In Court with Blackhorse to take back the car advice please

[alias barneyrubble]

Dont want to hijack the thread but I have a very similar scenario with BH except with an unregulated loan for a repossesed car with balance of 11k

Can the same/similar tactics be used for unregulated loans

cpr31.4 req gong out tomorrow and AOS also now 7days old

 

barney

[summerbreeze]

Hi Gary

You dont have the SJ hearing order yet I think?

When you get the order which will give you the time and date of the hearing and the name of the Judge etc. I am pretty sure it will say something like ' If the respondent to this order wishes to rely on written evidence at the hearing he must file such evidence at least 7 days before the hearing ' ... so you have to submit it to the court and send the other side a copy I believe.

 

Here is some very good advice from Banker Rhymes With

Quotes from BRW

 

The N244 Summary Judgment (N244-SJ) issue is one you need to fight just as if it's a full hearing/trial. The one hour time slot could mean anything, so my advice is to forget it's meant to be a Summary Judgement, and instead consider it as being the main hearing/trial...plan everything with that in mind, because you must win that test. If you don't, that is where it stops, and there won't be a full hearing.

 

So, make sure you are 100% ready as if the N244-SJ is the main hearing.

 

Right, others need to help you here, and to help you as if the N244-SJ is the big one. You must walk into Court with everything possible that you may need. Get a full Disclosure by List ready, and get everything within that List lined up, then submit that List to the Court. But, don't submit that until you have thought of everything you might need, such as:

 

• Claim
  

• Defence
  

• Correspondence/Envelopes
  

• Case History
  

• Legislation
  

IOW, plan your Court Bundle ASAP, and gather what you need ASAP, and make sure everything is on the Disclosure by List, so that you can produce it in Court on the day, having given both the Court and the opposition full notice...leave nothing for them to moan about.

 

Then you'll be in a position to bind that lot into an A4 Lever Arch Folder, page number it, and make sure you can navigate it from front to back, and can get to any reference you may need FAST. Practice that, such as by planning how you will deal with the Default Notice issue, and how fast you can turn to details of, say:

 

• The Consumer Credit Act 1974, i.e. s87 and s88.
  

• Supporting Statute, i.e. Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 SI 1983-1561).
  

• The Interpretation Act 1978.
  

• The Queens Bench Practice Direction 1985.
  

• Case History, i.e. Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 ).
  

The above being the sections of the CCA-1974 that cover Default Notices, the Statute that sets out the Prescribed way Default Notices must be drafted, the Act and Practice Direction that confirms time scales for Date of Service via Post issues, and finally the Case History that may help to make it clear that a Default Notice must be accurate.

 

Once you have that Bundle ready, you will have a good basis with which to defend yourself on the day.

 

Next thing, print off THREE extra copies, one you must lodge with the Court ASAP so the Judge may get to see it ahead of the hearing, one for the Judge on the day of the hearing (in case the first one does not appear for whatever reason), and one for the opposition so they can't complain they've been left out. Indeed, the opposition should've asked for copies of anything they needed when you submit your Disclosure by List. If you've mentioned it and they have not asked for a copy ahead of Court, then that's their problem.

 

The above is how I would tackle it but, that's just my opinion, and others may well have other and better suggestions. So, listen to all advice and pick out what makes the most sense.

 

Cheers,

BRW

Edited February 22, 2010 by summerbreeze

[GARY68]

summerbreeze

your a star,thanks very much, i will use the above by banker as preparation, just in case of sj.

[summerbreeze]

...

Edited February 22, 2010 by summerbreeze

[GARY68]

ok update on this,

recieved a court order today for a amended defence by the District Judge.

 

 

[GARY68]

Could really do with some help or good links with compling our defence and including the right things including the defaults as im not too sure of the diffrence with witness statements and amended defences,

i have made some notes of the account upto court but im in need of some advice in polishing this up,

i have all the letters leading upto the case and would really like to include the unreasonable actions in bringing the case and ignoring their cpr duties in negotiating before court action,have marked them down in exibit form so far...

