Being taken to Court by Black Horse over car HP

[payingonlyencouragesthem]

Black Horse are trying to sue me for the residual amount owing after repossessing my car and selling it. The original agreement is improperly executed(unsigned by them), they have harassed me(including trying to enter my premises), they have added about £2k in charges and have refused to accept any repayment plan which isn't backed by a CCJ. Anyone any experience/advice in dealing with them in this situation? Thanks.

[Laiste]

Hi Poet,

 

Remind me when this is scheduled for a hearing and is it to establish how the case proceeds, is that what the Court has advised you? If you are not sure I would recommend ringing the Crt on Monday to clarify, you don't want any nasty surprises!

 

Did you do a CCA request to get the credit agreement? Have you been provided with all statements in relation to the a/c? Did B/H employ a DCA to chase you over this, or was it their own in house gorillas? Over what period were you harassed and was it by letter and telephone, or one of those methods?

 

There is some info you are going to need from them, but I want to clarify where we are with things initially. What you could start doing is drawing up a schedule (typed of course) of all the charges that have been levied, to attach to a counter-claim. Look at the spreadsheets on here to give you pointers on how to set it out.

 

When B/H said they wouldn't pursue you if you handed back the car, did they put this in writing?

 

Sorry if I've forgotten things you've already told me, it must be old

age!

 

Regards,

 

Laiste.

[payingonlyencouragesthem]

"Remind me when this is scheduled for a hearing and is it to establish how the case proceeds, is that what the Court has advised you? "

 

It's at the end of May. It's only a 10 minute allocation and one of the court staff did tell me it's to establish how the case proceeds.

 

"Did you do a CCA request to get the credit agreement? Have you been provided with all statements in relation to the a/c? "

 

Yes in both cases. They seemed ready for that one - even got it within the 12 day limit:evil:

 

 

 

"Did B/H employ a DCA to chase you over this, or was it their own in house gorillas? Over what period were you harassed and was it by letter and telephone, or one of those methods?"

 

In house. Constant telephoning and in one case a visit when the guy tried to open the front door!!! It lasted about 3 months until I gave the car up. They never sent a default notice.

 

"There is some info you are going to need from them, but I want to clarify where we are with things initially. What you could start doing is drawing up a schedule (typed of course) of all the charges that have been levied, to attach to a counter-claim. Look at the spreadsheets on here to give you pointers on how to set it out."

 

Consider it done!

 

"When B/H said they wouldn't pursue you if you handed back the car, did they put this in writing?"

 

Stupidly I took them at their spoken word. I really got the impression that the whole court thing was just done to frighten me into handing the car back. They got all their money back plus quite a bit more. I didn't think they would be so bloody minded and sue me for the contractual remainder.

 

Thanks for the help!

[itsamomentintime]

am i right in saying that their claim will be thrown out, due to the CCA not being signed by black horse?

[payingonlyencouragesthem]

am i right in saying that their claim will be thrown out, due to the CCA not being signed by black horse?

 

That's what I was hoping. Anyone know about improperly executed agreements?

[payingonlyencouragesthem]

Hi Laiste sorry to bump but do you have any ideas on this one? Thanks.

 

"Remind me when this is scheduled for a hearing and is it to establish how the case proceeds, is that what the Court has advised you? "

 

It's at the end of May. It's only a 10 minute allocation and one of the court staff did tell me it's to establish how the case proceeds.

 

"Did you do a CCA request to get the credit agreement? Have you been provided with all statements in relation to the a/c? "

 

Yes in both cases. They seemed ready for that one - even got it within the 12 day limit:evil:

 

 

 

"Did B/H employ a DCA to chase you over this, or was it their own in house gorillas? Over what period were you harassed and was it by letter and telephone, or one of those methods?"

 

In house. Constant telephoning and in one case a visit when the guy tried to open the front door!!! It lasted about 3 months until I gave the car up. They never sent a default notice.

 

"There is some info you are going to need from them, but I want to clarify where we are with things initially. What you could start doing is drawing up a schedule (typed of course) of all the charges that have been levied, to attach to a counter-claim. Look at the spreadsheets on here to give you pointers on how to set it out."

 

Consider it done!

 

"When B/H said they wouldn't pursue you if you handed back the car, did they put this in writing?"

