Backdoor summary cause Decree - Marlin for old BCT VT issue - Help with Recalling and defending it.

[seriously fed up]

If you still have the evidence that you paid at least 50% by the time the car went back, and its strong enough to stand up in court (eg from bank statements, showing d/ds that have been paid, amounting to 50% of the balance) then I think that is pretty much game, set and match because the agreement allows that to terminate the agreement as long as you handed the car back. So, according to the agreement you dont owe anything imo. The only possible issue is the possibility that they will claim the car went back with damage. Since they are making the claim, the onus of proof would be on them. Presumably this will come up in the correspondence that the sheriff has ordered them to produce (so, I would have thought would statements of account), but at the moment they have produced nothing on that.

Tbh, I am not sure about the need for an IA given what the Sheriff has ordered them to come up with. Other than the copy of the original agreement and correspondence and phone transcripts, is there anything else? The Sheriff's order is at least as good as an IA (maybe better as its on his decision) and if they wont come up with anything for this order then I would have thought it unlikely they would for an IA.

What you need to do is

 

1. make the court aware of what the documents they provide show - for instane the termination notice allows you to terminate if you have paid at least 50% and handed the car back
   
2. what is missing from what they have handed back. You have asserted that you did pay 50% and that the car was undamaged at the time you handed it back. There is an onus on them to show that neither of these are true, but you can see that this puts the court in a difficult position as they have to make a decision on the basis of limited "hard" evidence
   
3. this is where anything you can come up with - bank statements to show 50% was paid, or what you used to correct BCT (if not the same)
   

On balance - and they will have nearly three weeks to come up with the goods lets remember - I would suggest that MCE have the problem as the Sheriff, having made the order, is clearly looking for them to put the evidence up to demonstrate their claim. If they cant do that then bad for them. But if they havent produced evidence to demonstrate their case, but you can produce evidence to refute it then I would think that's the end.

[chris2472]

Thanks SFU

I have tried asking my former bank for the relevant information but they are claiming they no longer have it. I suspect I will have to go down the SAR route to get it from them. As things stand I have received nothing from MCE to show the aledged debt even exists. Would they try to claim in court that they had sent me far more than I actually received? Do I smell a rat or am I just being paranoid?

[chris2472]

Back in court today. MCE Sols claimed I hadn't recorded a defence and asked for the decree to be reinstated, Sheriff refused pointing out that sols were supposed to be asking their client for instruction. Sheriff then asked me to outline what my defence would be. I pointed out that I had not received the paperwork I requested and asked specifically for a statement of accounts and default and/or termination notice which the Sheriff ordered MCE to provide. I have to provide a written defence by the 5th of May so any help with wording that would be great. My defence is that:

 

1. I satisfied the terms of the agreement through voluntary termination after paying over half of the amount owed and returning the vehicle.

 

2. The vehicle was in good condition, mechanicaly sound with a current MOT when collected by BCT's agent.

Edited April 21, 2010 by chris2472

[seriously fed up]

what you need to do is to reply to their condescendence item by item. You will find this in the claim form served on you by the court. If you can, it would help to post it up. I had to do the same thing when M&S took me to court. The issues are totally different but you might find it illustrates the process - you can find it at http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m-2.html. You will find the claim form served on me at post 19. There is some good advice from Monty at 18, 20, 29 and 31(the last is his revisions to my final defence). Like I say, the issues are quite different, but it might help with the process.

[chris2472]

Thanks SFU I'm getting a little confused now. I haven't had a claim form served on me. Today's hearing was a continuation from the recall of decree. I haven't seen anything that suggests the debt exists and I've had to state my defence in court without hearing the reasons why MCE are pursuing me. Any advice on where I go from here would be most welcome.

[seriously fed up]

so would i be/am.

Were there pocs the first time (the one you didnt know about) - if you havent got them since can you get on to the court and get a copy? Hard to defend when arent clear what you have done.

[chris2472]

Thanks, I'll do that first thing tomorrow

[chris2472]

This is getting messy, the clerk has just told me that the recall was granted and continued whilst the pursuers sought instruction, it was then continued yesterday for 4 weeks. The pursuers have to provide me with paperwork within those 4 weeks but I have to submit a written defence within 2 weeks. The clerk also said that they don't hold any of the paperwork relating to the original hearing as it all gets sent to the pursuers after a decree is granted.

[seriously fed up]

Yes it is messy and very unsastisfactory.

