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

[patrickq1]

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

 

they have no choice if you decide to continue they would then have to answer under CPR rules ...

patrickq1

[patrickq1]

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

 

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

 

yes this is the one ..very informative that is unless the thread has been redacted ...as vj has had a serious fall out with the mods ..dont ask ?

patrickq1

[rcl]

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

 

they have no choice if you decide to continue they would then have to answer under CPR rules ...

patrickq1

 

 

its a definate scare letter, in an attempt to frighten me off, confuse me, make me cautious, and I think they are perhaps hoping I am a bit thick, and will believe everything they say

 

I can honestly say I wouldnt be brave enough to do this on my own, without CAG. However, with you guys helping me, I can take on the world lol

[wannabedebtfreesoon]

Of course you can take on the world!

 

Just a quick question-what did you amend your defence to??

[beyondhope]

its a definate scare letter, in an attempt to frighten me off, confuse me, make me cautious, and I think they are perhaps hoping I am a bit thick, and will believe everything they say

 

I can honestly say I wouldnt be brave enough to do this on my own, without CAG. However, with you guys helping me, I can take on the world lol

 

 

you most definitely can and we are all coming right along with you

[rcl]

Of course you can take on the world!

 

Just a quick question-what did you amend your defence to??

 

The defence shown at the begining of this thread is the amended defence.

 

Dunctons took me to court, i filed in the defence as best I could, and the judge filed that my defence be struck off, and dunctons win. Then i employed a solicitor to get the judgement set aside, and re issue a defence for me, which is the defence shown in my thread. It was on the amended defence that the judge sent the claim to trial.

 

At that point the solicitor and I agreed that as it was going to cost me another £1500 should they take this all the way thru to trial for me, they assured me that I would be able to do the rest myself, and I could e mail them for assitance if Iwanted to, or re-employ them at any time, so I did the stat dec, witness statements and everything else after that.

[rcl]

you most definitely can and we are all coming right along with you

 

thanks x:)

[wannabedebtfreesoon]

Fabulous!! That's exactly what I was hoping you would say So you had no option to mention the altered log in your defence, those facts are therefore substantially different to the ones you originally defended on. Abuse of process my foot!!

[rcl]

This is my reply to their letter. As always, please would you be kind enough to add your input before I send it.

 

Im going to e mail it to chafes solicitors, and a copy to Dunctons and then send both recorded delivery again

[rcl]

Dear Sirs

 

 

With regard to your letter dated 27th July, 2010, I would like to clarify the following matters.

 

 

1. I submit that the agreement xxxx with Duncton No 1 Limited has been improperly executed.
   
2. I submit that at no time did Dunctons contact me with regard to the arrears
   
3. I submit that at no time did I receive a default notice
   
4. I submit that the default notice that was allegedly sent to me is invalid
   

 

 

 

In your letter dated 27thJuly 2010, you state 'it is not your intention to respond to these issues'

 

 

I would like to remind you, that Duncton Agreement Number xxxxx is regulated by the Consumer Credit Act 1974

 

 

1. An improperly executed agreement is breach of Section 61 (1) of the said Act
   
2. Dunctons should have advised me of the arrears.
   
3. Failure to send a default notice is breach of Section 87 (1) of the said Act
   
4. The default notice allegedly sent is a breach of section 88 of the said Act
   

 

I think it appropriate that these issues are responded to as a matter of urgency. I can only speculate that a District Judge would expect a better defence than 'it is not our intention to respond to these issues' from trained legal professionals, such as yourselves ?

 

 

You state in your letter that 'you fail to see any basis upon which I have a right to claim damages on any of the issues refered to at points 1 to 4.

