Can I reclaim charges to reduce settlement?

[ghettomessiah]

Putfile - Uploaded Picture

[tomterm8]

OK. Is this letter from their disclosure file?

[ghettomessiah]

yeah=) is that a bad thing? Thats just a sample, the rest are the same but i have a collection of different dates..

 

i cant find any original default notices right now, even if i do still have any

[tomterm8]

So, how many defaults do they say they sent you? What are the dates, and amounts?

 

I take it the form the court sent was: http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf?

 

 

 

... Oh yeah, you'll need to fill out this, to keep from paying. http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_0406.pdf

[tomterm8]

For the Attention of the case manager.

 

 

In the XXXX County Court

 

Black Horse plc -v- (YOUR NAME)

 

Claim Number: (CLAIM NUMBER)

 

 

 

 

 

 

 

 

 

Dear Sir Or Madam

 

RE: request for stay, to enter Alternative Dispute Resolution.

 

Please find attached a copy of a recent formal complaint, dated XXX, to the claimants soliciter.

 

with regard to this case, I respectfully submit that this case is suitable for alternative dispute resolution via the F.O.S. I ask permission of the court to stay this case, and to enter the formal procedure for complaints in relationship to the consumer credit agreement as provided for in the Consumer Credit Act 2006.

 

Further, I am aware that at the requests of all major banks, almost all cases on charges are being stayed until the resolution of the recent court case. I would suggest that launching such a complaint may be the most speedy way to do justice to both parties.

 

I believe this would resolve all issues, either informally (through negotiation) or via the complaint resolution service of the F.O.S. I am prepared to accept the decision of the F.O.S. on this matter, and believe it would save the courts precious time and resources.

 

Yours Sincerely,

 

 

 

 

In the XXXX County Court

Black Horse plc -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

Dear NAME

 

RE: FORMAL COMPLAINT UNDER THE CONSUMER CREDIT ACT 2006,

 

Thank you for your letter dated XX.

 

Before discussing the case further, I would like to inform you that in response to my recent letter the court has ordered me to submit an application to ammend my defence, and that I will shortly do so.

 

A number of areas for complaint against your client have come to my attention, as the result of the recent legal action by your client:

 

In order to save time, I would like to particularise them:

 

 

Matters relating to the date of the agreement

• I make no comment on your claim that the agreement was sent by fax, and was signed both before and after I signed it.

• I refute that the matter of the date is a minor clerical matter. There is a requirement under the CCA that all terms be legible at the date I signed such a document; therefore the alteration of a term of this document subsequent to signing it renders it improperly executed.

• Further, the date the letter was sent and executed is of significant legal importance, since the available dates stride a period of legal change, in which the prescribed format of credit agreements radically altered. It is therefore vital to know (a) when the credit agreement was sent and (b) when it became executed.

• I therefore make a formal complaint in relation to this matter, Under the Consumer Credit Act 2006.

Matters relating to the insurance cover

• I do not admit I have nor had, at the fate of the first alleged breach of contract, the appropriate insurance documents in order to claim, I only admit that you sent me a copy of the terms and conditions of the insurance after I requested full disclosure of all documents relating to the account.

• Your client, to the best of my knowledge, is and was a member of the same group of companies as the insurer, and that group of companies would gain, with no allegation of any improbity, through the lack of such a claim.

• I note that by terminating the agreement, you have rendered it impossible to claim on this insurance.

• I further note that your client must have been acting as the agent of the insurer at the time that the insurance package was agreed, and no evidence had been provided to me that I was ever informed that this relationship ended at any point after the insurance contract . Further, the credit agreement I signed does not specify that a particular insurer the contract was to be underwritten by, although I will accept that it seems reasonable to assume that this was clear at the time.

• I make no comment as to what was or was not discussed during the negotiations towards this credit agreement; in the absence of any evidence or complete recollection of these matters by either party, such speculations would seem fruitless. I repeat that I do not accuse your client of any impropriety in the making of this agreement with regard to the addition of PPI in the contract. It is reasonable to assume that at the time the agreement was made, I was aware of the addition of PPI, but after an extended period I had forgotten it.

• Your client, however, kept all records on computer and would have been aware of the addition of PPI at the time I first informed you I was having problems due to sickness and unemployment.

