Black Horse have issued a court date for possession of my car Please HELP

[Guest suziedarkness]

Cosalt, Peterbard and Goldlay, I am here, I just have been trying to cook my kids dinner with my head like mush

 

Ok in order to your questions, a copy of the cca was posted on an original thread about the situation here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/168115-mathematicians-needed-help-credit.html

 

its on post#13

 

The account was upto date when I requested the VT. I have been in arrears in the past occasionally, but always caught up before next payments due and it was only in the last5 months before then that I started struggling.

 

I have had a letter from solicitors, it was delivered to my work but I am off this week and a colleague has forwarded it onto me so I should have it tom orrow. My friend said it had a barnet postmark which is where they are based. I am assuming it is a reply to my CPR request.

 

I have coppies of all the letters sent to them and dates that they were received from Black Horse

[Guest suziedarkness]

I need to post my defence tomorrow, I cannot take it as it is not local.

[Guest suziedarkness]

Goldlady, I forgot to say. They did eventually send me a copy of CCA . They ignored my reminders and in the end I telephoned them and they denyed having received my previous letters. They did then send a copy out eventually but its a bit of a rubbish copy.

 

I actually make the default notice 2 days out. I read a thread on here somewhere that had a link to a site that was something to do with the government or something and it clearly stated that if a default notice was sent by 2nd class post, it was deemed to be served on the debtor 4 working days AFTER the day of posting. I tried to explain this to the trading standards woman and she basically told me I was talking rubbish. I cant for the life of me find this bit of info now, I thought id bookmarked it. If anyone knows where I can find it again I would be so happy.

[Guest suziedarkness]

Youve all deserted me again

[slick132]

Hi Suzie,

 

This isn't a subject I can help on.

 

However, to give you the best chance of getting the defence in to the court, make sure you have their fax number ready to use, so you can get the defence filed, even if it's after office hours tomorrow.

[Peterbard]

Hi s

 

i have just gone through the agreemtnRepayments

1 At 150.27

57 at 150.27

1 including fee at 225.27

 

Tap including deposit of 10291

APR 16.54%

 

This is ok all the fees are in the right places and i was depressed BUt

now i see you paid the fee of 145 in with the first payment as an addition is that right.

Yousee in order to tget the APR stated above, the fee has already been included wihin the total charge for crdit and spread amongs the paymnets.

So you will have paid it twice.

The effect of this would make the APR rise to 17.75%

 

So you have two major arguments one is that the APR is incorrect this is a major flaw and may get your agreement adjusted by the court and certainly makes it enforceabe only by an order of the court under section 65 of the adt but it also keans that your payments are incorrect and these are a prescribed term which as you know in an agreement dated before the 6 april 2007 woud render the agreement unenforceable under section 127(3) of the act.

Best thing is you will be able to prove it with yur bank statement first debit.

 

Good luck Peter

 

Peter

__________________

VT against welcome finance costs returned

Refund against jetline travel

Caital one settled 6th November

N1 Filed Yorkshire Bank 26/09/06

£677+£172int.+£80Chgs acknowledgemment of claim recieved 29th/09,Defence recieved 27th October Recieved AO 30t hOctt Settled in Full 8th December

peterbardView Public ProfileSend a private message to peterbardFind More Posts by peterbard

 

 

[Peterbard]

Hi s

 

i have just gone through the agreemtnRepayments

1 At 150.27

57 at 150.27

1 including fee at 225.27

 

Tap including deposit of 10291

APR 16.54%

 

This is ok all the fees are in the right places and i was depressed BUt

now i see you paid the fee of 145 in with the first payment as an addition is that right.

Yousee in order to tget the APR stated above, the fee has already been included wihin the total charge for crdit and spread amongs the paymnets.

So you will have paid it twice.

The effect of this would make the APR rise to 17.75

 

This is a slightly complicted argument because the agreement itself is correct if the repayments were taken as they should. So you will have to prove that they were not

 

So you have two major arguments one is that the APR is incorrect this is a major flaw and may get your agreement adjusted by the court and certainly makes it enforceabe only by an order of the court under section 65 of the adt but it also keans that your payments are incorrect and these are a prescribed term which as you know in an agreement dated before the 6 april 2007 woud render the agreement unenforceable under section 127(3) of the act.

