HP Trouble - Claim form issued.

[gh2008]

I presume you do have some sort of acknowledgement from On:line from when you originally sent them the VT letter

[gareth19]

Ok just had a letter this morning from Morgan's and it appears we have a partial success already. Their letter states "You will note that the Claimant now accepts that you voluntary terminated the agreement and now accordingly only pursues the balance that remains due under the terms of the credit agreement. We trust that the Claimant's Statement of Case clarifies their position for you". Basically they are now accepting that I do not owe 100% (£9,300) but instead they are pursuing for £2,064.73. They have also send me a large file which they say is their "amended particulars of claim pursuant to the order of the court dated 24th September". Many pages of the file are blacked out.

[gareth19]

In their new POCs they state " The Claimant Claims 1) the sum of £2064.73 2)interest pursuant to sention 69 of the County Courts Act 1984 at such a rate and for such a period as the Court sees fit 3) costs

 

Whilst it is progress that they have finally admitted I owe 50% of the agreement there is still discrepencies over the figures. They say now that I should have had to pay £7367.80 (which is correct). However they say that I now owe £2064.73. This is much better but is still not correct. The new figures have not taken into account £230 which I paid off the account from June 2005 until October 2008. Neither does it deduct the £600 which is what the car sold for at auction. £1234.73 is therefore the correct amount I owe.

[gareth19]

Finally they make no mention that they are not going to pursue this matter in court anymore and still appear intent on a hearing. The whole reason it went this far was because earlier this year I refused to pay any more until they sorted out the correct balance. They were trying to pursue me for almost £9000 so I placed the account in dispute. Now they appear to be sorting this matter out finally I am more than happy to resume payments to them as I have told them numerous times. Surely they can not still proceed with a CCJ when I was in the right. I told them all along that when they updated my balance to the correct amount I would resume payments. It's not my fault they have taklen this long to do it. So having partially succeeded (by getting thr balance changed), now I have to finish the job by defending any CCJ they are trying for. I take it I should write to Morgan's and tell them about the deducutions they have not taken into account?? Any advice welcome....

[foolishgirl]

Their letter states "You will note that the Claimant now accepts that you voluntary terminated the agreement and now accordingly only pursues the balance that remains due under the terms of the credit agreement.

 

Oh, small triumph. Looks as though someone has either found your letter or seen sense. I suspect the former, don't think they possess any of the latter.

 

 

but instead they are pursuing for £2,064.73. They have also send me a large file which they say is their "amended particulars of claim pursuant to the order of the court dated 24th September". Many pages of the file are blacked out.

 

They can't send a whole file for a POC gareth!!! It should be one sheet max. Also they can't black bits out or how do you know the basis of their claim? Can you post up the POC please?

In their new POCs they state " The Claimant Claims 1) the sum of £2064.73 2)interest pursuant to sention 69 of the County Courts Act 1984 at such a rate and for such a period as the Court sees fit 3) costs

 

Can't recall but wasn't this a regulated loan agreement under the CCA? If so, they are prohibited from claiming stat interest by the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974.

Statutory Interest in also regulated according to the The Late Payment of Contractual Debts (Interest) act 1998. However it does not cover:

 

* contract of service or apprenticeship

* a consumer credit agreement;

* a contract intended to operate by way of mortgage, pledge, charge or other security

Whilst it is progress that they have finally admitted I owe 50% of the agreement there is still discrepencies over the figures. They say now that I should have had to pay £7367.80 (which is correct). However they say that I now owe £2064.73. This is much better but is still not correct. The new figures have not taken into account £230 which I paid off the account from June 2005 until October 2008. Neither does it deduct the £600 which is what the car sold for at auction. £1234.73 is therefore the correct amount I owe.

 

IMO this should go into your defence

 

 

Surely they can not still proceed with a CCJ when I was in the right. .... I take it I should write to Morgan's and tell them about the deducutions they have not taken into account??

 

They cannot obtain a CCJ without it going through the legal process & you are quite correct that you should carry on with your defence. You don't need to write & tell Morgans they have got it wrong - you've told them that ad nauseum already - & IMO you're wasting a stamp & your time. However you DO need to submit a defence by the deadline specified by the court. Was it 14 days after the amended POC date? What date does that make it?

