Car repo Dunctons ****WON****

[rcl]

how can you be a scatterbrain ! Your so busy helping everyone else, you are allowed for forget something every now and again lol

 

tresspass laws is a good one thankyou I shall have a read up on that

[wannabedebtfreesoon]

how can you be a scatterbrain ! Your so busy helping everyone else, you are allowed for forget something every now and again lol

 

tresspass laws is a good one thankyou I shall have a read up on that

 

Thank you, you're very generous

 

I think what I'll do is amend my POC slightly, (with the benefit of hindsight ), and then post it up for you to refer to for when it's your turn

 

It's cool, you're at the very beginning and I'm at the very end! That's the beauty of CAG, we all learn from each others' experiences

[wannabedebtfreesoon]

Here's the POC I used as promised I've amended them a bit to add in bits I wish I'd added in before, oh how we love hindsight!

 

Feel free to use anything you like if you think it might help, if there's anything else you need just shout.

Amended POC for reference.pdf

[rcl]

Here's the POC I used as promised I've amended them a bit to add in bits I wish I'd added in before, oh how we love hindsight!

 

Feel free to use anything you like if you think it might help, if there's anything else you need just shout.

 

 

Please accept a cyber bunch of flowers

[rcl]

Thats a POC you should be proud of ! I am very impressed, I can see there is alot of time gone in to that. Clear concise factual information that can be backed up by evidence, and lots of quoted case law. Im so glad you dont work for Dunctons

 

Thanks again Wannabe

[wannabedebtfreesoon]

Please accept a cyber bunch of flowers

Cooool! I love flowers, thank you

 

Thats a POC you should be proud of ! I am very impressed, I can see there is alot of time gone in to that. Clear concise factual information that can be backed up by evidence, and lots of quoted case law. Im so glad you dont work for Dunctons

 

Thanks again Wannabe

Ah thanks!

You have no idea, hours and hours and hours and a lot of brain-ache along the way! I only hope it all pays off in the end

 

I've put my heart and soul in to this case and if I can help others in the same situation then all the better

 

The very best of luck to you!

[rcl]

Ive had a reply from Chafes solicitors.

 

They are basically saying that if I put in a claim against Dunctons, then they would counterclaim on the case for outstanding monies against the agreement

 

Surely they cannot do this, as this would replicate the claim they discontinued against me ?

 

I will put the full letter on when I get home from work

[rcl]

oh, and that I should have counterclaimed on the original claim against me, and they would apply for abuse of process through the court

 

They refused to comment on points 1 - 4 (from what I recall)

 

and they are saying that they wouldnt have needed to go on to my property in order to repo the car, as the garden and driveway is open plan

[rcl]

Dear rcl

 

We refer to our letter of the 19th July and confirm that we are now instructed to respond to your letter dated 14th july 2010

 

The paragraphs which you have numbered 1 to 4 in your letter are all issues which were litigated in a claim which our clients issued against you out of the xxx county court under claim number xxxx. Those proceedings were discontinued by our clients on 7th July 2010. It is not therefore our intention to respond to these numbered paragraphs in your letter in circumstances where our clients claim against you relating to these issues has been formally discontinued. we also fail to see any basis upon which you can have a right to claim damages to any of the issues referred to at points 1 to 4 in your letter.

 

Insofar as you are making an allegation that the agreement has been improperly executed, our clients accept that the said agreement was entered in to with you only and not Mr rcl. Accordingly, the agreement is properly executed insofar as it relates to an agreement with you pursuant to the provisions of section 61 of the consumer credit act 1974

 

We now move on to paragraph 5 in your letter. we note that you raise the issue relating to section 92 of the CCA 1974 in your defence to our clients claim. we have considered your witness statement dated 27th may 2010, where you have exhibited photographs of your property. We note that the driveway to the property is accessable with out interference from the highway. In these circumstances, we are confident that our clients, through the acts of their agent, have not breached section 92. Our clients will argue that in light of the fact that the word 'premises' is not defined by the CCA 1974, there is authority to support the view that the meaning given to premises shoud be that of buildings and enclosures.

