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

[InGodITrust]

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

 

 

This is where I am confused, I am fighting in court that the agreement is not enforceable due to misrepresented repayment terms. Wouldn't this mean they can only enforce the agreement via a court order?

 

I wasn't served a default notice and the one they seek to rely upon in court on Thursday is not compliant as they are not in the prescribed form.

 

I have a termination notice that gives me just 24 hours from the date printed to voluntarily surrender the vehicle. This is obviously not sufficient time.

 

You can find all my scans on the first page of this thread.

 

I've read surfaceagent's thread but just cant seem to find out whether or not they can repossess whilst the claim is in dispute. Even though I haven't paid the third.

 

I really need some help on this before Thursday.

[car2403]

S79 of the CCA 1974 says

79.--(1) The owner under a regulated consumer hire agreement, within the prescribed period after receiving a request in writing to that effect from the hirer and payment of a fee of £1, shall give to the hirer a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the owner showing, according to the information to which it is practicable for him to refer, the total sum which has become payable under the agreement by the hirer but remains unpaid and the various amounts comprised in that total sum, with the date when each became due.

....

(3) If the owner under an agreement fails to comply with subsection (1)--

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

So, if they haven't complied with your request under ss77-79 then they cannot repossess as that constitutes enforcemanet action.

 

However, not sending an enforceable agreement may not put them in defalut if they sent a copy of the T&Cs that apply to the agreement, since the regulations governing what they may send in reply to a request under ss77-79 are not very onerous -they can get away with sending almost anything. Having said that, enforcing such an 'agreement' is entrely another matter.

 

If they didn't serve a DN or served an invalid DN then they certainl cannot repossess the vehicle since s87 says

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason

of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land...

[InGodITrust]

S79 of the CCA 1974 saysSo, if they haven't complied with your request under ss77-79 then they cannot repossess as that constitutes enforcemanet action.

 

However, not sending an enforceable agreement may not put them in defalut if they sent a copy of the T&Cs that apply to the agreement, since the regulations governing what they may send in reply to a request under ss77-79 are not very onerous -they can get away with sending almost anything. Having said that, enforcing such an 'agreement' is entrely another matter.

 

If they didn't serve a DN or served an invalid DN then they certainl cannot repossess the vehicle since s87 says

 

 

Thank you for clarifying this for me car. I will definitely be letting the judge know of their actions regarding this tomorrow, as the DN is clearly invalid so they've definitely repossessed unlawfully.

[car2403]

Thank you for clarifying this for me car. I will definitely be letting the judge know of their actions regarding this tomorrow, as the DN is clearly invalid so they've definitely repossessed unlawfully.

 

Actually, it was Steven from the site team who gave me that

[WelshMam2009]

Just wishing you all the best for tomorrow IGIT

[InGodITrust]

Ok Caggers

 

I attended court for my hearing this morning.

The first thing the judge says to me is that he has received a fax from the other party requesting for the hearing to be adjourned as they are now in possession of the vehicle. They want to sell the vehicle and deduct the sale value from the amount of the original claim and then chase me for the remainder.

 

He was very keen to close the file in front of him and send me on my way.

I as politely as possible asked if I could raise some issues I had with the other party's claim.

He looked at me funny and said "well what would you like to discuss?"

 

At this point I handed him a skeleton argument I had prepared saying

".... before I start can I hand you this, a skeleton argument outlining in more detail all the issues in hand"

 

I then said

"I believe the claimants have brought these proceedings to court on the strength of a flawed credit agreement and a defective and therefore invalid default notice" may I add I said all this almost shaking with nervousness.

 

He asked "...are you a law student?" my reply was obviously no.

He then asked, "How long did it take you to prepare this?". "Little over a month" I said.

 

He had a quick read through the first page, which explained the agreements non-compliance with the CCA.

He then said, "Well what exactly is wrong with the agreement."

 

I then went on to explain that the payment schedule was incorrectly stated and did not agree with the sated APR.

He jumped in and said, "well these things are very complicated and they have experts who work out things like this, I mean I don't exactly what APR means.

What does it mean?" I almost fell apart here as my mind went blank and I said I don’t know.

 

He said ". Well if it proves to be incorrect and the court finds it serious enough contravention they may strike it out but it depends on how serious the court finds it” I’m upset with myself because at this point I should have pointed out that the CCA regards the prescribed terms as one of the most important parts of the agreement. Oh well!!

