Black Horse hire purchase agreement

[dotty]

Just to let you know the court case has been adjourned - BH solicitors agreed to request.

 

thank goodness!

[JonCris]

Dotty I know you pm'd & emailed me but I lost your posts & address because of a temporary browser change. Could you contact me direct again??

[dotty]

Still no clearer as to what is happening. Court date is 4 November.

Solicitor is arranging legal aid.

Cost of case has gone from £5,000 up to now £9,700!

Still haven't actually spoken to the solicitor - don't know what's happening.

 

Received a letter to say there is a chance I will have to pay costs if I win. And poosibly Black Horse costs too!

 

I'm fed up with the whole thing.

 

dotty

[JonCris]

costs for both if you win? Sorry doesn't make sense

[dotty]

Sorry - got that completely wrapped round my neck.

 

The cost of the case is likely to be £9,400. If I have a change in circumstances (get a higher income) I will have to pay that money back.

 

If the case is on & Black Horse does not pay all of my legal costs then the remainder would come out of any money paid to me.

 

Then the letter says if court proceeding are commenced (which I thought they already had) 'then your opponent will also incur substantial legal fees. I can't predict the amount of these accurately, however they will be probably higher than your own costs. If you lose any court proceedings, then you will have to pay your opponent's costs.'

'your opponent will need the permission of the court to make me pay these costs. This permission will be given if you have the ability to pay'

 

Which as it stands now - I don't have the ability to pay.

 

I think what has alarmed me is if I lose I'm going to get a huge bill £30,000 + court costs - what happens then - can I be made bankrupt - even thought there is nothing to take.

 

So the £14,000 I thought I would get back, if I won, (amount I've paid Black Horse) there won't be much change out of it.

 

It's all a horrible mess - why couldn't Black Horse have just sorted it out last year. Consumer Direct said I had to wait for BH to take it to court so I wouldn't end up with the costs - that was wrong then?

 

It's such a waste of money - I'm shocked really. I wonder if there is any chance it could be negotiated between the solicitors to avoid it going to court or is it too late?

 

fed up dotty

[JonCris]

Your over reacting. Your solicitor is required by the rules to advise you of the risk of adverse costs but as your being funded this is highly unlikely & of course if your income increases legal aid will have to repaid.

 

Your solicitor in order to obtain funding must consider you have a better then 51% chance of success

[dotty]

Hello

I'm not over reacting - I'm panicking - Can't help it

 

trying to ascertain the worse case & best case scenarios

 

do you think it could be sorted before the court date or will it now go to court for sure?

 

dotty

 

thank you for replying

[69d]

I currently have Stephensons solicitors representing me regarding a regulated hp agreement,i have been waiting 12 month for the finance company to now start some sort of proceedings,i have been issued a default notice for non payment of the agreement since March 2008 due to the vehicle i was provided with by the franchise dealer T L Darby Volkswagen was not the vehicle described on the invoice,nor on the finance agreement by Volkswagen Finance,i refused to pay the finance company until they refunded my money to date £9000 or exchange the vehicle for the car i should have been provided,they failed to reply to that request,so i issued them a letter recorded delivery that i was repudiating the contract under the consumer credit act and the missrepresentation of a vehicle,that was in March 08,7 months later i get the notice of default,i currently have a Barrister Oliver Mischcon of London (writes in the sunday mirror) to which the article was posted under I WAS SOLD WRONG CAR (google) i await the outcome very distressing and causes severe depression i know how you feel my account is in arrears of £3000 and they are now requesting the full amount of £22000.

[dotty]

Hello there

I read your post - very interesting!

It's an absolute nightmare isn't it?

It's been a battle from the day I picked it up - now 4 years.

 

My court date is 4 November - I'm really worried but at the same time furious I've been treated so badly.

 

Do you have a date yet for court? You can't believe these dealers, what they try to get away with. You can't imagine really- people just don't realise what's going on under their nose.

 

I never dreamt that the vehicle I thought I was going to buy - I even wrote the reg number down - would get duplicate plates put on it!

It's been a mind bending puzzle that has taken too much of my time!!

 

If you don't mind I'd like to send you a private message.

 

dotty

[69d]

Hi Dotty,you can pm me if you like.