 

Recap

enforcable agreement 08

token payments agreed (3months)

interest+charges kept adding up

token payments continued (3 months)

interest +charges being added

request to carry on token payment

token payments refused

again requested token payments

requested total amount or court

claim submitted by BH northampton

embarrased defence

requested cpr 31.14

no reply by scm

aq submitted

aq from scm, contains default/agreement/statement of account

requested cpr18

still no reply

court orders amended defence from us

 

Edited February 10, 2010 by GARY68
amended

[GARY68]

I know the above is a bit all over the place,i have amended bits since posting but im hoping someone will help me polish this up or build on it.

 

Is their a point I can get across for them ignoring my letters for token payments before starting court action,

specifically the cpr/protocol. which isnt the 31.4 or 18. that i could use to quote,

anyone..please

[GARY68]

this agreement is enforcable, i have no doubt, its from march 08,

 

as with the claim figure they have included,

collection fees

late payment fees

interest.

in the final claim figure, so i thought i could counter act these as they shouldnt have been included, but now having read the back of the agreement im not so sure if this will even stand up,

 

could someone please give me some input.

 

 

[GARY68]

well ive spent the day working out how they have arrived at the figure they are claiming..All day.

things didnt add up and i thought this could be a good angle on my defence.

after adding and subtracting, i have now arrived at their figure, but it wasnt easy,

 

then i have arrived at the figure.

 

amount borrowed

+all interest(even the months of token payments)

+ collection charges

= amount claimed ££££

even the default £ includes interest,

 

SO Guess im stuffed...

all I can now fix all my hopes on is the Default notice or the hope of getting a sympathetic judge in seeing through the fact they have started legal action on the dismisal of my token payment, not much of a case really is it,

 

I have tried to put some work into this but im now thinking of conceeding I dont want to but need to know what my options are?

 

I have prepared a defence but now its reliant on the default notice,

 

Any help would be much appreiciated..

[supasnooper]

Have read of this link where a defence has been compiled citing a defective Default Notice - http://www.consumeractiongroup.co.uk/forum/show-post/post-2715449.html

[GARY68]

thanks supasnooper,

i already have this included with my defence, but appreciate the look in,

i dont want to post up the defence, but could do with some advice on this and would like to pm someone, if any one could advise.

thanks

[the_shadow]

Gary,

 

Read through the thread, can I ask how token were the token payments? If they were a reasonable amount in consideration of previous payments and the balance you could request a time order from the judge in defence of this claim, the judge will decide whether the balance will still be paid off in a manageable time and consider both parties rights when deciding. This can be applied for prior to court when you receive arrears notices/default notices but also when the case is at court. Will require an N244 filling in and the relevant fee unless you qualify for remission I believe.

 

A time order will basically restructure your finance to amounts you can afford but you will still pay the debt off....

 

 

Might be worth looking into....???

 

For the defence the faulty default notice followed by a termination should entitle them to just the arrears stated on the default notice. You will need to be clear about the 14 CLEAR statutory days and the legislation that backs this up. Also you will need to read up on other threads that have duff defaults in the defence and how the claimants have attempted to counter this... learn from their cases so to speak.

 

I'm afraid its a case of judge lottery but in your case you have been attempting to pay, I would like to think any judge will take this fact and consider it in good light.

 

S.

[GARY68]

Hi thanks S as always.

 

 

I agreed to pay 1 third over a period of 6 months to which the charges/interest still incured although at 1 point they did drop the apr for a period of 3 months, after 6 months they would not agree to my payment proposal, so started proceedings.

 

I have read about time orders but im not up on this at the moment, could i still defend then ask for this if the case was found against me or is this something i would let the judge decide on, has this got to be a formal application?

would all this still give me a ccj, even if i applied for a time order.

[the_shadow]

Hi thanks S as always.

 

 

I agreed to pay 1 third over a period of 6 months to which the charges/interest still incured although at 1 point they did drop the apr for a period of 3 months, after 6 months they would not agree to my payment proposal, so started proceedings.

 

I have read about time orders but im not up on this at the moment, could i still defend then ask for this if the case was found against me or is this something i would let the judge decide on, has this got to be a formal application?

would all this still give me a ccj, even if i applied for a time order.

