Court Proceedings issued Shoosmiths on behalf of Lombard

[Scania580man]

In 2007 I took out a Lease Agreement on a trailer for us in my business. In 2008 I had to cease trading due to 3 limited companies going bust and owing me money. I was unable to copy financially and the stress was affecting my health. I was a sole trader. To cut a long story short I have been paying Lombard regular weekly payments. These have had to be reduced because I have recently changed jobs but I have nevertheless been making regular weekly payments. Shoosmiths have attempted to make me pay more than I am able and has threatened me with court proceedings on numerous occasions because I will not do as they ask. They even went so far as to tell me that my weekly shopping bill was rather extravagant and I should think of cutting it! I have health problems and my diet plays a large part in keeping me healthy!

 

After a couple of years of being threatened with court proceedings I have now received them this morning. They have issued a Claim in respect of a Money Judgment for £12,505 plus costs and interest. They state they have complied with pre-action conduct and practice direction.

 

In the Particulars of Claim is completely incorrect and does not make reference to me making any payments at all. It says they made a demand for £12,505 on 27 July 2011 and I have failed to pay yet I have been making continuous payments.

 

I did not want the matter to go to court because I will have further costs and interest added on which I can barely afford.

 

I have just been diagnosed with a more serious illness and although I have not taken any time of work I have had to change my jobs again to accommodate me being able to continue in full time employment.

 

Should I make a part admission of the money and then submit a defence? I would be grateful for any assistance.

 

Thank you

[unclebulgaria67]

If they issued the court claim, I think you should acknowledge and defend. If you attend a hearing, taking into account your health/financial situation, they might end up having to accept a lower monthly payment than you are already making.

 

The fact is that their POC are not accurate and if you defend in full they may fail, as the basis of their claim is factually incorrect.

 

But wait for more knowledgeable responses, as you need to know the additional amount it may cost you if you lost at any hearing.

[Scania580man]

If they issued the court claim, I think you should acknowledge and defend. If you attend a hearing, taking into account your health/financial situation, they might end up having to accept a lower monthly payment than you are already making.

 

The fact is that their POC are not accurate and if you defend in full they may fail, as the basis of their claim is factually incorrect.

 

But wait for more knowledgeable responses, as you need to know the additional amount it may cost you if you lost at any hearing.

 

Thanks for that I will.

[unclebulgaria67]

Thanks for that I will.

 

Hopefully someone will be along shortly who can help a bit more. If the POC are wrong, then I would have thought it would be straightforward to just defend on that basis. If you are already making payments, then I would have thought that the claimant had to recognise this within their POC.

[Scania580man]

In 2007 I took out a Lease Agreement on a trailer for us in my business. In 2008 I had to cease trading due to 3 limited companies going bust and owing me money. I was unable to copy financially and the stress was affecting my health. I was a sole trader. To cut a long story short I have been paying Lombard regular weekly payments. These have had to be reduced because I have recently changed jobs but I have nevertheless been making regular weekly payments. Shoosmiths have attempted to make me pay more than I am able and has threatened me with court proceedings on numerous occasions because I will not do as they ask. They even went so far as to tell me that my weekly shopping bill was rather extravagant and I should think of cutting it! I have health problems and my diet plays a large part in keeping me healthy!

 

After a couple of years of being threatened with court proceedings I have now received them this morning. They have issued a Claim in respect of a Money Judgment for £12,505 plus costs and interest. They state they have complied with pre-action conduct and practice direction.

 

In the Particulars of Claim is completely incorrect and does not make reference to me making any payments at all. It says they made a demand for £12,505 on 27 July 2011 and I have failed to pay yet I have been making continuous payments.

 

I did not want the matter to go to court because I will have further costs and interest added on which I can barely afford.

 

I have just been diagnosed with a more serious illness and although I have not taken any time of work I have had to change my jobs again to accommodate me being able to continue in full time employment.

 

Should I make a part admission of the money and then submit a defence? I would be grateful for any assistance.

 

Thank you

 

Is there anyone who can give me any advise on this at all please?

[honeybee13]

Hello there.

 

As you may know, weekends are always quieter here. I'm sure you would like an answer soon, but you may need to bear with us until the right people can get here, I'm sorry.

 

I'm sure more help will be forthcoming soon.

 

My best, HB

[The Mould]

Hello there Mr Scannia

 

Try not to let this matter darken your days, it is easier said than done, I know, nonetheless, please don't worry.

 

Do you have the requisite documentary evidence that shows that you have been making the monthly payments (reduced or not) as agreed with the Claimant?

 

If the claimant agreed to a new reduced monthly payment against the debt, then he is estopped from claiming the full balance thereof if you have performed your obligation to pay the amount required each month - as agreed.

 

If you are continuing to meet the agreed monthly payment, then the Claimant is estopped from insisting upon his strict legal rights under the contract and he cannot, therefore, enforce the same and claim the full balance owing since to allow him to do so would be inequitable - in these circumstances described by you.

