Sent SAR but today received Court Claim form

[libbyb]

Hi - I am using your help on this site to get my son back to 'normal' and this week he came over and has agreed to a debt management programme(cccs). This has involved him listing (and admitting to) everything he owes. last week he had received a demand on behalf of On Line Finance via Shoosmiths for £4,400 for his car which they took back. Today he has received in the post a court claim from Northampton in respect of this debt and it is now £6,834.78. I feel like crying. His debt remedy pack is not through yet, but I did send a S.A.R - (Subject Access Request) to Shoesmith on monday of this week with my £10 cheque quoting the reference they had used on the back, and I know that this has crossed with this court action. The car was £5k and he had paid £4,902 - this is listed on the court document but they are still claiming nearly £7k. The response to the claim has to be completed and returned asap - I want to point out our request for the breakdown of this account, but there isn't anywhere in the response to do this. I was reading a thread on here where someone defended their case against a car finance company, but his revised court date isn't til January 2007 and I need help to complete this response now! Help please.....

[libbyb]

Sorry to seem impatient, but I need to send back the court pack and I don't know whether to write to Shoosmith's with an 'Account in Dispute' notice first or just complete the court's response sheets? I have asked my son to ring the person at shoosmith's who sent the first letter and ask where they are up to with the SAR as he will be using that as part of his defence. . . . . .is there anybody who knows a little bit more about the court procedure out there right now?

[SHERLOCK]

Hi Libby,

 

Not sure if this will help, courtesy of THUNDERPUSS2K, this is a letter I sent after receiving a claim form.

 

You may be able to tailor it to your needs,

 

*Here you go, this should stop them in their tracks. Change the bits in bold (and unbold them obviously!)

 

Make sure you go online and acknowledge service of the paperwork, this will give you 28 days instead of the usual 14 days. Full instructions should be with the claim.

 

DO NOT send them any money, or bother talking to CLAIMANT. Just send them this letter, and wait patiently.

 

Also send copies to court to place on file.

 

Dear Sir

 

In the XXXX County Court

(CLAIMANT) -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

REQUEST FOR FURTHER INFORMATION

 

I have today filed the Acknowledgement of Service (copy attached) in order that I may file my Defence to these proceedings in due course. By my calculations this must be filed and served no later than 4.00pm on (28 days from the date you received the court claim). However, before doing so, I take the view that your pleadings are not entirely clear and as such, do not appear to disclose any reasonable cause of action against myself. Although this matter may be suitable for the Small Claims Track the purpose of this letter is to make a request for some additional information in order to fully understand your claim and how it is calculated.

 

I note in your pleadings that you are claiming (alleging) that an amount of £AMOUNT is ‘part of a debt due under an agreement number (AGREEMENT NUMBER)’, and also that I ‘agreed to pay the Claimant £(TOTAL)’ – however you do not provide details of how you have reached these amounts, nor any information, or a copy of this ‘agreement number (AGREEMENT NUMBER)’ you refer to.

 

In light of this, can you please provide me with the following:

• A true copy of the alleged agreement you refer to.
  
• How you calculate the sum of £(AMOUNT)
  
• How you calculate the sum of £(TOTAL)

We would be grateful if you would respond within 21 days of the above date.

 

In the event that I do not hear from you at the end of this period, I may apply for your Claim to be struck out on the grounds that it does not disclose any reasonable cause of action against me, together with an Order for Costs in the Defendant’s favour. I trust that you will note this particular point.

 

In any event, kindly acknowledge safe receipt of this letter.

 

Yours faithfully,

YOUR NAME

[libbyb]

Hi Karneval - thanks - full details of claim are:

 

Issue date 16/11/2006

 

1. Claimant © let a vehicle to Defendant (D) under a regulated Conditional Sales Agreement (the Agreement).

2. D failed to pay instalments due. C therefore terminated the Agreement on 14/03/2005, repossessed and sold the vehicle.