[dotty]

Hello

The court case is going ahead tomorrow - even though the funding hasn't been confirmed - so will be going on my own with no solicitor.

 

Any advice would be greatly appreciated.

dotty

[Drei]

no scolicitor eh.... anyhow interesting read.... so what's happening??? How did it go today?

[dotty]

Hello

Went to court - it was suspended for 28 days - for me 'to get my act together' & get the defence in if there is one.

The representative for Black Horse said they would allow me to keep the vehicle if I continued to pay £470 per month. I said I wouldn't pay £4.70 for the heap of junk I'd got. I aid that really wasn't the point - the catalogue of faults aside - the three chassis numbers were the issue & the wrong numbers on my paperwork.

She made a phone call & they instructed her to go for a full recovery of the vehicle.

The judge decided against that & suspended the notice for recovery for 28 days.

So I was very pleased but it has been very short lived.

Rang the solicitor to let them know - they still don't think they'll have the defence ready in time.

Finally got a letter for Legal Services Commission (which is where the hold up is coming from) I have to pay £100 per month & sign the form. Then I assume they'll issue the certificate.

Solicitors say that they might have to send me back into court again & ask for a further delay. There is no way that would be entertained - the judge made that very clear.

I either enter defence by 3rd December or Black Horse get the recovery of the vehicle & I get all costs & charges - Black Horse also won't need to to go back to court for this.

 

It was a nightmare - I don't want to do it again. I'm not very encouraged by your message '69d' that you say your defence should have been put together in 6 weeks & 12 weeks on you're still waiting!!

 

If the defence isn't going to be done in time what on earth should I do? I'd be very interested to hear any views on this.

 

dotty

Edited November 12, 2008 by dotty
typo

[dotty]

I found out today, that for certain, a defence will not be ready in time for 3rd December, because of the delay with LSC.

 

Looks like I'll be returning the vehicle without the opportunity of telling a judge what exactly has happened here , Black Horse get away with it all & take no responsibility.

 

It seems to me these companies can cause havoc & walk away once they go into liquidation, & from this forum the finance companies do exactly as they like. Black Horse have had 18 months to try to sort this mess out - they don't want to know either.

 

I've been battling with this for 4 years - too long - life's too short. It's taken up too much time.

 

very fed up dotty

[JonCris]

Did you tell the court you were arranging legal representation which is reliant on legal aid.

 

If not write to the court asap & request a continuence explaining why & give the name of your solicitor

[dotty]

Hello JonCris

I've done what you suggested - sent a letter to the court, explaining situation, name of solicitor etc.

The solicitors have also sent a letter to the court & to BH - they seem to think they won't get an extension.

I can't understand why this wasn't done three weeks ago, when tey knew they wouldn't have enough time with 4 weeks delay. Still waiting & now less than a week away.

 

dotty

[surfaceagentx20]

Dotty,

I don't see why your solicitor couldn't seek an emergency certificate assuming they still exist. Anyway, got your PM. Please post after deleting any information which might be used to identify you, scans of [1] the Particulars of Claim, [2] the HP agreement and [3] the default notice. Do it ASAP.

 

x20

Edited November 26, 2008 by surfaceagentx20

[surfaceagentx20]

I notice the claim is to be defended on the basis the car supplied under the agreement was defective and whatever technical defences may be available under the 1974 Act, the car’s defects will also form part of your defence. If so, I imagine it will be intended to rely on Supply of Goods (Implied Terms) Act 1973 section 10.

 

To be able to deal with a Defence effectively it will be necessary to know if you have rescinded the agreement for the car (by which I mean you have given notice to the finance co stating that owing to the defects in the car you no longer regard yourself as bound by the agreement and wish both you and the finance co to be restored to your positions prior to entering into the agreement), or have accepted the car subject to rights for either the recovery of damages for breach of section 10 or a reduction in the price. If you are evidently still in possession of the car since the finance co sues for its return, I imagine for the moment that you have not rescinded the agreement and prefer to keep the car subject to the right to recover damages. Please confirm.

 

Any claim based upon a breach of section 10 will require evidence concerning the car’s defects. If you have obtained a report from an engineer about the car, please post the engineer’s report. If you have obtained a statement dealing with what it would cost to put the car right, please post that too.

