Link Financial -ford credit return of goods order - lost

[emandcole]

with it being a SJ will it be over on that day, or another day in court ?????

 

Not sure actually, never been in that situation and anyone else I've been aware of has managed to deter the SJ with a decent line of doubt.

 

Stay positive though

[pumpytums]

To be honest to get a SJ I think you would have to submit no defence and not turn up to the SJ hearing. The simple case of disputing the amount puts pay to the SJ being successful.

 

Pumpytums

[pumpytums]

Just found this it may be useful :

 

Rover v Siddons Transcript

ROVER FINANCE LTD -v- SIDDONS

Where the consumer terminates a hire purchase agreement, their liability is limited by the 50% rule in the Consumer Credit Act. In this case, the Court accepted that, even where the consumer is in breach of the agreement, and the finance company terminates, the same protection applies. Any clause which purports to impose a higher liability is an unenforceable penalty clause.

SUMMARY OF FACTS

S bought a car under a Conditional Sale Agreement, regulated under the Consumer Credit Act 1974. The car was priced at £5744.00. The total amount payable under the Agreement was £7104.41, over a period of 48 months. Eventually, S fell behind with his payments, having paid a deposit and instalments totalling £4596.47. R terminated the agreement, and S handed back the car to them on request. R sold the car, and then sought to recover damages as set out in clause 6.02 of the Agreement. R only had a poor-quality reproduction of the Agreement, but the relevant part of the clause is mostly legible:

 

6. Our rights if you breach any term of the agreement.

6.01. [deals with default notices, and gives R the right to invoke clause 6.02 or 6.03 if S fails to comply with the notice]

6.02. [gives R the right to terminate the agreement, and states that S will have to pay:]

(a). any unpaid monthly payments and other [?] that you should have paid under the agreement before the date of the default notice; and

(b). the rest of the total amount payable under the agreement less

(i). a rebate for early payment required by law and

(ii). the net proceeds of sale of the goods (if any) after deduction of the cost of recovery, insurance, storage and sale.

[…]

6.03. [accelerated payment clause]

 

The sum claimed under clause 6.02 was £941.26 plus court fee and commencement costs. The District Judge found that S's liability, had he terminated at any time before clause 6.02 was invoked, would have been lower than the amount claimed (the 50% rule figure in the statutory termination clause was £3052.20). Clause 6.02 was therefore found to be an unenforceable penalty clause, and the claim was dismissed.

 

JUDGMENT

In the Leicester County Court No. XK037023

 

BETWEEN:-

 

ROVER FINANCE LTD Claimant

 

and

 

PETER SIDDONS Defendant

 

 

JUDGMENT

 

 

This claim relates to a Regulated Conditional Sale Agreement under Consumer Credit Act 1974.

 

It was agreed by the Defendant at trial that he did not terminate the agreement in accordance with Section 99 Consumer Credit Act 1974 and repossession was obtained by the Claimant terminating and following normal legal procedures, due to arrears on the account.

 

The Defendant had paid £4596.47 and arrears at termination were £650.52. The Defendant however still contends that as he was entitled to terminate in accordance with S99 up until the final payment was due he can still seek the protection of S100 to limit his liability and that clause 6 of the Finance Agreement is a penalty and unenforceable under the Unfair Terms in Consumer Contract Regulations.

 

If the Defendant is correct he has no further liability in this claim, the Claimant only being entitled to £3552.20 and arrears at termination of £650.52, a sum of £4202.42. He has paid more than this. No evidence was adduced to me of contravention of the obligation to take reasonable care of the goods and no additional sum is due in this regard.

 

Unfortunately the copy agreement is very poor and I delayed judgment in this case to enable the Claimant to produce the original finance agreement to me. This cannot be done as the original agreement was so old it has been destroyed. It is therefore almost impossible for me to read clause 6.

 

However, it appears to me irrespective of the detailed wording of clause 6 of the Finance Agreement that the Defendants submissions have some merit. In reaching that conclusion I have considered Goode on Consumer Credit Law and Practice, S99 and S100 and S173(1) Consumer Credit Act 1974, and the Unfair Terms in Consumer Contracts Regulations 1999.

 

The Defendant did not terminate under S99 (although he would have been entitled to up to the end of the agreement and certainly as at the time when the Claimant terminated). The provision under S100 therefore doesn't automatically come into play, ie the Defendant would pay ½ total price as calculated.

 

However this is a regulated agreement and my view is that S100 must still be taken into account even where the finance company has terminated for breach as in this case. Substantial arrears are a repudiatory breach of the agreement and the absolute maximum which can be claimed is the sum calculated in accordance with S100(1) less payments. A minimum payment clause (which is apparently what claim 6 of the Finance Agreement is) is unenforceable as it imposes a greater penalty than that set out in S100.

 

The Unfair Terms in Consumer Contract Regulations include as examples clauses which impose financial penalties and which are therefore considered unfair.

 

Therefore in my view the debtor has discharged his liabilities to the Claimant and the claim is dismissed.

 

District Judge Eaton

 

19.7.02

 

 

 

Sounds similar to your situation.