 

He then flicked through my skeleton argument again and randomly found an extract explaining the Claimants inability to serve a second DN.

He mumbled to himself "what's wrong with the Default Notice.... lets have a look" I told him I never received one.

 

He said something about it just has to be sent to be served.

I then explained to him in some detail why the default notice was invalid;

 

"the default notice they seek to rely upon is not in the prescribed for set out in the CCA"

I directed him to turn to the relevant page of my skeleton where it shows the correct form required.

 

I said, "The CCA sets out clearly how the Default notice should be set out, and allows to room for maneuvered. It must be in the prescribed form"

 

I then showed him a copy of an old default notice I remedied which was compliant (you can find the scans on this page).

I showed him the differences. "Hmmm" he said "this is very interesting, this is just a copy" "yes sir" I said "I believe this is just a typed copy they knocked up in response to my CPR request, they do claim this is a copy of the original they claim to have served” “I see” he said.

 

So he then said, “well what you should do is take this skeleton argument and submit it as a defence, I’ll send directions for you to return the defence to the court within 14 days, and the claimants will have 14 days in which to reply. You’ll then be sent allocation questionnaires and we’ll see what happens from there.”

 

He then asked me what I do.

I told him my profession and the circumstances arising to me being left redundant.

He sympathized saying “I know the story, these things happen, maybe after this you could a consider a career in law.”

We exchanged some laughter and left.

 

 

I must thank the caggers;

I would have never gotten through this day without your help.

Here is the skeleton argument I handed the judge.

It’s a mish mash of extracts from surface and other sources from this forum.

 

Could someone please have a look through my argument and help me convert it into a solid defence.

I need to submit it in 2 weeks so the time is ticking.

 

Any comments welcome!

 

 

Thanks

IGITSkeleton.doc

Edited June 12, 2009 by InGodITrust
re-attachment of Doc

[car2403]

If the agreement doesn't contain the prescribed terms, then the Court cannot enforce the debt if the agreement was entered in to prior to 8 April 2007 - see s.127(3) CCA 1974.

 

If that is the case, the Judge is wrong in that the Court can't decide to enforce in this instance.

 

The dodgy DN is just a bonus on top of that.

[GamekeeperToPoacher]

Hi IGIT,

 

I must say thank you for the post above.

I do not think that I am unique in that I sometimes worry that when/if we go to court we will face a legal eagle who knows the CCA 1974 inside out and backwards and will knock us to spots.

 

You have done a magnificent job and restored the confidence in hundreds of Caggers. I will thank you on their/my behalf.

 

Thank You IGIT - a ding on the scales is coming up (if it lets me)

 

 

GK

[Huff&Puff]

What's happening about the car that they reposessed in the meantime?

[InGodITrust]

If the agreement doesn't contain the prescribed terms, then the Court cannot enforce the debt if the agreement was entered in to prior to 8 April 2007 - see s.127(3) CCA 1974.

 

If that is the case, the Judge is wrong in that the Court can't decide to enforce in this instance.

 

The dodgy DN is just a bonus on top of that.

 

My agreement is post April 2007 so unfortunately I'm unable to claim it as automatically unenforceable. I'm therefore going to have to strengthen my argument for the dodgy DN

 

Hi IGIT,

 

I must say thank you for the post above.

I do not think that I am unique in that I sometimes worry that when/if we go to court we will face a legal eagle who knows the CCA 1974 inside out and backwards and will knock us to spots.

 

You have done a magnificent job and restored the confidence in hundreds of Caggers. I will thank you on their/my behalf.

 

Thank You IGIT - a ding on the scales is coming up (if it lets me)

 

 

GK

 

This is so true. The judge seemed to keep referring to tenancy laws. I had to politely as possible explain parts of the CCA without insulting his intelligence in any way. In his credit he was very willing to listen and was generally a nice guy. I'm just annoyed with myself as there are so many points that I wanted to touch on but just didn't get the chance. I just hope I am lucky enough to get him at the next hearing.

 

What's happening about the car that they repossessed in the meantime?

 

Here is where I'm confused. I told the judge that they have repossessed the car and that hey needed a court order for this. He said "well only if you've paid a third of the amount". I then told him that they've repossessed on the strength of an agreement only enforceable by the court, and also upon the serving of a non compliant DN. I explained that because they had a invalid DN they needed a court order. His reply was "I see....well you will need to seek legal advice about that"

 

I'm a bit unsure of what to do at this stage because their intention is to sell the car. This may well happen before the next hearing. Any advice would be appreciated.