[gareth19]

Interesting. I would post up the new POCs but it's 68 pages long!!! I have submitted my defence some time ago and at present we are still in our "stay" period which was requested by Morgan's in order for "us to narrow our differences". In the 68 pages I notice that they have put in my original termination letter so they must have tracked it down from somewhere. And yes this was a "conditional sale agreement regulated by the Consumer Credit Act" according to the agreement

[gh2008]

You *could* make an application for 'Time Order' S129 I think. No CCJ Court ordered affordable repayment terms .....

 

IMHO, unless the original agreement is unenforceable (sorry lost track of everything now) then your new defence should admit that part of the claim you do admit, deny the S69 as it is specifically excluded from claims where a rate of interest already applies, and CCA claims, by their very nature, have contractual interest. (If the claimant forgot to include a rate for post termination interest then that was their error....)

 

You *could* also ask the Court to reject the POC if it does not comply with CPR16

[foolishgirl]

I would post up the new POCs but it's 68 pages long!!! I have submitted my defence some time ago

 

Sounds as though they have sent you all the docs they are relying on aswell as the POC gareth. The contents of the POC should look almost like the N1 you received before. Can you post up what it says?

 

You MUST submit a new defence to this new POC within the deadline specified by the court order - was it 14 days, can't recall - & you should address the issues of the incorrect sums etc. as gh has stated above.

 

However CAGers can't help you that until they know what the new POC states.

[gh2008]

Are you saying the POC is 68 pages or the bundle as FG says?

 

If it is the bundle as fg & I suspect, then you need to go through it carefully. They should have indexed it for you ......

 

Sort it out and index it yourself - this is a vital document.

 

Get the POC & any WS scanned in if you want any advice on how to reply, and again, as fg says you really need to as the claim has dramatically changed now.

 

IMHO, you may well be bringing in an 'Unfair Relationship' S140 & CPUTR S5 (I think) breaches

[citizenB]

Here you go.. WS as requested. Sorry to have taken so long. Click on thumbnails for larger view.

 

 

 

 

 

 

 

 

 

[gareth19]

ok the files above must be the POCs. Then I have page after page of other docs. As I said some of these other pages have things blacked out. Obviously I am happy to have succeeded in finally getting them to sort out the balance of the account but as I said it's still not correct. Not really sure on what I do next so any advice is welcome.

[gareth19]

Sounds as though they have sent you all the docs they are relying on aswell as the POC gareth. The contents of the POC should look almost like the N1 you received before. Can you post up what it says?

 

You MUST submit a new defence to this new POC within the deadline specified by the court order - was it 14 days, can't recall - & you should address the issues of the incorrect sums etc. as gh has stated above.

 

However CAGers can't help you that until they know what the new POC states.

 

Court order doesn't say about submitting new defence, it just says : "Any application by the Claimant to amend the POCs is to be filed and served by 28 days from the date of this Order (24th Sept) and thereafter the Court will consider the Defendant's proposed Directions". So no idea really where I go from here now they have changed everything.....

[citizenB]

Court order doesn't say about submitting new defence, it just says : "Any application by the Claimant to amend the POCs is to be filed and served by 28 days from the date of this Order (24th Sept) and thereafter the Court will consider the Defendant's proposed Directions". So no idea really where I go from here now they have changed everything.....

 

So did they actually apply to the court to amend their POCs. If they didnt, and have just filed them, surely that is wrong. If they did then the court has advised in the order that they will then look at your directions.. Do you have to respond to the new POC ?

[gareth19]

No idea if they applied to the court - I am assuming so as the court made the order then the next thing I know Morgan's are sending me a new POCs. All their covering letter said is "We enclose herewith by way of service Amended Particulars of Claim". Short and sweet

[gareth19]

Once again I have no idea if I am supposed to respond to these new POCs. Nothing says I have to respond but on the other hand I don't want to be caught napping if I do have to respond

[gh2008]

You certainly need to start thinking about it.

 

You need to check each paragraph carefully.

e.g.

were Cabot "at all material times" the assignee or was the account actually opened with On:Line?

was the NOA provided 'under the hand of the Assignor' Did On:Line finance even exist when it was said to have been assigned

Para 10-12 - what was that payment - *REALLY* important if it was not towards the account then IMHO this is statute barred !!!

 

You may need to report Cabot for pursuing an SB debt

[gh2008]

 

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.

 

Who took the car? - who auctioned it? and have you had a receipt for that?

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.

 

Why do you say they SOLD it to Shoosmiths? Were they just not collecting on it? and who did they say they represented?

