Blackhorse Car HP - Claim issued

[Jamesx81x]

Hi

 

I have a car on HP through blackhorse finance and missed some payments on the account due to circumstances.

 

They sent me a default notice on the 20th May with every figure been incorrect. The amount owed was inaccurate due to disputed charges which i had already brought up with them, the total amount paid to date was wrong and i have confirmed this against my statements and even the amount i needed to pay to exercise my 50% termination rights was wrong.

 

I brought this up with Blackhorse but they only acknowledged the point regarding the charges none of the others. I also on a number of occasions asked them to set up a payment plan to pay off the arrears which they ignored on each occasion so themselves made no attempt to reach an agreement with me.

 

Yesterday i received a termination notice from them but i am wondering if they have terminated the account illegally as surely they cannot do this without an accurate default notice?

 

They will also have to take me to court to recover the car due to the amount i have paid, but there is then the case of them ignoring all my requests to come to an agreement over the arrears.

 

Any advice will be appreciated.

 

Thanks

[Conniff]

I suppose all the communications was by telephone?

[Jamesx81x]

No! letter

[Conniff]

That's good, so you will have copies of the letters for later use.

 

I'm not an expert on this, but I know a man who is (where have I heard that before)

 

I will give him a buzz and see if he can take a look for you.

[Jamesx81x]

Ok thanks, appreciate it

[banker_rhymes_with]

Hello Jamesx81x!

 

The fact that they have Terminated is good, because that should cut them off from being able to re-issue a valid s87(1) Default Notice.

 

I regret the best way from here is to point you at some reading:

 

This Court case is the leading one at the moment when it comes to Default Notices:

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998.)

 

Then these CAG Threads:

 

Anatomy of a Default Notice

 

Deminimis - Default Notices - Discussion

 

The first Thread above links out to other Threads and Posts, so no need for me to re-list them here, I'm sure you will find them. However, one Thread that is always worth stating in any event, is this one:

 

A Tale of a Dodgy DN

 

The key is for you to get your head around the issue, because it will be you who has to write the letters that might just avoid Court or, if that fails, it will be you standing up in Court explaining the issue to a Judge...who may not be very sympathetic and/or may not have a clue what a s87 Default Notice is.

 

It will be time well spent.

 

Then come back and see if you need more help!

 

Cheers,

BRW

[Jamesx81x]

Thanks for that Banker Rhyme With

 

I have read with interest the woodchester case as it basically outlines a default notice needs to give the individual an accurate picture of what they have to do to remedy things and if it doesnt then the individual cannot be held responsible.

 

The court of appeal also binds all lower courts so a county court would have to follow this decsion would it not?

 

Basically outlines my situation, on my notice it is not just the amount required to remedy the breach that is worng it is every figure they have put down.

 

As also said in the court case staute is laid down to protect the consumer who is often at a disadvantage against large financial insitutes. If they cannot produce accuarate figures then that is their downfall.

 

Thanks for the advice so far, its appreciated.

[Jamesx81x]

Hi again

 

I have gone over the figures again just to double check and they are just short of £400 over on the amount they put to remedy the default quite a substantial amount. This is even before £360 in charges are even considered.

 

They are a £1000 out on how much i have paid to date and £1100 out on the amount i need to pay to exercise my termination rights at 50%.

 

These are all substantial figures and i fail to see how they can be so inaccurate on the amounts owed and paid when they have all the same information as myself. Surely it is up to them as the business and creditor to ensure all figures are correct?

 

I fail to see with the amounts they are out how they can class the default as legitimateas it certainly is not accurate as it should be under the CCA.

 

Thanks

Edited July 15, 2010 by Jamesx81x

[Jamesx81x]

Right i think i got my head round all those posts and know what i need to do and say.

 

Just regarding the fact they will not be able to exercise their rights under section 87 that means they will not be allowed to re-possess the car right?

 

Also regarding the Consumer Contract Regualtions it is section 2 that applies?

 

Thanks

[Jamesx81x]

Hi

 

Have today received county court claim forms in relation to the above

[Jamesx81x]

Even the figures on the creditors POC are wrong.

 

In addition to the incorrect figure on the default notice which itself constitutes unlawful termination , they have included charges on their POC that they have previously waived to which i have writen confimation. This then throws out the interest owed.

 

There is something called LPI on there which i am guessing means Loan Protection Insurance? If so no where on my agreement is this figure quoted.

 

The paid up sum is also inaccurate when compared to my statements.

 

I stopped making payments on the Loan(Insurance) part of the agreement as i placed a complaint with the FOS. Since then i have only been making the Hire Purchase payment for the car alone to which i told them i would be doing but they have been taking part of that payment and using it to pay of the insurances. Can they even do that? I beleive insurances etc are totally seperate to the HP?

 

All in all their POC figures seem to be flawed in every way but the most important and original issue is the fact the default notice is inaccurate and really do not see what grounds they have to make a claim.

 

I now have to issue my defence and would really appreciate any help with doing that and advice on any of the points raised.

 

Really could do with the advice.

 

Thanks

[middenmess]

Hi James

 

I'll bump your thread up but weekends are pretty quiet on the forum sometimes.

 

If no reply by Monday hit the triangle beneath you moniker at left to alert the site team to look in.

[citizenB]

Hi

 

Have today received county court claim forms in relation to the above

 

James, what was the date of issue of the claim form.. you will find that on the right hand side of the form under the claim number.

 

You will need to stick to the time table which is..

 

Date of Issue + 5 for receipt

 

+ 14 to acknowledge

 

+ 14 further days to enter a defence.

 

That is 19 days from date of issue to acknowledge the claim and advise if you are going to defend in full.

 

with a further 14 days in order to enter a defence.