 

So as far as Defending the claim is concerned; it is not a case of denying any debt, rather it is a case of you Defending and asserting that the Claimant's action against you is groundless as he agreed to a new reduced monthly payment plan with you against the debt owed, and you have not defaulted on the same.

 

I hope that will help you somewhat.

 

Kind regards

 

The Mould

[Scania580man]

Hi The Mold

 

Shoosmiths have never actually agreed to a regular amount to be paid. Shoosmiths have always wanted me to agree to the full amount or agree to a charge being placed over the property. They have always put another condition to them agreeing to a repayment plan and when I have not agreed to what they have wanted they have always threatened me with court proceedings. I have never said that I would not pay, I have also never said that I didn't owe them money but Shoosmiths have accused me of lying about my circumstances all of which are competely true.

 

I have always made weekly payments by BACS so I have complete evidence that I have been paying.

 

Their POC are completely incorrect and have missed out information that should have been included. In the POC they have stated that they issued a letter requesting payment and I have not paid. They make no mention of me making any payments at all.

[The Mould]

Hi The Mold

 

Shoosmiths have never actually agreed to a regular amount to be paid. Shoosmiths have always wanted me to agree to the full amount or agree to a charge being placed over the property. They have always put another condition to them agreeing to a repayment plan and when I have not agreed to what they have wanted they have always threatened me with court proceedings. I have never said that I would not pay, I have also never said that I didn't owe them money but Shoosmiths have accused me of lying about my circumstances all of which are competely true.

 

I have always made weekly payments by BACS so I have complete evidence that I have been paying.

 

Their POC are completely incorrect and have missed out information that should have been included. In the POC they have stated that they issued a letter requesting payment and I have not paid. They make no mention of me making any payments at all.

 

Hello Scannia

 

Thank you for the above.

 

Simply draft the matters that you have posted here into your Defence.

 

What is the normal monthly payment due and what amount have you been paying each month and how long have you been making these reduced payments? (Questions, questions - I apologise, but, necessary)

 

Kind regards

 

The Mould

[Scania580man]

I started making payments of £20 per month. I then increased this to £20 per week after I had paid off some other outstanding debts from the business. I had to change jobs due to my health which meant that I had to reduce payments to £10 per week. I have made regular payments of £10 per week since 3 August 2012. They have made demands that they would not accept this amount unless I accepted a charge against my property, they then asked me to complete and income and expenditure and they then told me that they would suggest I paid £60 or £80 per week as in their opinion I spent too much money on groceries each week! They said unless I agreed to pay this amount of money then they would issue court proceedings. This was threatened a few times. I informed them that if that was there intention then there was nothing more I could about it as I could not summon money out of thin air but they should make the court aware that I have not denied I owe Lombard money and I have been making regular payments.

 

I did ask Shoosmiths if they were "in house" solicitors and as they appeared to able to sit themselves as to "Client's instructions" but they said they weren't. They also cocked up because the solicitor said the client was refusing my payments as it would take over 100 years to clear! Clearly her maths was not her strong point!

[Scania580man]

Also could someone explain to me what the pre-action protocol is as Shoosmiths state they have followed it in their POC. Also what's my timescale? Do I have 28 days to Defend this claim in part?

[AndyOrch]

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

 

You have 33 days in total if defending ( 5 days deemed served) so 28 (14 to Aos and a further 14 if defending)

 

Regards

 

Andy

[Scania580man]

Also could someone explain to me what the pre-action protocol is as Shoosmiths state they have followed it in their POC. Also what's my timescale? Do I have 28 days to Defend this claim in part?

 

Anyone???? Thanks

[Scania580man]

I started making payments of £20 per month. I then increased this to £20 per week after I had paid off some other outstanding debts from the business. I had to change jobs due to my health which meant that I had to reduce payments to £10 per week. I have made regular payments of £10 per week since 3 August 2012. They have made demands that they would not accept this amount unless I accepted a charge against my property, they then asked me to complete and income and expenditure and they then told me that they would suggest I paid £60 or £80 per week as in their opinion I spent too much money on groceries each week! They said unless I agreed to pay this amount of money then they would issue court proceedings. This was threatened a few times. I informed them that if that was there intention then there was nothing more I could about it as I could not summon money out of thin air but they should make the court aware that I have not denied I owe Lombard money and I have been making regular payments.

 

I did ask Shoosmiths if they were "in house" solicitors and as they appeared to able to sit themselves as to "Client's instructions" but they said they weren't. They also cocked up because the solicitor said the client was refusing my payments as it would take over 100 years to clear! Clearly her maths was not her strong point!

 

Does this help "The Mold"?

[AndyOrch]

Anyone???? Thanks

 

 

See above Post# 12

[Scania580man]

Does anyone know if this is Shoosmith's usual practice?

[The Mould]

Does anyone know if this is Shoosmith's usual practice?

 

Scania

 

Try and concentrate on drafting your Defence based upon the matters you have posted here. Post up the draft of your Defence for us to take a look at for you and, where or if applicable, I am certain that myself and others will post advice, suggestions etc. etc. to help you finalize your Defence for filing to the Court.