• I believe that any reasonable person would assume that the normal action of any insured person, on being aware of a claim in relation to a risk that was insured and subsequently occurred, would utilize such insurance.

• Since I did not claim on the insurance, I believe my assertion to the court that I was not aware of it at the time I could have claimed on it is valid.

• Consequently, it is my view that your clients lack of action in this case caused both parties significant harm.

• I therefore make a formal complaint on this matter, under the consumer credit act 2006.

Matters relating to service charge.

• I note you request me to provide the date and amounts of each service charge.

• These service charges are:

• 15/08/2006 £25.00 direct debit cancelled
  11/09/2006 £30.00 monthly payment not paid
  17/10/2006 £25.00 direct debit cancelled

• I will provide evidence of these charges if requested, although I note that your own client provided me with this evidence as a result of disclosure.

• I formally complain that these charges are unfair, for the reasons set out in the defence, and unlawful at both statute and common law.

• I therefore make a formal complaint on this matter, under the consumer credit act 2006.

Offer with a view to resolving this dispute out of court or the F.O.S. service.

• I have already provided you with a settlement offer to resolve this dispute. As you are aware, I am unemployed, in receipt of means tested benefit.

• I am therefore prepared to offer your client, with regard to this court case, and without admitting liability, a settlement offer in full and final settlement of this matter, of:

The suspension of any interest and charges to the account, and

 

The payment of £2.75 in monthly instalments to the figure of:

 

 

Either:

 

 

£530 (being the claimed figure), as the remaining balance of the account, without waiving the right of the defendant to take legal action against your clients to recover these charges or to bring these complaints to the F.O.S. for resolution.

 

Or

 

£200, waiving the aforementioned rights

• The amount of monthly payments to be mutually reviewed when and if my financial situation changes.

• If you are unwilling to accept either offer, I intend to refer it to your formal complaints procedure as being unreasonable in light of my current financial position.

With regard to your formal complaints procedure

 

I am aware of the waiver by the F.S.A, but there is an exception in cases of extreme hardship. As you are aware, I am on means tested benefit AND since the case is within the remit of a civil proceeding; I therefore contend, that I am within the exception, and will formally complain to the F.O.S. if you indicate you will not deal with the claim within the normal period.

 

With regard to the court

• I have sent this letter, with a request for a stay, to court asking that it considers if this matter is appropriate for Alternative Dispute Resolution via the Financial ombudsman service.
  
• I note that I have the legal authorty to bring this matter to the F.O.S. without your consent if I am not satisfied with your resolution of my formal complaint.
  
• I ask you to provide me with a formal copy of your complaints procedure.

Thank you for your co-operation.

 

Yours Sincerely,

 

XXXX.

[tomterm8]

Send it special delivery to both court & soliciters.

[ghettomessiah]

So, how many defaults do they say they sent you? What are the dates, and amounts?

I have 3 of them,

22/03/07 arrears £328.20 total £506.69

09/11/06 arrears £109.40 total £464.81

30/08/06 arrears £54.70 total £540.09

 

I take it the form the court sent was: http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf?

 

Think its a different revision but it hasnt changed atall. Do i still need to fill this in to submit this new masterpiece?

 

... Oh yeah, you'll need to fill out this, to keep from paying. http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_0406.pdf

I wondered if there was another form for not having any money. thought they might have sent it in the post though...

 

Got a letter from court today, says "please find enclosed a copy of the claimant's reply to the amended defence for your information."

 

Does this mean i dont need to apply to amend the defence i already amended, and should just get on with applying to amend the current amendment?

 

do i need to do anything with the application notice atall?=)

 

should i enclose the form for exemption from fees with this request??

 

That's a legendary piece of work dude, i just want to do it justice by delivering it correctly!!

[tomterm8]

Got a letter from court today, says "please find enclosed a copy of the claimant's reply to the amended defence for your information."

 

Does this mean i dont need to apply to amend the defence i already amended, and should just get on with applying to amend the current amendment?

 

do i need to do anything with the application notice atall?=)

 

should i enclose the form for exemption from fees with this request??

 

That's a legendary piece of work dude, i just want to do it justice by delivering it correctly!!

