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    • Manxman, I have highlighted the relevant bits in bold. The proportion of the services can only be charged if the express consent was given in a durable medium.   (1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions— (a)regulation 34(3) (where enhanced delivery chosen by consumer); (b)regulation 34(9) (where value of goods diminished by consumer handling); (c)regulation 35(5) (where goods returned by consumer); (d)regulation 36(4) (where consumer requests early supply of service). (2) The cancellation period begins when the contract is entered into and ends in accordance with regulation 30 or 31.   Cancellation period extended for breach of information requirement 31.—(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2. (2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information. (3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended under regulation 30.   Supply of service in cancellation period 36.—(1) The trader must not begin the supply of a service before the end of the cancellation period provided for in regulation 30(1) unless the consumer— (a)has made an express request, and (b)in the case of an off-premises contract, has made the request on a durable medium.     (4) Where the service is supplied in response to a request in accordance with paragraph (1), the consumer must (subject to paragraph (6)) pay to the trader an amount— (a)for the supply of the service for the period for which it is supplied, ending with the time when the trader is informed of the consumer's decision to cancel the contract, in accordance with regulation 32(2), and (b)which is in proportion to what has been supplied, in comparison with the full coverage of the contract.     (6) The consumer bears no cost for supply of the service, in full or in part, in the cancellation period, if— (a)the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, or the information on payment of that cost required by paragraph (n) of that Schedule, in accordance with Part 2, or (b)the service is not supplied in response to a request in accordance with paragraph (1).
    • Hi all   I will dive straight into my scenario.    I have a personal Barclaycard credit card that I defaulted on in first half of 2015.  This debt has been bought out by Hoist in 2019.  I have not made payments since the first half of 2015 to the account. I am pretty sure I have not acknowledged the debt to the DCA that occasionally contacted me since then The six year anniversary of the default will arrive in the first half of 2021. I recently received a 'Letter of Claim' from Howard Cohen Solicitors informing me of Hoists intention to issues proceedings in the County Court for the outstanding amount. The letter states I have 30 days in which to reply.  The letter states that it is written in accordance with the Pre-action Protocol for Debt claims. They have provided a brief summary of the outstanding debt but not the original signed agreement.  My feeling is that the pressure is being ramped up because of the upcoming six year anniversary of the default.   I am not sure whether I should; A). Ignore the letter (if so what are the consequences). B). Stall for a little more time until the six year anniversary of the default arrives, and whether engaging with them too has its own set of consequences. C). Pay too much attention to the six year anniversary of the default  - as I am not sure if a debt becomes automatically statute barred after six years in which I have not acknowledged that debt.    Like many, I have been hit by Covid economically.  I have not worked most of this year.  I am operating at substantial loss with funds fast drying up. The work position doesn't seem to be changing any time soon. I am not claiming benefits or anything.   Any suggestions for plan of action would be gratefully received.   Thank you   Arthur M.                        
    • Hi Manxman, Yes, the contract was signed on-line and I'm relying on s31 of CCR.  I think what you are alluding to is the fact that if the contract started within the first 14days and if it was commenced with the expressed consent of the consumer (on a durable medium such as letter or email not phone call or webforms), then the consumer has to be pay for the portion of the services that was provided. Also, if the service has already been completed (which is not the case here as the service will be completed after 12months from the commencement of the tenancy which never commenced) then, full service fee is payable. In this case, no express consent was given - I have checked all my emails to them so they cannot charge for the portion of the services either i.e. arranging some viewings and finding a prospective tenant. In fact, I offered to pay for the reference check costs but they want it all. There was an implementing guidance on CCR2013 which categorically says that the regulation applies to letting agent's services - I have attached it here. At the end of the day, regulations are regulations and if anything, consumer is recognized as the weaker bargaining party as the contract was created by the business. Please google Robertson vs Swift - case prior to CCR 2013 came in where the supreme court ruled in favour of the consumer and went above and beyond what the regulation said at the time (although it derived some criticism).  bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance (1).pdf
    • No I didn't, in 2018 my laptop was unable to download open office.   I have attached the ci sheet from 2017, with all the charges listed up to then.   StatIntSheet v101 Charges V2.xls
    • According to MCOL,the claim was registered as issued on 23 November so that makes it 12 December by my reckoning-I wasn't sure if you counted the 14 days from the 5th day or the day after so I went for the latest possible date.
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Help with Court Defence needed


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Hi all,

 

Looking for a bit of advise with my court defence if anybody has time.