 

Andy posted a link for you at #12 with regards to Practice Direction - Pre- Action Conduct, have a read of that. The Court will expect the parties to a civil action to comply with the stated Practice Direction where no rellevant Pre-Action Protocol applies.

 

I hope the foregoing is helpful for you.

 

Kind regards

 

The Mould

[Scania580man]

The POC are as follows:-

 

1. The claimant is a finance company whose business incluedes the provision of credit by way of lease agreements to customers. The Defendant was one such customer.

 

2. On 23 February 2007 the claimant entered into a lease agreement with the defendant

3. under the terms of the agreement..........ownership of the goods was to remain with the claimant at all times

4. the claimant will refer to the agreement at the trail of this matter for its full terms and effect

5. the defendant failed to pay the rentals due. the claimant therefore terminated the agreement on 9 May 2008.

6. Following termination of the agreement the defendant is liable to the claimant for the sum of £12505 in accordance with the t&c's of the agreement

7.By letters dated 27 July 2011 the Claimant made demand upon the defendant for payment of the sum of £12505. The Defendant has failed to make payment of the said sum.

8. Pursuant to S69 of the county courts act interest is payable at 8%........

 

The Claimant claims

£12505 plus interest of £4659.40 and continuing......

 

 

I have drafted a Defence as follows and would be grateful for any input. I am unsure as to whether to include details of my ill health and also the hundreds of telephone calls and letters which show I have tried to resolve this matter.

 

 

 

DEFENCE

 

 

 

 

1. On 23 February 2007 the Defendant entered into a Lease Agreement (“the Agreement”)with the Claimant in relation to a Dennison Tri-Axle Air Suspension Cat 1 Dropframe Machinery Carrier (“the Goods”).

 

 

 

2. The Defendant experienced financial difficulties at the end of 2007 due to unpaid invoices by customers. The Defendant wrote to the Claimant on 3 February 2008 stating that financial difficulties were being experienced and had to cancel the direct debit to avoid bank charges but requested that the Claimant supply the Defendant with bank details so the Defendant could make payments by BACS.

 

 

 

3. The Defendant made arrangements for the Trailer to be sold back to Dennison Trailers for £23,500. The total outstanding amount was £33,145.00 which left an outstanding balance of £9645. The Defendant disputes the amount outstanding.

 

 

 

4. The Defendant has attempted on numerous occasions to agree a final figure with the Claimant but has been unsuccessful. The Claimant issued a Notice of Termination on 9 May 2008 which stated the outstanding amount to be £33,145. On 22 January 2009 the Claimant wrote to the Defendant stating the outstanding amount to be£9585.00. On 29 January 2009 the Defendant requested the Claimant’s bank details so payments of £20 per month could commence. On 22 July 2011 the Claimant’s solicitors formally demanded£13,025. They further demanded the amount of £13,025 on 19 June 2012. The Defendant has endeavoured to agree an outstanding amount with the Claimant and the Claimant’s solicitors but whenever this issue is raised the Claimant’s solicitors threaten issuing court proceedings.

 

 

 

5. The Defendant has never denied that there is an outstanding amount due to the Claimant but has found it impossible to agree an outstanding balance. At times the Claimant and the Claimant’s solicitors have refused to communicate with the Defendant which resulted in the Defendant ceasing to make payments with a view to encouraging the Claimant to open communication with the Defendant.

 

 

 

6. The Defendant has kept the Claimant and/or its solicitors informed of the Defendant’s financial position since February 2008.

 

 

 

7. The Defendant was contacted by the Claimant in 2011 and the Claimant admitted to the Defendant that the Claimant had no interest in resolving any outstanding issues their interest laid solely in recovering the debt and ensuring the debt would not be statute barred.

 

 

 

8. The Defendant made all the arrangements to secure a sale of the trailer. Despite the Defendant keeping the Claimant informed at all times of the the Defendant’s financial situation and the efforts being made to secure a sale of the trailer the Claimant made no effort to assist matters. In fact, they delayed the sale of the trailer by failing to supply a written settlement figure to the purchaser, Dennison Trailers. Initially, they refused to allow the sale of the trailer to go ahead as in the Claimant’s opinion the sale price was too low. The Claimant’s solicitor later claimed that had the Claimant taken charge of the sale of the trailer the outstanding amount would have been greater as the sale proceeds would have been far less.

 

 

 

9. On 25 June 2008 the Defendant wrote to the Claimant requesting details of the outstanding balance due under the agreement as the sale of the trailer had been completed at the end of May 2008 as this had not yet been received.

 

 

 

10. The Defendant was a sole trader and no longer trades as ********** and has not done so since April 2008.

 

 

 

11. On 26 July 2011 the Claimant’s solicitors wrote in response to an offer of payment of £10 per month. The Claimant’s solicitors stated that this offer could not be considered without completion of an Income and Expenditure Form.

 

 

 

12. The Defendant contacted the Claimant’s solicitor on 28 August 2012 to inform them of a change in employment and that the payment of £20 per week would have to be reduced to £10 due to a reduction in wages.

