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    • Just posted up the POC. Will get on with CCA and CPR tomorrow.   Is there a danger that if he attempts to call BC he could take it out of staute barred?  I will have to contact him Spain so need to advise him what not to say.
    • Here are the Particulars of Claim     Name of the Claimant ? Hoist Finance UK Holdings Limited     30th January 2020 Date of issue 30/01/2020 + 19 days ( 5 day for service + 14 days to acknowledge) = 17/02/2020 + 14 days to submit defence = 02/03/2020 (33 days in total) -   Particulars of Claim   The claim is for the sum of £7939.36 arising from the defendants breach of a regulated consumer credit agreement referenced Under no xxxx926xxxxxx03 The defendant has failed to remedy the breach in accordance with a Default Notice issued pursuant to ss.87(1) and 88 of the Consumer Credit Act 1974. The Claimant claims the sums due from the Defendant following the legal assignment of the agreement from Hoist Portfolio Holding 2 Ltd(Ex Barclaycard) Written notice of the assignment has been given. The Claimant claims 1. The sum of £7939.36 2. Costs   What is the total value of the claim? £7939. + £410.00 Court fee + 100.00 legal costs Total amount £8449.00   Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC ( Pre Action Protocol) ? Yes dated 02092019   Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? Not sure   Did you inform the claimant of your change of address?Not sure Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Credit Card.   When did you enter into the original agreement before or after April 2007 ?  After April 2007 actually August 2007   Do you recall how you entered into the agreement...On line /In branch/By post ? Can't recall   Is the debt showing on your credit reference files (Experian/ Equifax /Etc...) ?No idea   Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Claim issued by Hoist, so assigned.   Were you aware the account had been assigned – did you receive a Notice of Assignment? Howard Cohen solicitors says yes. I say no   Did you receive a Default Notice from the original creditor? Not to my knowledge   Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? No   Why did you cease payments? Costly divorce and failed small business   What was the date of your last payment? Over 6 yeras ago I believe   Was there a dispute with the original creditor that remains unresolved? No   Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Spoke to them many years ago          
    • DX ,thanks for spacing post BankFodder,  sorry, point taken,   FS
    • defence due by 4pm Monday 2nd   has he...   .  get a CCA Request running to the claimant https://www.consumeractiongroup.co.uk/topic/332502-cca-request-consumer-credit-act-1974-updated-january-2015/  leave the £1PO blank and uncrossed . .  get a CPR 31:14 request running to the solicitors [if one is not listed send to the claimant] . . https://www.consumeractiongroup.co.uk/topic/332546-legal-cpr-3114-request-request-for-information-when-a-claim-has-been-issued/ . . type your name ONLY no need to sign anything . you DO NOT await the return of paperwork. you MUST file a defence regardless by day 33 from the date on the claimform [1 in the count]   get him to ring BC ask last payment date tomorrow.    
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Startkey&Clutch

Stuck at the car wash ticket

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Would someone mind checking if this is ok to send to popla for a smart parking alledged overstay in an Asda car park please...

And is there anything I need to add?

 

 

1. The NTK fails due to the following reasons:

 

The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.

(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

© It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.

(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'.

(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

2. ANPR records are unreliable and not proof of one parking event.

The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put CP Plus to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:

http://www.britishparking.co.uk/How-does-ANPR-work

The BPA says: ''As with all new technology, there are issues associated with its use:

Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. Smart Parking show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, use of the on site car wash, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a petrol station on site, as well as air and water, so I put Smart Parking to strict proof of actual parking for over two hours with no other car wash activity. Even if the car first drove past the cameras and though the car park the driver may have decided to use the car wash and so 'parking' for over two hours would not have occurred.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:

''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

Smart Parking fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

3. LACK OF PPC,s PROPRIETARY INTEREST IN THE LAND AND NO CONTRACT WITH THE LANDOWNER.

I believe that Smart Parking have no proprietary interest in the land to issue charges and pursue them in their own name

including at court level.If they do have such interest then i put them to strict proof to provide POPLA with the deeds

of title in the land. In the absence of such title Smart Parking must have contractual authority from the landowner to issue

and pursue charges.i do not believe such a document is in existence.I therefore put Smart Parking to strict proof to provide POPLA

with an unredacted,contemporaneou s copy of the contract between them and the landowner which provides them with

the authority to issue and pursue charges,including to pursue them at court in their own name.Please note that a "Witness

Statement" to the effect that a contract is in place between Smart Parking and landowner will be insufficient to provide all the required

information, and will therefore be unsatisfactory.

 

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I gave up reading after the first couple of lines as it is far too long with too much information. Are you able to bullet point it without going into such depth on every point. BTW not sure what a car wash has to do with it?

