HP Trouble - Claim form issued.

[gareth19]

Hello all. I'm new on here and I can't believe how fantastic this information on here is! Great stuff. I am wondering if anyone has any advice on my problem. It's a little involved but here's the top and bottom of it.

 

I bought a car from Carcraft in 2000 which was financed through OnLine Finance. After a year or so I realised that I had taken on too much and could not afford the payments. After reading my agreement I voluntarily terminated the agreement. They took back the car and auctioned it.

 

Now the wording of the agreement says "Termination - Your rights. You may end this agreement and should write to the person who receives your payments. We will then be entitled to the return of the goods and to half the total amount payable under this agreement which is £7367.80.

 

If you have already paid this amount you will not have to pay any more". At the time I terminated the agreement I had paid around £5,800. So I assumed by the wording of the agreement I would be liable for the £1500 difference. OnLine Finace sold off the debt to Shoosmiths who maintain the wording is correct.

 

But it makes no mention that the £7367.80 is due at the time of termination and nobody ever mentioned it to me. Now Shoosmiths are trying to say I did not voluntarily terminate because I did not pay the money when the car was returned which brings me back to the point of where exactly does it mention that I must pay it when the car is returned. It just leads you to believe you can hand the car back and be liable for only half the total amount payable minus whatever you have already paid.

 

Am I missing something here or can anyone else see where I'm coming from? Any advice would be gratefully received!I have just received a letter from Shoosmiths asking me to provide evidence that I voluntarily terminated. This will be hard to find due to the fact it was around 8 years ago!

 

Is it up to me to prove that I voluntarily terminated the agreement or should I respond by asking them to prove I didn't? Who is the onus on here?I have been paying them £10 per month. I'm not disputing the fact it's my debt. What I'm disputing is the balance they say I owe.

 

They say I didn't voluntarily terminate therefore I owe the total amount of the CCA minus what I have paid. I know I did terminate voluntarily meaning I owe 50% of the total amount of the CCA minus what I have paid. They are now saying I need to provide evidence that I voluntarily terminated after all this time. Surely I could turn it around to them and tell them to prove I didn't???

Edited August 31, 2010 by citizenB
Put some spacing in to make reading easier :)

[maroondevo52]

Hello and Welcome, gareth19.

 

I'll move this thread to a more appropriate Forum.

 

Regards.

 

Scott.

[gareth19]

Many thanks. Sorry I posted it in the wrong place. I'll soon get the hang of it I guess

[maroondevo52]

No, problem

 

Just need someone to help you now.

[gareth19]

An update to this matter! As mentioned earlier Shoosmiths gave up and handed it back to Cabot. I then had a letter from Morgan Solicitors (presumably a part of Cabot) saying I must contact them immediately regarding this matter and going on about "Practic Direction" (whatever that is) and legal proceedings. I wrote back to them explaining that I had proved to Cabot and Restons that it was a voluntary termination and to update their balance to reflect the fact I am only liable for 50%. I told them I had so far been given no proof whatsoever from anyone that it was a voluntary surrender as they keep trying to tell me. I even SAR'd Cabot and they still had no evidence. Anyway this morning I had a letter from Northampton County Court with a Response pack. They're obviously trying for a CCJ. So Morgan solicitors still did not provide me with any proof of a voluntary surrender and instead went straight to apply for a CCj without even asnwering my letter. I have never denied the debt only the balance. I have contacted CCCS and they agree with me that I am only liable for 50% which means a balance of £1194-73 not the £8927-73 they are claiming. Oh plus the £290 costs they have just added on with court and solicitors fees. I am obviously going to defend this and may even submit a counterclaim for all the time I have wasted explaining to everyone. Obviously I have to reply within 14 days so any advice or suggestions would be very much appreciated! Cheers!!

[maroondevo52]

Hi, gareth.

 

Sorry you have not had any help with this matter, I'll flag this up for Site Team, see if we can get you some help.

 

Regards.

 

Scott.

[gareth19]

Thanks Scott that would be a great help.

[citizenB]

First of all you need to acknowledge service of the claim form. You can do this online. I would say that you are are going to defend all of the claim as there are obviously some issues that need resolving.

 

You have a strict timetable to stick to.

 

Date of issue (can be found on the claim form, right hand side under the claim number) + 5 days for service +14 days to acknowledge + 14 days to submit defence. This is a total of 33 days from date of issue to submission of defence.

 

Once you have acknowledge the claim you need to request the information that the claimant has been reluctant to provide you with.

 

Can you please tell us EXACTLY what is said on the claim form (minus any personal information). We need to know this information in order to establish what you can ask for. If you can blank out any personal information and post up the first page then that will be better. If you can, please also scan in the letter from Morgans

 

You will be asking for information via CPR31.14. The request will be sent to the solicitor on the claim form.

 

Once you have posted up the information requested, we can help you with the CPR31.14 request, etc.