 

 

 

13. On 4 September 2012 the Claimant advised that a payment of £10 per week was unacceptable unless the Defendant agreed to a charge over the Defendant’s property. If the Defendant did not agree then court proceedings would be issued.

 

 

 

14. An e-mail from the Claimant’s solicitors dated 4 December 2012 stated that the outstanding amount was £12,595 as at 12 October 2012.

 

 

 

15. Payments made by the Defendant are as follows:-

 

30.05.08 50.00

 

 

 

02.02.09 20.00

 

27.03.09 20.00

 

 

 

13.09.11 20.00

 

23.09.11 20.00

 

28.10.11 20.00

 

05.12.11 20.00

 

 

 

03.01.12 20.00

 

03.02.12 20.00

 

03.04.12 20.00

 

05.05.12 20.00

 

30.06.12 20.00

 

25.06.12 20.00

 

20.06.12 20.00

 

27.07.12 20.00

 

20.07.12 20.00

 

16.07.12 20.00

 

06.07.12 20.00

 

03.08.12 10.00

 

10.08.12 10.00

 

17.08.12 10.00

 

27.08.12 10.00

 

31.08.12 10.00

 

07.09.12 10.00

 

15.09.12 10.00

 

24.09.12 10.00

 

01.10.12 10.00

 

09.10.12 10.00

 

12.10.12 10.00

 

22.10.12 10.00

 

25.10.12 10.00

 

05.11.12 10.00

 

16.11.12 10.00

 

22.11.12 10.00

 

07.12.12 10.00

 

18.12.12 10.00

 

21.12.12 10.00

 

28.12.12 10.00

 

07.01.13 10.00

 

12.01.13 10.00

 

19.01.13 10.00

[Scania580man]

Hi people

 

I am in the process of draft my Defence and have put my first draft up although I have now added to it. I am just going back through my correspondence with Shoosmiths and they sent me an e-mail in July which was headed "without prejudice save as to costs". This e-mail states that they consider my grocery bill and mobile bill to be too high and because it shows that I have £40 a week left over they have asked for £60 per week and a charge over the property. They have also mentioned that this is not unreasonable as the original rental was £822 including VAT. Shoosmiths have not taken into consideration that I no longer have a business and the trailer was part of the business and assisted in making the money to pay the monthly rentals.

 

Can I submit this in my Defence or am I barred from doing so because it is without prejudice?

[The Mould]

Hi people

 

I am in the process of draft my Defence and have put my first draft up although I have now added to it. I am just going back through my correspondence with Shoosmiths and they sent me an e-mail in July which was headed "without prejudice save as to costs". This e-mail states that they consider my grocery bill and mobile bill to be too high and because it shows that I have £40 a week left over they have asked for £60 per week and a charge over the property. They have also mentioned that this is not unreasonable as the original rental was £822 including VAT. Shoosmiths have not taken into consideration that I no longer have a business and the trailer was part of the business and assisted in making the money to pay the monthly rentals.

 

Can I submit this in my Defence or am I barred from doing so because it is without prejudice?

 

Hello Scania

 

Thank you for posting your draft Defence.

 

With regards to your ill-health and the effort that you have made in corresponding with the Claimant on the same, I would suggest that you set these facts out in your Defence.

 

With regards to the "without prejudice save as to costs" e-mail, you cannot submit the same to the Court at the present, refer to it later on at the trial on the question of costs.

 

As you may be aware, you do not have a Defence against this claim per se, but you can set out the facts which may help the Court make it's decision on the question of costs, conduct of the litigation is a factor.

 

Kind regards

 

The Mould

[Scania580man]

Thanks The Mould. I will make adjustments and repost.

[Scania580man]

This is a revised Defence, if you could take a look I would be extremely grateful?:-

 

1. TheDefendant was a customer of the Claimant.

2. On23 February 2007 the Defendant entered into a Lease Agreement (“the Agreement”)with the Claimant in relation to a Dennison Tri-Axle Air Suspension Cat 1Dropframe Machinery Carrier (“the Goods”).

3. Underthe terms of the Agreement the Defendant was to pay an initial rent of £3450plus VAT followed by 59 monthly rentals each of £700 plus VAT and then 12annual rentals of £700 plus VAT. Alsounder the Terms of the Agreement the Defendant agreed to pay an administrationfee of £250 plus VAT. Ownership of theGoods was to remain with the Claimant at all times.

4. TheDefendant paid all monthly rentals until experiencing financial difficulty inFebruary 2008. The rental due on 23February 2008 was paid on 13 March 2008. The Defendant wrote to the Claimant on 3 February 2008 stating thatfinancial difficulties were being experienced and had to cancel the directdebit as the Defendant was aware that, due to cash flow problems, there wouldnot be enough funds to cover the February payment. The Defendant thought it prudent to attemptto avoid bank charges. The Defendantalso requested that the Claimant supply the Defendant with bank details so theDefendant could make payments by BACS when funds would be available.

5. TheDefendant ceased trading on 8 April 2008. The Defendant telephoned the Claimant on 8 April 2008 to inform theClaimant of the Defendant’s position and to ask for advice with regard to theGoods.

