HP Trouble - Claim form issued.

[emandcole]

Hi, would agree that first off we need to know what the court thinks is going on. Ring them and ask where the claim is, advising them you've been sent an allocation questionnaire despite submitting no defence to date and merely having acknowledged service of court paperwork.

 

Once we know where you are we can all start the process of obtaining documentation and establishing the strength of your position.

 

As for establishing VT there must be documentation somewhere that can evidence the fact you did this. Common sense would dictate that as the car was never paid for in full, and the fact that they auctioned it off (Having no need or documentation to show it had to be recovered from you) and that they are now asking for the wrong amount of a 50% balance that they do not dispute that VT happened. If it didn't why would they be asking for the sum they have listed?

 

The time period is also interesting - be good to know whats been happening in the last 8 years. Presumably you've been paying installments or limitation would have kicked in - we'll go over this once we know what the court is up to.

[emandcole]

Yep. How on earth has the claimant got any say in what you might or might not be doing? I'll come back and check over the PofC later, I think the best option you have is to let them prove their case as GH says rather than provide a full defence straight away. Perhaps the best option is to ask the claimant to present their PofC in more detail.

 

Think this will take some considered thought from us all before we jump straight in as this appears to be far from straight forward.

[emandcole]

Ok, I'll put this up for starters and see what you guys think. I feel it may be best to attack their POC as it is woefully inadequate.

The Civil Procedure Rules require that your POC's contain a concise statement of the basis of your claim in law and fact. This should include reference to the common law and relevant statutes on which the claim relies - ie the Consumer Credit Act 1974, Law of Property Act 1925 (Due to the assignment) etc.

 

Their POC is merely a 'we want some money back' and should be re-pleaded. As for the assignment we merely ask for the Notice of Assignment at this stage and proof of postage. We all know they are unlikely to provide proof of postage but the court are likely to put that aside as long as the NOA is valid.

 

Suggest the following is submitted to the court.

 

1. My name is (Insert full name) and I am the defendant in this matter.
   
2. The defendant recognises an account with Online Finance Limited but does not recognise the listed claimant as being a lawful party to any prior contract and does not acknowledge receipt of any Notice of Assignment. The defendant therefore requests that such notice along wth proof of service is filed and served with the amended particulars of claim or any right to litigate as a third party is denied.
   
3. The Defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant. There is no detailed allegation against the Defendant in law as to how the Defendant should be liable to the Claimant for the amount claimed making no reference to specific failures or breaches of statute.
   
4. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not show how the sum of (Insert amount £) was arrived at and the Particulars of Claim are too vague.
   
5. The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact as there is no pleaded basis for the claim itself other than a simple unsubstantiated and ill detailed demand for payment.
   
6. The Defendant respectfully requests that opportunity should then be given to defend the proceedings further.
   

The claimant will re-submit their claim correctly, this time including a bit more information. Defendant to then submit a defence in order to actually get one in, very important one is submitted clearly to prevent the chances of the claimant being able to have another go if subsequent requests make them reconsider their current position.

 

We then hit them with the all the usual including the demand to see the actual Deed of Assignment, quoting Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824.

 

Knowing they are likely to have sent the NOA with an incorrect amount of money on it (as they're being greedy and insisting VS was employed as opposed to VT) we also throw W F Harrison & Co Ltd v Burke and another [1956] 2 All ER 169 as the incorrect amount (very incorrect) renders the assignment paperwork invalid.

 

Clearly there may be some work to do to prove VT was used and not VS but unless they can prove the alternative as the burden of proof is on them common sense and the fact the defendant maintains VT was used should on balance of probability be enough to send them packing.

 

Thoughts welcomed.

[emandcole]

Good. Will also buy more time and allow for a detailed defence to be compiled

[emandcole]

And the plan is nicely topped off with a sprinkling of foolishgirl

 

Thanks FG. Gareth, just make sure your dates are adhered to, don't give the claimant an opportunity for a cheap attempt at summary judgment. If the AQ does have to be in for the 20th you have time if you get the 31.15 request in as FG has detailed above as long as you get that straight off. Make sure you add 'CPR 31.15 Request' clearly at the start of the letter so they can't play dumb.