Best thing is you will be able to prove it with yur bank statement first debit.

 

 

Good luck Peter

 

Peter

__________________

VT against welcome finance costs returned

Refund against jetline travel

Caital one settled 6th November

N1 Filed Yorkshire Bank 26/09/06

£677+£172int.+£80Chgs acknowledgemment of claim recieved 29th/09,Defence recieved 27th October Recieved AO 30t hOctt Settled in Full 8th December

peterbardView Public ProfileSend a private message to peterbardFind More Posts by peterbard

 

 

 

Edited April 7, 2009 by Dodgeball

[Guest suziedarkness]

no Peter you are wrong.

 

Initially I thought I had paid the £145 with the first payment but I did not.

 

The agreement states:

One repayment of £150.27 payable 1 month after the date of this agreement, followed by 58 monthly repayments each of £150.27 and one final repayment of £225.27 which includes the purchase fee.

 

Total 60 payments alltogether.

 

The £145.00 acceptance fee has been rolled into the payments which I believe is ok but someone said it looks like they have charged interest on it which is a nono as in Wilson V FCT. Now I dont know if this is the case but a few people on here have looked at the figures and said that something does not seem right. I tried using Dualcal and I couldnt make head nor tale of it.

 

I did write to black horse in january querying the figures but they have just ignored my letter as usual.

 

Any other thoughts Peter, what about the DN being out?

 

Suzie

[supasnooper]

Hi there,

 

To be effective, a default notice must give 14 days after service to allow the debtor to remedy.

 

A useful post about default notices - http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

 

Also, for date of deemed service, you have a choice of whether to use the Council Tax Manual 1985 -

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

or the Interpretation Act 1978.

or The Interpretation Act 1978

Interpretation Act 1978.doc

Edited April 7, 2009 by supasnooper
editing

[Guest suziedarkness]

Supasnooper, thats what i was looking for, thankyou, i knew i hadnt imagined it. Stupid woman at trading standards basically told me i was making it up!!

[Guest suziedarkness]

that means my DN only gives 12 days after service!!

[Guest suziedarkness]

I need to get something off today for my defence so I have made a start, bearing in mind dont have a clue what im doing I have pinched pieces from other defences.

 

Would appreciate is anyone can pass comment, add or take adont anything away. I dont know what else to do. I feel so alone and out of my depth.

 

 

 

1 The Defendant admits entering into a hire purchase agreement with the Claimant in relation to the goods set out at paragraph 6 of the Particulars of Claim and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 On 7th September 2008, the Defendant notified the Claimant in written form that due to a change in his circumstances, he wished to terminate the agreement as was his legal right.

3 The Claimant responded to the Defendants request, also in written form on the 11th September 2008, advising the Defendant that he should pay a further £254.22 to the Claimant to exercise his rights to voluntarily terminate the agreement. This amount was referred to by the Claimant as a liability figure.

4 The Defendant denied having to pay any further sums to the Claimant to terminate the agreement. The terms and conditions under the agreement state that no further sums will become due upon termination as long as half the total amount payable under the agreement had been received, this figure being £5145.60.

5 To date the total amount payable by the Defendant is £6,009.56

6 Without prejudice to the generality of the facts and matters set out at paragraph 1, on 9th October 2008 the Defendant delivered by (method of posting) to the Claimant a request within the meaning of section 79 Consumer Credit Act 1974.

 

7 In default of the Claimant's obligations under section 79 aforesaid, the Claimant failed to comply with the request whether in prescribed form or at all in consequence of which and by reason of the provisions of section 79(3)(a) of the Act, the Claimant was not entitled whilst the default continued to enforce the agreement.

 

8 Notwithstanding the facts and matters set out at paragraph 7 of the Defence, on 10th November 2008 the Defendant received a letter from Sechiari, Clark & Mitchell Solicitors acting on behalf of the Claimant, demanding immediate payment of £658.89. The Defendant was informed of the following:

 

"IF YOU DO NOT PAY OR MAKE CONTACT WITH OUR CLIENT IN THE NEXT 10 DAYS, WE ARE INSTRUCTED TO START LEGAL PROCEEDINGS AGAINST YOU, AND THIS MAY RESULT IN YOU HAVING TO PAY LEGAL COSTS".