 

Phone the court, and ask what it means... if it just mean you need to simply send the form that states you are excempt from application fees, or maybe send the application form with the letter attached... say you are confused, and explain what happened.

 

Your application notice form is the same as the one I posted, isn't it:)

[ghettomessiah]

identical in every way for all intents and purposes:)

 

i shall go befuddle them with my confusiness

[tomterm8]

If you still have to fill out the application form, fill in the front form stating:

 

-- it was agreed by all parties

-- you do not want a hearing

-- not agreed by both parties,

-- level of judge, district judge,

-- parties to be served, claimants soliciters.

 

Part a:

 

I (Name) intend (the defendant)

 

intend to apply for an order to ammend my defence as attached

 

because relevant information was not available to me at the time I filed it.

 

evidenc in part c:

 

On 13th of June I requested the disclosure of information vital to this case from the claimant, in respect of each alleged debt the Claimant failed to produce any of the information requested before I had to file my defence. The information requested amounted to copies of the Credit Agreement and how they made up the alleged debt. This information was not furnished, instead a copy of their claim form was sent by the Claimants Solicitor. I sent a further letter, on the 22nd June, clarifying the information requested.

 

This further letter also requested copies of any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including the document of assignment and any default notices or termination notice, and a list of charges applied to the account.

Unfortunately, although the Claimants’ solicitor helpfully provided me with this information, I received the claimants’ response after I had already submitted my defence.

I therefore respectfully ask the permission of the court to amend my defence as follows. I note that the claimants solicitor in a letter to me dated 18/07/2007 and enclosed with this letter have kindly informed me that they have no objection to this substitution. I have, of course, sent a copy of this letter to the claimants’ solicitor as they requested.

 

Attach the following:

 

"The court orders that the defence be amended as following:

 

 

DEFENCE

 

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

In respect of that which is neither admitted nor denied:

The claimant has sent me a document that it claims is a copy of the executed credit agreement for this account. The document appears to have been altered at some stage, bearing as the date of execution three separate dates: the 29/3/07 (crossed out), 29/05/05 and 05/06/06. It is therefore denied that this document is identical to any document signed by myself, and the claimant is put to strict proof thereof.

In any case, it seems that the document is improperly executed since Total Interest is missing (contra to Reg 6(1)), Total Charge for Credit is missing (contra Reg 2(4)(d)), Total Payments is missing (contra Reg 6(1)), and Total Amount Payable is missing (contra Reg 2(4)©). The document is also not in the prescribed format.

The claimant has also admitted, in respect of the agreement, that it added a charge in the amount of £108.30 for the purchase of payment protection insurance. While I do not recall agreeing to the addition of the insurance, the effect of this insurance is to provide substantial relief in respect of unemployment or disability on the part of the debtor.

For the entire period that the claimant alleges I failed to repay money according to the terms of the consumer credit agreement, I was unemployed as a result of a medical condition which is undergoing diagnosis and treatment. I informed the claimant by telephone of my predicament, and the claimant did not inform me of the insurance added to the account. It is my contention that having failed to inform me of this insurance, and so preventing me claiming on it, the claimant has failed to mitigate its losses in respect of the account.

I respectfully ask the court to consider the view that an implied term of the insurance contract is that monies will be repaid when due under the credit agreement. Consequently, I would argue that in the normal course of events, if the claimant had mitigated its losses by informing me of the insurance when I told them I was unable to pay due to unemployment, I would have claimed on the insurance and no breach of contract would have occurred. If such a breach had occurred, the claimant would be liable for it under s75(1) of the consumer credit act 1974.

It is denied that any Default Notice in the prescribed format was received before the date of the trial, and I put the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

It is my belief that during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

I note that the claimant has informed me that it has chosen to forgo its alleged contractual right to these default charges in respect of this court case, and that it contends that it has asked the court to alter the claim to remove any such default charge. This has not yet been confirmed by the court.

It also contends that any default notice issued did not contain any such charges. I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If the claimant sent a default notice that includes unlawful penalty charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

END OF DEFENCE.

"

 

Send three copies, i believe.

 

 

 

 

I intend to apply for an order to amend my defence as attached

 

because

 

I did not recieve sufficient information to file it completly at the necessary date.