 

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.

 

These letters are good to show Unfair Relationship

 

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.

ok that does not make it Statute Barred

 

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???

 

comments inline

[gh2008]

ok, so you have

agreement - improperly executed - statutory text missing and more importantly APR UNDER stated (v. important that one)

NOA - apparently assigned a debt from a Co. that had ceased to exist 2 yrs previous, was it 'under the hand of the assignee' (a Co that had ceased to exist) - does it comply with the LoP Act

Current creditor - is a Co that does not exist and has no Consumer Credit Licence (from July letter)

Originally chasing a SB debt - became SB in Oct '08

in breach of sooo many OFT rules re SB & amount being chased & wrong info

 

anything else?

[foolishgirl]

Here you go.. WS as requested

 

What are you doing with gareth's POC CB?

 

ok the files above must be the POCs. Then I have page after page of other docs. As I said some of these other pages have things blacked out.

 

To confirm, the files CB uploaded are the amended POC gareth although it's one fo the oddest I've seen - the author can't make his mind up if it's a POC or a WS.

 

I suspect the copies you have with the black outs are the DOA.

 

So did they actually apply to the court to amend their POCs. If they didnt, and have just filed them, surely that is wrong. If they did then the court has advised in the order that they will then look at your directions.. Do you have to respond to the new POC ?

 

They didn't have to apply CB, it was ordered by the court.

 

Does gareth have to respond? Hmm.. odd one. He is entitled to but has not been ordered to do so & as this looks more like a WS than a POC, perhaps it may be wise to look at what the court orders re. directions next week before submitting anything, particularly noting gh's observations above.

 

Comments gh?

 

Can you remind us what you applied for in the directions gareth please?

[gh2008]

They didn't have to apply CB, it was ordered by the court.

Interestingly I don't think they were .... if you check teh Order they had to apply to f&s by the given date THEN the DJ will consider gareth's AQ directions which were I think similar to my suggestions here http://www.consumeractiongroup.co.uk/forum/showthread.php?243662-HP-Trouble-Claim-form-issued.&p=3120397&viewfull=1#post3120397

 

 

Does gareth have to respond? Hmm.. odd one. He is entitled to but has not been ordered to do so & as this looks more like a WS than a POC, perhaps it may be wise to look at what the court orders re. directions next week before submitting anything, particularly noting gh's observations above.

 

I think wait for Court to respond to the 'interesting' submission from the Claimant - I wouldn't be surprised if the DJ was as confused as the Claimants appear to be and some DJs don't like Claimants attempting smoke & mirrors

 

& for info - the 'current creditor' according to Cabot and Assignor in 2008 ....

 

 

[gareth19]

yes gh I did use your suggestions for my directions. I basically said that their POCs didn't meet CPR rules etc and stated that they must amend their POCs and then I will sort out defence. Just a query, what is this "ws" you all talk about?

[gareth19]

As we are in the "stay", I must admit I am tempted to write to Morgan's and point out that the £2064 they now want has not taken into account £600 which the car sold for and also £200 which I paid between 2005 and 2008 (I have proof of all payments). If they then adjust the balance to approx £1200 then that is all I ever wanted and maybe there will not even be any need for court as I will happily resume payments. Is it worth writing to Morgan's as they appear to be backing down?

[foolishgirl]

Interestingly I don't think they were .... if you check teh Order they had to apply to f&s by the given date

 

You are quite correct gh, I stand corrected:

 

IT IS ORDERED THAT:

1. Order per Civil Procedure Rules 3.3(4). Any application by the Claimant to amend the Particulars of Claim is to be filed and served by 28 days from the date of this Order and thereafter the Court will consider the Defendant's proposed Directions.

2. The parties may apply per Civil Procedure Rules 3.3(5) & (6)

 

So, if they haven't complied with the court order by making an app within the given time, maybe a SO or SJ app from gareth?

[foolishgirl]

what is this "ws" you all talk about?

- Witness Statement, it comes after a defence is filed & if the Claimant decides to pay his fee to continue with the case based on the defence you submit. It is a summary of facts as you see them.

[gareth19]

You are quite correct gh, I stand corrected:

 

 

 

So, if they haven't complied with the court order by making an app within the given time, maybe a SO or SJ app from gareth?

 

It looks like they have complied with the court order because on page 1 their new POCs they state "amended Particulars of Claim pursuant to the order of the court dated 24th September 2010".