 

Last year (feb) I lost my job and countn't afford the full repayments on my car (Fixed Sum Loan with Bill of Sale as security), The lender immediately refused a temporary reduced payment plan and did not offer any help or advise. Several days later they took the vehicle and demanded full and immediate payment of the outstanding balance without issuing a default notice.

 

After a year of disputes they are now taking me to court.

 

The finance company by the way are a small desk in a small independant used car dealership, both companies are owned by the same man. They only 'lend' to that dealer too.

 

My defence is based on the fact that they did not issue a default notice and have failed to provide one over the past year despite being asked several times.

 

I am also looking at another line of defence which is the part I need some help with.

 

The terms and conditions say "We will pay, on your behalf, to the named supplied the Amount of Credit shown over the page" I know for a fact that they did not pay any money to their 'sister company' and they will not be able to provide any evidence that they did.

 

Is this something I can add on to my defence? That fact that they did not actually lend any money.

 

If only they had been a bit more understanding, I was back in work within 2 months so all of this could have been avoided and I wouldn't have had all the bad info added to my credit report by them!

 

Thank you :-)

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Will try and find some help for you. When do you need to submit your defence by ?

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Excellent, I have alerted site team, but will also send out a few S.O.S. messages as well.

 

:)

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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Hi, some more information for peeps to see would help, could you possible give us the particulars of the claim as they appear on the claim form, leaving out anything identifiable of course :)

 

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Hi,

 

Particulars of Claim word for word are:

 

"Fixed Sum Loan Agreement for Motor Vehicle secured against a Bill of Sale. Vehicle Voluntary Surrendered to us by customer 14.2.11. Vehicle sold and proceeds credited to Account leaving outstanding balance as above. Customer refusing to pay"

 

Amount is £3985,78

 

I'm thinking that the particulars of claim are actually insufficient.

 

They actually repossessed the vehicle, I have the repossession notice and the CCTV footage. They changed their story to voluntary surrender when I disputed the legality of the repossession. They have even created a fake voluntary surrender form. Shame the signature is totally different to mine!

Edited by mhenry9885
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Hi,

 

Particulars of Claim word for word are:

 

"Fixed Sum Loan Agreement for Motor Vehicle secured against a Bill of Sale. Vehicle Voluntary Surrendered to us by customer 14.2.11. Vehicle sold and proceeds credited to Account leaving outstanding balance as above. Customer refusing to pay"

 

Amount is £3985,78

 

I'm thinking that the particulars of claim are actually insufficient.

 

They actually repossessed the vehicle, I have the repossession notice and the CCTV footage. They changed their story to voluntary surrender when I disputed the legality of the repossession. They have even created a fake voluntary surrender form. Shame the signature is totally different to mine!

 

Did the creditor register the Bill of Sale? If not, then it is not valid.

 

False statements into Court constitutes the offence of contempt of Court.

 

Vehicle parked on private land (your driveway for example), then Court order required to re-possess - s.92 CCA 1974 (as amended), however, pursuant to s.87 CCA 1974 (as amended) a valid statutory default notice must be served upon you before the creditor can become entitled to terminate, demand full payment, re-possess goods, enforce contract.

 

Kind regards

 

The Mould

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also dont forget the bill of sale could well be invalid if witnessed by another employee of the same co.

and not some totally independent to the co.

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Hi,

 

I looked into the Bill of Sale route, they have been very clever with it.

 

The Bill of Sale was registered in time and has all the required wording etc.

