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    • Good evening DX100   Here is a draft of my response to the court order.  I would be obliged if you could review it and avise me if I am on the right track.   Defendant Statement of Position in Response to the Order of the Sheriff   The defendant suffered Severe Depression illness almost 12 months prior to the closer of the Bank account. HBOS was made aware of the defendant illness.  A Medical Certificate dated 15 Sept 2017 was handed over to the bank as a proof. (A copy of the report will be submitted exclusively to the court review) The defendant, with the support of her ex-partner, sought a resolution from the OC regarding the escalation of her OD account, which it was mostly formed of extortionate bank charges/penalties being applied to the account. HBOS agreed to reduce the outstand OD sum to £XXX and closed the account. The defendant is confident that her ex-partner has settled the agreed sum with OC, but not absolutely certain, considering her health state at that time. She has been actively trying to reach for her ex-partner for documented evidence, but the fact that, we believe, he is a currently deployed by the UK military forces abroad and communication has been, to put it politely, very difficult due to the nature of his deployment. As the court is aware, the defendant has been trying to retrieve the data of her dealing with/from OC which it should reflect history of the above.  The defendant has already written twice to HBOS, as well as visiting her bank branch, on 01 March 2021, in person demanding the requested data.  HBOS promised to send the data to her as soon as they can. In addition to the above reasoning and contend, the defendant refute the claimants claim is owed or payable.  Due to punitive and extortionate fees the facility became untenable. Any alleged balance  claimed will consist totally of default penalties, punitive charges levied on the account for alleged late, rejected or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety and any alleged balance was due to punitive and extortionate charges . It is expected that the Claimant prove the allegation that the money is owed. Therefore the Claimant is put to strict proof to:-               a.    Provide a copy agreement/facility arrangement along with the Terms and Conditions at inception, which this claim is based on.               b.    Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.               c.    Provide a breakdown of their excessive charging/fees levied to the account and justify how the Claimant has reached the amount claimed.               d.    Show how the Claimant has the legal right, either under statute or equity to issue a claim.               e.    Evidence how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.     10.   By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
    • Same thing. The fact that you declared £4.99 means that is the extent of any reasonable foreseeably consequence. Just go for that small amount. If they cause any problems then you can have a laugh when they spend many times more than what you're claiming in order to resist you. In future, when you contract with somebody – you need to understand that effectively it is an exchange of the reasonable expectations which you create in each other by your agreement.  
    • Current situation: contacted myhermes website's robot talk about the parcel and waiting for their email response. Thanks @BankFodder   I understand that if I were going to pursue under contract law, £4.99 would be the amount that I am entitled for compensate. How about if I were going to pursue this matter under tort - negligence? Would this allow me to pursue them according the true value of the items?
    • Hi UncleB, thanks for responding. I did call them back and it appears to be hit & miss with Devitt and dependent upon which Customer service agent you get.   Spoke with a very pleasant lady and told her that I, like them recorded all calls and gave date time of call and specific time at which a green card was stipulated in order for me to take out the policy.   *Two days later a hard copy of the green card landed on my doorstep. *Free of charge too.
    • Have you received a Parking Ticket? - Private Land Parking Enforcement - Consumer Action Group   please complete the above then we'll be best placed to advise further but the bottom line is no and don't ever appeal.    
  • Our picks

    • Ebay Packlink and Hermes - destroyed item as it was "damaged". https://www.consumeractiongroup.co.uk/topic/430396-ebay-packlink-and-hermes-destroyed-item-as-it-was-damaged/&do=findComment&comment=5087347
      • 25 replies
    • I sent in the bailiffs to the BBC. They collected £350. It made me smile.
        • Haha
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
      • 1 reply
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Hello, tried everywhere including sheriffs office itself....

 

it is a long story but i will start from getting CCJ against me, which i was paying £15 a month (in total until HCEA came £360 of £1490 original debt)

 

just to clarify i admit the debt and i have intention to pay it in full.