 

I've attached the skeleton argument I used. Let me know your thoughts.

 

IGITSkeleton.doc

Edited June 12, 2009 by InGodITrust
re-attachment of Doc

[GamekeeperToPoacher]

Hi IGIT,

 

Are you aware that there is personal info on your skeleton argument?

 

GK

[InGodITrust]

 

Thanks GK

 

I have removed them, I'll re-uploaded here;

IGITSkeleton.doc

Edited June 12, 2009 by InGodITrust

[42man]

I have approved it IGIT...just shout out if it is still invisible...

[InGodITrust]

Thanks 42man, it seems to be fine now.

[GamekeeperToPoacher]

BTW IGIT,

 

I have stolen this as I can see it being useful in my case - same thing dodgy DN etc

 

I wish they would repo my car as I could save on insurance and it is in negative equity.

 

GK

[InGodITrust]

That's fine GK

 

I stole it from "I've got no money" in this thread;

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-762.html#post2222929

 

That might be of some help to you.

 

I Just made a few adjustments to fit my case. I now have to convert it into a defence within 2 weeks!! I really need to take it apart again and go through each point systematically. I have to emphasize that the miss-stated payments are a serious enough issue to render the agreement unenforceable. In case they just order the amendment of the schedule I'll have to dish out all I can in regards to the DN, which is the hard part for me as all that is wrong with it is that the lettering iis in lower case. I don't want the judge to see this as a minor thing.

 

My vehicle is also in negative equity. I'm unsure of where I stand in regards to the vehicle though. If at the next hearing the judge renders the agreement enforceable but I manage to win on unlawfull recession of contract on the strength of a defective DN I understand that I keep the goods and only owe arrears. If they have sold the vehicle by then what happens? do they have to give me just the proceeds form the sale or the value of the vehicle when I sign the agreement. This is important because I know they will sell the vehicle for peanuts

Edited June 12, 2009 by InGodITrust

[GamekeeperToPoacher]

Hi IGIT,

 

I am sorry I do not know what the situation is re: car and money. The problem is that I think that they have a charge on the car and have asked for the money n the claim so I can't sell the car to raise the funds.

 

In my case the DN is faulty due to dates and maybe defective due to some charges being in the claim.

 

The arrears that they quote do not add up to a finite(integer) number of months. We are at AQ stage at present and I was advised on here to point out that the DN was faulty in section 8. I did that but put in a comment requesting that they provide me with a copy of the calculation of the arrears. Hopefully that will have distracted them away from the main fault. lol

 

As I understood it the unlawful rescission part means that they are not permitted to make any claim but I may be wrong.

 

Some years ago I did a VT on a car and they then started trying to chase me for the some outstanding balance. A friend had seen my car go through the block for peanuts so when they wrote a week or two later to ask I suggested that we held a meeting round the car with our indivdual experts so we could discuss the matter but they ran.

 

Regards

 

GK

[InGodITrust]

Hi IGIT,

 

I am sorry I do not know what the situation is re: car and money. The problem is that I think that they have a charge on the car and have asked for the money n the claim so I can't sell the car to raise the funds.

 

In my case the DN is faulty due to dates and maybe defective due to some charges being in the claim.

 

The arrears that they quote do not add up to a finite(integer) number of months. We are at AQ stage at present and I was advised on here to point out that the DN was faulty in section 8. I did that but put in a comment requesting that they provide me with a copy of the calculation of the arrears. Hopefully that will have distracted them away from the main fault. lol

 

As I understood it the unlawful rescission part means that they are not permitted to make any claim but I may be wrong.

 

Some years ago I did a VT on a car and they then started trying to chase me for the some outstanding balance. A friend had seen my car go through the block for peanuts so when they wrote a week or two later to ask I suggested that we held a meeting round the car with our individual experts so we could discuss the matter but they ran.

 

Regards

 

GK

 

Well if the DN is defective on 2 counts then they're stuffed!! did they terminate the agreement?

 

If they did then as I understand it the goods are yours and they can only claim the arrears upto the date of termination.

 

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

 

 

what is a VT?

[Huff&Puff]

I'm sure that I saw another thread a while back,

where someone who had their car repossessed like this where there was an ongoing court case managed to ge an injunction to prevent them selling the car while the case was decided.

 

You might want to see about doing something similar if you hope to keep the car, else they are likely to sell it and present it as a fait acompli to the court

[InGodITrust]

Thanks for this!!!