If all the documents go to the pursuer then its them you will have to chase up - sorry! In the normal way of things they would probably say "sorry havent got them". However, in this case, I think they would face two problems

First of all, if the case has been recalled then in effect its starting all over again. In that case what is it that they are claiming? They really do have to tell you this.

Secondly they have to provide you with the paperwork within four weeks - I would have thought that would include their POC.

The problem is, as you touch on, that they have to provide in four weeks but you only have two to put in a defence. I would therefore contact them as soon as you can (ie tomorrow morning) and do what you can to ensure provision of at least the POC within the next couple of days (even if you have to go round and collect). If they seem unwilling, I would put in an Incidental Application seeking an extension to the deadline for your written defence on the grounds that the pursuers arent coming up with the POCs and that therefore you dont know what the "charge" is, so how are you supposed to defend yourself?

[chris2472]

Ok I'm getting somewhere. Went back to the court and spoke to CAB who spoke to the clerk and I managed to get a copy of the original summons that the clerk told me over the phone yesterday the court did not have

Photobucket

 

I believe I can file a defence now but would appreciate help with the wording

 

1. I was not resident at the address stated when the summons was issued but recognise the jurisdiction of the court.

 

2. I agree that I entered a conditional sales agreement with British Credit Trust but disagree that I failed to pay as agreed and am not in breach of contract. I voluntarily terminated the agreement after having paid over 50% of the total amount owed and returned the vehicle, in good condition, to the supplier in accordance with the terms and conditions of the agreement.

[seriously fed up]

Funny how when pushed ..... I couldnt imagine a court not having a record, but if that's what they say .....

What you need to do is to answer their claim point by point. I have only ever had to do this once when I was dealing with M&S. I did a post in this thread already that covered that - it is the one on 21/4 at 15.30. I would suggest having a look at thatThey seem to be saying two things

 

1. in 1 that the court they have put the documents into had jurisdiction. You seem to be admitting that - so "The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted." You might want to add something to the effect that the papers were wrongly served to the wrong address, but this has already been gone through in getting the case recalled, so it wont have much effect - certainly dont expect much from it. Maybe to "make the point"
   
2. this is the guts of the defence - begin with "it is explained that" and then go into what you have said here. Try to keep it logical and focused. Put it up here when you have finished but basically, as I see it, you agree there was an agreement but that you will present documents showing that you paid 50% of the payment and that under the agreement this gave you the right to terminate by returning the car in good condition, and that no evidence has been presented by the pursuers to contradict either that you have paid 50% or that the car was in anything other than good condition.
   

[chris2472]

Hi SFU could I get your thoughts please.

 

SHERIFFDOM OF XXXXXXXXXXXX

 

Court Ref. XXXXXXXXXXX

 

MOTION FOR THE DEFENDER

 

in the cause of

 

Bottom feeders inc

 

PURSUER(S)

 

Against

 

Me

DEFENDER

 

ANSWERS TO CONDESCENDENCE

1.The defender does not reside at the address stated in the instance and had not done so for the 3 months immediately prior to the raising of this action. Other averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.

a. It is admitted that on xxxxxx defender entered into a Conditional Sales Agreement with British Credit Trust for the purchase of a motor vehicle.

 

b. It is denied that the defender failed to pay as agreed and is in breach of contract with said suppliers.

 

c. It is explained and averred that the defender satisfied the terms and conditions of the Conditional Sales Agreement with British Credit Trust by paying over 50% of the amount owed and, through voluntary termination, as set out in the terms and conditions of the agreement, returning the vehicle to the appointed agent of British Credit Trust on the agreed date and in a satisfactory condition.

 

d. The defender will be relying on documents, yet to be received, that the court has directed the pursuers to produce and holding the pursuers to strict proof.

Edited April 27, 2010 by chris2472

[seriously fed up]

Could you put up the poc that you got as what you need to do is to respond to each of these individually. Number 1 isnt too bad, but depending on how they have worded their claim, I think number 2 could be better put. But its hard to say without knowing the poc. If you dont have a scanner, just type them in here - doesnt have to be whole thing - just the part you have to respond to.

Btw you will need pleas in law to finish off - these are missing.

[chris2472]

Hi and thanks SFU poc is here

 

photobucket

 

I have been unable to find a resource for please in law so am at a total loss:(

Edited April 27, 2010 by chris2472

[seriously fed up]

See below in red - just suggested some reordering in the main. Hope its helfpul. Remember a copy of this has to go to the other side as well as the court.