 

So, you'll be sending your reply to the court as I detailed above asking that they sort themselves out and plead properly and you'll be sending the 31.15 request to the solicitor to force them to provide you with the documents you need along with a copy of the defence you've submitted to the court as FG detailed above. Trust that's all clear.

 

With any luck they'll fail to respond in time which means we can explore options to see them off nice and early. More on that if and when needed.

 

Make sure you keep proof of postage and print off the proof of receipt from the Royal Mail website once it's got to them.

Edited September 9, 2010 by emandcole

[emandcole]

Yeah, it is odd and although on the grand scale of things it may seem fairly insignificant it is at the same time a really big deal. Gareth, see what you can find out, make a bit of noise about this and ask what they can do to 'put things right' given the fact that hoops have been jumped on your behalf.

 

Think of it this way - If you'd rung the court and said 'Oh, the claimant has decided to discontinue' would the court have gone 'Oh ok, thanks for letting us know' and pulled the case? Course not. Only you are entitled to make decisions on your own behalf, especially with something as important as this.

 

Might be useful for costs later on though if we can force them to discontinue. Think its CPR 44.4 or 7 on misconduct...on the grounds that their conduct during litigation was irregular and prejudiced the normal time line the defendant should have had. On a good day a judge might go for it as an additional consideration to any discontinuance but we're jumping ahead a bit here. Let's see what is sent back.

 

I'm guessing it was a statement from the claimant of some sorts to the court that instigated this quick progression straight to AQ's, perhaps they were hoping Gareth would be rushed, not know what to do and mess it up?

 

Either way it needs resolving. See what you can find out Gareth and be prepared to make a formal complaint to the Court Manager if they give you a load of waffle.

 

You're not represented by any other party, as such only you can submit anything about your case and a third party should not have been able to intervene like this and suggest what is likely to happen with the court following along blindly with its tongue hanging out!

Edited September 9, 2010 by emandcole

[emandcole]

You can send the 31.15 and copy of defence to Morgans asap. You can also submit the defence to court now...you have requested permission to amend this defence once the claimant has sorted themselves out. Make sure you obtain proof of some kind that your defence has gone in, just in case.

 

On CAG if you ever wish to thank any contributors to your thread you can click on the little black star thing in the grey bar at the bottom of each post. This allows you to leave a message if you wish and clicking on it adds a few points to the posters reputation. That's how each contributor builds the green bar thingy next to their names

 

You'll notice that foolishgirl, gh2008 and citizenb (amongst others on the forum) are particularly helpful!

[emandcole]

You're not so bad yourself EMC! :-)

 

Aw, shucks

 

[emandcole]

Thanks CB. Seems clear that if the debtor wishes to terminate the contract, and Terminate is the word used by them (not surrender) that they should return the goods and if half of the debt has not yet been paid the creditor is entitled to the goods and half of the Total Amount Payable.

 

In the alternative if the debtor has returned the goods and paid more than half of the Total Amount Payable, subject to the goods being in good condition the debtor has no more to pay.

 

Presumably then Gareth had not yet paid half of the TAP so returned the car under VT and commenced payment of half the TAP. We could do with having the figures checked over really, can't quite make out the three totals to the left of the form but it looks as if an Extended Warranty was also taken.

 

Be good to know if this Extended Warranty cost (that was subject to 20.53% APR ??) was also subjected to further interest when it was added into the main loan figures...I might be off the plot here but worth a look. Also interesting to see the Consumer Credit Act at the top of the agreement has no year, small matter but what else have they potentially missed out?

 

Gareth - do you know how much you've paid to date, does this tie in with what they're asking for (eg the difference between half the TAP and the amount you've already paid) and if not how much more are they asking for?

[emandcole]

Thanks for the rep again CB - still won't let me add to yours though! I owe you for a few bits and pieces

[emandcole]

Can you give us the details of the payments in the boxes, can't make them out clearly enough on the form.

[emandcole]

What you need to understand is that Morgans et al work in the shadows of consumer ignorance, the majority of people simply buckle at the thought of a court case. Further, the litigation route is too often used as a threat en masse by debt collectors, low rate solicitors and others who quite simply use the court system as a way to sort those who fight from those who haven't a clue.