 

Pumpytums

[olympic1805]

Well hi to everyone, we have been .... !

First the Judge was lovely and really made us feel at ease, anyhow Link Financial did not turn up at court ........ so basically the Judge has adjourned it generally, I pointed out that they had included a 'wrong' DN and still no DOA with their witness statement, the Judge said probably an error but we could apply for it to be 'Struck Out'.

He said Link might still try to get the money....

So what should we do apply for a Strike Out ???

[Guest Mrs Hobbit]

Try for the strike out. Now you have been blooded it is not such a daunting prospect. I am so glad you got a good Judge who made you feel at ease. I bet Link thought you would not turn up.

[emandcole]

Well hi to everyone, we have been .... !

First the Judge was lovely and really made us feel at ease, anyhow Link Financial did not turn up at court ........ so basically the Judge has adjourned it generally, I pointed out that they had included a 'wrong' DN and still no DOA with their witness statement, the Judge said probably an error but we could apply for it to be 'Struck Out'.

He said Link might still try to get the money....

So what should we do apply for a Strike Out ???

 

There you go...glad you had a positive experience so next time you'll be able to go in there and do your thing.

 

Has it been adjourned or stayed? Either way before making a decision on what to do wait for the order to come through the post so you know for certain what the judge has decided.

 

Good news Sink didn't turn up, perhaps an indication of their attitude to this case, after all if they were confident in their documentation etc they'd pursue it aggressively and ensure someone was there to represent them. Perhaps they don't have what they need to push this through? We'll find out soon enough.

 

Congrats anyway, a good start

[olympic1805]

How do I apply for a Strike Out ??

The Judge did say that Link probably assumed we wouuld not turn up, which happens in a lot of cases, and get this they even asked if we would start making monthly payments of £325, wheras If you remember at the beginning they would not accept installments and gave us a week to get the £8k...

Feeling a lot happier today I can tell you....

[olympic1805]

Sorry Emandcole meant to say, the Judge said "adjourned Generally" which he said basically puts it back into Links hands, as to if they want to carry it on further. But we are to do nothing at the moment, see if they get in touch. We can also take it back to court ourselves if Link persist.

[emandcole]

Sorry Emandcole meant to say, the Judge said "adjourned Generally" which he said basically puts it back into Links hands, as to if they want to carry it on further. But we are to do nothing at the moment, see if they get in touch. We can also take it back to court ourselves if Link persist.

 

Can you recap for me - what have you sent to Sink in the way of document requests?

 

Sar, CPR 31.14 or 15 etc?

 

If you want to wrap things up on the presumption Sink don't have the paperwork required you could use the CPR's. Alternatively you could just apply for strike out but I feel you are unlikely to get it as the court would just give them more time to produce what you needed.

[stoney47]

hello olympic1805 ijust wanted to say i have been reading your thread with interest,well done for taking them on and hope this morning was not too stressful. iam just going to start the process of setting aside a ccj with link and have found some useful lnformation in your posts

[olympic1805]

Hi Emandcole, recap of requests :

22/4 DOA

26/4 CPR 31.14

30/4 DOA

12/5 CPR 31.14

[olympic1805]

Hi there Stoney47,

Well it wasnt easy and it has caused me many sleepless nights, but as soon as I knew Link had not even turned up I felt in a stronger position. They probably count on people not attending, so make sure you follow it through with them

I must say though without the help of this site I would have crumbled, the help has really been invaluable, and a donation is gonna be given.

Good luck with your case.

[emandcole]

Ok, you need to follow the 31.14 with a 31.15. If Sink do not comply with the 31.15 you can then make an application to the court to order Sink to respond. You are forcing them to comply and if they don't the implications for them are huge depending on what you ask the court to do for you.

 

You will submit a proposed directions order stating that if the claimant fails to comply the case is struck out.

 

Once a case is struck out Sink or any other DCA will have little to no chance or bringing the action again meaning you are effectively free of the claim, although the debt will still exist of course until limitation kicks in.

[olympic1805]

Ok thanks Emandcole, I will wait till I hear from the Court and see exactly what it says and go from there, again a big thank you ...

[emandcole]

I'd actually get the 31.15 sent off to Sink asap. Once they ignore it (which they will as they're the great Sink Financial who can do whatever they want ) you'll be set to put the application in to the court.

 

Do you need a 31.15 template?

[olympic1805]

I'd actually get the 31.15 sent off to Sink asap. Once they ignore it (which they will as they're the great Sink Financial who can do whatever they want ) you'll be set to put the application in to the court.

 

Do you need a 31.15 template?

 

Yes please and I will then send off thanks

[emandcole]

Adjust this one as appropriate so that it relates to your scenario. Copy to the court manager and send the request itself to Sink. Be prepared to respond if they do actually turn round and say 'Ok, we'll have it here for you to inspect, when do you want to come over?'

(Highly unlikely of course), just that if they were to do that and you didn't go they could then legitimately claim you were messing them about.

 

Send recorded as ever and once their time is up you can put an application together, no need to attend the application itself so will only be £40 or so. 31.15 and subsequent action is a real thorn in their side, they will 'love you long time '.