6. Followingtermination of the Agreement the Claimant states that the Defendant is liableto the Claimant for the sum of £12,505 in accordance with the Terms andConditions of the Agreement. The totaloutstanding amount of the Agreement was £33,145. The sum of £23,500 was used to reduce thisoutstanding amount after the Defendant made arrangements to sell theGoods. This left an outstanding amountof £9645.00. As at 19 January 2013 theDefendant calculates that £9005.00 is outstanding.

7. TheClaimant has failed to mention that the Defendant has been making regularpayments to the Claimant. The payments thathave been made since the Defendant ceased trading and/or the Agreement wasterminated are as follows:-

27.05.08 50.00

02.02.09 20.00

27.02.09 20.00

27.03.09 20.00

13.09.11 20.00

23.09.11 20.00

28.10.11 20.00

05.12.11 20.00

03.01.12 20.00

03.02.12 20.00

03.04.12 20.00

05.05.12 20.00

30.06.12 20.00

25.06.12 20.00

20.06.12 20.00

27.07.12 20.00

20.07.12 20.00

16.07.12 20.00

06.07.12 20.00

03.08.12 10.00

10.08.12 10.00

17.08.12 10.00

27.08.12 10.00

31.08.12 10.00

07.09.12 10.00

15.09.12 10.00

24.09.12 10.00

01.10.12 10.00

09.10.12 10.00

12.10.12 10.00

22.10.12 10.00

25.10.12 10.00

05.11.12 10.00

16.11.12 10.00

22.11.12 10.00

07.12.12 10.00

18.12.12 10.00

21.12.12 10.00

28.12.12 10.00

07.01.13 10.00

12.01.13 10.00

19.01.13 10.00

8. TheDefendant is not in receipt of a letter dated 27 July 2011 sent by the Claimantmaking a formal demand for payment of the sum of £12,505.00.

9. TheDefendant is aware that the Claimant is within its rights to claim interest onthe outstanding amount but has tirelessly endeavoured to avoid court action andbring a resolution to this matter with the Claimant and the Claimant’ssolicitors without success. The additionof the interest onto the debt will only increase the financial burden on theDefendant when the Defendant is already making efforts to repay the debt.

10. Afterthe Defendant ceased trading on 8 April 2008. The Defendant made every effort to secure a Purchaser for the Goodsdespite a complete lack of assistance from the Claimant. In fact the Claimant attempted to sabotagethe sale of the Goods by failing to provide a settlement figure. The Claimant also originally refused to allowthe sale to proceed as they considered the sale price to be too low despite thetrailer being sold back to the actual manufacturers of the trailer, DennisonTrailers Ltd.

11. Afterthe Defendant ceased trading and/or the Agreement was terminated the Defendantmade numerous efforts to communicate with the Claimant The Claimant failed to respond to any lettersor contact the Defendant. The issueswhich required resolution with the Claimant and the Defendant were with regard to the settlement figure(which was required by any prospective purchaser). The Defendant also required outstanding VATdocumentation which the Claimant had informed the Defendant that “it was in thepost”, “there was a delay due to numerous repossessions” and otherexcuses. The Defendant also requiredconfirmation of the outstanding amount and to agree a repayment plan with theClaimant:-

08.04.08 Telephone call to Claimant

09.04.08 Telephone call to Claimant

12.04.08 Letter to Claimant

16.04.08 Letter to Claimant

22.04.08 Letter to Claimant

24.04.08 Letter received from Claimant

26.04.08 Letter sent to Claimant

02.05.08 Telephone call to Claimant

09.05.08 Notice of Termination sent to Defendantby the Claimant

27.05.08 Settlement figure received from theClaimant

27.05.08 Letter to Dennisons Trailers Ltd(Purchaser of the Goods)

29.05.08 Telephone call to Claimant

25.06.08 Letter to Claimant

27.06.08 Telephone call to Claimant

30.06.08 Telephone call to Claimant

01.07.08 Telephone call to Claimant

03.07.08 Telephone call to Claimant

06.07.08 Letter to Claimant

11.07.08 Letter to Claimant

17.07.08 Letter to Claimant

25.07.08 Telephone call to Claimant

25.07.08 Letter to Claimant

25.07.08 E-mail to Claimant

28.07.08 Letter from Claimant

08.08.08 Letter to Claimant

12.08.08 Letter to Claimant

16.08.08 Letter to Claimant

20.08.08 Letter from Claimant

26.08.08 Letter to Claimant

26.08.08 E-mail to Claimant

01.09.08 Letter from Claimant

01.09.08 E-mail to Claimant

02.09.08 Letter from Claimant

02.09.08 E-mail to Claimant

09.09.08 E-mail from Claimant

09.09.08 E-mail to Claimant

12.09.08 E-mail to Claimant

15.09.08 E-mail to claimant

15.09.08 E-mail to Claimant

17.09.08 E-mail from Dennison Trailersconfirming the delay caused by the Claimant

20.09.08 Letter to Claimant

28.10.08 Letter to Claimant

17.11.08 Letter to Claimant

05.12.08 Letter to Claimant

06.12.08 Letter to Claimant

07.12.08 Letter to Claimant

22.01.09 Letter to Claimant

29.01.09 Letter to Claimant

07.11.09 Letter to Claimant – made offer ofpayment

18.11.09 Received letter from Claimant

25.05.11 Letter to Claimant

26.05.11 Letter to Claimant

28.07.11 Letter to Claimant

12. TheDefendant can clearly show that he has made numerous efforts to attempt toresolve any outstanding matters but without the co-operation of the Claimantwas unable to do so.