 

It's a harsh term but 'rape of the ignorant and defenceless' really isn't too far from the reality. Once you've adopted this mindset and adjusted your perspective it rapidly becomes clear why claims such as yours are made. Luckily CAG is a vital resource and offers an olive branch to many

[emandcole]

Had no idea about that FG. Without being melodramatic I guess we must remember that it's cases like this which wholly justify both the clear need & existence of CAG, I feel it's very easy to forget the bottom line when you go from thread to thread trying to do your bit. Love the irony of the Foolishgirl name by the way, great to read measured wisdom from a poster with such a title!

 

Going to have a look at these figures Gareth has posted, it's possible Morgans have bitten off more than they can chew so lets see how good this agreement actually is!

[emandcole]

Ok, just an initial calculation online but according to the checker I used the APR they have provided is wrong.

 

APR Calculator

 

Loan amount 9448.96

Starter / admin charge 341.51

Monthly repayment amount 241.51

Number of monthly repayments 58

Extra final charge 286.51

 

Results

 

APR 21.5%

 

Source: www.prudentminds.com/apr-calculator.html

 

If I've done this correctly the APR charged is actually higher by 0.4% and if this is the case the agreement is wholly worthless. APR accuracy states that the APR you pay can be up to 1.0% lower than the rate advertised, however the rate you pay cannot be more than 0.1% than that advertised as if it is you're basically being ripped off.

 

Anyone any good with APR calcs to verify the above is right?

Edited September 11, 2010 by emandcole

[emandcole]

Hi post, good to have you on board.

[emandcole]

HI, FG is bang on, you can ask the court to order the disclosure of the documents you need and the upside is that doing it through the AQ means its free. However, making a sole application through the court is far more forceful and shows the other side that you're not going to muck about.

 

Can't recall what form you need but if you go into the court and state that you wish to make an application to force the claimant to provide the documents you need they'll know what to give you. The application will be about £40 and if the court accepts it (no reason not to) there'll be another £35 to pay to get you a hearing with the judge and the other side who should produce all you need on the day.

 

Of course if they don't they'll quickly be in trouble and you can hope for them discontinuing and then use that to apply for your wasted costs. As for the AQ you can still send that in, the hearing you pay for will kind of take over and the claim will progress based on the actions of the claimant and what they provide.

 

The AQ is there to help the judge decide how to deal with the claim, if the claimant has provided dodgy documents or even failed to provide them on the day this is likely to dictate what the court does as they'll send a directions order telling each side what it expects.

 

This could be an order to force the claimant to provide you and the court with whatever documents they didn't provide during your hearing, failure to do so eventually being the claim getting dismissed for example.

 

Most importantly for now you've told the court what you need and you've asked the claimant to respond and they haven't. You're off to a good start.

[emandcole]

Depends really. A stay is a kind of limbo, typically as something has arisen that needs sorting out further and the time scale is perhaps uncertain. As the defendant however if you've done everything as required and its the claimant mucking about you could consider an order to hurry them along a bit, state the stress of the claim is adverse to your quality of life, health etc and that you require the claimant to get their act together. Give them their stay so you are perceived as helpful (they'll get it anyway) and once they've had reasonable time to do whatever it is they need to do consider contacting the court.

 

Not sure how aggressive you should be here but Post will know I'm sure.

[emandcole]

This is developing nicely then

 

Just picking up on the NOA we need to remember that although it may be easy for them to knock out another letter they must be able to show they complied with the Law of Property Act 1925. The NOA must be served via recorded post, they must have proof of posting to prove service was given.

 

I suspect this may be difficult for them...