 

Ok you need to keep in mind a time order will only be granted if the judge thinks its Just and fair, you would like to think that a debtor willing to pay would tip the scales more in your favour.

 

Its a formal application rather than wait for judgment and then apply, if that happened you would just advise the judge you couldnt pay the judgment amount up front and require monthly repayments of if he states its all or nothing you would need to seek a variance order after the trial I believe.

 

A time order ensures you dont receive a CCJ.

 

more info here...Time orders national debtline

 

Have you looked in the legal sucesses thread for cases with bad defaults, I'm pretty sure their are some in there.

 

S.

[GARY68]

Thanks for that shadow,

interesting,

I could be in a catch 22, do I defend or apply for time order,

i think im now inclined to defend this and if all fails, hope i get a sympathetic j

I have my defence but I have pm'd for advice on this to a very experienced member, I shall see how this goes in the next few days,

thanks summerbreeze for your pm.

[caro]

Just a word about advice by PM. http://www.consumeractiongroup.co.uk/forum/legal-issues/131923-beware-advice-pm.html#post1387105

[GARY68]

Thanks Caro

know where your comming from, thanks for looking in.

we have compiled a defence and dont want to post up at present, i have tried to do it in the prescribed formats as in others but its 9 pages long it includes the defaults and ive included exhibits of letters(seperate) from me to them decribing the way we have fell behind with payments and the fact they have refused token payments, these will be attatched,but a long read,

 

im trying at the moment to narrow down some personal points of which i would like the judge to see, regarding our attempt to negotiate before proceedings began,

 

is it worth noting that since the claim was first issued and their poc were sent to court, i have heard nothing at all from scm, even though the judge has ordered us to submitt a full defence,

we still dont know what to defend since we first submitted a embarrassed defence to the court, No reply to cpr letters to me personally.

 

it is my view the judge has seen the Agreement copy/default notice's/statement of account..from the allocation questionaire they submitted, I think the judges either on their side or they have applied for standard judgement and the judge is giving us a opportunity to file a defence before he makes a decision.

 

getting a bit worried now as im back in work tommorrow and its got to be in monday, I shall keep reading.

 

if anyone has any legal defences to negotiation before court i could use or where they may help then help would be appreciated.

[GARY68]

can anyone give me some advice on if they can include late payment/collection fees and interest on the default fees in the figure they are claiming, I ask this because on the back of the agreement in post 33 it says they can, not sure if i can include to condem the default as being defective and the claim.

[caro]

Thanks Caro

know where your comming from, thanks for looking in.

 

we have compiled a defence and dont want to post up at present, i have tried to do it in the prescribed formats as in others but its 9 pages long it includes the defaults and ive included exhibits of letters(seperate) from me to them decribing the way we have fell behind with payments and the fact they have refused token payments, these will be attatched,but a long read,

 

im trying at the moment to narrow down some personal points of which i would like the judge to see, regarding our attempt to negotiate before proceedings began,

 

is it worth noting that since the claim was first issued and their poc were sent to court, i have heard nothing at all from scm, even though the judge has ordered us to submitt a full defence,

we still dont know what to defend since we first submitted a embarrassed defence to the court, No reply to cpr letters to me personally.

 

it is my view the judge has seen the Agreement copy/default notice's/statement of account..from the allocation questionaire they submitted, I think the judges either on their side or they have applied for standard judgement and the judge is giving us a opportunity to file a defence before he makes a decision.

 

getting a bit worried now as im back in work tommorrow and its got to be in monday, I shall keep reading.

 

if anyone has any legal defences to negotiation before court i could use or where they may help then help would be appreciated.

 

You don't need to include exhibits of letters etc now. Keep those for the court bundle which is usually required 2 weeks before the hearing.

 

Obviously without seeing the defence it's impossible to advise, but 9 pages seems excessive. Are you sure it's all required at this stage?

[the_shadow]

can anyone give me some advice on if they can include late payment/collection fees and interest on the default fees in the figure they are claiming, I ask this because on the back of the agreement in post 33 it says they can, not sure if i can include to condem the default as being defective and the claim.

