Link claimform - re old GE Woodchester car finance - car repo'd - Caim for outstanding balance

[manchestman]

I presume you are asking which track for the AQ. Again, only my opinion and not based on experience (you really need someone else to come along who knows better), but as far as I can make out, this case is complex and will probably be allocated to multi or fast track. However, I'd suggest you tick for the other as there is then a limit on claimants costs. Otherwise their costs will be thousands should you lose.

I do not think you can delay a full defence if they have now supplied all documentation. Not getting the SAR is not a good enough reason to delay, but could be used in your defence if you doubt authenticity of any docs.

Maybe you should write to claimant under CPR 15? asking for extension of time because of late documentation receipt and at same time phone them too. Again, with the AQ, you could write you have only just been supplied with docs and a defendant is usually given at least 14 days to prepare defence, so you respectfully request additional time to submit ammended defence, and also mention you have requested more time of the claimant etc.

It might be time to click and summon site help, particularly to checkover and correct anything I have said?

[nicolee2931]

I have summoned some help from the site team so I will wait and see what happens,

I have been reading up on nicklea's recent thread and still have not received proof the NoA was served on me in accordance of the LoP Act 1925,

I have never set eyes on such a document prior to court papers being served so as far as i'm concerned Link of no legal right to collect this debt.

Also there is the matter of the Original Creditors failure to manage the account in a proper manner as a financial fiduciary when they were duly informed I had broken my leg and was unable to work they never advised me to make a claim on the PPI they added to the account

and didn't advise me of, this whole sorry matter could have been avoided and the repo stopped, in addition to the repo itself taking place on private land, Link have no claim against me it should be directed to the original creditor if they want their money

[manchestman]

I appreciate and agree with everything you say about link and about the repo, but nevertheless, I would hate to see link get a default judgment based on some silly rule just because they didnt comly with CPR for months.

It seems as well as keeping on top of court dates and procedures you need to chase this sar. Is it with Ge or Link or one to each of them? How long has it been now?

[nicolee2931]

the SAR is with GE I will write to them tomorrow.

[debbbbsy]

Hi,

When you submit your AQ, this is your opportunity to also include a "Draft Order for Directions".

 

The judge will make an order for the Claimant to provide you with all the documents they refer to and will rely upon to enforce this claim.

 

You now need to be specific about your defence.

 

You have various points to consider.

The PPI, this should have kicked in when you broke your leg & experienced financial problems.

The repossession of the car from private property. Was this action lawful ?

 

I am assuming that in order to reposess the car from private property, procedures should have been followed. You can use the Draft Order to demand these documents.

Same goes for the PPI.

 

I have dealings with Link, but am unfamiliar with car repossesssions.

 

Debs

[nicolee2931]

Thanks for getting back to me, I'm just in the process of reviewing all the paperwork which Link have sent me, I did ask under CPR rule 31.14 & 31.15 to supply the credit agreement with terms along with any PPI and terms, default notices, notice of assignment, deed of assignment, and proof of positing the NoA. As so far the have provided everything apart from the terms or the agreement and PPI and proof of posting the NoA.

I'm gonna gather everything today and sort the AQ out tonight, do you know which form you use when completing the AQ is it the EX149 or EX150 I'm a bit unsure which one to use, I definitely going to ask for a draft order to be made to see if Link have access to these documents, i'm guessing they don't have a clue regarding the repossession I think GE have left them a little in the dark on that matter.

However I have never acknowledged any debt to either GE custom finance or Link as I always believed the the matter of PPi was never addressed and the car was taken unlawfully as I still have the keys and radio faceplate. I also have a boat load of witnesses who have given statements stating how the car was taken which I will include in the defence.

I'm also going to get my medical records from the hospital showing that I broke my leg and state GE were duly informed.

[bazaar]

Hi, nicolee, been asked to pop in,

Did you make a claim on the PPI? IMHO, the judge probably will not be too bothered that the OC didnt advise you of making a claim.

This entire claim is about you and Link. I know its very complicated, but youve got to raise enough doubt in the judges mind about Link.

So, for instance, their claim is for XXX. But there is missold (??) PPI on the claim that needs to be removed.

Also, you need to list every document youve requested via CPR, then tick off what youve received. Show the Judge, youve asked for items and they havent complied. You therefore cannot submit a full defence and they are frustrating your efforts to do so

 

Also, how much had you paid off of the car?

|You need to get a draft up of your AQ, so we can all get you in shape

Edited December 6, 2010 by bazaar
additional question

[nicolee2931]

To be honest I didn't even know PPI had been added to the agreement until the agreement arrived from Link,

I then checked a statement which was supplied to me and at the time the vehicle was sold the was a credit for the PPI made to the account. 