[emandcole]

Thanks GH, I'd chuck it in anyway...just to provide them with another hurdle - I'm awkward like that

[emandcole]

Law of Property Act and assignments does seem to be recognised, however not to the extent we'd hope unfortunately as GH reports above. Just found this on another thread where the solicitor makes reference to the same act, quite interesting I guess:

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=200910-CHOENSRESPONCETOCOMPLAINT.jpg

[emandcole]

Found this too -

Holwell Securities Ltd v Hughes [1973] 2 All ER 476 [1973] 1 WLR 757

By cl 1 of an agreement dated 19th October 1971 made between the defendant of the one part and the plaintiffs of the other, the plaintiffs were granted an option to purchase certain freehold property from the defendant. Clause 2 of the agreement provided: 'THE said option shall be exercisable by notice in writing to the defendant at any time within six months from the date hereof...' On 14th April 1972 the plaintiffs' solicitors wrote a letter to the defendant giving notice of the exercise of the option. The letter was posted, properly addressed and prepaid, on 14th April, but it was never in fact delivered to the defendant or to his address. No other written communication of the exercise of the option was given or sent to the defendant before the expiry of the time limit on 19th April. In an action against the defendant seeking specific performance of the option agreement, the plaintiffs contended that, since a contractual offer could be accepted by posting a letter of acceptance, the time of acceptance being the moment of posting, the option had been validly exercised when their letter of 14th April was posted.

*Held* - The option had not been validly exercised. The rule that an acceptance of an offer could be effected, so as to constitute a binding contract, merely by posting a letter of acceptance, did not apply when the express terms of the offer stipulated that the acceptance had to reach the offeror. The requirement in cl 2 of the agreement that the option was to be exercised by 'notice in writing to' the defendant meant that the written document had to be communicated or notified to the defendant and was inconsistent with the application of the rule that the mere posting of the document was sufficient. Furthermore, since the option agreement was an 'instrument affecting property', within s 196(5) a of the Law of Property Act 1925, the provisions of s 196(4) were incorporated into the agreement; those provisions were inconsistent with the rule that the posting of a letter was sufficient since they contemplated that a notice would only be effective when it was delivered (see p 163 h, p 164 b and g h, p 165 f, p 166 b to d and g and p 167 b c and h, post).

------------------------------------------end

 

So, it seems that if the specifics of the notification of a particular process (such as assignment) are clearly listed as they are when it states recorded service must be used then acording to the above case the court should uphold the fact that this arrangement should be honoured.

 

If the claimant cannot produce registered delivery details of the NOA then I'd throw this in to support the notion that the claimant must have followed the directions that were already set 'in place' to ensure the notice was delivered in an appropriate manner. If therefore the NOA was not delivered correctly then the claimant has no right to action, the assignment process being wholly ineffectual.

[emandcole]

Can you verify that the account balance they asked for in this letter is correct for the time it was supposedly sent? If the balance at that date was a different one then you could ask questions. As for Shoosmiths hopefully having the letter you'd need to get in touch with them asap, they should have a copy still. Do you have any other letters that reference this letter in any way to confirm that Shoosmiths had received it? To be fair to Morgans their request to see your letter is more than reasonable and it appears they have recognised the significance of it.

 

I would expect a court would consider their request to be appropriate also so I'd knock a letter up to Shoosmiths asap, perhaps even a SAR might help to uncover anything that could help but aware that time might be pressing. As it's such an important document however (to both sides) I expect you'd be able to mutually agree to hold proceedings until you can verify your position.

[emandcole]

I'd make sure it is disclosed, they have a duty to provide all documents relating to the case and the account, both those that help their case and those that do not help it. How long ago weer they handling this?

 

Solicitors will place older documentation into archives, they certainly should hold all of the documentation relating to this case and regardless of them not acting for the claimant anymore it is perfectly reasonable for you to request copies so long as you offer to cover their reasonable copying costs. If they are unwilling to make them available you'd have to invite the court to consider why this might be - however you should make requests to gain sight of this.

 

If the provision of it will interfere with the court timings you'd need to make sure the other side and the claimant are aware that you are waiting for vital paperwork. The claimant (given the nature of the documents you need) shouldn't really object to your application to place proceedings on hold if you need to secure more time. Get that SAR off to Shoo straight away.

[emandcole]

One word - Yep!

 

Always good to be able to point the finger definitively and back it all up with a ream of paperwork, perhaps even hit them round the back of the head with it to wake them up a bit

 

The more you can demonstrate how you've been prejudiced (seems to be the word of the month after the Brandon case) the easier it is for the judge to attach weight to your side of the argument.