Thank you for the great advice I have so far done exactly what you have suggested even to the point of sending them links to second hand wheels. I have also said a repai is not an option and a second hand replacement is the absolute minimum. Okay great, keeps me on the right track- thanks again

Hi I purchased a used car 4 days ago BMW 325i Convertible M Sport for £10,989.00 from a BMW specialist. On day 2 the tyre warning light came on so i checked and inflated the NSR tyre. On day 4, on the first motorway journey, the NSR tyre deflated and shredded the inner wall. It was a run flat so I made it to the nearest garage for a replacement tyre. The garage pointed out the alloy wheel had been welded at least twice and one of the weld repairs had failed. The new tyre would not hold its full pressure and leaked when it was inflated. I took photo's and a video of the issue. I contacted the garage same day by phone to advise them and by email to back up my conversation. They asked for photo's which I sent. There response was basically- The car was fine before you took it and had a full inspection and MOT. It is reasonable to assume I hit a pot hole which caused the damaged. I pointed out there is no impact damage on the wheel and the tyre has deflated since I took it? They said because you hit a pot hole. They offered to repair the wheel by welding it..... or refund the sale value. I said a repair is unacceptable due to the already compromised structural stability of the wheel and BMW and the Welding Institute advise against it (yes the Welding Institute actually exists!) Now you would think I would jump at the refund? No... The car is spot on except for the wheel. I want to keep it, but want a replacement wheel. I have asked for a second hand wheel (not new) without cracks or welding. I will pay for the new tyre and I will not pursue them for loss of earnings for the afternoon, alternative transport arrangements, new tyre etc. They have said they will repair it only. I am currently reviewing the Consumer Act 2015 but not sure if I can keep the car and request a replacement not a repair? Any advise is gratefully received. PS if I can help out with any alternative dispute resolution queries, please ask via an admin. I am a mediator by trade!

Great news well done

Great result! Well Done

I think the OC not signing the agreement is going to be a tough one to get by a DJ. But if you do go with that I would probably state something along the lines of 'The OC did not sign the original agreement contrary to consumer credit (agreement) regulations- reg 2 and schedule 5, paragraph 1 'the creditor’s signature did not appear in the form of a signature box prescribed by that paragraph'. That is subject to s127 (3) of the CCA 1974. In Carey summing up un-executed agreements are dealt with at para 26 and 27:- 26- The signed application form, detached from the booklet, is then sent to Barclaycard. If it approves the application, it signs the form as well. At that point there comes into existence an executed agreement. Therefore suggesting before the creditor signs the agreement it is un-executed. 27- In this example, the un-executed agreement does not become executed when signed by the debtor because it has to be signed by the creditor after receipt of the application form. So s62 (1) applies. Here the s62 duty will be satisfied by the provision to the applicant of the booklet from which the form was detached. All of the terms of the prospective agreement are at pages 6 to 9." Was there a booklet in your case with all the prescribed terms or just an application form? Also s189 of the CCA defines an un-executed agreement as “ un-executed agreement “ means a document embodying the terms of a prospective regulated agreement" therefore your agreement was un-executed and only a prospective agreement. I still think it is a weak argument though and the DN can be rectified by sending a compliant one because the original agreement cannot be terminated on the back of a faulty DN, so the agreement is still live and a new and compliant one can therefore be issued under the agreement. A

If you let me know a couple of days before the mediation I will have a look over your thread and give you a few pointers that may help

They have until the 3rd week in Nov to send you the information so they have a little time yet and it will be interesting to see if they pay the fee to proceed. It may be worth waiting until the end of Nov and if you receive it you can ask for comments on here, and if you don't receive it maybe advise the court of their failure to provide said information, after all it is a 'court order' they have failed to comply with. I think they are playing games with you re the mediation offer and unless the £2800 is acceptable, I would sit this out because you have the advantage of knowing they are prepared to settle at £2000. If they produce nothing more than previous you then have a choice, grind them back down to £2000 and get closure or let them advance to court with no proof. A

I had a similar offer to pay a reduced amount or the whole amount in installments. We eventually agreed to a 75% reduction, zero interest and a fixed payment and period There is hope A

Personally, I would ask them to forward a draft Tomlin Order, based on their original proposal for settlement, for you to consider. People on here can have a look and suggest adjustments and you can then send it back drafted as your proposal. It is as simple as that. A

Its good they accept you want to go away and consider a counter offer. It suggests they are willing to move further. Just consider 'is drawing a line under this important?' If it is then really try to strike a deal but make it affordable to you so you are not setting yourself up to fail, and share that with them. If its not important to get closure, keep on with your case evidence and go for it. In the TO I would consider a clause that states 'this is a fixed amount over a fixed period with no review of the terms unless both parties agree in writing to such review'. That should give you certainty and stability. A

I choose my words carefully sir!