I'm not sure what to do now, the only documents which Link have not supplied is the T&C for the agreement and the PPI as well as the proof of service of the NoA, up until the court case and until I requested it I have never set eyes on the NoA.

I had paid less than a third off the car but it was taken from my drive without a court order, upon reading a few posts around here especially by wannabedebtfreesoon possession without a court order from private land is unlawful.

Also I have been looking through a few threads and pt2537 stated the Holwell v Hughes case and that the burden falls on the Claimant to prove posting per s196 LOPA 1925 when it comes to serving the Notice of Assignment.

As said before I can honestly say I have never set eyes upon such a document and surely to god if this notice was so important then it should have been sent recorded mail as to prove receipt as I have done in sending my CPR requests.

[pumpytums]

Hi Nicky,

were you served a DN prior to the vehicle been taken against your wishes from private land? The one I have seen is after the fact namely they had already taken the vehicle.

 

Have Ge sent anything to you at all? If so was it all you asked for? If not send them a LBA. Lets just say GE/Santander seem to be very friendly with Link.

 

I would start knocking up a witness statement so everything is clear in your head.

 

Pumpytums

[IdaInFife]

thanks debs and bazaar

[pumpytums]

Blooming heck Nicky,

so basically you have :

1. PPI that didn't activate.

2. No DN prior to the vehicle been taken

3. The vehicle was taken illegally from private land without a court order.

4. The assignment is dodgy in the extreme as is the date of assignment.

5. GE been rather slow (I wonder why) on the SAR info.

 

In my mind the vehicle must have been sold for less than £5k which seems very odd when the finance was for £12k+ did they give you a breakdown of this?

 

You witness statement will prove particularly damning to GE and Link I would suspect. Tell it like it exactly happened in chronological order.

 

Pumpytums

Edited December 6, 2010 by pumpytums

[pumpytums]

bumping

 

It appears the vehicle was taken from private land without a DN been issued.

 

Pumpytums

[nicolee2931]

I'm currently working on it tonight and tomorrow will post it up tomorrow for someone just to quickly run over and check, just need to know what form to put the AQ on and do you attach the witness statement to it along with statements fom those who witnessed the repo.

[nicolee2931]

Below is my first draft of the witness statement, could someone please check through it and advise..

For some reason the numbering on the paragraphs got messed up when posting but they are okay on the original word document, sorry for any confusion.

I will post up some scans of the information I have got tomorrow.

Claim No: xxxxx

In the xxxx County Court

Between

Link Financial Limited

(Claimant)

And

nicolee2931

(Defendant)

WITNESS STATEMENT

I nicolee2931 of xxxxxx am the defendant in this action and make the following statement as my defence to the claim and make this witness statement in response to the Claimant’s application to lift the stay and strike out the defence.

Except where explicitly stated below the defendant neither admits nor denies any of the assertions or claims made by the claimant.

Background

1. The Defendant purchased a vehicle from a local retailer on 29th January 2004, the goods were paid for using Hire Purchase.
2. A short while into the agreement the Defendant sustained a broken leg whilst at work, the hire purchase company namely GE Capital Bank Limited were duly informed of the injury and subsequent payment difficulties by the defendant.
3. The Defendant tried to reach an agreement with the hire purchase company, however this proved pointless as the amounts requested by the hire purchase company were too great.
4. Sometime during November 2004 the vehicle was repossessed from private property owned by the Defendant, as the Defendant refused to surrender the keys the repossession agent forcefully towed the vehicle from the private drive owned by the defendant with the use of a winch onto the rear of the recovery vehicle. The repossession was witnessed by family members and members of the public waiting at a nearby bus shelter.
5. Following the repossession the Defendant made no further contact with the hire purchase company.
6. The Defendant received no other correspondence regarding the account until notified by Northampton County Court Bulk Centre on the 12th April 2010. Prior to service of the claim the Defendant has never acknowledged any debt to the claimant.

The Claim

 

1. The defendant received the claim from Northampton county court shortly after the 12th April 2010
2. The Acknowledgement of Service was filed on or around the 16th April 2010.
3. A CPR 31.14 request was submitted to the Claimant on the 16th April 2010.
4. The Defence was filed on or around 11th May 2010.
5. A CPR 18 request was submitted to the Claimant on the 19th May 2010.
6. A CPR 31.15 request was submitted to the Claimant on the 13th June 2010.