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I gave up reading after the first couple of lines as it is far too long with too much information. Are you able to bullet point it without going into such depth on every point. BTW not sure what a car wash has to do with it?

 

 

The car was in the car park then taken to to car wash which is within the car park, there was a big queue hence the overstay.

 

Have I covered all the important points or do I need to add anything?

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The car was in the car park then taken to to car wash which is within the car park, there was a big queue hence the overstay.

That makes sense however your post is way too long. Can you clarify if the charge was via ANPR camera or a charge placed on the windscreen?

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Ok, edit it down to these 2 salient points.

1 the vehicle was not parked and Smart has not offered any evidence to show it was

2 the NTK is not PoFA compliant for the follwing reasons- edit what you have written down to bullet points rather than a long justification. The adjudicator is interested in what points you are raising, they understand the meaning of the words and what the BPA CoP is so scrap the botton 2 paras and jsut sayyou do not believe the landowner has assigned the right to Smart to enter into contracts or to make claims in their own name and demand sight of said contract.

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Thanks for the comments guys, hows this??

 

 

1. The NTK fails due to the following reasons:

The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.

(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

© It fails to describe any alleged unpaid parking charges “for the specified period of parking".

(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party.

(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner.

2. The vehicle was not parked and Smart has not offered any evidence to show it was:

The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put Smart Parking to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

3. Lack Of PPC,s Proprietary Interest In The Land and no contract with the landowner:

I do not believe the landowner has assigned the right to Smart Parking to enter into contracts or to make claims in their own name and demand sight of a contract showing that they have.

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Thanks for the comments guys, hows this??

 

 

1. The NTK fails due to the following reasons:

The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.

(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

© It fails to describe any alleged unpaid parking charges “for the specified period of parking".

(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party.

(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner.

2. The vehicle was not parked and Smart has not offered any evidence to show it was:

The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put Smart Parking to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

3. Lack Of PPC,s Proprietary Interest In The Land and no contract with the landowner:

I do not believe the landowner has assigned the right to Smart Parking to enter into contracts or to make claims in their own name and demand sight of a contract showing that they have.

 

I would say that was ok to send, but make sure you state at the start, that as RK you are not liable for the charge.

 

The lnitial appeal to smart doesn't contradict the above or identify the driver I take it?

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Unfortunately the person concerned has already appealed to smart and identified herself, should I still put that?

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Unfortunately the person concerned has already appealed to smart and identified herself, should I still put that?

 

If the driver has been identified, then Schedule 4 of the POFA is irrelevant...

 

Points 2 and 3 are valid with 3 being the likely winner.

 

It would help to know exactly what was written to the PPC and their response

 

 

Has the recipient of the charge complained to Asda? That is the easiest and quickest way to get it cancelled

Never send original receipts if asked only copies.

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Sorry, treat me like a layman, does that mean it needs changing again?

 

Yes. And what about the questions in post 9 please.

Also what is the signage like?

 

You're not quite a layman, what was the outcome here;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?404884-Sma

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The outcome there was no contest, they didn't put up a fight so a default win.

 

 

This one is different as I cant use the gpeol argument so very much a layman, but willing to learn :-)

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GPEOL no longer valid argument for breach of contract claims, only for trespass and that has other arguments that go hand in hand and is very signage dependant. There is nothing wrong with your appeal, just a bit long

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Sorry just read your post fully.

 

She appealed to smart saying that she was shopping in asda and then wanted to use the on site car wash, it was a weekend and very busy hence the overstay. She spoke to the car wash operatives who said they would sort it for her which they obviously didn't, I told her to complain to asda which she did but I think it was just customer services who fobbed her off with the it's nothing to do with us line, she said the store is too far away to return and speak to the manager.

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Sorry just read your post fully.

 

She appealed to smart saying that she was shopping in asda and then wanted to use the on site car wash, it was a weekend and very busy hence the overstay. She spoke to the car wash operatives who said they would sort it for her which they obviously didn't, I told her to complain to asda which she did but I think it was just customer services who fobbed her off with the it's nothing to do with us line, she said the store is too far away to return and speak to the manager.

 

How did she speak to the car wash operatives (Polish?) if the store is to far away to return to?

 

This was an ANPR charge notice......

 

This is who she should complain to politely but firmly with a copy of her receipt or bank statement. (Don't tell me, paid by cash?)

 

andy.clarke@asda.co.uk

 

He is still the CEO I believe.

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I have no idea, I only know what she told me, shes not very pro-active so I'll probably end up writing to Andy Clarke for her as well.

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I have no idea, I only know what she told me, shes not very pro-active so I'll probably end up writing to Andy Clarke for her as well.

 

Well in that case please ignore any advice I have given on this thread.

 

Being drip fed second hand information is not the way to get the best advice...

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