 

 

You should have a read of the followig threads in order to obtain any information mentioned on the POC that you dont have.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

You say that you have a complaint with the Financial Ombudsman in respect of the PPI, yes ? Do you have an FOS reference number ?

 

Can you let us know exactly what it says on the claim form.. the reason they are making the claim. Thanks

[Jamesx81x]

Hi thanks for the reply.

 

I sent my my acknowedgement of service yesterday which will give me the extra 14 days.

 

Basically they are making the claim for the remaining balance on my car HP agreement. I received the default notice which gave sufficient time but was around £400 out on the actual arrears. They had also included charges in the arrears that have previously been refunded pushing it a further £200 out.

 

I have gone over again again the statements of accounts adding the missed payments, charges and interest and get the same everytime.

 

The refunded charges have also been included on their POC also making the total figure claimed wrong.

 

As for the GAP it was set up by the car dealer and the finance company paid them as a whole for the car and insurances. I informed the finance company although the insurance was not set up through them i would not be paying all the interest on a policy i beleive to have been mis-sold. The FOS upheld my complaint against the GAP company. I was making payments on the HP side of the agreement but they have been taking a portion of that and paying the insurance loan off even after i informed them i was no longer paying it.

 

Not going too far off track my situation is basically they are way out on the defualt notice of actual arrears owed, they termnated the agreement on the back of that notice and even their POC is incorrect.

 

Thanks

[Jamesx81x]

Anyone?

[citizenB]

moved to legal issues and title amended. It might attract more attention.

[citizenB]

James, is this an agreement that is regulated under the Consumer Credit Act 1974 ?

[Jamesx81x]

Yes it is

[Jamesx81x]

While i appreciate the links given at the beginning of my post i am finding it a bit frustrating that this post doesnt seem to be gaining any advice at all.

 

I have gone over a number of posts with similar situations that have attracted 100's of posts in advice. The amount of knowledge that is on this sight i would have thought it would gain some advice.

[Conniff]

I've buzzed you up on another forum James, I hope you get the help you deserve.

[rcl]

Ive quickly read your thread, and can help. I finish work at 5pm, promised my 5 year old daughter a bike ride, I have a meeting at 7pm, then i need to get my little one to bed, so I will be back on after 9pm, and will help you with your defence then.

 

basically if the default notice is wrong, it is deemed invalid. therefore they certainly shouldnt have issued a termination notice either

 

we can issue a defence saying that the figures are wrong, the default notice is wrong, and the termination notice comes under unlawful recission of contract.

 

in the meantime, do you have a copy of the original contract ?

 

I am in a similar situation myself at the moment. Dont worry. you will get help.

[Conniff]

Thanks for the response rcl. I only wish I could have been of assistance.

[wannabedebtfreesoon]

While i appreciate the links given at the beginning of my post i am finding it a bit frustrating that this post doesnt seem to be gaining any advice at all.

 

I have gone over a number of posts with similar situations that have attracted 100's of posts in advice. The amount of knowledge that is on this sight i would have thought it would gain some advice.

Hello, it is correct that after an ineffective default they lose their rights to collect any outstanding balance once the agreement is terminated.

 

I would say that your defence should consist of:

 

• Dispute the entire claim
  
• Invalid default
  
• Unlawful termination
  
• No Legal right to collect any outstanding balance, forfeited due to invalid DN
  
• Section 87 benefits are forfeited as a result
  
• Constant refusal to negotiate repayment terms prior to termination therefore undermining the Overriding Objective
  
• Missold Insurances
  
• Unfair charges
  
• Adding charges that have already been refunded
  

Although I would like to see the figures first just to be sure.

I know that they can apportion payments to car and insurance so it would just be a case of determining how much of your actual payments had gone to each.

 

I would recommend using the argument that they had apportioned X amount to insurances incorrectly rather than just saying the figures are wrong.

 

CPR 16.5(2)(a) I believe states that a defence must always have reasons.

 

If you still have your agreement could you scan and post it up minus personal details.

I'm sure you will get all the help you need, there are plenty of knowledgeable souls out there

[wannabedebtfreesoon]

Ive quickly read your thread, and can help. I finish work at 5pm, promised my 5 year old daughter a bike ride, I have a meeting at 7pm, then i need to get my little one to bed, so I will be back on after 9pm, and will help you with your defence then.

 

basically if the default notice is wrong, it is deemed invalid. therefore they certainly shouldnt have issued a termination notice either

 

we can issue a defence saying that the figures are wrong, the default notice is wrong, and the termination notice comes under unlawful recission of contract.

 

in the meantime, do you have a copy of the original contract ?

 

I am in a similar situation myself at the moment. Dont worry. you will get help.

Ooops we crossed in the post

 

Rcl will see you right

If you need anything you know where I am

[Jamesx81x]

Thanks for the replies it is appreciated.

 

I have a copy of the original agreement which i can post up in the morning as i am currently at work. Although there are no issues with the validity of the agreement(to my knowledge) i will still post it.

 

I will also post the figures of arrears, missed payments and interest which you will see do not match the figure given on the default notice. That is before the fact they have included charges previously refunded is taken into condsideration. I have the letter from them informing me £174 in charges had been waived. Yet the have included them on both the notice and their POC.

 

The fact reagrding the car payments and the insurances i actually contacted the solicitors to request an individual breakdown of what had been paid where and they didnt know what i was talking about and to refer to my statement of account. Yet my statement account only details the payments made, charges and missed payments etc not what has been paid where or which charge is for what. Very confusing!!

 

The fact is i stopped paying the insurances and maintained the car HP payment which they were aware of and even have a record of a computer entry from my SAR detailing the insurance payment was not been made.

 

The original issue though been as first stated the actual arrears and the figure on the notice do not match and if you include the remaining charges you are looking at around 1k out!

 

Thanks for all your help appreciate it!