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MCOL - Requested Judgement Day after Expiry. Defendant filed defence the same day!


Heofz
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I submitted a MCOL to recover my deposit from a Used Car Dealer who refused to refund it,

after I found out they lied to me about numerous things regarding the vehicle's condition.

 

My particulars essentially state that when paying the deposit to the dealer prior to the car purchase,

the verbal agreement was on the basis that:

1) They did not lie about the car.

2) The car would pass a vehicle inspection.

 

I since found out that they breached (1) and hence the agreement.

 

 

Before even filing the claim, the dealer actually offered to give me half of my deposit back to begin with, which I happily accepted.

 

 

A few hours later that same day, they called me to say they changed their mind

i.e. deciding to keep the whole deposit, because they now felt that my decision to cancel the car purchase

was a "change of heart" decision,

 

 

furthermore they spent my deposit money preparing the car for me

(even though the salesman told me the car was ready to drive away the day I came to see it).

 

 

When I challenged them to provide me proof of their expenditure, they outright admitted it was "done by a friend"

they didn't have any receipts/invoices.

 

 

It was at this point when I decided to submit a claim via MCOL as they made their position clear and that their decision was final.

 

About a week after they were served,

they called me up and we agreed for them to pay me 2/3 of my deposit back,

as long as I cancelled the claim first.

 

 

There was no way I would trust them after going back on their word last time,

I said that I will only cancel the claim after the payment has cleared,

I also asked them to provide their agreement in writing, which they did.

We came to written agreement, and they said they were able to pay me the same day.

I monitored my online account, waiting for this to happen, poised to cancel the claim as soon as I saw the money appear.

 

The money never arrived,

despite numerous chasers and calls, they kept making promises to pay "later today"/tomorrow,

then afterwards kept made excuses for not paying.

 

 

Yesterday I gave them the final deadline:

Pay the agreed amount that day and/or call me to confirm it has happened, or the agreement is off and I will proceed with the claim.

 

 

They acknowledged my position (I also have a recording of this phone conversation)

and promised to call me back by the end of the day regardless of the outcome.

 

 

Once again, no call nor payment was received.

 

 

From my perspective it felt that they were just messing me about, and I was out of patience.

 

It just so happened that the defendant had until yesterday to reply to the claim issue, according to the letter the court sent me.

I waited until this morning, and submitted a request for Judgement.

 

 

Upon checking later in the day I noticed that the defendant filed a defence shortly afterwards (the same day!), despite their deadline being yesterday.

 

In the MCOL transaction history it says:

 

You submitted a judgment against XXXX on 07/10/2014 at 06:49:56.

A bar was put in place for XXXX on 07/10/2014

XXXX filed a defence on 07/10/2014

In the Judgement panel it says "Requested",

and the Claim Status now shows as "Defence". Surely they were too late? :???:

 

I spoke with the defendant a short while afterwards,

they made more excuses,

and gave me "his word" that they were still happy to pay the 2/3 of my deposit back,

assuming I can get the claim cancelled with the court.

 

I'm going to call the MCOL helpline tomorrow,

 

 

I'm just wondering: Where do I stand?

A bar is in place for this claim, despite them filing a defence too late according to the deadline.

They are still offering to pay back 2/3 of my deposit..

. does this count as admission to some degree?

 

 

In the event that they are still just wasting my time with this "offer",

is there a chance that the bar will be lifted and their defence be discarded?

 

 

Does the fact that they filed a defence mean it is now out of both mine and the defendant's hands?

 

Any help/advice would be much appreciated. :-)

 

H

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IMHO, I would continue with the claim - the defendant has proved that they are unreliable.

 

However, if and when you receive either a cheque or cash - you are able to write to the court and apply for a discontinuance on the basis that the claim is now settled in full.

 

Other than that, the system will trundle along - you will now need to let the court know if you wish to continue - the claim will be allocated to a court and further paperwork - directions questionnaire will be sent out.

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Just to add, the 14 day deadline for filing a defence does not mean that that is the last moment you are allowed to defend. As long as the defendant gets the defence in to the court before a judgement is given – then the defence will stand and the case will continue.

 

Where a defence and a judgement application appeared to have crossed over – priority will be given to the defence.

 

You are absolutely right not to withdraw the claim until you have the settlement in your hands. This is essential. You must stick by your guns.

 

On the basis of what you say it seems that you agreed one thing and then after you paid the deposit the seller either tried to change the terms of the agreement or in fact you discovered that the car was not as it was represented by the seller at the time of the deal.

 

On this basis you are fully entitled to recover all of your money.

 

I think it would be worthwhile naming the dealer here on this forum.

 

The only basis on which you might agree to withdraw the claim before you have a settlement in your hands is if you have it written up in a Tomlin order. This is an agreement which does not count as a judgement but will record exactly what has been agreed between the two parties and is then signed off by the judge. A properly drafted Tomlin order would include a timescale for action and also a provision that the claim can be restored in the event that the timescale is breached.

 

However, if I were you I would continue to judgement and then put the bailiffs into the dealer. Let the dealer know this is what you propose to do. It might concentrate his mind a little.

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The car dealer was Aylesbury Street Motors Ltd, or as they like to call themselves: "ASM Cars", based in Bletchley, Milton Keynes.

 

They finally transferred the 2/3 amount today after my 2nd phone call (though they were still trying to squirm out of it), and whilst it was happening, I believe I overheard one of their colleagues in the same room mutter something in Urdu/Hindi/etc whilst they forgot to put me on mute. :madgrin:

 

I have recordings of my phone conversations with them, so just out of curiosity I'll see if I can get a friend to translate and find out what their colleagues were muttering. :)

 

I saw the payment show up on my online bank account whilst still on the phone, so as agreed with the defendant (and I'm somebody who likes to keep his word), I called the MCOL helpdesk and had them mark the claim as paid to my satisfaction.

 

I know there's a chance that this payment could be reversed/cancelled maliciously by them, but I decided to take the risk for my own honour's sake. Plus, if they did try to pull the money back after claiming they paid me, I'm pretty sure it wouldn't work out well for them in the long term, considering the amount of evidence I have showing them agreeing to pay.

 

I'll also be curious to know what their defence submission says when it arrives in the post, and whether it contradicts anything they have said on record. I'm sure I could have fought for it at their local court / phone mediation and maybe got it all back, but all in all, I was happy to take the settled amount for the sake of brevity.

 

So yeah, all's well that ends well I guess :-D. Short and sweet. Thanks for the advice, and I guess I learned something new regarding the way Judgements work. :)

Edited by Heofz
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