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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
        • Like
    • 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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HI

 

I am after some advice for my parents please.

 

A few months ago, they decided to purchase a mobile home and paid over a deposit of £3,000 to secure this property.

They stipulated that they wanted a 6ft fence built around the property because of their dog, anything smaller than this, the dog would be able to jump over.

 

The person who sells these mobile homes stated that they would only be able to have a fence around the back of the mobile home which they were fine with and agreed to.

 

The seller has since backtracked and has stated that they are not allowed to have a 6ft fence and can only be a maximum of 4ft.

This isn't good enough and my parents have stated this to them.

 

 

At the time of handing over the deposit, he did not, at any point say that the 6ft fence would not be allowed and proceeded with handing over the deposit of £3,000.

 

The seller knew from the outset that they needed a 6ft fence for their dog and had said many a time that if they were not able to have this then they would not proceed with the purchase of said property. At no time did the seller say "no, this is not something we can offer".

 

There are have been various arguments over this and my parents have since pulled out of the purchase of this property.

They have signed a contract where it does state that the deposit is non refundable should the sale not go ahead.

 

However, we are of the view that we could go down the route of mis-interpretation/false selling if that is something worth pursuing?

 

We have written to the seller and he has denied misleading my parents and is refusing to return the deposit

- less than a week after my parents pulled out from the purchase he has resold the property with a further £3,000 deposit!

 

Is there anything we could do, how do we reply to the letter?

I can happily post up the documentation, but would need to do it when I am back in work on Monday minus the personal information.

 

Any help would be appreciated.

 

Thanks Jo

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how did they pay this deposit?

 

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Hi

 

Is the Mobile Home you paid the deposit for on land where other Mobile Homes are located? (The owner of the Park/Land the Mobile Home is located would say what is and isn't allowed.)

 

Have a look at these links:

 

Mobile Homes Act 2013: http://www.legislation.gov.uk/ukpga/2013/14/contents/enacted

 

Mobile Homes Act 2013: new licensing enforcement tools - a guide for park home site owners: https://www.gov.uk/government/publications/mobile-homes-act-2013-new-licensing-enforcement-tools-a-guide-for-park-home-site-owners

 

Buying a park home: https://www.gov.uk/government/publications/buying-a-park-home

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I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

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I take it you got it all in writing.

I.e. A 6 foot fence at The rear of the mobile home, written into the purchase contract.

That said are you allowed a 6 foot fence in law or by-law.

If I was buying a mobile home id be a bit peeved if someone erected a 6 foot fence potentially blocking my view.

If your allowed it, and its written in the contract then start legals against them.

 

Remember that the 4 corners of the contract contain everything. You cannot interject terms into it.

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Remember that the 4 corners of the contract contain everything. You cannot interject terms into it.

 

That is a very "American law" approach, (and much favoured by 'Judge Judy'!)

 

The law in England & Wales is much more nuanced : in so far as whilst overt contractual terms are influential, they aren't absolute...

 

For example, if a term is contradicted by statute : it is void.

If a term in a consumer contract is unfair on the consumer, it is voidable.

 

Many contractual disputes arise because something is "within the 4 corners", but the parties disagree on the interpretation of what is stated.

 

Others arise as the position for a particular circumstance isn't covered by the terms stipulated in the contract: if the parties disagree the courts may be asked to resolve it (by working out what the law states, or, if there are no other factors, what the courts decide "the common intent" of the parties was (or, at least, should have been!)

 

"The 4 corners, and only the 4 corners" is a starting point, rather than the destination.

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I agree, to a point.

Obviously something covered by statute cannot be overwritten by contract.

Your correct on most times its the interpretation of a term leads to the courts making a decision

 

But answer this.

How does a court rule on a term of a contract when its NOT WRITTEN in the contract and no reference is made to it.

If its that important and the fulcrum that the whole deal pivots on, then it needs to be written. Not verbal, not implied not nothing but written.

 

Devils advocate here ok.

Deal only goes thru with promise of 6 foot fence. Verbal.

Dealer says yes. Deposit taken contracts signed. No mention of fence in contract.

Local by-laws state you can only erect a 4 foot fence ( I dont know if this is true or not)

Dealer then says you cant have a 6 foot fence, legislation states only 4.

Buyer .. I dont want it then.

Dealer.. Well that's not what the contract says.

 

Hence the importance of only dealing in writing or recorded conversation.

 

The law and justice are two completely different animals.... And never the twain shall meet.

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If it comes down to it, then it depends on who the court believes when faced with:

We said "A 6-ft fence is an integral part of the contract, without which we wouldn't be buying" and they say "No, they never said that"

 

A verbal contract isn't any less a contract, it just isn't as easy to demonstrate what was (or wasn') agreed.

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Thanks for all the updates and sorry for the delay in getting back to everyone :-)

 

 

my parents had a verbal discussion with the land owner about the fence and specifically said each time they met that they would require a 6 ft fence.

They do not have anything in writing, so like you say it is his word against theirs.

I guess my parents didn't expect it would come to this.

 

 

It has been a few weeks since his letter and we have yet to reply.

Do we go back and say we are seeking legal advice,

can we suggest a partial settlement of the £3k refund?

 

 

Does anyone have any productive advise or do they not have a leg to stand on in terms of getting any of the money back?

Happy to post up the correspondence removing all personal information if this helps get them the answers they are looking for, thanks

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