[tomterm8]

Since we have a legalistic judge, we'd better serve an application for the stay, as well (same form)

 

 

stating:

 

 

-- you do not want a hearing

-- not agreed by both parties,

-- level of judge, district judge,

-- parties to be served, claimants soliciters.

 

Part a:

 

I (Name) intend (the defendant)

 

intend to apply for a stay to the case for alterative dispute resolution through the F.O.S.

 

because I believe that it would resolve all issues

 

evidence in part c:

 

Please find attached a copy of a recent formal complaint, dated XXX, to the claimants soliciter.

 

with regard to this case, I respectfully submit that this case is suitable for alternative dispute resolution via the F.O.S. I ask permission of the court to stay this case, and to enter the formal procedure for complaints in relationship to the consumer credit agreement as provided for in the Consumer Credit Act 2006.

 

Further, I am aware that at the requests of all major banks, almost all cases on charges are being stayed until the resolution of the recent court case. I would suggest that launching such a complaint may be the most speedy way to do justice to both parties.

 

I believe this would resolve all issues, either informally (through negotiation) or via the complaint resolution service of the F.O.S. I am prepared to accept the decision of the F.O.S. on this matter, and believe it would save the courts precious time and resources.

 

 

 

Attach the letter; three copies again.

[tomterm8]

Check with the court how many copies they need - I think it's 3, which is a drag.

 

Send the expenses form, and any evidence of your benefit, to the court.

 

Send the letter to the soliciters normal post, but get proof of postage.

 

Ech... doing it this way at least saves you £4.

[ghettomessiah]

hehe, im going to need to hijack a friends printer, i'm officially out of ink after sending the last few letters in red/pink=)

 

i gots one more noobish question:oops:

Do i need to send a copy of the fee waiver with each application?

[tomterm8]

hehe, im going to need to hijack a friends printer, i'm officially out of ink after sending the last few letters in red/pink=)

 

i gots one more noobish question:oops:

Do i need to send a copy of the fee waiver with each application?

 

i would phone up the court, to be sure, but I think it's a general form, so it would apply to all applications.

 

if possible, it pould be best if all the letters sent to the court were... um... in black and white:rolleyes: Not pink:)

[ghettomessiah]

sorted!!!! and it only took 45 minutes to change the printer cart:rolleyes:

[tomterm8]

sorted!!!! and it only took 45 minutes to change the printer cart:rolleyes:

 

Great:) That's a record time:)

 

Good luck, anyway:)

[ghettomessiah]

hehe thanks dude:)

 

back to waiting and being thankful for your presence;)

[ghettomessiah]

here we go again=p

 

It is ordered that: This action be allocated to the small claims track. The claim be adjourned for one month for mediation.

 

The judge has considered that your case is suitable for mediation and you are therefore invited to use the free small claims mediation service. Please contact the court mediator - xxxxxx on xxxxxxxxx

 

Dated 02 august 2007

 

so chances are they've made this descision before they got the amended defence or application for a stay, plus complaint to the ombudsman!

the date in top right corner is 6th, does this mean they've taken my applications into account or not?

[tomterm8]

here we go again=p

 

It is ordered that: This action be allocated to the small claims track. The claim be adjourned for one month for mediation.

 

The judge has considered that your case is suitable for mediation and you are therefore invited to use the free small claims mediation service. Please contact the court mediator - xxxxxx on xxxxxxxxx

 

Dated 02 august 2007

 

so chances are they've made this descision before they got the amended defence or application for a stay, plus complaint to the ombudsman!

the date in top right corner is 6th, does this mean they've taken my applications into account or not?

 

it does seem very likely that the judge (a) got your application and (b) doesn't want to see you, cause you are likely to be a pian in the... posterior;)

 

I would phone up the number, and ask about it:)

[ghettomessiah]

there will be a hearing for my application for a stay to the case will be taking place early sept!

 

heres the reply i got from the solicitors, they are being particularly wriggly at some points:D

 

Putfile - Uploaded Picture

Putfile - Uploaded Picture

Putfile - Uploaded Picture

 

I think in paragraph 9's reply relating to insurance matters, they have forgotten/ignored facts stated in the previous 8!

 

what should i be concentrating on for this hearing?? im pretty scared about it, its like being asked into the boss' office!