 

Finally, you will need to know that whilst a Defence can be raised under section 10, assuming you have evidence of breach, ordinarily the remedy sought for breach will be advanced by way of counterclaim. I do not wish to tread on your solicitor’s toes by advancing a case which will not be covered by your legal aid certificate. Your certificate may be limited in scope to defending the claim only. There is some chance it may not extend to bringing a counterclaim. Please let me know what legal aid scope is sought. If legal aid is sought to counterclaim and you wish to counterclaim you will need to know that you will have to pay a fee to the court on presenting the Defence and Counterclaim. If legal aid will not be available to counterclaim or you do not want to pay a fee to the court by presenting a counterclaim, a get around may be available by pleading any right to damages as a set off against the money claim advanced by the finance co. I will not be able to say one way or the other until I have a full set of the papers I have suggested you make available to this thread.

 

Any queries, just yell.

 

x20

[dotty]

I have the documents but do not know how to load them on here.

[surfaceagentx20]

Do you have a scanner or digital camera with tripod?

 

Also and in any case, where I ask questions, can you provide answers? It will be food for thought pending sight of the documents.

 

x20

 

Er, just got your PM and note you say you have scans. Visit photobucket and follow the instructions to join and post documents to that site. Then place hyperlinks to the documents hosted on photobucket to this thread.

Edited November 26, 2008 by surfaceagentx20

[dotty]

Oh thank you - I'll do it now

[surfaceagentx20]

deleted

Edited November 27, 2008 by surfaceagentx20

[surfaceagentx20]

Dotty,

Here's another slightly amended draft Defence and Set Off with some blanks to complete. In my view, prior to filing it is vital you run this pleading past your solicitor who is advising in the case and has a far better working knowledge of the niceties of it than I have. As you know, I have only seen the agreement, the termination notice and the Particulars of Claim. I do not want to bugger up a Case Plan.

 

Further in drawing it up I am aware your solicitor believes the Consumer Credit Act 1974 will assist. It seems to me to be of immense importance to your prospects that the Act does operate to regulate the agreement. At first and as you know, I drew the Defence with specific reference to section 12 of the Act without any real conviction that what I was saying was applicable. That's why I deleted it. I thought it was too rubbishy to even think about making such a claim. So instead and in this amended version I simply say the Act applies without saying why it applies. That way the allegation can appear in your Defence and your solicitor can say why it applies in some voluntary particulars or in answer to the inevitable CPR 18 Request for Information. It's a pity your solicitor could not be more specific in the claim that the Act applies.

 

As you are probably aware, if the agreement is not regulated then your reliance upon representations made to you by RDH and upon which you relied in entering into the agreement may not be representations binding upon Black Horse Limited. Further, RDH is now in liquidation.

 

I have drawn the pleading as a Defence and Set Off in order to avoid you incurring a court fee. Again, take your solicitor's advice as to whether such a route is advisable or not. If she says a Counterclaim is the way to go tell me and I can redraw it, though in my view, if the pleading can be later amended (which it can) so long as you have a Defence before the court that suffices. Adding the complication of a counterclaim at a time when you are without legal aid seems an unnecessary complication and I would be inclined to keep things as simple as possible at this stage.

 

Any queries and I will endeavour to help.

 

DRAFT / DEFENCE AND SET OFF

 

DEFENCE

 

1 By an agreement made in writing on 1 March 2004 the Claimant let to the Defendant the goods set out at paragraph 6 of the Particulars of Claim, namely a Benimar Anthus 600 motorhome registered number FJ03 TWD (the goods).

 

2 At all material times the Defendant was a consumer and the Claimant was a business which hired goods in the course of its business within the meaning of Supply of Goods (Implied Terms) Act 1973.

 

3 The supplier of the goods was RDH Motorhome Sales Limited (RDH). On 4 December 2006 RDH was dissolved.

 

4 The Defendant will refer to the agreement, its terms and conditions and the effect thereof at the trial of this case, the short particulars of which are that

(1) the total cash price for the goods was £29,750.00,

(2) the deposit was £750.00,

(3) the amount of credit was £29,000.00,

(4) the Claimant's total charge for credit was £10,709.35

(5) the repayment balance was £39,709.35

(6) the repayment balance was payable by an initial payment of £565.90 payable on 1 April 2004 followed by 82 calendar monthly instalments of £472.90 the first of which was payable on 1 May 2004 followed by a final payment of 529.55.

