Help with Court Defence needed

[mhenry9885]

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

[citizenB]

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

[mhenry9885]

Thank you:-)

 

I did acknowledgement of service today which gave me 14 extra days. I need to submit by 18th Feb

[citizenB]

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

 

[the_shadow]

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

 

S.

[mhenry9885]

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 January 28, 2012 by mhenry9885

[The Mould]

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

[dx100uk]

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

[mhenry9885]

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.

[mhenry9885]

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

[freakyleaky]

2 threads merged.

[mhenry9885]

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.

[maroondevo52]

Thread moved to Legal Issues Forum.