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

[surfaceagentx20]

IGIT,

I’m coming into this thread a little late, but if I’ve got my facts straight it is that without first obtaining an order of the court, the Claimant re-possessed your car at a time when less than one third of the sums due had been paid and where the agreement had been terminated following service of a DN dated 30 October 2008. Further, that prior to re-possessing the car, the Claimant issued legal proceedings seeking an order for possession of the car and money. I haven’t seen the defence but understand it pleads technical defects in the form and content of the original agreement and the default notice.

A few thoughts.

First and whilst it is right to say a creditor may recover possession of goods where less than one third has been paid without the need to obtain an order of the court first (ie within the permitted circumstances featured in Consumer Credit Act 1974 section 90), it seems arguable to me that where the creditor brings proceedings for the purpose of obtaining an order for repossession he waives by his own election any right afforded by section 90 and submits himself and the question of his right of repossession to the jurisdiction of the court.

Further more, it seems to me there may be grounds for saying that since the repossession of the car took place after 1 October 2008 (when provisions of the 2006 Act came into effect) the creditor ought also to have served a notice under section 86B within 14 days of at least two instalment payments becoming outstanding under the agreement. The duty to serve a section 86B notice extends to fixed-sum credit agreements of which a HP agreement is a breed given the provisions of section 9(3) of the 74 Act. If the creditor was under a duty to serve a section 86B notice but failed to by when repossession occurred, his failure to do so rendered his power to enforce the agreement void by reason of the provisions of section 86D(3). If I am right in all this the enforcement by recovery of possession without court order may arguably be treated as analogous to a recovery of possession in contravention of section 90. The consequences of contravening section 90 are that the provisions of section 91 kick in. Section 91 provides for the debtor to be released from all further liability under the agreement and a right to recoup payments made by him under it.

Mixing up a defence based upon the creditor’s submission to the jurisdiction of the court coupled with the creditor’s enforcement of the agreement when it had no right to do so (if so) nor permission granted by order of the court may double the creditors jeopardy.

Next the complaint regarding the DN is that parts which ought to have been in capitals and emboldened were not. In short, such a notice would not have been in the prescribed form and it is a mandatory pre-requisite of any right to terminate an agreement and recover possession of goods that there was prior service of a DN in prescribed form [Consumer Credit At 1974 section 88(1)]. I do not know of a case where an otherwise compliant DN was treated as ineffective owing to a shortcoming of this kind. I would be concerned that such shortcomings may be treated by the court as de minimus.

Per Kennedy LJ in Woodchester v Swayne & Co [1998] concerning the content of a DN

The court might overlook an error which could be described as no more than de minimus,

That said, the creditor is keen to compromise the case and is offering to waive a good chunk of the sums claimed. May be the creditor can be pushed further. Provided the section 86B argument I have advanced can be shown to apply, besides defending there would then appear to be a case for counterclaiming for the return of payments made under section 91. Promoting a section 91 type Defence and Counterclaim may result in an even better deal being put on offer.

As for your questions:

1 Proof of prejudice is only necessary where the court is minded to treat a defect in the prescribed form as de minimus. Arguably, if Parliament believed that parts of the DN required the text to be in capitals and emboldened, but not other parts, Parliament believed that those parts required capitalising etc for the protection of consumers and to avoid them suffering prejudice. In other words, you were not afforded the protection Parliament intended you should have as a consumer. Once more in my opinion, I would contend in those circumstances that there is a presumption of the existence of prejudice where there was less than strict conformity to the prescribed form with the onus of showing that no prejudice has been caused falling on the creditor.

2 Probably not. The court is likely to grant an extension of time for the service of a Reply. Further still, if you should be minded to amend your Defence to include a section 86B Defence and also counterclaim it would probably be wise to say so because costs might be wasted in serving a Reply where some later amendment gives rise to a right to serve a Reply and Defence to Counterclaim.

3 Any application to strike out for want of a Reply would fail.

 

x20

[OldSoul]

Hi thanks for your replies

 

 

I used to be ingoditrust now oldsoul

 

-I Have a CCJ with from 2010 of £14k.

 

I haven't made any response or payment plans in regards to this

 

 

Any advice this would be much help. I've never contacted or replied to any of the DCA'a letters.

[dx100uk]

that CCJ is going to KILL any credit etc etc till its 6th birthday.

 

so at present

IMHO that needs to be your focus...

 

did you KNOW you were getting one?

did you get the paperwork?

 

dx

[OldSoul]

Oh, and yes I knew about the CCJ,

I tried to fight it at the time but to no avail.

 

The judge ruled against me and the finance company added there legal costs which bumped the grand total upto 14k.

 

After that I just got scared to be honest,

owing such a large amount and ended up just ignoring it.

 

Having checked my equifax I have noticed that the finance company have "trace searched" me twice in the past 2 years.

[dx100uk]

back ground on the debt please

 

ppi/penalty charges

 

not advantage/welcome/black horse etc was it

 

dx

[OldSoul]

It was is car finance debt.

 

I took out car finance and lost my job of about 10 years, 4/5 months later.

 

The car got repossessed.

 

I gave a go at contesting it based on a defective default notice.

 

I prepared a skeleton argument which I took to court with me.

 

The judge told me to take my skeleton argument and submit it as a defense,

and he sent directions for me to return the defence to the court within 14 days,

and he gave the claimants 14 days in which to reply.

 

They replied and kind of ripped my defence apart.

This is where I got scared, I didn't reply (silly I know) after that and so judgement was passed against me.

 

The company at the time was Duncton which is now Money Barn I think who have trace searched me once a year since the judgement date.

I've had 2 letters from them I think that I can't seem to find.

[dx100uk]

how was the car repo'd and from where?

 

dx

[OldSoul]

Car was repo'd from outside address, Was clamped and couple hours towed away

[dx100uk]

ok from public road then darn

did you sign anything

 

do you know if this was VS or VT?

 

dx

[OldSoul]

ok from public road then darn

did you sign anything

 

do you know if this was VS or VT?

 

dx

 

Didn't sign anything, it wasn't a VT, im not sure what a VS is? Voluntary Surrender?

 

Well I came outside and argued a little with the guy, didn't hand over the keys or anything. I think I actually started a thread on this years back when it was happening, cant't find it tho.

[dx100uk]

cant see any old thread

was it the same username?

 

dx

[OldSoul]

I found it http://www.consumeractiongroup.co.uk/forum/showthread.php?189249-quot-Notice-of-RETURN-OF-GOODS-quot-Court-Claim-Litigation.....PLEASE-HELP-ME!!!!!

 

For the life of me I cant remember the login details

 

Honestly, it all just got a bit much for me, I chickened out and ended up not replying to the allocation questionnaire (silly I know), climbed into a whole and tried to ignore the whole thing, a year later the judgment was passed. Very dark episode for me, just didn't know what to do really.

Edited May 25, 2013 by OldSoul

[dx100uk]

threads merged and tidied

 

dx

[OldSoul]

threads merged and tidied

 

dx

 

Thanks Dx

[dx100uk]

dunno if there's anything you can do with this really now

 

i'd have to ask a legal bod to pop in..

 

dx

[OldSoul]

Yea, neither do I dx, Im also a bit apprehensive about draggin it up again 3 years after.