 

5 In the circumstances paragraph 5 of the Particulars of Claim is denied. The Defendant avers the agreement was an agreement regulated by the Act. The Defendant further avers that the goods were goods to which RDH as supplier attached a cash price of £29,750.00 and as such the transaction set out at paragraph 1 of the Defence attracts the provisions of section 75 of the Act.

 

6 Further and/or without prejudice to whether the agreement was regulated by the Act, prior to entering into the agreement set out at paragraph 1 of the Defence there were negotiations between the Defendant and RDH during the course of which RDH made representations to the Defendant and upon which the Defendant relied.

 

PARTICULARS OF REPRESENTATIONS

 

RDH represented to the Defendant that the goods were

(1) new at first registration in June 2003

(2) registered with Vehicle Identification Number (VIN) ZFA 244...

[here set out any written or oral representations which induced the transaction] for example:

[a pristine example of the Benimar Anthus 600]

 

7 Further, there was by reason of Supply of Goods (Implied Terms) Act 1973, an implied term of the agreement that the goods at first acquisition by the Defendant were goods which were of satisfactory quality taking into account the description of those goods, the price and the representations set out under paragraph 6 of the Defence.

 

8 In breach of the matters set out at paragaph 7 of the Defence, the goods were not of satisfactory quality but of unsatisfactory quality when first acquired by the Defendant.

 

PARTICULARS OF UNSATISFACTORY QUALITY

 

(1) The VIN recorded on the logbook was ...

(2) The VIN recorded on a metal plate under the bonnet of the vehicle was ...

(3) The electric step failed to operate correctly and cut out the engine when it fell down.

(4) The locks were frequently inoperable and the Defendant was locked out of the vehicle on numerous occasions

(5) There were defects with 2 doors, 2 tables, valves and other electric parts.

[As evidence of the unsatisfactory quality of the goods the Defendant will rely upon the report of (name)]

 

9 In the circumstances but for the dissolution of RDH the Defendant had a claim against RDH for misrepresentation and breach of contract and has a claim which may be brought against the Claimant and for which the Claimant is liable by reason of the provisions of section 75 of the Act. Further and/or alternatively, the representations of RDH and the statutory provisions of Supply of Goods (Implied Terms) Act 1973 are representations and statutory provisions imported into the agreement and binding upon the Claimant.

 

10 By reason of the matters set out at paragraphs 8 and 9 of the Defence the Defendant was entitled to rescind the agreement, alternatively was entitled to damages and/or to a reduction in the cash price and/or to a variation in the terms providing for the payment of the repayment balance set out at paragraph 4(6) of the Defence. Moreover and in furtherance of such entitlements the Defendant was entitled to and with effect from (date) did suspend making payment of the instalments in reduction of the repayment balance.

 

11 By a notice dated 7 March 2008, the Claimant informed the Defendant that the agreement was terminated and made demand for the return of the goods. It is admitted as alleged at Paragraph 7 of the Particulars of Claim that on 26 March 2008 the Claimant terminated the agreement.

 

12 Prior to receipt of the Claimant's notice of termination and in breach of section 87(1) of the Act, the Claimant failed to effect service of a default notice in prescribed form or any notice complying with the provisions of section 88 of the Act.

 

13 In the circumstances the termination of the agreement by the Claimant in the manner set out at paragraph 11 of the Defence was a termination which the Claimant was not then lawfully entitled to effect, but was an unlawful termination in repudiatory breach of the agreement.

 

14 By reason of the matters set out at paragraph 13 of the Defence the Claimant is not now and was not at the date of the commencement of these proceedings entitled to the recovery of the goods or to claim earlier payment of any sum which was payable after 7 March 2008 in reduction of the repayment balance.

 

15 The Claimant's unparticularised claim to late payment interest and fees is denied.

 

SET OFF

 

16 The Defendant repeats paragraphs 1 to 15 inclusive of the Defence.

 

17 During the course of the agreement in addition to the deposit of £750.00, the Defendant has made payments to the Claimant totalling £

 

18 The Defendant will contend at trial that the true value of the goods at the time of first acquisition was not more than £x and that the price of the goods should be adjusted to the sum of £x accordingly. Further, that owing to the payments made, the true value of the goods has now been discharged.