 

I had arrange £15 a month but has few hard months and debt been transferred to HCEA,

 

 

in the mean time we have moved shops (this is business debt)

when EA came he couldn't do anything as address on writ was wrong

 

 

EA said all letters has been send to our old address and he need to go back to office and send new letter to us (not sure if i am right but i was expecting Compliance letter),

 

 

we never received letter (i did even contacted EA to ask about where letter is) instead i had EA visit with Enforcement stage 1 £275 added to my bill then we arranged to pay £100 a month (£1690 at the time) from 1st of july.

 

I was paying £100 a month

 

 

in December i forgot and in the 14th of December EA came back adding Enforcement stage 2 £490 plus Sale or Disposal Stage £600 all that plus VAT and been asked to pay £500 or he will start to remove goods

 

i did read a bit but cant find anywhere if they can charge me few stages at the same time .

 

If someone please can check this out and see if that is all correct

because from original debt they received £1130 (i am aware they got compliance fee and other fees)

i since then paid (in 5 months) £1000 but still got £1950 to pay!!!

 

I am not very familiar with debt recovery but it all looks like [problem].

 

Thank You

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How much was your original CCJ & what was it for?

 

How was your £15 a month arranged - mutual or by the Court?

 

Has a Controlled Goods Arrangement been made & if so what has been listed on it?

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Hi and thank You for answer,

 

After i requested breakdown of debt and fees i received:

 

FEE BREAKDOWN AS AT 16-12-2016

Judgment Debt £1,490.38

Judgment Costs £80.00

Credits £360.00

Execution Costs £60.00

Interest charged to date £70.72

Sub total 1341.10

Daily interest charge £0.28

 

24-03-2016 Compliance Stage Fee £75.00

17-06-2016 *First Enforcement Stage Fee £218.00

13-12-2016 *Sale or Disposal Stage Fee £557.00

13-12-2016 *Second Enforcement Stage Fee £495.00

15-12-2016 2014 Credit Card Fee £10.69

Totals £1,355.69

Total VAT 269.00

Total Fees + Vat:£1,626.82

Grand Total:£2,967.92

Total Received:£1,014.00

Outstanding Balance:£1,953.92

 

£15 been arranged by court and there is no controlled goods agreement.

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Hello, tried everywhere including sheriffs office itself....

 

it is a long story but i will start from getting CCJ against me, which i was paying £15 a month (in total until HCEA came £360 of £1490 original debt)

 

I had arrange £15 a month but has few hard months and debt been transferred to HCEA, in the mean time we have moved shops (this is business debt). When EA came he couldn't do anything as address on writ was wrong

 

EA said all letters has been send to our old address and he need to go back to office and send new letter to us (not sure if i am right but i was expecting Compliance letter).

 

 

we never received letter (i did even contacted EA to ask about where letter is) instead i had EA visit with Enforcement stage 1 £275 added to my bill then we arranged to pay £100 a month (£1690 at the time) from 1st of july.

 

I was paying £100 a month

 

In December i forgot and in the 14th of December EA came back adding Enforcement stage 2 £490 plus Sale or Disposal Stage £600 all that plus VAT and been asked to pay £500 or he will start to remove goods

 

i did read a bit but cant find anywhere if they can charge me few stages at the same time .

 

Unfortunately, when it comes to judgments enforced by a High Court Enforcement company (in this case, The Sheriffs Office) there really it is the case that there is a great amount of misunderstanding by debtors......and enforcement agents !!!

 

Firstly, the matter of your expectation that a new Notice of Enforcement would be issued to you: Whilst you are correct, the fact remains, that you have not in any way been disadvantaged by not receiving a new NoE. This is because, you were made aware of the debt when first contacted by the enforcement agent and could have paid the debt in full after the visit to stop any further action.