 

It was witnessed by the business manager at the dealer, even though they are the same company as the finance company.

 

I'm going through their claim with a fine tooth comb and doing lots of googling, the statement of truth has been signed by the company name and not a real person

 

The money claim online guidance states:

 

A statement of truth normally has to be signed by the person providing the information on the document. To sign a statement of truth on MCOL, you need to type your name and, where appropriate, your position or office if signing on behalf of a company or firm. Electronic signatures are acceptable under paragraph 10 of Practice Direction 7E of the Civil Procedure Rules.

By completing a statement of truth, whether online or on paper, you are certifying that the information provided is true. A person who completes a statement of truth without an honest belief in the truth of the information given is liable to proceedings for contempt of court – see Civil Procedure Rule 32.14

 

I guess I can add this to my defence, I'm hoping to go down the insufficient particulars of claim and lack of pre action protocol route and have it struck out.

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  • 5 months later...

Hi All,

I have just lost my court case and am looking to have the judgement set aside.

 

I had a fixed sum loan agreement for a car and a bill of sale was used as security on that agreement.

I missed one payment due to being made redundant.

 

The finance company quickly issued a default notice and terminated the agreement 10 days after the default notice date (not the statutory 14 days after service date)

 

On the date of the expiry they came and repossessed my car,

they made me send a letter giving consent to the repossession prior.

 

They are now claiming voluntary surrender and even produced a fake voluntary surrender form.

 

In court today they claimed that I voluntarily terminated the agreement and referred to it as a hire purchase agreement,

I pointed out to the judge that it was in fact a fixed sum loan agreement and did not come with any voluntary termination rights.

He disregarded this and said that I did in fact end the agreement by handing the car back and sending the consent letter.

 

I pointed out that the underlying agreement still existed.

The default notice stated that on the 10th day the agreement would be terminated without further notice and they would demand earlier payment and enforce the security,

I pointed out to the judge that the default notice was not valid which he took on board.

 

Am I right in saying that a FIXED SUM LOAN AGREEMENT cannot be terminated by me and can only be terminated upon the expiry of a valid default notice?

 

Any advise on what to put on the N244?

 

Thank you

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ok then. The court has sent me an appeals pack after I called them. My grounds for appeal are as follows. Can anybody tell me if I have reasonable grounds for appeal based on this.

 

1. The judgement was based upon an allegation that the defendant voluntarily terminated a fixed sum loan agreement and leaving an outstanding balance.

 

2. Throughout the hearing the claimant referred to the fixed sum loan agreement as a hire purchase agreement. I believe the judge was misled by this as the two types of agreement are very different.

 

3. A fixed sum loan agreement cannot be voluntarily terminated by the debtor. Section 99 of the Consumer Credit Act 1974 (Right to terminate hire-purchase etc. agreements.) only applies to hire purchase agreements.

 

4. Further to this under key information on the Fixed Sum Loan Agreement (enclosed) it states that ‘You have no right to cancel this agreement’, therefore the defendant could not possibly have terminated the agreement.

 

5. In addition, the ‘Voluntary Surrender Form’ that the defendant allegedly signed states ‘I understand that this action does not constitute a termination of the agreement’

 

6. For a creditor to demand earlier payment of sums not yet due, terminate an agreement and/or enforce security on a regulated fixed sum loan agreement they must under Section 87(1) of the Consumer Credit Act serve valid default notice giving the debtor a chance to remedy the breach.

 

7. Section 88(2) of the act states that the default notice must allow a minimum of 14 days to remedy the breach. The default notice was dated 12th February and gave until 22nd February. This fell short of the statutory requirements and therefore the default notice should be void.

 

8. In addition the claimant terminated the agreement based on this invalid default notice. Section 4 of the default notice states ‘We will, terminate the agreement, without further notice, on the 22nd February’. This is self-explanatory

 

9. Based on the fact that the agreement was unlawfully terminated, the claimant does not have a cause of action for these proceedings.

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Thread moved to Legal Issues Forum.

 
 

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