 

19 Further and by way of alternative to the matters contended at paragraph 18, the Defendant will contend at trial that she is entitled to recover as damages a sum of money reflecting the difference in value between the goods as represented and of satisfactory quality and the goods as delivered and of unsatisfactory quality and suffering from the defects particularised under paragraph 8 of the Defence. The Defendant will contend at trial that the proper measure of damages is £.

 

20 The Defendant claims and is entitled to set off against any sum of money which this court shall determine is outstanding and was payable by the Defendant to the Claimant prior to 7 March 2008, such sum as would be reflected in an award of damages under paragraph 19.

 

21 In the circumstances the Claimant's claim to be entitled to the return of the goods or to money or to any other relief is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE AND SET OFF ARE TRUE

 

Signed:

Dated:

 

x20

[surfaceagentx20]

Dotty got your PM,

The claim is for the return of goods as well as money. You can bet your bottom dollar the bank rank the money claim above the return of goods claim and it is beyond doubt that the return of the goods alone would, on sale of those goods, make but a slight dent into the money claim which the bank will certainly wish to pursue.

 

As for the suggestion that you should not 'set off the claim as this would be to admit their claim', I am afraid I regard such a statement as completely ridiculous. It's as if to say the presence of a Defence is converted to an admission the moment the Defendant seeks to 'set off' against the claim.. A 'Set off' is a Defence.

 

I fully appreciate and agree that for example, in a case concerned with the return of a car loaned by A to B, it would be wrong for B, by way of Defence, to set off against the claim for the return of the car, by saying A was indebted to B for the loan of £500.00. Expanding the example, if the case was concerned with the return of a car and hire charges of £500.00, it might be possible to set off the loan of £500.00 against the hire charges claim. I say 'might' because the claim and set off ought ideally to arise from the same or connected transactions.

 

The Set Off goes to the money claim and does not go to the return of goods claim. As I was saying before, I am not convinced you have a Defence to the return of goods claim unless [1] it is possible to get the agreement within the regulations of the Consumer Credit Act 1974, or [2] by demonstrating the true value of the goods, plus something for credit etc is no more than you have already paid and that in equity title to the vehicle should pass to you.

 

I agree that ideally, the pleading should be a Defence and Counterclaim, but the simple truth is this. I heard about this case a few days ago. I have seen the minimum of documents. I don't have the benefit of the papers and feel for this case like your solicitor does and I have to say, I do all this pro bono. I think it somewhat poor that your solicitor who ideally would wish to build a relationship with you is unable to throw in 10-15 minutes to impart the mere gist of the defence and counterclaim he has in his mind.

 

That said, I have converted the Set Off to a Counterclaim. The document title wil be DEFENCE AND COUNTERCLAIM and the Counterclaim will look like this:

 

COUNTERCLAIM

 

16 The Defendant repeats paragraphs 1 to 15 inclusive of the Defence by way of Counterclaim.

 

17 During the course of the agreement in addition to the deposit of £750.00, the Defendant has made payments to the Claimant totalling £

 

18 The Defendant will contend at trial that the true value of the goods at the time of first acquisition was not more than £ and that the price of the goods should be adjusted to the sum of £ accordingly. Further, that owing to the payments made, the true value of the goods has now been discharged.

 

19 Further and by way of alternative to the matters contended at paragraph 18, the Defendant will contend at trial that she is entitled to recover as damages a sum of money reflecting the difference in value between the goods as represented and of satisfactory quality and the goods as delivered and of unsatisfactory quality and suffering from the defects particularised under paragraph 8 of the Defence. The Defendant will contend at trial that the proper measure of damages is £.

 

20 The Defendant claims and is entitled to set off by way of counterclaim in diminution or extinction of any sum of money which this court shall determine is outstanding and was payable by the Defendant to the Claimant prior to 7 March 2008, such sum as would be reflected in an award of damages under paragraph 19.

 

21 In the circumstances the Claimant's claim to be entitled to the return of the goods or to money or to any other relief is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE AND COUNTERCLAIM ARE TRUE

 

Signed:

Dated:

 

Hope this helps.

 

x20

[dotty]

Hello

Well I got there (the court) in the end. By a whisker. Thank you so much for your help.

 

 

dotty