 

I'm really going to have to look into this.

 

Apart form my defence I'm gonna have to get a move on with some kind of injuction before they get to sell the car.

[GamekeeperToPoacher]

Well if the DN is defective on 2 counts then they're stuffed!! did they terminate the agreement?

 

If they did then as I understand it the goods are yours and they can only claim the arrears upto the date of termination.

 

 

I am pleased to say that they terminated before they should have done if they had got the dates right

 

what is a VT?

 

Voluntary Termination - I returned the vehicle having paid exaclyt 50% plus £1 to be sure. There was a tiny mark on the bumper and they said it was not 'in reasonable condition' I pointed out that it was excellent for a 4 year old car!!

 

 

HTH

 

GK

Edited June 12, 2009 by GamekeeperToPoacher
Clarity

[WelshMam2009]

I'm sure that I saw another thread a while back, where someone who had their car repossessed like this where there was an ongoing court case managed to ge an injunction to prevent them selling the car while the case was decided. You might want to see about doing something similar if you hope to keep the car, else they are likely to sell it and present it as a fait acompli to the court

 

I've seen something similar to do with a logbook loan on this thread...

 

http://www.consumeractiongroup.co.uk/forum/log-book-loans-bills/188432-ex-parte-injunction-against.html#post2028737

[Huff&Puff]

That was the one, thanks WelshMam

[InGodITrust]

I've seen something similar to do with a logbook loan on this thread...

 

http://www.consumeractiongroup.co.uk/forum/log-book-loans-bills/188432-ex-parte-injunction-against.html#post2028737

 

 

Thanks welshmam!! I scoured the forum for this yeaterday but I couldn't find a thing. Im going to fill in a claim form and a form for injunction and try and go to my local court on Monday. In the meantime they've sent me a letter asking me for the keys and documents i.e. logbook, mot cert. A bit cheeky of them don't you think!!?

[InGodITrust]

 

Ok update on the situation everyone!!

 

 

Last week I received allocation questionnaire to be returned to the court by the 24th of July.

 

Today I received a letter in the post from solicitors acting on behalf of Dunctons saying:-

"We act for the above claimant.....

....please find enclosed a Notice of acting for your records...."

 

they then go on to say

 

"you will note that the Reply to Defence was due on the 9th July. The Claimant was unable to comply with the order and we have made an application to the court for an extension of time, proposing the 34th as the new date.......

 

.....Please let us know whether you have any objections to the reply to defence being filed and served no later than the 24th July (the same date for the allocation questionnaire)"

 

 

The second letter enclosed said:

 

"part 36 offer -without prejudiced save as to costs"

 

I will scan these and post up tomorrow morning when I get to work but here are some experts that sum up what their position:

 

"......please be aware that we have instructions to issue an application to enforce the agreement if necessary."

 

They then go on to say;

".....We note in your Defence you may oppose such an application, asserting that you were prejudiced in your purchasing decision (para 23 of your defence) due to an 'incorrect' agreement. Although you do not provide any explanation as to how that was the case, for your information, even if the Agreement was 'flawed' as you say, then we cannot see how you have beddn prejudiced in part or at all. For that reason, we expect that an application under section 127 would be successful"

 

They then basically say that they are now willing to compromise. On the basis that they have repossessed they are willing to accept one half of the total sum due i.e. £12,229.18 minus the £5,672.40 for a final settlement figure of £6556.48.

 

 

A couple of my own Qs;

 

1.If you look at my defence you'll see I went into quite some detail as to the problems with the agreement, but yet they seem to think I haven't provided "any explanation" as to how this prejudiced me. What do you guys think?

 

2.Am I in a better position now because they failed to reply to my defence in time?

 

3.Can I ask for their claim to be struck out because they didnt reply to the defence in the time specified by the court? how do I go about this?

 

 

Some urgent help would be much appreciated. With the help of everyone here I have effectively managed to reduce a claim for 20K down to £6k, and I am so grateful for that. It just seems to be getting extremely serious now as they have decided to get external solicitors to act on their behalf as opposed to the own litigation team I was dealing with!!!!

 

 

 

The scans;

 

http://img404.imageshack.us/img404/1073/pg1x.jpg

 

http://img148.imageshack.us/img148/2613/pg2qny.jpg

 

http://img525.imageshack.us/img525/874/part34offerpg3.jpg

 

 

 

Thanks again in advance

Edited July 15, 2009 by InGodITrust