 

Stupidly I took them at their spoken word. I really got the impression that the whole court thing was just done to frighten me into handing the car back. They got all their money back plus quite a bit more. I didn't think they would be so bloody minded and sue me for the contractual remainder.

 

Thanks for the help!

[sequenci]

That's what I was hoping. Anyone know about improperly executed agreements?

 

i have the feeling that it will be enforceable with leave of the court.

 

no default notice you say.... this should be used!

[Laiste]

Hi Poet,

 

Sorry! I haven't forgotten about you! Can you possibly scan up the agreement you received, so I can have a look and see whether or not they can enforce it against you. If you are able to do this, remember to block out your personal details, we can then take the situation forward and determine what to put in a counter-claim. I've been really busy lately, so apologies for temporary abandonment!

 

Regards,

 

Laiste.

[payingonlyencouragesthem]

Hi Poet,

 

Sorry! I haven't forgotten about you! Can you possibly scan up the agreement you received, so I can have a look and see whether or not they can enforce it against you. If you are able to do this, remember to block out your personal details, we can then take the situation forward and determine what to put in a counter-claim. I've been really busy lately, so apologies for temporary abandonment!

 

Regards,

 

Laiste.

 

No problem, Laiste, I thought that might be the case! Unfortunately I don't have a scanner - could you PM me a fax number by any chance? Thanks.

[Movingon]

Don't forget to contest the unlawful charges they have added. If you have to pay this (or even some of it) because the Judge rules that the Credit Agreement is enforceable, then you have to mitigate your loss by ensuring that you claim against them for the unlawful charges. So - when the claim is issued, reply to the Notice of Issue saying you intend to defend the whole claim; then form a defence against the charges as disproportionate penalties in addition to your defence against the rest of the claim as unenforceable.

a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a. a.

[payingonlyencouragesthem]

Don't forget to contest the unlawful charges they have added. If you have to pay this (or even some of it) because the Judge rules that the Credit Agreement is enforceable, then you have to mitigate your loss by ensuring that you claim against them for the unlawful charges. So - when the claim is issued, reply to the Notice of Issue saying you intend to defend the whole claim; then form a defence against the charges as disproportionate penalties in addition to your defence against the rest of the claim as unenforceable.

 

Thanks StoneLaughter - what do you think about the enforceable angle, given the improper execution?

[Movingon]

As has already been said; that can only be decided by a Judge - and I'm not about to try second-guessing someone with 20-30 years experience of practicing Law in anger. You'll just have to wait and see

[Laiste]

Hi Poet,

 

Unfortunately, the fax element on my scanner isn't working at present, so we need to figure something else out.

 

Stonelaughter,

 

Poet and I have had some discussions in private and he/she fully intends to challenge B/H over penalty charges, in whatever capacity they've been levied, as well as other issues, we are simply dealing with the agreement at the moment. If the agreement doesn't contain the essential prescribed terms, then the Judge will not have any choice (20yrs experience or not) but to declare the agreement entirely unenforceable, that is not a matter for his/her discretion, it is stipulated in the Act. In my opinion however, when this is pointed out to the B/H they will be very reluctant to go to trial and will want to settle.

 

Any thoughts on what we're going to do about me seeing the agreement Poet...?

 

Regards,

 

Laiste.

[payingonlyencouragesthem]

Laiste I'll transcribe it here tomorrow when I have the energy... Thanks:-)

 

Hi Poet,

 

Unfortunately, the fax element on my scanner isn't working at present, so we need to figure something else out.

 

Stonelaughter,

 

Poet and I have had some discussions in private and he/she fully intends to challenge B/H over penalty charges, in whatever capacity they've been levied, as well as other issues, we are simply dealing with the agreement at the moment. If the agreement doesn't contain the essential prescribed terms, then the Judge will not have any choice (20yrs experience or not) but to declare the agreement entirely unenforceable, that is not a matter for his/her discretion, it is stipulated in the Act. In my opinion however, when this is pointed out to the B/H they will be very reluctant to go to trial and will want to settle.

 

Any thoughts on what we're going to do about me seeing the agreement Poet...?

 

Regards,

 

Laiste.