Dear Sir/Madam,

 

Re xxxxxxxxxxxxxx v xxxxxxxxxxxxxx

Case No: xxxxxxxxxxxxxxx

CPR 31.15 Request

 

Further to the above case number, I have sought a copy of the original agreement that you mention in your POC. Despite numerous requests under CPR 31.14, you have failed to supply this document, supplying only a one sided application form and a truncated section of terms.

 

Both of the documents that you have supplied are inadequate and illegible, obviously being unfit for the purpose of my defending your claim.

 

In an attempt to again resolve this issue, I now require sight of the original executed agreement, as I am allowed to do under CPR 31.15.

 

You will note that under this rule, you must allow me inspection or the original document within 7 days of the date of this letter.

 

I look forward to your urgent response.

 

Yours Faithfully

 

c.c. xxxxxxxxxx County Court Manager.

[squidward]

Hi

Just Subbing

[olympic1805]

Hi there Emadncole

Hope you remember me !! I have today received a letter from the Courts stating that Link Financial have asked for a "Restored Hearing", which is set for March 2011.

I have spoken to the Courts and confirmed that Link have been in touch and are wanting to go back to court to restore the goods. Any advice please ??? I really thought this had gone away finally !!

The courts cannot give me any advice as I asked whether I am able to see what evidence they have to take us back to court.

Any ideas as to where what we do next ???

Thanks

[olympic1805]

hI THERE,

Just wondered if anyone can check my thread and help once again !!!!!

I have received a court letter today stating Link have requested to restore the hearing . I asked the courts what evidence they now have but they cannot give me any advice.

Can I request a copt of what Link are going to try and use, they are asking for the car to be returned, after July's court case when the judge adjourned with liberty to restore ! Because Link did not turn up !!

What to do next any advice !!!

Regards

[Dustyd]

Be careful with these Monkey's they railroad court judgements through. Do you have equity in a property by any chance?!! if so beware they go for charging orders of debts above £5k (I suffered one).

 

I would write to the court and say they shouldn't restore the hearing on the basis of them not attending the previous date.

 

Good luck

 

Dusty

 

 

 

 

hI THERE,

Just wondered if anyone can check my thread and help once again !!!!!

I have received a court letter today stating Link have requested to restore the hearing . I asked the courts what evidence they now have but they cannot give me any advice.

Can I request a copt of what Link are going to try and use, they are asking for the car to be returned, after July's court case when the judge adjourned with liberty to restore ! Because Link did not turn up !!

What to do next any advice !!!

Regards

[olympic1805]

Be careful with these Monkey's they railroad court judgements through. Do you have equity in a property by any chance?!! if so beware they go for charging orders of debts above £5k (I suffered one).

 

I would write to the court and say they shouldn't restore the hearing on the basis of them not attending the previous date.

 

Good luck

 

Dusty

Hi there Disty,

Not sure if I can ask the courts that, as they "adjourned with liberty to Restore " ...

[emandcole]

Hi, can you recap for us and give us an idea of documents provided, and is the amount claimed more than 5k? We'll keep specifics as brief as possible as Link go over these forums looking for anythng they can use against you, losers that they are...

[olympic1805]

Hi Emandcole,

Quick Recap, bought car for £33K, paid £25K, then Link chasing for the rest,(just over 8K) went to court in July 2007 (with your help !) Link never turned up, Judge adjourned with liberty to restore.

Link never produced the DOA, and in their Particulars of Claim they were claiming the return of the car and £8K.

This week received a letter from court to say link have requested another hearing, however today received a Statement of Account from Link, and they are adding charges of some description on (code on statement is DLIT -£100 and DROG -£150, so do not have a clue what these are ¬!

So wondering what we should do now ??

Thanks

 

Hi, can you recap for us and give us an idea of documents provided, and is the amount claimed more than 5k? We'll keep specifics as brief as possible as Link go over these forums looking for anythng they can use against you, losers that they are...

[emandcole]

Presumably there have been payments etc that mean 6 years hasn't been met but interested in these charges. I'd like to see the lawful right they have that allows them to claim these. I don't think they'll be unsuccessful in getting another hearing, especially given the status of the claim the last time. Probably good to concentrate on the documentation they rely upon and attack their right to claim the money.

 

You might want to look at Holwell v Hughes case, the burden falls on the Claimant to prove posting per s196 LOPA 1925 when it comes to serving the Notice of Assignment. Also look at Holt v Heatherfield Trust Ltd which states the Assignment has to be given to the debtor. Use Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] in order to examine the DOA, or at least to force the claimant to produce it.

 

As for the DOA Link (if forced) try to pass off an A4 sheet with a random list of names on it, with yours somewhere amongst it. Anyone can make up a list of names, claiming it's from the original creditor and this is not good enough. An A4 sheet with a host of names on it should be attacked for what it is, a bit of paper.

 

Can't recall but I believe you VT'd and they state otherwise? Depending on the scenario a default notice might not be required but a quick re-cap would help us all to offer you some more suggestions