 

1. The claim remained stayed at Northampton CCBC until 2nd November 2010 when it was ordered the stay be lifted and the case transferred to Birmingham County Court.
2. However the Defendant was left waiting for the Claimant to comply with the CPR 31.15 request. The Defendant felt frustrated by delays incurred by the Claimant.
3. The Defendant received what is believed to be an Allocation Questionnaire shortly after the 10th November 2010 from the Claimant.
4. The Defendant received the Deed of Assignment shortly after the 26th November 2010.

Particulars of Claim

 

1. The Defendant maintains the Claimants Particulars of Claim are too brief, even allowing for the constraints of using the County Court Bulk Centre.
2. As a result of the brief Particulars of Claim, and a severe lack of evidence to support the claim the Defendant was unable to plead effectively, however the Defendant filed a Defence that covered most of the points that were considered relevant in the claim.
3. In the absence of evidence to support the claim the Defendant considered it was prudent to file a defence in accordance with Civil Procedure Rules as the Defendant understood that failure to do so may have been construed as acceptance of the Claim.

Modified Defence

 

1. The Defendant stands by parts of the defence filed with the court, however lack of evidence has frustrated the Defendants efforts to plead effectively, the Defendant is only able to plead based on information supplied as so far by the Claimant. Further no prejudice has been suffered by the Claimant.
2. The Defendant still awaits evidence from the Claimant under both the CPR 18 and CPR 31.15 request submitted to the claimant. The missing information is listed below;

   [*]Based upon the information received by the Defendant and Defendant seeking legal advice. The Defendant states;

   [*]Upon the Defendant checking the credit agreement supplied by the Claimant, the Defendant has noticed Payment Protection Insurance was added to the agreement without the consent or knowledge of the Defendant.

   [*]Furthermore the Defendant believes the Hire Purchase company namely GE Capital Bank failed to manage the account fairly, as a financial fiduciary the Defendant believes as soon as the Hire Purchase company were made aware of the injury sustained by the Defendant and loss of income, the PPI on the account should have been made aware to the Defendant as to prevent detrimental action being taken against the Defendant. The Defendant was unaware of any such PPI.

   [*]The Defendant is now also led to believe the vehicle was repossessed unlawfully, the defendant has been informed that where less than one third has been paid on an agreement but the goods are situated on private property a court order is required to gain possession, and even then the possession must be carried out by a bailiff instructed by the court. The Claimant is put to strict proof a court order was sought and any such enforcement was carried out by a court bailiff.

   [*]The defendant wishes to draw into question the validity and authenticity of the Default Notice, Notice of Assignment, & Deed of Assignment. Prior to action being served the Defendant has never received any of these documents and believes it is not an unreasonable request of proof of posting is sought as per s196 LOPA 1925 when it comes to serving the Notice of Assignment. The Defendant wishes to draw the courts attention to the Holwell Securities Ltd v Hughes case. The Defendant has never responded to the Claimant prior to proceedings being issued and believes the Claimant has no right to any action.

   [*]Furthermore the defendant remains confused at this stage as to whom the Claimant actually is as the Claimant was listed as Link Financial Limited when the claim was first submitted, however recently the Claimant has changed to Asset Link Capital (No.1) Limited, both companies at the WebCheck service at companies house bear different company registration numbers.

   [*]The defendant submits that the arguments presented are valid and that the defence should not be struck out.

   Statement of Truth

   I believe the above to be true and factual.

   1. Terms and conditions in relation to the credit agreement
   2. Terms and conditions in relation to any payment protection insurance added to the agreement.
   3. Proof of postage to confirm the Notice of Assignment was adequately served upon the Defendant in accordance with s196 Law of Property Act 1925. On this point the Defendant wishes to draw the courts attention to the Holwell Securities Ltd v Hughes case and that the burden of proof falls on the Claimant to prove posting as per s196 LOPA 1925 when it comes to serving the Notice of Assignment.

[pumpytums]

Hi Nicky,

just skimming through?

Have you mentioned that no DN was issued prior to the vehicle been taken?

Also your DN clearly shows that a third had been paid I know this is from the sale of the vehicle but if this is the only DN you have then a third has been paid.

Also mention that you have no information about the sale of the car a £12k car sold for less than £6k someone is having a laugh. It's not unknown at these companies for an employee to lets say get these cars cheap.

