Can someone cast an eye over my problem please?

[citizenB]

Return of goods after termination of agreement

 

Parts 1 to 6 their details, my details, car details.

 

parts 7 to 9 amounts payable, amounts paid, unpaid balance (did you need to know these?)

 

part 10 (interestingly) A default notice was served by 2nd class post on 18th October (DN says 17th)

 

part 11 the right to demand delivery accrued on 9th November

 

part 12 Amount claimed as alternative to delivery of goods £6015.11

 

part 13 Amount claimed in addition to delivery of goods £1872.31

 

AND THE CLAIMANT CLAIMS

 

A) An order for delivery up of the goods as detailed in item 6

 

B) The arrears of instalments and half total amount payable under the Hire Purchase Agreement and balance due under Loan Agreement item 13

 

C) The costs of this action.

 

Statement of truth dated 9th November 2012.

 

So are they saying I received the DN on the 18th or that they sent it on that day?

 

Thanks

Without actually seeing a copy of the Default Notice it is a bit difficult to comment.. however, it would appear to me that they are saying they "served" the DN on the 18th October... by 2nd class post.

The actual DN is dated the 17th.

 

1: A letter sent by 2nd class or UK mail classed as not arriving (served) until 4 business days (excluding weekends and Bank Holidays) after the date of posting.

2: The DN is a statutory notice - the content is mandatory as is the requirement to allow 14 clear days to remedy the breach.

3: There should be a date 14 clear days (or more and allowing for the mailing time) mentioned in the DN by which you have to remedy the breach

4: The creditor can only ask for the absolute arrears in the DN

5: There should have been a statement that mentions an OFT sheet and it's inclusion - was there ?

 

IMHO, having admitted they sent it 2nd class post they cannot retract that.

so in this situation, having dated the DN 17th October 2012 - which was a Wednesday, then the DN is not delivered until 23 October - (this is because of Saturday and Sunday) so the remedy date should be.. 6th November.. is that correct ?

 

Their statement of truth is dated 9th November.. When did they issue the claim ?

 

I think pre action protocol should follow..

 

DN issued - not remedied

Account terminated

Final demand sent

Letter before Action sent

Claim issued

 

If you could confirm date of issue of the claim - we can sort out the timeline.

[kittiej]

The claim was dated 14th nov and there was no letter before action or demand for payment.

The dn says to pay arrears before 6th nov and not by the 6 th if that Makes a difference - I don't know

 

Thanks citizen b

[citizenB]

The claim was dated 14th nov and there was no letter before action or demand for payment.

The dn says to pay arrears before 6th nov and not by the 6 th if that Makes a difference - I don't know

 

Thanks citizen b

 

Ok..

 

Issue date - 14/11 + 5 for service = 19/11 + 14 to acknowledge = 03/12 + 14 to submit defence = 17/12. So you have a few days in hand to sort out a defence. (33 days from date of issue) However, you MUST acknowledge service by 3rd December at the latest.

 

Argued properly, the way the DN has been worded could be used as part of a defence.. but TBH, if that is all you have.. then you are on a hiding to nothing. I think you could definitely argue that they havent followed pre action protocol. I will find the link for you in a minute. But not sure of the value of that on its own is either. I will send out an S.O.S for you for guys who have a lot more legal experience/knowledge that I do.

[citizenB]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

 

You need to scroll down to Section 7.

 

7. Exchanging Information before starting proceedings

7.1

Before starting proceedings –

 

I am a little surprised that they were so quick off the mark for the issuing of proceedings after the remedy date on the Default Notice. Especially when they didnt make any further attempt by way of the Final/Formal demand and the LBA.

Anyway, I will try and find some more experienced advisors for you.

[kittiej]

I didn't get an acknowledgement of service and the court date is 12th dec. I just had a claim form, I don't know if this is because it is a vehicle repossession.

 

Thanks

Edited November 27, 2012 by kittiej

[kittiej]

Can somebody tell me if I can refer to the content of the witness statement they've sent me as well as poc please?

 

I have a problem with the witness statement which probably isn't a big issue in the grand scheme of things but will make BH look a bit simple lol.

[citizenB]

I didn't get an acknowledgement of service and the court date is 12th dec. I just had a claim form, I don't know if this is because it is a vehicle repossession.

 

Thanks

 

kittie, when you receive the claim form, it is you that needs to acknowledge service.. online, using the password that you were given. It works out that you need to acknowledge 19 days from the date of issue on the claim form.. at the very latest. Did you do that ?

 

 

 

Can somebody tell me if I can refer to the content of the witness statement they've sent me as well as poc please?

 

I have a problem with the witness statement which probably isn't a big issue in the grand scheme of things but will make BH look a bit simple lol.

 

Yes, if you have received a Witness statement along with the PoC, then you should go through each of the points and where possible respond or rebut their claims.

 

Does that help ?

[Gaston Grimsdyke]

There is no acknowledgement of service form because it's not a money claim, it's a claim for delivery. They can't get default judgment.

[kittiej]

Hi guys

 

Sorry I've been busy with claim forms and witness statements. I've sent everything off to the court now and a copy of my witness statement to BH as well.

 

They are trying to tell me that the first loan wasn't rolled over into the 2nd but I've got the internal sheet from the dealers showing that this did happen. Their solicitors are being quite smug about it all, I wonder how they will react once we get to court lol.

 

I did pick up on the point in their witness statement so put that in my defence, their 'Claimant' turned into 'Claimants' further down in their ws and as legal professionals they **ought** to know what they are doing!

 

thanks.