13. TheDefendant ceased making payments to the Claimant in the hope that the Claimantwould make contact with the Defendant with a view to resolving the outstandingmatters and agreeing a re-payment plan but this was not so.

14. TheClaimant sent the matter to a Debt Collection Agency whilst the matter was indispute. The Defendant informed the DebtCollection Agency of this and the matter was referred back to theClaimant. The Claimant later explainedthat they had expected the matter to have been sorted and prematurely sent thematter to the Debt Collection Agency without checking matters.

15. TheDefendant has been extremely confused by the amount outstanding and for manymonths after Termination of the Agreement and Sale of the Goods the Claimantrefused to communicate with the Defendant in any form.

16. TheClaimant issued a Notice of Termination on 9 May 2008 which stated theoutstanding amount was £33,145. On 22January 2009 the Claimant wrote to the Defendant stating the outstanding amountto be £9585.00. On 22 July 2011 the Claimant’s solicitors formally demanded£13,025. They further demanded theamount of £13,025 on 19 June 2012. An e-mail from the Claimant dated 4 December2012 stated that the outstanding amount was £12,595 as at 12 October 2012. TheDefendant has endeavoured to agree an outstanding amount with the Claimant andthe Claimant’s solicitors but whenever this issue is raised the Claimant’ssolicitors threaten issuing court proceedings.

17. TheClaimant made an offer of a reduced outstanding balance to the Defendant’s wifeby telephone due to the delays and mis-management of the matter from theoutset. The matter was left that theClaimant would telephone the Defendant directly to agree the outstanding amountand a repayment plan. The Claimant nevertelephoned but passed the matter directly onto Solicitors.

18. TheClaimant instructed Solicitors and communication commenced between the Claimantand the Defendant as from 26 July 2011.

19. TheClaimant acknowledged that the Defendant had made an offer of repayment of £10per month. The Claimant’s solicitorsadvised that for this offer to be considered the Defendant had to complete anIncome and Expenditure Form. This letterfrom the Claimant also referred to a telephone call the Claimant made to the Defendantand the Claimant alleged that a “male” answered and hung up but a voicemailmessage was left. The Defendant does notrecall a voice mail message and the only male at the Defendant’s property wouldhave been the Defendant’s son who would have been 14 years old at the time. The Claimant’s Solicitors also allege thatthe Defendant was not working outside of the UK. It should be noted that the Defendant wasemployed as an HGV Driver working in Europe leaving the UK on a Sunday eveningand returning on Friday afternoon.

20. On22 July 2011 the Claimant’s Solicitors requested payment of £13,025.00 and theDefendant’s realistic proposals for repayment.

21. Onthe 18 August 2011 the Claimant’s solicitors threatened the Defendant withCourt proceedings.

22. Ina letter dated 22 August 2011 from the Claimant’s Solicitors the Claimantrequests a response by 22 July 2001 or court proceedings will be instituted.

23. On22 August 2011 the Defendant informed the Claimant’s Solicitors that he wasunable to respond as the Defendant was currently working in Invergordon inScotland and communication was extremely difficult. The Defendant explained he would endeavour todeal with matter as soon as he possibly could. The Claimant’s Solicitor was happy with this.

24. On29 August 2011 the Defendant made an offer of £20 per month to be reviewed inJanuary 2012 when the Defendant expected to able to increase his offer to £80per month.

25. On30 August 2011 the Claimant’s Solicitors again threatened court proceedings butstated that these would be delayed given the fact that the Defendant had madean offer to settle in principle. TheDefendant was asked to advise of the amount the debt was in dispute by and tocomplete a financial statement.

26. On13 September 2011 the Defendant again requested confirmation of the Claimant’sbank details and sent a payment of £20 to bank details already held by theDefendant in the hope that they were correct and stated that further paymentsof £20 would be sent on a monthly basis.

27. On18 September 2011 the Defendant’s wife responded to the Claimant’s Solicitorsunder the instructions of the Defendant. In this communication the Defendant was keen to get over to the Claimant’ssolicitor that he should not be responsible for the amount that the Claimantwas requesting and the Defendant felt he was being “bullied” into accepting theamount the Claimant was stating was due.

28. On22 September 2011 the Claimant’s solicitor stated that if proposals forrepayment were not received within 7 days court proceedings would beinstigated. This was received despite theDefendant already making payments. TheDefendant’s wife responded as the Defendant was working away in Invergordon andstated that the Defendant required additional time due to working away butwould continue to make payments.