 

Whilst our clients accept that there was communication with you whilst you were on holiday, they were perfectly entitled not to accept any other payment from you unless it was in full and final settlement of the agreement.

 

Our clients records suggest that the following items were in the vehicle at the time that it was repossessed. 1. Booster seat in the rear 2. Shopping bag 3. white hard hat

 

Entirely without prejudice, our clients will consider any reasonable claim for these items, however, we would need documentary evidence as to their value.

 

It is not our intention to respond to item number 8 in your letter. this along with a number of other issues raised in your letter forms part of the issues in the county cout proceedings which have now been doscontinued. It is not our clients intention to relitigate any of these issues either in correspondance with you or in any subsequent proceedings

 

Abuse of Process:-

Our clients primary position with regards to all of the allegations raised is to assert that to re litigate these claims is an abuse of process. These claims should have formed part of a counterclaim in the previous action. From our inspection of the papers, there appears to be no new information which has now come to light than would have been known to you at the time that you originally defended our clients claim on 17th may. Further you have had the benefit of legal advice at the time that you took steps to amend your defence. We note from the contents of the amended defence that the statement of truth has been signed by a partner in xxxxx solicitors.

 

Despite the information with was known to you at that time and in viw of the fact that you took specialist legal advice you failed to issue a counterclaim against our clients. Any subsequent claim that you issue against our clients will be vigourously defended as an abuse of process.

 

Costs

You will see that our clients have now instructed us to respond specifically to your letter of claim. In light of our cleints position as set out above, we strongly suggest that you take independnt legal advice on your position as it will be our clients intention to seek recovery of their costs should our clients position as set out in this letter be ignored and you press ahead with your intended claim. In these circumstances, it will be our intention to refer this letter to the court on the issue of costs if necessary

 

Finance Agreement

there remains in existence a finance agreement in place which you have enetered in to with out clients. Sums remain outstanding on that agreement. If your intention is to pursue a further county court action, then our cleints will be forced not only to defend the claim, but to also pursue a counterclaim against you for the arrears and all other sums outstanding. Entirely withour prejudice to our clients position, they are prepared to leave matters as they stand with you. They will however be left with no alternative but to seek full equitable relief in circumstances where they are forced to respond to any further court action which you choose to bring against them.

 

Yours faithfully

[rcl]

so as I see it

 

Points 1 - 4 they are ignoring

item 5 - they claim they can repo the car without stepping foot on my property (It is open plan garden and drive, on to pavement, then road), but their claim is rubbish !

 

item 6 - they can refuse my offer of payment if they want to

 

item 7 - they admit some items were in the car, but not all of them

 

item 8 - they are ignoring

 

also, they are going to counterclaim against me - CAN THEY DO THIS ?

 

they will apply for costs - NOT IF I KEEP IT IN THE SMALL CLAIMS COURT YOU CANT

 

and with regard to the finance agreement, i should leave it as it is, or it will cost me

 

 

Shucks, I am quaking in my Size 8 steel toe capped boots

 

I think they are clutching at straws, but the word counterclaim worries me a tiny bit

 

opinions please ?

[wannabedebtfreesoon]

Clutching at straws?? Wholeheartedly agree!!!

 

OK, it's like this-they're saying "leave it alone and we'll call it quits, but if you don't leave it alone you'll have to pay loads of costs SO LEAVE IT ALONE!"

 

I don't hardly know where to begin!

 

1. If the agreement was entered into with you only then WTF do they think they're doing issuing Mr rcl with Default notices about it??!
   
2. With regard Section 92, absolutely the CCA 1974 doesn't define "premises" BUT the legal definition is "LAND and buildings on it". I'd like to know what 'authority' they are referring to exactly! I have plenty of "authority" on this and would be more than happy to share
   
3. It makes no odds if they stepped on your property or not! There is no way they took your car without attaching something to it in order to get it off your property. In order to attach something to it they entered your premises!
   