Also mention that the PPI that you were paying failed to activate. Maybe you asked Ge about this maybe you forgot but they should have told you. If the account had PPI and you were paying for it thats another point for your side.

Send GE a LBA do it today. You need to see the comms log it should show when the car was taken etc sale price etc. Something stinks in this case.

Did you try that legal helpline I posted they could give you some tips its worth a go?

Pumpytums

[bazaar]

Id also look into the price the car should have been at the time, IE, they undersold the car and now expect you to make up the difference.

If you can show that at the time of repo it should have been valued at xxx, that would help IMHO

[scoobyd00]

Hi,

 

Forceably removing a vehicle which was supplied under a Consumer Credit Act regulated agreement from private property is a breach of s92 of the CCA and is a breach of statutory duty under the Act. This means that the courts could award damages for trespass and all losses which might be foreseen as resulting from the breach, e.g. things like hire of an alternative vehicle/loss of use/court costs etc. The proper course of action for the creditor to have taken would have been to apply for a court order. It should also be noted that the court order should be enforced by a COURT bailiff acting on a warrant of possession and not by a private repossession agent - who does not have the authority to enforce County Court orders and should not hold himself out as having such authority. I would suggest you bring this up with the creditor/assignee and also that you make a complaint to the OFT regarding the conduct of the repossession agent. To give this a bit of perspective, why should any private debt collector be able to remove a lock to gain access to your private property? He is no more authorised to do so than you are, since he acts with no authority from the courts whatsoever. It simply shouldn't happen and that's why the law protects people in your situation....

[wannabedebtfreesoon]

Hello, I've just been reading both your threads and was wondering what stage you are at in proceedings at the mo? Did you say there was a Summary Judgment hearing coming up or has it already been allocated to a track??

 

I only mention it because, at the very least, with the repo of the vehicle from private property you may have grounds for a counter claim. Just wondering if you'd considered that or if it would be too late in proceedings now? Just an idea

[nicolee2931]

Hello, I've just been reading both your threads and was wondering what stage you are at in proceedings at the mo? Did you say there was a Summary Judgment hearing coming up or has it already been allocated to a track??

 

I only mention it because, at the very least, with the repo of the vehicle from private property you may have grounds for a counter claim. Just wondering if you'd considered that or if it would be too late in proceedings now? Just an idea

 

When I completed the AQ which I sent off before xmas I attached a witness statement to prevent them striking out my defence. I did state in the witness statement that upon seeking legal advice the vehicle was repo'ed unlawfully from private land and I asked for strict proof to be provded that they had a court order to repo from private land. I know they didn't but I want them to disclose it. I have also included witness statements from 4 people who watched the repo take place from my drive. So the court do know my views on the repo and so do Link. To be honest they are being hit from multiple angles the unlawful repo being one, and the others on a dodgy Notice of Assignment and Deed of Assignment as well as PPI which was added to the account and never advised.

[nicolee2931]

Well an update,

this morning after submitting the AQ on the 9th December 2010 I get judgment filed against me as the court say I did not get my AQ in on time. This is rubbish the AQ was filed by me in person at the court.

So what now do I have to apply for a set aside and what info should I put on the N244 because this is wrong.

[pumpytums]

Hi Nicky,

do you have any kind of receipt of your AQ to the court? As you said it had to be in by the 10th you filed on the 9th. Sounds like someone screwed up, phone up the court they should help you out.

 

Pumpytums

[nicolee2931]

I have no receipt as when I arrived at the court I was directed to use one of the drop off boxes at the court.

Gonna file a set aside on a N244 but need to know what answers to put the questions.

 

bump..

[pumpytums]

Hi Nicky,

sorry I can't help you with an N244 I have never filled one in.

 

I would ring the court and ask about you N244, was the weather bad on the 10th maybe the court was closed? They must have your AQ, I would want to know what they are playing at. Maybe lots more AQ's didn't get filed until the Monday?

 

Filling your N244 is the priority though getting the info from the court could give yo some ammo to put in it though.

 

Pumpytums

[emandcole]

Very shoddy. Yes, ring the court and make sure they help you with this, least they can do given the mess this has caused for you. Your arguments are plentiful concerning the claim so hardly suitable for quick disposal anyway!

[nicolee2931]

I rang the court and they said I need to get a set aside issued so the judge looks at it again,

just really annoyed as I got my stuff in on time yet Link are allowed to do what the heck they like.

Any ideas on how to fill out the N244 and what to ask for.