3. The claim is for the balance due under the Agreement.

4. CPR rule 16 PD6.2 particulars:-

Agreement date: 10/12/2002

Agreement number: 100551536

 

Signed at car dealership.

Goods: Ford KA hatchback T*** ****

Total amount payable: £9,323.00

Total paid: £4,902.95

Balance: £4,420.05

Other Charges: £810.83

Total Claim: £5230.88

5. C claims interest at 14.32% from 14/03/2005 to date of £1,253.90 and further at £2.05 per day until judgement or payment.

Amount claimed: 6484.78

Court fee: 250.00

Solicitor's costs: 100.00

 

total amount 6,834.78

 

The DCA is the solicitor!

 

Their first letter asked for a payment of £4,400 so in less than two weeks a further £2,434.78 has been found to add on!

[libbyb]

Sherlock - thank you for your reply, I need to acknowledge the court claim on line - which I will do, but more importantly I needed to be able to write to these people to let them know that my son is going to defend against this action. They have not contacted him since they took the car back and he was under the misaprehension that the whole thing was over! He has the letter from Shoosmith with him, but I know it was received here 2 weeks ago - and I couldn't open it but when my son read it and showed it to me (last Friday) I immediately equated it to a SAR and thus posted one to them on Monday. I will post the letter that you have included in your reply today, and they should receive that on Monday this next week. I asked my son to ring the person named on the original letter and to get her to acknowlege receipt of the SAR. He hasn't called me back with the outcome yet.

[NitrousOxide]

Hi,

With hire purchase there are certain amounts you are liable for depending on how much you pay back.

I'm pretty sure they can't ask for all of it if they have taken it back. There's something about paying a third and paying half that has different outcomes. I'll look it up in a mo.

 

Link

[libbyb]

My son actually lived at home at the commencement of this agreement with On Line, and because his pay date is 4 weekly rather than on a calendar month once in a while the direct debit would be out of sync. He as charged £150 by On Line because this happened, and I wonder how many times they imposed this kind of penalty and are they listed in the 'payments received' figure. I am trying to stay calm whilst reading the court paperwork, but without having the full statement in front of me cannot say how much he admits to being liable for - and then it says simply 'pay the amount admitted to the person........?' with what? He would love to have a bottomless account but at the moment he is up to his eyes - and dare I say, all because of cars!!

[libbyb]

Nitrous Oxide - I appreciate your trouble, but if the detail on the form is what they are claiming, will this figure be used to calculate what he eventually will have to pay following the court case? I have to be away from computer now as school run beckons, but will look for replies within the hour. thanks for all your help Libby

[SHERLOCK]

libby,

 

 

I believe that the courts will not proceed with this claim if the relevant info is not forthcoming from the claimant (i.e. the breakdown of costs/charges/S.A.R. etc.)

 

I wouldn't even speak to the claimant. Post the letter, acknowledge the claim and wait for the claimants response.

 

If/when they do provide the statements you can then proceed to claim back any unlawful charges, but also this will give you a little breathing space. (I haven't received any paperwork from the claimant since my acknowledgement)

 

Keep posting with any replies you get and someone will take you through the next step.

 

You may find that you still owe them money, but if you can get a reduction on the final total it is better than nothing!!

 

I am only going off advice I have received, but again it is advice experienced by others, hope this helps,

 

SHERLOCK

[libbyb]

So that I know what action I am taking , the thing to do is:

Acknowldege on line the court's claim form. (Do I notify them on line that there is a dispute over the figure?)

 

Send the letter "Request for further Information" to Shoosmith's who have issued this claim.

 

Await further correspondence from either Shoosmith's or the court.

 

I want to get this right - as I read earlier in another thread, don't act the victim, take control!!

[libbyb]

sorry Karnevil - mis-spelt your name!

[SHERLOCK]

libby I would do just that, they have to provide the statements as they would be part of their claim surely??

 

I didn't place anything in the acknowledgement online, just merely acknowledged and sent copy of letters to court.