 

9 In the circumstances the demand letter constituted 'enforcement action' and informed the Defendant that 'further Enforcement Action' would be taken if the Defendant failed to take the action required by the letter. The purpose and intent of service of the letter was to enforce the Defendant's compliance with the agreement at a time when the Claimant was in default of the Act and prohibited from doing so by section 79(3)(a) of the Act.

1

10 On or about 5th February 2009 the Claimant issued to the Defendant a default notice in words intended to comply with the provisions of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and by which default notice, inter alia, the Defendant was informed of the following:

 

"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".

 

11 Further and owing to prohibition aforesaid, the said default notice was ineffective for the purpose of giving rise to any of the entitlements set out under section 87(1) of the Act in the event that the Defendant failed to comply with it.

 

12. The default notice was served upon the Defendant by second class post on a day long after 5th February 2009. Further, the notice failed to specify a date being a date 14 days after service of the notice by when the Defendant was required to comply with the notice. Alternatively, the date specified in the notice by when the Defendant was required to comply was before 24th February 2009 which was not a date which was 14 days after service of the notice.

 

13 Save that the Defendant admits and accepts the Claimant terminated the agreement on 10th March 2009 as alleged, paragraph 13 of the Particulars of Claim is denied. The Defendant denies that termination arose as of right. On the contrary the Defendant contends the termination of the agreement by the Claimant on 10th March 2009 was in repudiatory breach of the agreement.

 

14 The claimant's claim to be entitled to late payment interest and/or to sums claimed for administration fees, late payment charges and like provisions is denied. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant or on which the Claimant is entitled to raise a charge by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

 

15 Further and in any event, by reason of the matters set out herein and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 7 hereof were steps which the Claimant was not entitled to take.

 

16 In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

17 The Claimant’s claim to be entitled to the return of the goods, to money or any other relief following termination of the agreement is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

Dated:

[Guest suziedarkness]

OK, just received CPR request, all seems to be in order. The only thing I wonder is I received a letter dated 10th March from BH telling me that they had now terminated the agreement and I was to return the vehicle. On the POC it doesnt say they sent me this letter but it does say that " the right to demand delivery accrued on 10th March". Does this this have any bearing on the CPR request, should they have included a copy of the letter?

[Guest suziedarkness]

Its my birthday today and I am going to get away from this computer for a couple of hours and try and put this whole thing to the back of my mind until later.

 

I will be back on this afternoon to see if anyone has come up with a miracle defence and then I must type it out and get it sent off.

 

I will be back here later if anyone needs to know anything.

 

Suzie

[Guest suziedarkness]

bump

[Peterbard]

Soory had to go just got back

 

NO i wa not wrong i was working off the information given.

 

Peter

[Peterbard]

HI

RE 7

The rankine case established that the enforcement of an agreement began in the court and said that there was no reason for the creditor not to issue proceedings even if in breach of section 77-79.

 

Peter

[Guest suziedarkness]

HI

RE 7

The rankine case established that the enforcement of an agreement began in the court and said that there was no reason for the creditor not to issue proceedings even if in breach of section 77-79.

 

Peter

 

 

Sorry Peter, you have lost me here

[supasnooper]

Happy Birthday for today.

 

Your defence looks okay to me

[Guest suziedarkness]

thanks Soopa,

 

do you think I should put in my defence that they have included unfair fees and charges when calculating the arrears tobe remedied?

 

Also Peter,

 

I take it I cannot argue APR incorrect because I never paid £145 with first payment as the figures are correct?

 

I have tried using Dualcalc, cant seem to make head or tail of it, whichever way I do it, it doesnt come out right.

[Guest suziedarkness]

bump

[slick132]

If their claim includes amounts which are unlawful charges/penalties, this can also be made a point of the defence.

[Guest suziedarkness]

Slick, any idea how I would word it?

[slick132]

Sorry, but this isn't my area really.

 

Have you looked in the Vehicles forum for defence examples.

[Peterbard]

Hi

The APR is correct if the repayments are as stated on the agreement.

If as i was given to understand you also paid an up front fee with your first payment they would be incorrect.

 

If your deffence is based on the argument that the creditor was not entitled to commence proceedings whilst thery were in default of section 77-79 then it is fatally flawed,because they can.

Enforceability as mentioned in the section refers to the acton taken in the court not earlier actions such as issueong default noitices etc.

 

Peter