4. They do not intend on responding to point 8?? I wonder why Did you ever amend your defence to include this point??
   
5. Costs?? They're making a rather large assumption here that they will win!! You'll only be liable for their costs if you lose, so threatening that if you enter a claim you'll be liable for their costs is somewhat misleading to say the least!!!
   
6. They're not answering some of your points because they have no intention of re-litigating? But then they follow it up with they'll have no option but to "pursue a counterclaim against you for the arrears and all other sums outstanding". Sounds like back tracking to me!
   
7. Yes they can counterclaim against you BUT they will need the court's permission to do so having already discontinued and because the facts are substantially the same as that of the discontinued claim! I can't see what good reason they would have to be granted permission to counterclaim.
   
8. Finally all this nonsense about abuse of process! Tut tut...they are solicitors they should know better Haven't they heard of Henley v Bloom?? "it does not follow" from the fact that a potential claimant "could have brought his action as part of or at the same time as the [earlier] action" "that he should have done so or that his failure to do so renders [a later] action oppressive … or an abuse of the process of the court." -Lord Millett.
   In any case, all of this only refers to cases that were previously decided. Yours wasn't decided it was discontinued! So you have every right to bring further action, partly based on issues that didn't become apparent until after you had filed your defence and partly because you were never given the opportunity to have the issue fully decided by a judge!
   
9. There's a multitude of case law you could use to have a claim for abuse of process dismissed
   

 

Well there you go, that's my opinion on the whole thing!

[rcl]

thanks for your valuable input. I keep re-reading the letter tryng from their perspective, and still though they were clutching at straws !

 

I was reading up on abuse of process last night, and from what I can make out, applications to stay a court case based on abuse of process are more common in magistrates courts, and courts are more inclined to let a case continue in the interests of justice. As you say, information has come to light, since I issued my defence, which will be used for the new claim in which I am the claimant, not the defendant.

 

I know I am entitled to go to court with this today, but I am going to send one more letter to chafes, copy to dunctons, with the documented evidence as to the value of the 3 things that they acknowledge are in the car (which amount to pennies), which they can then send me a cheque for, and also as a response to their letter. I will ask that their reply be marked as a full and final response, give them 14 days, and then proceed wth the court claim as originally planned.

 

I figure I have nothing to lose by sending another letter, and it will show the DJ that I tried to negotiate with them before proceeding with court

 

Thanks again x

[Calb0b]

Just hang fire, wannabe wants to reply

[wannabedebtfreesoon]

thanks for your valuable input. I keep re-reading the letter tryng from their perspective, and still though they were clutching at straws !

 

I was reading up on abuse of process last night, and from what I can make out, applications to stay a court case based on abuse of process are more common in magistrates courts, and courts are more inclined to let a case continue in the interests of justice. As you say, information has come to light, since I issued my defence, which will be used for the new claim in which I am the claimant, not the defendant.

 

I know I am entitled to go to court with this today, but I am going to send one more letter to chafes, copy to dunctons, with the documented evidence as to the value of the 3 things that they acknowledge are in the car (which amount to pennies), which they can then send me a cheque for, and also as a response to their letter. I will ask that their reply be marked as a full and final response, give them 14 days, and then proceed wth the court claim as originally planned.

 

I figure I have nothing to lose by sending another letter, and it will show the DJ that I tried to negotiate with them before proceeding with court

 

Thanks again x

I absolutely agree! I would've replied further last night but I was getting a bit bleary eyed! :grin:

 

Yes I would definitely send a reply to them giving them a further 14 days to issue a final response. There are several key points I would think need to be contained in the letter so I'd be more than happy to help you with it if you would like

 

Another thing I'd like to say is that I am very impressed by their response!! This is totally the kind of response one would expect from legal professionals. Let's face it, they were never going to roll over and say "OK we did wrong, here's several thousand pounds"! They need to have a good go at getting themselves out of the hole they've got into, which is no less than what any of us would do. So absolute commendations to them :grin:

 

It was nice for me to see an intelligent, comprehensive effort to defend themselves, rather than the pathetic piece of crap I got!!