[gareth19]

Thanks for the help. Have tried uploading but I get a red exclamation mark when I try to upload file. It is a JPEG file

[citizenB]

Are you using an image hosting company such as photobucket ?

 

http://photobucket.com/

 

It is free to register, just upload your document to there minus all personal details. Then highlight and copy the 3rd or 4th url link they give you, hot foot it back here, open a new reply box and paste the link. Any problems. Just shout.

[gareth19]

 

 

Hope I did it right

Edited August 31, 2010 by citizenB

[citizenB]

gareth, I have unapproved the posts cos you have left some personal and identifying information on the documents. I will remove that for you and repost in a few minutes.

[gareth19]

many thanks

[citizenB]

No Problem, all done now I will be hosting these now as I uploaded them to my photobucket account.

 

I will just go find the CPR letter and amend it for you. BRB

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31-14-Confused-well-read-here

 

Have a read of the link above just for information.

 

This is the letter you need to send out immediately... by Recorded or Special Delivery method.

 

You are only entitled to request documents they have referred to in their claim. They have mentioned the agreement, the assignment, the fact that you have defaulted, they have mentioned a Formal Demand. So you are entitled to request all of these. I have amended the letter below apart from the section I have higlighted in red If you didnt request these documents prior to the claim being issued then delete that paragraph.

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

4 the termination notice

 

5 Formal Demand

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

 

From the date of issue on the claim form, then you have until 27th September to enter a defence or if they havent produced documents that you require, then you will need to ask for an extension of time.

 

So this is your first task to get this out as soon as possible.

 

[citizenB]

Right I see that you sent a Subject Access Request to Cabot, so leave that section in. Just delete the end sentence and the brackets surrounding the whole paragraph.

[citizenB]

How did you originally approach the termination of the agreement ? Did you write or phone ? If you wrote, I dont suppose you kept a copy of the letter, proof of posting, etc ?

[gareth19]

OK. and I will send that to Morgan Solicitors today. What should I do with regards to the Court form in the meantine? Obviously I have to either admit or deny it presumably. What's the best thing to do?

[gareth19]

I wrote a letter to the original HP firm and I have sent a copy of that letter to Shoosmiths (just before they passed it back to Cabot). I then asked them to provide proof that it was a voluntary surrender (as they claim) and to date have received no such proof

[citizenB]

Right, if you have a copy of that letter, put it to one side as you will need to provide it as evidence that you did voluntary surrender. If you have proof of posting all the better.

 

So the original company was shoosmiths, yes ? If so, then I think you will need to Subject Access Request them as well.

 

As reqards to the acknowledement of service. You need to decide if you are going to defend the whole amount, which IMHO it makes sense to do, because you say the the sum they are claiming is not correct.

 

You can do the AoS online. You will need to use the password on the claim form. But first you will need to register on the MCoL website. There are step by step instructions on how to do that, but if you have any problems. Just yell.

 

At this stage, all you need to do is click the Acknowledgement of service. DO NOT enter any defence. You are defending all of the claim. Make sure you print off the receipt at the end.

 

Sorry just realised that Shoosmiths werent the original company.. If you sent to the original HP company then it is them you may need to SAR... not shoosmiths.

[citizenB]

I have also asked site team if this needs to go in legal issues as there has been a claim issued against you.

[crem]

Right, if you have a copy of that letter, put it to one side as you will need to provide it as evidence that you did voluntary surrender. If you have proof of posting all the better.

 

gareth didn't "voluntary surrender", he invoked his right to "Voluntary Terminate" (VT) which is why the dispute exists. If you voluntary surrender you are still liable for the contract debt, if you VT you only have to pay 50% of the total debt and return the goods in good condition.

[gareth19]

Hello, this morning I have had a letter saying the case has been transferred from Northampton to Newport (nearest to me). The letter basically says I need to send a cheque for £35 in order to submit a counterclaim against Cabot. Also enclosed is a Form N150 (Allocation Questionnaire) which must be returned by 20th September. It asks all sorts of scary questions like names of witnesses and Pre-Action Protocols (whatever they are). If anybody can give me some guidance on how to fill in this form then I would be most grateful.

[gareth19]

Do I need to send in £35 for a counterclaim or is that not necessary? Also any help with filling in this N150 form would be gratefully received

[citizenB]

Gareth, if you are making a counterclaim, then yes you will need to pay. Unless you are exempt. I dont think preaction protocols apply to the defendant. Will try and get some confirmation on that for you.

 

The N150 is pretty easy to complete. But you can get some idea of what do to from having a look at some examples in the link below.

 

Witnesses - unless you have witnesses to anything, then it will be just you.

 

Have a look at how fluffystuff has completed her N150 in the following link. you will need to read from post 62 onwards.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?244988-Fluffystuff-s-OH-v-HFC&p=2970947&viewfull=1#post2970947

 

HTH