[Movingon]

Hi Poet,

 

Unfortunately, the fax element on my scanner isn't working at present, so we need to figure something else out.

 

Stonelaughter,

 

Poet and I have had some discussions in private and he/she fully intends to challenge B/H over penalty charges, in whatever capacity they've been levied, as well as other issues, we are simply dealing with the agreement at the moment. If the agreement doesn't contain the essential prescribed terms, then the Judge will not have any choice (20yrs experience or not) but to declare the agreement entirely unenforceable, that is not a matter for his/her discretion, it is stipulated in the Act. In my opinion however, when this is pointed out to the B/H they will be very reluctant to go to trial and will want to settle.

 

Any thoughts on what we're going to do about me seeing the agreement Poet...?

 

Regards,

 

Laiste.

 

The Judge can, and will, make his or her own decision on whether the conditions for the agreement being unenforceable have been met. ONLY a Judge can do this; otherwise we'd ALL be wearing curly wigs. Don't presume to decide in advance what the Judge will decide because if you do so you may come across to the Judge as arrogant and/or overconfident - and that will do your case no good whatever. Like I said - all you can do is attend Court on the day (if it comes to that) and do your best.

[payingonlyencouragesthem]

Laiste I'll transcribe it here tomorrow when I have the energy... Thanks:-)

 

Laiste just looked at it - there is miles of microscopic small print:shock:. It's so small and grey I doubt it would even fax or scan legibly.. Is there any particular clause/info you are looking for that might help? Thanks.

[Laiste]

The Judge can, and will, make his or her own decision on whether the conditions for the agreement being unenforceable have been met. ONLY a Judge can do this; otherwise we'd ALL be wearing curly wigs. Don't presume to decide in advance what the Judge will decide because if you do so you may come across to the Judge as arrogant and/or overconfident - and that will do your case no good whatever. Like I said - all you can do is attend Court on the day (if it comes to that) and do your best.

 

Stonelaughter,

 

If you are going to question the advice I have given, do it from an informed position, PLEASE! If you believe that a Judge can invoke his/her discretion in respect of whether the conditions have been met as to the enforceability of the agreement; you might want to acquaint yourself with s60 & 61 of the CCA 1974 and the Agreement Regulations 1983. The legislation is explicit as to what a valid agreement has to contain, if it does not contain the prescribed terms, it is ABSOLUTELY unenforceable, discretion does not come into it, no Judge/ curly wig needed to ascertain that fact, just an accurate understanding of the CCA 1974 required! If you understand the law you will know that not all situations are contingent upon the Judge's discretion, where that is the case, it's not a matter of pre-determining what a Judge might decide or coming across as arrogant/over-confident; it's purely about stating the law accurately as it stands, there's no need to meekly plead your case, hoping the Judge might take pity on poor you! When you're right you make damn sure your opponents and the Judge know you know the law, that's not about arrogance or over-confidence, it's called putting forward a strong argument, based on the correct interpretation of the CCA 1974, pure ans simple.

 

Laiste.

[Movingon]

And nevertheless, whether you see the Law as clear or not, and whether or not you feel it is a cut and dried case; the Judge will make his or her own decision. I am FULLY informed as to the provisions of The Act, and I am FULLY aware that Judges sometimes make decisions based on angles that you or I had not thought of.

 

And as for questioning the veracity of my advice then I think that you should maybe have a little read around this site and see how many times Judges have made what seem to be bizarre and/or strange decisions in the light of the Laws we're using to press our cases. Specifically they have allowed agreements to stand that at our look appeared to be unenforceable.

 

I don't know who you are and I have even less interest; and you the same for me. You have no idea HOW informed I am. My advice in this thread is GOOD, cautious, advice and I stand by it. See those green pips over there? They MEAN something. I shan't be reading any reply so I wouldn't bother were I you.

[Laiste]

You are certainly desperate for me to know that you are apparently "FULLY" informed, given the number of times you mentioned it and in capital letters for good measure....! That was funny! The green pips comment was the icing on the cake of the display of the superiority complex you clearly possess! Poor sentence construction and spelling voracity "veracity" did however detract from the exalted regard you seem to hold yourself in!