 

Hats off to them for trying but unfortunately it's not going to work this time Had you been alone and less informed they may well have succeeded in "frightening you away"!

 

Let battle commence!!

[patrickq1]

the only abuse would be their trying to re litigate,so i would nt worry one iota,they know its a no win situation...

patrickq1

 

ps..wannabee would it not be better to put dates and times,or is it me not looking properly at your POC..

just a thought

[wannabedebtfreesoon]

Hello Patrick, sorry I'm not sure what you mean about dates and times?

[patrickq1]

i am glad you removed the POC ..what i mean is try to be specific about the dates and times when the balliffs arrived ,and hopefully you have also got a crime scene ref number if not you need to go and see the desk seargent and ask for one as they were involved and called to the scene of a crime ie unlawful removal of the car...also without the dates and times they may try to conjour up a termination notice before if you get my meaning ...

just my opinion so hope this helps

patrickq1

[rcl]

Yes please wanna, i would love some help on the key points you think should be included. Thankyou

 

Thanks patrick, I just wasnt sure if they could counterclaim. They probably will, however, i can draw attention to the discontinued claim if i need to

[patrickq1]

try look up VJjohns threads he had a simmallar claim against HFO they discontinued but he refused to accept the discontinuance and the case was carried forward ..they had to settle in the end..so you have a right to refuse to accept their discontinuance and continue the claim they cannot re litigate on these points all they can do is issue a defence ..lol and that will cause them tremendous trouble and they can only rely on what documents they have put forward i do not think they can enter new evidence..and also if they have breached the CPR rules then they have a bigger problem..so you need not accept their discontinuance

patrickq1

[wannabedebtfreesoon]

Yes please wanna, i would love some help on the key points you think should be included. Thankyou

 

Thanks patrick, I just wasnt sure if they could counterclaim. They probably will, however, i can draw attention to the discontinued claim if i need to

Not a problem I'll get back to you before the end of the day.

I just need to stop laughing long enough after spotting welcome's latest addition to their comedy of errors! :lol:

[rcl]

Thanks patrick, i will have a look at that thread when I get home from work. I thought about asking to set aside the notice of discontinuance, i think i have 28 days to do so, which would give me until 7th August, one week to think about it. I have submitted a wasted costs application, but could always ask the court to ignore it, if I choose to do that

 

wannabe what have you found ???

[rcl]

try look up VJjohns threads he had a simmallar claim against HFO they discontinued but he refused to accept the discontinuance and the case was carried forward ..they had to settle in the end..so you have a right to refuse to accept their discontinuance and continue the claim they cannot re litigate on these points all they can do is issue a defence ..lol and that will cause them tremendous trouble and they can only rely on what documents they have put forward i do not think they can enter new evidence..and also if they have breached the CPR rules then they have a bigger problem..so you need not accept their discontinuance

patrickq1

 

 

I cant find the thread patrick, the link is for dummies, are you trying to tell me something ?

[wannabedebtfreesoon]

Thanks patrick, i will have a look at that thread when I get home from work. I thought about asking to set aside the notice of discontinuance, i think i have 28 days to do so, which would give me until 7th August, one week to think about it. I have submitted a wasted costs application, but could always ask the court to ignore it, if I choose to do that

 

wannabe what have you found ???

It is purely my opinion but in your position I would personally allow the discontinuance to stand. Only for the reason that they are intent on using the "abuse of process" tac in their defence. If the trial continues and concludes and then you try to claim there is a possibility that they will be granted the strike out of your claim as abuse of process, whereas a discontinuance gives them very little hope of claiming abuse of process.

 

Just my thoughts

[rcl]

makes lots of sense. I had already toyed with the idea of setting aside the discontinuance, when i sent the lba, and dismissed it then. I also like the idea that they can never come after me again for this

[wannabedebtfreesoon]

Thanks Patrick-very useful, was this the link meant??

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/245294-vjohn82-hfo-services-limited.html