29. TheClaimant’s Solicitors wrote on 23 September 2011 to state that unless proposalswere made by the Defendant for what they considered to be the full outstandingamount then court proceedings would be instigated. The Claimant’s solicitors requested aresponse by 29 September 2011.

30. TheDefendant’s wife responded to the Claimant’s solicitors on 29 September 2011stating that the Defendant would not be home until the 6 October 2011 andrequested that the Claimant’s Solicitors allow the Defendant time to deal withthe matter when he returned home.

31. On19 October 2011 the Claimant’s solicitors sent an e-mail to the Defendant. The Defendant’s wife had been instructed toread all e-mails. The Defendant’s wiferequested that the Claimant’s solicitors relay the contents of the letter inlayman’s terms so that the explanation regarding the VAT element which theDefendant was disputing so the Defendant’s wife could relay an understanding ofwhat was being said to the Defendant. The Claimant’s solicitors said they were unable to assist any further.

32. Againthere was a gap in communication between the Defendant, the Claimant and theClaimant’s solicitors. The Defendant wasstill endeavouring to make contact with the Claimant but without success. In an attempt to force the Claimant to resumecommunication the Defendant ceased to make payments but this did not encouragethe Claimant to communicate.

33. On20 June 2012 the Defendant requested that the Claimant agree to the outstandingamount of £9585.00 which was the figure sent to the Defendant by the Claimanton 22 January 2009. The Defendant alsopointed out that it was ludicrious that negotiation only appear to commencewhen the Defendant ceases to make payments so outstanding matters are neverresolved. Further communications weresent on 20 June 2012 whereby the Defendant requested that the figure of £9585less any payments made after January 2009 be agreed and then the matter can beconcluded with an agreed payment plan. The Claimant’s solicitor advised that the original proceeds of sale werewrongly credited to the account and were corrected at a later date andtherefore the outstanding amount was not £9585.

34. TheDefendant requested that the Claimant’s solicitors take instructions on ashortfall settlement proposal of £5,000 with payments of £20 per week beingmade. The Claimant’s solicitor advisedthat he would put the offer forward but doubted that it would be accepted. The Defendant was somewhat surprised that theClaimant’s solicitor was making such predictions without even submitting theoffer to their Client.

35. On26 June 2012 the Claimant’s solicitor advised that the Defendant’s offer wasrejected. It was also advised that therewas no counter offer forthcoming and court proceedings would now beinstigated. The Defendant advised thathe would continue to make payments. TheDefendant also suggested that if an Income and Expenditure Form would avoidcourt proceedings then the Defendant would be prepared to submit one. The Defendant further requested that theamount outstanding be reduced by 17.5% (being the VAT element), an Income andExpenditure Form be submitted, payments of £20 per week will continue and therebe 6 monthly reviews of the repayment plan. The claimant’s solicitor requested that the Income and Expenditure Formbe returned so the Claimant could consider the offer.

36. On1 July 2012 the Defendant submitted an Income and Expenditure Form to theClaimant’s Solicitors.

37. Aftersubmitting the Income and Expenditure Form the Claimant’s Solicitors questioneda number of the Defendant’s expenses. The main expense being the Defendant’s grocery bill and the Defendant’smobile phone bill. It was pointed out tothe Claimant’s solicitors that the Defendant’s grocery bill was higher thanwhat would be considered “normal” due to the Defendant and his son sufferingfrom Coeliac Disease. This is anauto-immune disease which prevents the sufferer from absorbing nutrients. Thesufferer is unable to eat wheat or gluten and many of the special dietary foodscost a great deal more than normal foods. In addition, if the sufferer does not maintain a healthy diet they areat risk from complications to their health. Complications can arise even when a good diet is maintained. Currently the Defendant suffers from a FolateDeficiency and the Defendant’s son currently has an Iron and a Phosphate deficiency.

38. On28 August 2012 the Defendant informed the Claimant’s Solicitors that theDefendant had been forced to change employment as working away from home washaving a detrimental effect on the Defendant’s health due to the fact that theDefendant was finding it extremely difficult to maintain a healthy diet whilstworking away in Europe and living out of a wagon. The Defendant advised that this change in employmentforced a reduction in wages and therefore further payments would have to bereduce to £10 per week.

39. TheClaimant’s Solicitors advised that the offer of £10 per week was unacceptablewithout a charge over the Defendant’s property and if the Defendant was notwilling to agree then court proceedings would be submitted.

40. TheDefendant responded stating that he could not offer any increase and couldtherefore not stop the Claimant issuing proceedings. The Defendant did suggest that if a chargeover the property was only put in place for “security purposes” and this wouldnot result in a sale of the Defendant’s property then this would be agreeableif a final amount could be agreed together with weekly payments of £10.

41. On17 September 2012 the Defendant informed the Claimant’s solicitor that he hadchanged employment again and the new salary should allow for payments to beincreased to £20 per week but would keep the Claimant’s solicitor informed ifthis was possible.