 

 

Case law states 'Failure of a Default or Termination notice to be accurate, not only invalidates the Default or Termination notice (Woodchester Lease Management Services Ltd vs Swain & Co – (1998) All ER (D) 339) but it is unlawful recission of contract which would not only prevent the court enforcing any alleged debt, but GIVE THE CLAIMANT A CLAIM FOR DAMAGES'

 

 

Moving on to the next paragraph in your letter, you state that Dunctons 'accept that the agreement was entered in to with only you, and not mr rcl' May I then question why mr rcl was issued with a termination notice, issued numerous outstanding balance letters, and originally taken to court. The point I was making in my letter is that as Mr rcl signature was missing from agreement xxxxx, it makes the agreement improperly executed, Section 61 (1)

 

 

 

 

5. Item 5 of my original letter, I complained that despite Dunctons not being entitled to enforce the agreement, the vehicle was repossessed from my driveway without consent, breaching section 92 (a) of the act. Your letter dated 27th July 2010 states that 'my driveway is accessable without interference from the highway' and 'premises is not defined by the CCA 1974'

 

 

I can prove that from the length of my driveway, and the length of a Suzuki Grand Vitara, that Peak Collections had no option but to go on to my property in order to repossess the car. In order to attach something to my car, they had to step on my property.

 

 

The dictionary definition of premises:- land and buildings belonging to somebody.

 

 

Duntons did authorise Peak Collections to remove my car from the driveway. This is shown in their communications list before they amended it. Peak collections were seen by my neighbours, on my property, removing the vehicle. If it is witness statements from neighbours, in order to confirm this fact, that you require, you can have them.

 

 

If you look at the case of Chartered Trust PLC vs King (2001) WL 172107, the Judge on this case decided that if the creditor has wrongfully interfered with your right to possession of the motor vehicle, then the debtor is entitled to a return of all the money paid to the creditor.

 

 

Section 92 clearly states 'Except under the order of a court'........'An entry in contravention of subsection 1 or 2 is actionable as a breach of statutory duty.

 

 

Dunctions clearly breached Section 92 in removing the car from the driveway.

 

 

 

 

1. The point I was trying to make is that as soon as I became aware of the arrears to Duntons, I made an offer of immediate payment, by debit card, which was refused. Therefore, the car was repossessed without any prior communication with myself.
   

 

1. There were numerous personal belongings in the vehicle at the time it was repossessed. A full list was submitted to Duntons on my return from Florida in January 2009. There is documented letters from Duntons advising me that a) my goods were available for collection from Haydock, b) There were NO belongings in the vehicle when it was repossessed, and then c) There were some belongings in the vehicle when it was taken.
   

 

 

 

Peak collections notice states 'Cant gain access to see if anything else – Hirer not present'

 

 

May I ask what you require as documentary evidence ? Surely Dunctons own documents and records are enough evidence. I submit that the average price for a childs booster seat is £40.00. A hard hat is £5.00, and a shopping bag is £2.00. These are not excessive charges for these items. If Dunctons continue to deny that there were additional items in the vehicle, then I will have no option but to claim for these items through court proceedings. A full list of belongings have been submitted, there are inconsistancies in Dunctons paperwork, and the value of the stolen goods should be returned to me.

 

 

1. I submit that Dunctons have removed entries in their communications list in court evidence, in an attempt to hide the fact that the vehicle was removed from private property, and that there were belongings in the vehicle. Again you state 'It is not our intention to respond to this' My complaint is that If Duntons behaved in an ethical manner, in line with the CCA, then why would they remove entries, if not for their own advantage ?
   

 

 

 

Your letter states 'It is not our clients intention to relitigate any of these issues either in correspondance with you, or in any subsequent proceedings' Obviously you are aware that this case cannot be relitigated by Dunctons without the consent of the court, and you will also be aware that when I issue a county court claim against Dunctons, they will be forced to answer these issues.

 

 

With regard to the abuse of process, you will no doubt be aware of Henley vs Bloom case. The case against me wasnt previously decided, it was discontinued. I am legally entitled to bring action against Dunctons, and it would be in the interests of justice to have the case heard. The reason a counterclaim wasnt applied for when my defence was issued, is because the issues didnt become wholly apparent until statutory declarations, and witness statements were exchanged.

 

 

With regard to your threat to claim for costs against me, should I take this to court, of course you also know that in order to claim costs, you would need to win the claim first.

 

 

Your letter finally states that when I issue a claim against Dunctons, there will be a counter claim against me for outstanding sums on the agreement. This would be an abuse of process !

 

 

I now ask for a final response to my points raised and my intended claim.

 

 

Dunctons allowed me to pay £2500 deposit for a car, fill it up with personal belongings, and then they took it from my drive, without a court order, without prior notification, some nine weeks later whilst I was on holiday.

