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

[WelshMam2009]

Pretty sure your DN is not valid as certain statements should be in capital letters, bold and underlined...

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]

 

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU.

 

BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT BELOW.

 

Yours are all in lower case and don't appear to be bold.

 

If the DN is invalid and they have terminated the account then my understanding is that they can only claim the arrears specified at that time.

 

The regs you need are Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

PS Haven't included the underlined bits as have yet to find where that is stated!!!

 

Good luck!!

[WelshMam2009]

This is a copy of a defence I copied from another thread as I am in a similar position with regards to a dodgy DN. You can insert this in your defence and amend to suit.

 

The Default Notice

 

13. The Claimant submits that in addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

14. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

15. The default notice served by Mercers on behalf of the defendant did not contain the required statements in the required form for the following reasons

 

The notice failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2

 

The notice also failed to include the following statement

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH as required by paragraph 4, in the Defendants version the statement is set out in lower case and therefore contrary to the regulations.

 

Furthermore the notice failed to set out the notice required by paragraph 5

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]" again in the defendant’s version it is lowercase and not as prescribed

 

 

Finally the document does not contain A statement in the following form--

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

16. It is noted that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the default notice is invalid and further enforcement action should not be taken until such time as a compliant notice is issued

 

17. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

(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, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

 

 

18. It should also be noted the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form....... The word must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

19. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) should render it invalid

 

[WelshMam2009]

Will certainly take a look for you tomorrow IGIT.

 

However, it's default notices that I have been brushing up on recently.

 

Not received one CCA yet and desperately waiting for a termination letter for the dodgy DN I have!!

 

Really think you have a good case.

 

There is a thread on here whereby a Cagger actually won his case.

 

He got the debt written off, all costs paid and also got to keep the car!!

 

I have the transcript and will try and find the link tomorrow for you.

 

Best wishes...

[WelshMam2009]

Just wishing you all the best for tomorrow IGIT

[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