 

SHERLOCK

[libbyb]

Hi Sherlock, have done the acknowledgement but clicked the 'admit part of the amount claimed' button. This means that my son will have to complete the admission form and the defence form.

 

I am now going to fill in the letter you posted for me, and will get my son to sign it then will post by recorded delivery to Shoosmiths and then await their reply.

 

Hope that by clicking the admit part of the amount claimed button, I haven't done the wrong thing.

[SHERLOCK]

Libby, not 100% sure bcoz I just filed the above letter as my defence, the letter is a defence as it states that you need the info in order to defend your case.

 

I do not know if you can re-submit and do not admit any of the claim until you receive said paperwork?

 

Clearly you may be admitting to something that may contain unlawful charges and I feel you shouldn't admit any part of the claim until you receive your statements.

 

Again Libby I am only stating how I would go about it, it is ULTIMATELY, down to how you feel you want to proceed,

 

SHERLOCK.

[tbern123]

Just a thought, can't this be nipped in the bud by giving the Car back ?

 

Over half has been paid, so the car can be returned with nothing more to pay

 

Hire purchase

 

You can terminate an HP agreement and return the goods at any time by writing to the lender, as long as you bring your total payments up to half the price of the goods (the exact amount will be stated in a box on the front of your contract).

[tbern123]

As this was signed at the dealership, can you confirm if it was a personal loan or a HP agreement thanks

[lookinforinfo]

This type of loan agreement has been a particular gripe of mine for years.

You end up being locked into a contract that is riddled with terms that

should surely fail the UTCCR. Whenever i need to finance a car, I would now always go for one that recognised me as the owner from the outset.

This is the view of the OFT on hire purchase and Conditional Sales contracts-

"The weight of

bargaining power in such a situation is heavily weighted towards the lender."

 

And years ago, Lord Denning said this-"Lord Denning concurred and in giving his judgment reflected (at page 627) on the true

nature of an HP transaction if 'you were able to strip off the legal trappings in which it

has been dressed and see it in its native simplicity'. Lord Denning explained that to

express HP in simple terms (lending money with a charge on the goods as security)

would cause 'troubles of all sorts under the Bills of Sale Acts, the Sale of Goods Act

and the Moneylenders Acts' and 'in order to avoid these legal obstacles the finance

house has to discard its role of a lender of money on security and it has to become an

owner of the goods who lets them out to hire.' [He said this long before

the UTCCR and the CCA came into force.]

 

Libby, you said they repossessed your sons' car. In view of the amount he had

paid they would have required a Court Order unless your son agreed to

return the car anyway. Did your son offer to surrender the car before hand?

The reason I ask is that if he did volunteer, then your son should pay nothing

[except any missed payments and any damage to the car ] since he had

paid more than 50% off the cost. Indeed the OFT believe that even when

the car is not voluntarily returned, their is a case for not charging the

borrower when so 50% has already been paid.

I took this information from a pdf file issued by the Office Of Fair

Trading on voluntary termination of contracts, but there are still many

arguments you can use to counter the finance companys' claims.

There is quite a lot to wade through and I don't know how easy it

will be for you and your son to take their points and weave it into

your defence. In many ways, it might be an idea to include the

whole file to the Court as part of your defence, and let the judge

work it out for himself.

 

In addition, I am pretty sure that payment Protection Insurance was

added to the agreement. Check with your son that he agreed to it.

Also, make sure when you get the results of your S.A.R - (Subject Access Request), that the company

who insured the PPI is included and ask them for details of the

insurance as I understand from Citizens Advice, that policies are not

always set up, despite being charged for.