SFU

 

Hi SFU could I get your thoughts please.

 

SHERIFFDOM OF XXXXXXXXXXXX

 

Court Ref. XXXXXXXXXXX

 

MOTION FOR THE DEFENDER I know this is what it says in my M&S defence, but its not right. I had to change it when I took it along to the Court - scored it out and replaced it using a pen borrowed from the Clerk. They are quite helpful. Wracked my head, but I dont remember the correct wording. Maybe phone them before you go?

 

in the cause of

 

Bottom feeders inc

 

PURSUER(S)

 

Against

 

Me

DEFENDER

 

ANSWERS TO CONDESCENDENCE

1.The defender does not reside at the address stated in the instance and had not done so for the 3 months immediately prior to the raising of this action. Other averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted. I would reword to read something like "The existence of jurisdiction is admitted. However the defender does not reside at the address stated in the instance and had not done so for the 3 months immediately prior to the raising of this action and at no time since then. Other averments regarding the defender are admitted. Quoad ultra not known and not admitted. " Its really just a reordering. The key thing for the legals here is jurisdiction of the court, which you are admitting, so not a problem. Get that in first, then point out that they couldnt even be bothered to get the right address

2.

I would suggest for this (to make a single point)

"Admitted that on xxxxxx defender entered into a Conditional Sales Agreement with British Credit Trust for the purchase of a motor vehicle. , but explained and averred that the defender satisfied the terms and conditions of the Conditional Sales Agreement with British Credit Trust by paying over 50% of the amount owed and, through voluntary termination, as set out in the terms and conditions of the agreement, and returning the vehicle to the appointed agent of British Credit Trust on the agreed date and in a satisfactory condition. The DEFENDER will rely on documents that the court has directed the PURSUERS to produce, holding the pursuers to strict proof. However, these have not been received yet" Again mainly a matter of reordering

a. It is admitted that on xxxxxx defender entered into a Conditional Sales Agreement with British Credit Trust for the purchase of a motor vehicle.

 

b. It is denied that the defender failed to pay as agreed and is in breach of contract with said suppliers.

c. It is explained and averred that the defender satisfied the terms and conditions of the Conditional Sales Agreement with British Credit Trust by paying over 50% of the amount owed and, through voluntary termination, as set out in the terms and conditions of the agreement, returning the vehicle to the appointed agent of British Credit Trust on the agreed date and in a satisfactory condition.

 

d. The defender will be relying on documents, yet to be received, that the court has directed the pursuers to produce and holding the pursuers to strict proof.

Edited April 27, 2010 by seriously fed up

[chris2472]

Hi

in 2004 I voluntarily terminated a hire purchase agreement with British Credit Trust and handed the vehicle back to their appointed agent after having payed back over half of the amount owed, in accordance with the terms of the agreement.

 

Everything seemed to be ok until about 2 months after when bct claimed I had defaulted on the agreement because I had paid less than 50% and I therefore had to pay the £3,400 outstanding. I disputed this and they were forced to concede I was correct.

 

About 3 months later they sent a copy of the auctioneers report and claimed I was in default as the vehicle had accident damage and was in poor condition . Again I disputed this and pointed out that when I handed over the vehicle it was roadworthy and in good condition for its age also it had no accident damage. I also pointed out that it was the responsibility of their agent to document any defects or damage at the time they collected the vehicle from me (I used to collect and deliver vehicles for a living).

 

That was the last I heard for over a year until in 2006 a company called Marlin Financial informed me they had taken over the debt. I contacted them and informed them that I had disputed the debt with bct and it was my belief that bct should not have sold on the debt whilst it was disputed. Marlin said they would look into it and I heard nothing more for 6 months until MCE portfolio informed me that they had taken over the debt. I contacted them and stated my position and heard nothing further. I have had several changes of address during this time but assumed the matter to be closed.

 

In December last year I received a letter from a firm of solicitors informing me they had obtained a decree against me on behalf of MCE.

 

I contacted Edinburgh Sheriffs Court and was initially told that there was no case on record but have just discovered that the decree was granted in 2008.

 

I have the forms to ask for a recall but I no longer have any of the paperwork relating to this matter.

 

Could someone please advise me on the best way to go about gathering the information I need to defend my self?