 

On to the relevant subject under discussion, the crucial issue is that if an agreement does not contain the prescribed terms, it is TOTALLY UNENFORCEABLE, there is no equivocation in such a situation. If a Judge reaches a different conclusion then he is wrong in law and his decision is appealable. I am fully aware that Judges make ridiculous/bizarre decisions, that's nothing new. The salient point here however, is that unless the prescribed terms are present in the agreement, the Judge has no legal right or discretion under the CCA 1974 to enforce it.

 

Why you are offering what you describe as "cautious" advice is anybody's guess. What is it exactly that Poet needs to cautious about? If his/her agreement does not meet the standard required by the CCA 1974, if it gets to Court and provided Poet is before a Judge who knows the CCA 1974, it would be declared unenforceable, it's that simple! To minimise the chance of a Judge reaching a bizarre conclusion, it is extremely important that claims are well drafted. A poorly drafted particulars of claim, can lead to unfair decisions being made, because at the end of the day the Judge is there to make a decision based on the facts put before him, it's not his job to infer meaning from a scetchy or poorly drafted counter-claim or defence.

 

I have given my advice based on ACTUAL experience. Not only do I help people on this site, I have helped a number of people outside of CAG get rid of debts in entirety, based upon flawed agreements. With some cases, this has necessitated going to Court, which I have and I've won, so I know that I'm "FULLY INFORMED" regardless of how many green pips I have!

 

Where you see question marks in this post, the points raised are rhetorical, they do NOT require an answer. I am not interested in reading another of your conceited rantings.

[Guest Zooman]

Just to but in.

 

A district judge has very little interpretation of the law, this is why we can not lose on the bank plenty charge issues.

 

Some issues are at his/her indulgence, but most are not, a prime eg is rent arrears, if you owe 2 months rent or more the day you step into court, they have no choice but to find for the landlord regardless of circumstances.

 

Of course law can be interpreted many ways, and the daft-men of a lot statue and acts where not very clear, and this is why we have higher courts and precedents to obtain a more informed insightful in interpretation of such things.

 

So you are both right

[Movingon]

Cambridge Dictionaries Online - Cambridge University Press - Veracity

 

Cambridge Dictionaries Online - Cambridge University Press - Voracity

[Laiste]

Hi Zooman,

 

It's been a while...! I hope all is well with you!

 

Your attempt at diplomacy is appreciated. You should work for the UN, unless you already do of course!

 

I have to say though, if Poet's agreement does turn out not to contain the prescribed terms, then as I have already said, the Judge will have no choice (assuming it gets that far) other than to declare it unenforceable, which is what I have been saying all along! I know you said we were both right, but that's not correct, no prescribed terms= unenforceable agreement= no discretion = I am right! It seems the conceit disease is catching!

 

Regards,

 

Laiste.

[rosiecotton]

I have not seen the agreement so I cannot comment on whether the prescribed terms are all there or not.

 

Bear in mind that some prescribed terms can be enforced by a court order, it is only those in Schedule 6 of the Consumer Credit (Agreements) Regulations which do indeed make an agreement completely unenforceable.

 

The signature of the lender is not one of these prescribed terms.

 

If the agreement is missing the lender's signature, it simply means that the agreement has not yet been executed. They can still execute it at any time by signing it. Until the point of execution, the other party to the agreement can withdraw from the credit agreement.

 

If they were to sign it now, you would need to be able to prove that you had withdrawn from the agreement before they had signed the agreement and therefore executed it.

 

I'm not quite sure why people are getting into such a tizzy over prescribed terms when there is no evidence here that any of the said terms are missing, it seems to me that the query is simply over the signature and the execution of the agreement.

[payingonlyencouragesthem]

Laist, I could try to get that agreement scanned if absolutely necessary (and if someone more techno literate could explain how to post it:confused:) but I think it would be easier if you could possibly give me a checklist. Thanks.

[payingonlyencouragesthem]

If the agreement is missing the lender's signature, it simply means that the agreement has not yet been executed. They can still execute it at any time by signing it. Until the point of execution, the other party to the agreement can withdraw from the credit agreement.

 

If they were to sign it now, you would need to be able to prove that you had withdrawn from the agreement before they had signed the agreement and therefore executed it.

 

How can it have defaulted in 2004 if it wasn't executed until 2007:confused:?