 

 

http://www.oft.gov.uk/NR/rdonlyres/1742CF1C-E663-4B61-BD55-717AD727BCFF/0/oft761.pdf

[libbyb]

hi - thanks for all your input. I need to sit down with my son and discuss the chain of events. I know he did agree to let them take the car and they let it sit for ages - he then thought they were'nt going to repossess but then they did - all the while stacking up months of interest whilst the stupid thing gathered dust (and probably rust.) No declaration of how much cash was realised from the sale of the vehicle has been given - but I am sure it wasn't a great deal. It was a T Reg black limited edition KA and the garage charged £5k for it at the end of 2002. My son was working up in Leeds and wanted an economical and reliable vehicle to get up and back (girlfriend at Uni in Bristol) so he ended up signing an agreement for finance - but of course it didn't ask for the total overview of how much it would all cost him in the end? I always thought that these finance companies insisted on 'gap' insurance so that if the end value of the car and the balance aren't the same, the gap insurance should repay the balance - is that just for an accident? I have sent the letter requesting further information to Shoosmiths (the solicitors/dca acting for On Lin Finance) - should I re-access the court acknowledgement and withdraw the "admit part of claim" that I clicked on - is that possible? I

will download the OFT file linked to your advice - thanks lookinforinfo - and we shall try to incorporate it into the defence. Didn't win the lottery last night either, so that's not an option for another week at least!! thank you all so much.

[tbern123]

Yeah, GAP insurance is if the car is written off. It will repay the difference between the market value of the car and the balance of any outstanding finance...

 

Can you check the documentation, it will explain your sons rights under the thirds and halfs rule.

[NitrousOxide]

Hi,

Make sure ut is HP as well. I had a Lloyds loan for a vehicle a while back and although it looks like HP it's not it's just a personal loan.

[libbyb]

I am building up quite a folder for this now, so I think I should get well acquainted with all of the contents as I don't know how long it is going to take until it's over but I am so glad that I have found Consumer Action Group. I am not a control freak by any means, but I do have a bit more time to devote to reading all the threads on this site than my son, and I am getting familiar with the names of the the people who take the trouble to pass on helpful information - particularly of the other cases and the OFT rulings on HP and other credit agreements. I know this company are no different to other finance companies - and that if my son hadn't been so pleased that they had given him such a bit loan - he could have read through things a bit more carefully - maybe even showed them to me. I don't take out finance for anything, and it means that I don't rally have much idea! I do know that once you are on this roller-coaster it's hard to get off! thanks and I will keep posting!

[libbyb]

Hi - back again! After almost a month we have received a letter from Shoosmiths who are acting on behalf of On Line Finance. I submitted a S.A.R - (Subject Access Request) on the 14th November and we received a court claim form dated 16th November on the 17th. I asked all of the above questions on this siteand responded to them with the letter "Request for further Information" by fax and registered post on 17th November. Today I have received a letter dated 14th December telling me that the only information they hold about my son is already in the public domain i.e. court documents issued. They then say : "or information where our client is the data controller or information passing between ourselves which is subject to legal professional privilege and therefore exempt from the right of subject access under Schedule 7, Paragraph 10 of the Data Protection Act 1998."

 

The request for further information will be dealt separately. "It is open to you to issue a separate subject access request to our client in respect of the financial information you request".

 

Basically they have just sat on both of these requests for a month, knowing how time sensitive the receipt of this information by my son is to his defence. As acting solicitors in this case, shouldn't they have just forwarded the SAR to On Line for their action? Should I write back saying this and send a copy to the court so they are aware that no action has been taken for a month on either request?? What should I do? help

[NitrousOxide]

Hi,

So basically they've failed to supply the requested info? Going your way if they haven't by now.

[Guest The Terminator]

Hi,

So basically they've failed to supply the requested info? Going your way if they haven't by now.

 

Read Wilson vs First County Trust

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

 

After 4 appeals the consumer got it right

 

[libbyb]

Hi - back on line now, will go to the thread Wilson v First County. I still feel that Shoosmiths as acting solicitors had a duty to refer the SAR to Online Finance in an effort to fulfil the SAR. They have sat on the "Request for Further Information" too and have not returned the £10.00 fee or indeed advised that it has been subtracted from the balance - not mentioned at all. Piddly gripe I know, but it's just their dismissive attitude that is stinging at the moment!