 

 

 

 

If no response is received, I shall submit court documents on Monday 16th August 2010, at 9am

 

 

An application will be submitted to the court, under Section 140 of the 2006 CCA amendments, for unfair relationship, unlawful repossession, and unlawful recission of contract.

 

 

I require the return of all monies paid to Duncton No 1 Limited, which is the value of a motorcycle used as a deposit £2500.00, value of personal belongings £300.00, interest on these amounts at 8% contractural rate, plus damages which I would be happy to negotiate on.

 

 

Yours faithfully

[wannabedebtfreesoon]

This is my reply to their letter. As always, please would you be kind enough to add your input before I send it.

 

Im going to e mail it to chafes solicitors, and a copy to Dunctons and then send both recorded delivery again

I fear there may be something missing from your last post!

[rcl]

deleted duplicate letter sorry

Edited July 29, 2010 by rcl

[rcl]

sorry, i didnt mean to post it twice, its late, and ive been up since six, im going to grab a glass of wine and then come back and catch up with everyone elses posts for half an hour before bed

[wannabedebtfreesoon]

You've pretty much read my mind!! The only things I would add would be:

 

1. that you would contest any counterclaim as it would invoke CPR 38.7
   
2. that you strongly urge them to settle this matter as if they choose to ignore your position as set out in this letter you will seek full recovery of your costs
   
3. that the agreement is in BOTH of your names so you are confused as to why they are suggesting it is only with you
   
4. To date you have been given no explanation as to why the case was discontinued and you do not consider the issue fully resolved yet
   
5. It is unclear how they can state they will counterclaim when they have already stated they have no intention of relitigating the same issues already raised!
   
6. You consider their response to be unfounded and should the restitution you require not be forthcoming by XXX you will have no option but to issue a claim in the county court.
   

It's fabulous You go get em!! :grin:

[rcl]

thanks so much wannabe. I apprecaite its late, so appreciate even more the fact that you have helped tonight.

 

I will make all the ammendments you suggested and e mail them tonight

 

thanks thanks and thanks again, its always good to get someone look over things for you x

[wannabedebtfreesoon]

Absolutely not a problem really I said I would offer my input today and I hate going back on my word, even though technically it is actually tomorrow!

[rcl]

done and e mailed to dunctons and chafes thanks again

[rcl]

Absolutely not a problem really I said I would offer my input today and I hate going back on my word, even though technically it is actually tomorrow!

 

 

lol definately time for bed !

[rcl]

i think i am sick in the head, I have some kind of warped sense of humour (well I know I have )

 

What idiot sends an e mail to a solicitors firm, insulting them, and threatening legal action, potentially opening a can of worms, and leaving me and my family, and our home, wide open to a heap of trouble, court costs, and hassle for the next few months, but cant help but grin like a cheshire can once i have hit the send button on the email

 

Its madness, but it feels good to fight back !

 

im off to bed ! Im up again in 4 hours

[rcl]

I am so impatient. I know everyone has to play the waiting game, I am just not very good at it

 

no news from the court re wasted costs order (application made 3 weeks ago) and no news from chafes or dunctons re my second letter sent a whole 4 days ago, (yes it does include the weekend, i said i was rubbish at being patient)

[rcl]

hello guest

 

no reply letter from the solicitors, they have until monday and my poc is ready for court

 

rang the court today with regard to my wasted costs application. They advise it has been with the judge since 15th July, and hasnt come back yet. They ask me to be patient, as there is a backlog

 

Dont have much choice but to wait do I !

 

TICK TOCK

[Surfer01]

I think there is one vital point that has been missed. An agreement has been produced showing only one signature and that person has been targetted, however as they contacted the spouse about the arrears they contravened the Data Protection Act and that is a very serious offence as they never had permission to discuss the agreement with your spouse and you may be liable for compensation on that count alone.

[rcl]

I think there is one vital point that has been missed. An agreement has been produced showing only one signature and that person has been targetted, however as they contacted the spouse about the arrears they contravened the Data Protection Act and that is a very serious offence as they never had permission to discuss the agreement with your spouse and you may be liable for compensation on that count alone.