 

Ok Gary,

 

This is no different to the penalties charged by Crapone on your other thread, at the rate of £25 they are definitely reclaimable and as you well know even the £12 OFT agreed charge should be reclaimed unless they can prove their costings ;-)

 

So if they have charged penalties and then interest on penalties and included these amounts in the default then the default is flawed as the amount claimed is incorrect. IMO you need to work out the total % of fees of the balance amount on the default notice, the higher the % the greater the case.

 

Agree 100% with Caro here... 9 pages is excessive, I dont think a judge would want to read through that much tbh.

 

S.

[GARY68]

Thanks guys for the above advice,

I agree with you about the 9 pages of defence, to be honest though, the last 4 include the imformation about the default and in particular the interpretation act, service of documents,section 87,section 88, maybe i should have left these off,

Has to be in Tommorrow:(

 

just a point /or question if you could help...the default notice was for £2,250 and i was trying to work out how this was achieved,

seems even though i had agreed token payments(£85), they were still adding interest and the contractual payments of £268. each time, therefore the default sums were adding up like this every month,typicaly:

April 17th payed £85

April17th interest+£101

May 1st payments that should have been made £268

May 17th payed £85

May 17th interest+£101

June 1st payments that should have been made £268

etc.

etc.

 

therefore i would never have been able to get our account up to date. therefore i would think this unreasonable.

[GARY68]

Absolutley gutted,

recieved a order for strike out for our defence..from the court, really need some help here caggers, I delivered our defences on time and was convinced i would get to at least a hearing but recieved this below.

 

 

 

District judge xxxxxx sitting at xxxxx considered the papers in the case and

 

UPON the 1st and 2nd Defendants having failed to serve a fully pleaded Defence upon the Claimant by 4pm on the 15th Febuary 2010 as ordered on the 1st Febuary 2010 (order drawn on the 2nd Febuary 2010

 

ordered that:

1) The defences of 1st and 2nd Defendants are struck out and the 1st and 2nd Defendants are debarred from further defending this claim.

 

2) Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside,varied or stayed.A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this order.

[the_shadow]

Absolutley gutted,

recieved a order for strike out for our defence..from the court, really need some help here caggers, I delivered our defences on time and was convinced i would get to at least a hearing but recieved this below.

 

 

 

District judge xxxxxx sitting at xxxxx considered the papers in the case and

 

UPON the 1st and 2nd Defendants having failed to serve a fully pleaded Defence upon the Claimant by 4pm on the 15th Febuary 2010 as ordered on the 1st Febuary 2010 (order drawn on the 2nd Febuary 2010

 

ordered that:

1) The defences of 1st and 2nd Defendants are struck out and the 1st and 2nd Defendants are debarred from further defending this claim.

 

2) Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside,varied or stayed.A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this order.

 

Gary,

 

this reads as if you sent the defence to the court but did not send to the claimant. Is this correct?

 

S.

[GARY68]

I rang the court up to explain that i had submitted the defences in time and was convinced the court hadn't passed on to the judge, clerk looked up my case and it turns out he had recieved my amended defence..but struck it out, so thats all i have..."hes struck it out and seek legal advice".

 

I hadnt posted up my defence but will do, so hopefully people will pick holes out of it,

 

my defence which i should have posted up was quite long and was submitted with exibits such as invalid default notices and letters of payment proposals which were declined and ended up with them taking this to court, they ignored my cpr 31.14 and cpr 18 request,

I have had no information since Black horse submitted the n1 with a "defendants have defaulted in agreement" for poc

 

The AQ contained the default,(3 days short-second class) statement of acc(with charges addded) and agreement 2008.

 

I feel ive been rolled over by a big giant and a judge who has ignored everything ive put down and either hasnt the correct consumer knowledge or is biased and thinks im a rogue debtor.

 

of course it is more than likely the defence which has let me down

 

could really do with some good advice right now:(

[GARY68]

Gary,

 

this reads as if you sent the defence to the court but did not send to the claimant. Is this correct?

 

S.

 

No Shadow

thats what I thought, I copied loads of documents and sent to scm recorded,