42. TheClaimant’s solicitor responded on 18 September 2012 and took the Defendant’scorrespondence as an increased offer. Again the Defendant was asked to agree to a charge over the property inorder that the Claimant’s solicitor could take further instructions. Clearly the Claimant’s solicitor was notprepared to take instructions unless the Defendant pre-agreed to a charge.

43. TheDefendant responded that the £20 per week was purely dependent on the Defendant’swages but if a weekly amount had to be agreed and set in stone then it wouldhave to be £10 per week. The Defendantalso requested that a final amount be agreed.

44. On29 November 2012 the Claimant’s solicitor advised that £10 per month was notacceptable as the debt would take over 100 years to repay. The Defendant never made an offer of £10 permonth it was £10 per week, therefore, the Claimant’s solicitor tookinstructions on an offer that did not exist. The Defendant responded to the effect that payments of £10 per weekwould continue.

45. On4 December 2012 the Claimant’s solicitor advised that court proceedings wouldbe commenced.

46. TheClaimant has made many errors from the time the Defendant informed the Claimantof his financial difficulty and then his decision to cease trading. The Claimant provided no advice or guidancewith regard to disposing of the Goods and it was left to the Defendant despite theGoods not being owned by the Defendant. The Claimant delayed the sale of the trailer by failing to provide asettlement figure and initially refused to allow Dennison Trailers Ltd topurchase the trailer, yet the Claimant’s solicitor advised that if the Claimanthad taken possession of the trailer they would have sold the trailer for muchless.

47. TheClaimant failed to communicate with the Defendant for many months after theAgreement was terminated and failed to provide documentation and information.

48. MatthewElliot who was/is employed by the Claimant advised the Defendant on 22 January2009, in writing, that their final position was that the balance of £9585.00requires repayment. The Claimant’ssolicitors now advised that this was incorrect due to the proceeds of sale notbeing allocated properly. This figurewas given to the Defendant some 8 months after the sale of the Goods had takenplace.

49. TheDefendant has wished to avoid court proceedings mainly due to the interestwhich could be added onto the debt which would make the debt impossible torepay.

50. TheDefendant has settled a number of outstanding debts solely due to his selfemployment and has had to work extremely hard to make the payments in additionto his normal household expenses. TheDefendant was a sole trader and during his self employment 3 separate limitedcompanies declared bankruptcy/liquidation owing the Defendant vast sums ofmoney. The Defendant had carried outwork for these companies for over 3 months without payment. The Defendant had no option but to ceasetrading as the financial worries were having a detrimental effect on his healthand the Defendant feared he would have to declare himself bankrupt if thesituation was allowed to continue. TheDefendant made the decision to mitigate his loss and cease trading in order tomaintain some control over the debts which were accruing. The debt owed to the Claimant is the finaldebt to be repaid. There were numerousother debts which have been repaid in full over the past 5 years.

51. TheDefendant has never denied that there is an outstanding amount due to theClaimant and has endeavoured to keep the matter from the Courts but has feltthat the Claimant has used the threat of Court proceedings regularly toendeavour to force the Defendant into accepting a final outstanding amountunder their terms.

52. TheDefendant has kept the Claimant and/or its solicitors informed of theDefendant’s financial position since February 2008.

53. TheDefendant was contacted by the Claimant in 2011 and the Claimant admitted tothe Defendant that the Claimant had no interest in resolving any outstandingissues their interest laid solely in recovering the debt and ensuring the debtwould not be statute barred.

54. TheClaimant, Claimant’s solicitor and the Court should now be aware that theDefendant has recently been diagnosed with Rheumatoid Arthritis. The Defendant has been in considerable painfor many months and this will continue until the correct medication has beenestablished. This condition has forcedthe Defendant to change employment again. It should also be noted that despite the pain and suffering theDefendant has only taken time off work to attend medical appointments.

[The Mould]

Hello again Scaniaman

 

Thank you for posting your amended draft Defence.

 

I would suggest that you delete paragraph 13, this admission puts you in a bad light with the Court and your Defence is telling the Court that you are a debtor who "can't pay" because of unforeseable changes in your circumstances, whereas, the Claimant is telling the Court that you are a debtor who "refuses to pay" (this is clearly not the case).

 

State your name, age and full address at the start of your Defence.

 

The words "STATEMENT OF TRUTH" must be contained at the end of your Defence, you then sign and date it.

 

As you are aware, you cannot defeat the claim, however, your Defence may help to reduce any liability for the Claimant's claim and the Court may make an Order for monthly installments at a rate that is within your means, in this regard, ask the Court to consider making such an Order.

 

Kind regards

 

The Mould

[Scania580man]

Thanks very much The Mould.

[The Mould]

Thanks very much The Mould.

 

Your welcome Scaniaman, although I must admit I have not actually provided any help at all really, just a bit of moral support to you.

 

Anyway, I forgot to mention that underneath "STATEMENT OF TRUTH" you must also write the words "I believe that the facts stated in this Defence are true"; then sign & date.

 

What is hoped for is that your Defence will prevent a forthwith judgment for the full amount claimed and instead the Court makes an Order for installments.

 

Kind regards

 

The Mould