 

Thats a great piece of information surfer, thanks for taking the time to post. the more they break the rules, and are pulled up on it the better it is for me, and I had definately overlooked that piece of info

 

Thanks again

[rcl]

Ive just been offered £2000 to go away by Dunctons solicitors

[rcl]

WITHOUT PREJUDICE SAVE AS TO COSTS

 

Dear rcl,

 

Our Clients – Duncton No 1 Limited

 

We thank you for your letter of the 30th July 2010.

 

We respond to the points you have raised as follows:

 

Default Notice

 

Our clients refute entirely any suggestion that the default notice was not sent. They reiterate that the default notice was duly sent and that that default notice was valid as to its form and content. The default notice was also to provide formal notification of arrears which had accumulated on the account and which remained your responsibility.

 

If, which is not admitted, the form of the default notice failed to meet the required layout set out at Section 88 of the Consumer Credit Act 1974 then it will be our intention to rely upon the case of Woodchester Lease Management Services Limited –v- Swain & Co (1998) which you have referred to in your letter. In this case it confirmed the already recognised principal that a default notice would remain valid and effective in circumstances where any alleged breach as to the form of the notice was deemed de minimis. It is without question that the default notice accurately stated the arrears that had accumulated on the account and the amount required to remedy the default which was not taken. Our clients deny therefore that the agreement was wrongfully terminated as suggested in your letter. In any event, we repeat the contents of our previous letter to you of the 27th July 2010 where we note that no Counterclaim was issued against our client in the previous County Court action.

 

mr rcl

 

Our clients have accepted that they cannot have a valid agreement in place with Mr rcl due to the fact that the finance agreement does not contain Mr

rcl's signature. This does not invalidate our client’s agreement with you. There is clearly an executed agreement in place bearing both signatures. There is no suggestion that the content of the agreement does not comply with the provisions of the Consumer Credit Act 1974 and in particular Section 60 of the Act. The agreement is only improperly executed insofar as it relates to Mr rcl.

 

Section 92 of the Consumer Credit Act 1974

 

You have referred to the case of Chartered Trust Plc –v- King, we fail to see the relevance of this case as our clients primary position will be that you no longer had any right to possession of the vehicle following service of the default notice. We once again refer you to the detailed letter which was sent to you on the 27th July 2010 in this regard.

 

Personal Belongings

 

We once again invite you to forward to us documentary evidence of the items which you state were left in the vehicle. You have provided details of the value of the child booster seat, hard hat and shopping bag, however later on in your letter you refer to the value of personal belongings as £300. We would need documentary evidence to support a claim for £300 before we can consider this claim with our clients. Further, and more importantly, the Court will require you to provide documentary evidence of the value of your belongings. We now invite you to disclose fully your evidence in support of this claim.

 

Abuse of Process

 

We once again refer to our previous correspondence on this issue. We fail to see any possible course of action which you are now intent on raising which was not known to you at the time that you amended your defence whilst you had Solicitors instructed on your behalf. We will refer to the case of Henderson –v- Henderson (1843) which stated that parties to litigation should bring their whole case before the Court so that all aspects of it may be finally decided once and for all. This case goes on to state that in the absence of special circumstances, the parties cannot return to the Court to advance arguments, claims or defences which they could have put forward for a decision on the first occasion but failed to raise. We submit that there are no special circumstances in this case, all of the issues were known to you and to your legal advisers at the time that you submitted your Amended Defence, you plainly failed to pursue any Counterclaim at that juncture and it will be our intention to raise this issue should there be any further proceedings between you and our client.

 

Without Prejudice Offer of Settlement

 

Entirely without prejudice, and with a view to resolving all outstanding issues which you have raised within your correspondence, our clients are prepared to make a one off offer of settlement to pay the sum of £2,000. This offer is made pursuant to the provisions of Part 36 of the Civil Procedure Rules 1998 and it would be our intention to refer this offer to the Court on the issue of costs if necessary, should the offer be rejected and proceedings be issued which then result in you obtaining an outcome which is worse than the offer set out herein.

 

This offer will remain open for acceptance for a period of 21 days at which point, the offer will be withdrawn.

 

This offer is made with the sole purpose of ensuring a limit on any further legal costs incurred and is based on purely commercial grounds and without any admission of liability. We strongly urge you to take independent legal advice on your position as it will be our client’s intention to seek the full benefit of Part 36 of the CPR in circumstances where the offer is rejected and proceedings are issued.

 

Yours faithfully,