a termination notice that are in order ? - did you see this thread - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html