 

More importantly, the regulations regarding High Court enforcement are very different from other debt enforcement in that, when a Notice of Enforcement is sent, the regs provide that unless full payment of the amount stated on the NoE is paid before the 'compliance' period ends, (this is the date given on the notice), then in every case....the enforcement agent must make a personal visit in order to either take control of goods or to set up a payment arrangement. For the avoidance of doubt, when a Notice of Enforcement is received the regulations are specific in that if a payment arrangement is required, an enforcement agent must make a personal visit. This visit will incur the Stage Enforcement Stage fee (of £190 plus VAT). The reason why the visit is mandatory is best outlined by section 7.3 of the Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations 2014 as follows:

 

 

While the fee structure applies across debt streams, there are two separate fee levels – one for High Court Enforcement and one for non-High Court Enforcement, with the High Court level containing higher fees. This reflects the findings in the 2009 independent report5 that High Court Enforcement has a higher cost base due to the personal responsibility of a High Court Enforcement Officer (who has writs addressed directly to them) and the fact that they enforce higher value debts.

 

The personal liability of the High Court Enforcement Officer has also necessitated the need for High Court enforcement to have first and second enforcement stages with the associated fees.

 

The fee structure for High Court cases also introduces an incentive to enter into, and adhere to, an affordable controlled goods agreement.
Unless a debtor pays in full at the compliance stage, the enforcement agent is obliged to visit the debtor in every High Court case in order to take control of goods, thereby triggering the first enforcement stage.

 

If the enforcement agent is then unable to enter into a controlled goods agreement (and has to take control of goods in another manner) or a debtor defaults on a controlled goods agreement, the enforcement agent will be under an obligation to remove goods and therefore the second enforcement stage fee will also apply.

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf
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Turning back to the Explanatory Memorandum and this particular sentence:

 

If the enforcement agent is then unable to enter into a controlled goods agreement (and has to take control of goods in another manner) or a debtor defaults on a controlled goods agreement, the enforcement agent will be under an obligation to remove goods and therefore the second enforcement stage fee will also apply.

 

In your particular case, a payment arrangement of £100 per month was set up when the enforcement agent made a visit in June 2016 and the First Enforcement Stage fee was properly applied. Unfortunately, you then defaulted on the arrangement in December and as outlined in the Explanatory Memorandum, the enforcement agent is then 'under an obligation to remove goods and the second stage fee will also apply'.

 

At this visit, the enforcement agent was therefore legally entitled to charge the fee that he did of £495.

 

Where there is a a possible dispute, is whether or not the 'Sale Stage Fee' of £557 should be applied?

 

It is becoming more and more common for companies to charge this fee. Whilst I agree that in cases where a Controlled Goods Agreement had been entered into that there could be an argument for charging this fee, my personal opinion is that unless there is a CGA in place, this fee should be challenged and it is a fee that I challenge very often.....and usually always manage to get removed.

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it all looks dodgy... how i challenge this?also if they been sending compliance letter to the wrong address shouldn't i get new one?EA said he got wrong address on the writ so he will change it and office will send me a new letter but never did instead EA came with Enforcement stage 1 instead...

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it all looks dodgy... how i challenge this?also if they been sending compliance letter to the wrong address shouldn't i get new one?EA said he got wrong address on the writ so he will change it and office will send me a new letter but never did instead EA came with Enforcement stage 1 instead...

 

I have little doubt that the enforcement company will argue that they did send a new NoE. However, as outlined in my above posts, unless you had intended to pay in full on receipt of the NoE, you have not in any way been disadvantaged.

 

Where there is dispute...is with the charging of the 'sale stage' fee.

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That is the problem they did not give me a opportunity to pay

 

That is not strictly true. You were fully aware of the debt (you were paying at £15 per month). You then received a personal visit from the enforcement agent but he informed you that he would need to go back to his company to get another notice sent. At this stage, you could have contacted the company and made payment in full to avoid another visit.

 

Also, at the time of the next visit, you could have avoided the Second Stage and Sale Stage fees of almost £1,000 being added by paying the amount in full to the enforcement agent. Instead, you set up a payment arrangement of £100 per month.

 

What I think has happened though is that you were possibly not aware of the applicable fee scale that would apply if you defaulted on your payment arrangement.

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i was not informed by EA that by paying remaining balance there would not be enforcement stage fee or sale or disposal... when he came he said my debt is that and this and need to pay at least 500 or he start to take stuff... instead when he came he said i defaulted and charges been added.

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