Morning AT Appreciate you have your targets and outcome aims, which is good, however hoping the claimant discontinues is not something in your control and if the claimant does not discontinue, the decisions are in the judges hands. Mediation is a good way to narrow the gap between the parties and manage negotiations closure to your aims, than the uncertain judges decision. Andy can give you the very best ammunition to get the best possible result in court and his work may force a discontinuance, but keep an open mind on mediation and the risk/ reward on betting they discontinue. You can maintain control and settlement management through mediation which is not so flexible through a court case. A

Morning All I may be wrong so correct me if you need to, I thought the defendant had 33 days to file the defence, including date of service i.e. service 3rd Oct, AoS by 21st Oct, defence submitted by 4th Nov? Again just trying to help so shoot me down if needed A

The agreement that a CRA and the DCA or OC have, is that the reporter will check the data is accurate prior to submitting. It is not for the CRA to check its accuracy. That is the fact, like it or not. And people who are trying to help you on here do not need "which part of this don't you understand". A

If they eventually produce the agreement its £4000 and a CCJ If they don't produce an agreement its £0 and no CCJ If you settle, its £2000 easy payment terms no CCJ You just need to make the decision now A

Hi Rita- In response to your PM and subsequent post. I personally don't think the mediation took place too early, it sounds like you were not fully prepared for settlement. It is always good practice to set yourself an acceptable offer/ settlement limit and whilst it may change as the mediation progresses, it provides some parameter to work to. You went into the mediation and undertook some negotiation but did not set yourself an acceptable limit or even had the approach to get this settled. This appears to be why an offer made in the mediation was not acceptable then but now seems to be something you are considering. Anyway that is history now. It will be up to the opposing party to decide if the offer is still available to you but I can not see a reason why it wouldn't be. A draft TO would be written, which you both agree with; and the court would seal it. As far as I can see, you are back to deciding if you are happy to go to court to see if they have the agreement (with the associated risks/ reward) or trying to come to some sort of agreement outside of court. Nothing has really changed. A

Rita I am uncomfortable responding to PMs unless absolutely vital. To be honest you could post it here because if the claimant is reading your thread, they already know all of your evidence, defence and position. Please post here and everyone can continue to help. If you want to discuss with a site team member first, please do. A

Good advice Andy and something I will bear in mind when discussing default terms A

Someone with more legal experience will be able to advise you on the default removal, however I understand it to be unlikely unless it can be proved to be an inaccurate marker. WS is a Witness Statement, something you would be asked to submit by the courts should you not settle and the claim proceeds to trial. A WS is a more indepth and detailed account of your defence. If you use the mediation as above, you will obtain a lot of info for you to understand the claimants position and help you to put together a relevant WS. A

In any consumer agreement there a three main negotiation terms- Value, repayment period and a default term. The default term is a term you both refer to should you default on an agreed payment. It stipulates the time you have to rectify the default. They will stipulate if you default they can immediately apply for judgement in respect for the original value claimed. You should consider the default term to read something like 'if the defendant defaults on the agreed payment value or time, the claimant shall send the defendant a default notice and the defendant will have 14 days to rectify the default' A

Hi Rita- Hope you are well. CitizenB has provided a useful link in post #83 to give you a flavour of the telephone mediation process, have a good read so you can get yourself ready for a fairly brisk pace of negotiation. Okay, I can see you defended that you have not received a CCA or a breakdown of the claim amount. You also feel the claimed amount is excessive given the original balance at default? That is a brief summary and not detailed. First- On the information you currently have before the mediation, set an acceptable settlement figure, over a suitable payment period and a suitable payment default remedy period. Keep that with you. The mediator will ask you why you contest the claim. It would be appropriate to state ‘at the moment the claimant has simply claimed I owe them money and has provided no information or agreement to substantiate the claim or the claimed amount’ which is basically your defence. The mediator will probably not be legally experienced and this statement will simplify the matter from your point of view. I would not expand on that at all, let the claimant respond to it. Particularly do not mention the importance of avoiding a CCJ. By the way you can avoid a CCJ if they do not produce the agreement, if they fail to win a claim, if they win and you pay in the requisite time scale or you agree a settlement in mediation, so do not concentrate on the avoidance of a CCJ at this point. I am sure they will respond with ‘you had the money’ ‘we can prove you spent it’ ‘we are waiting for the agreement from the OC’ etc. I would force their hand very early in the mediation as to their breach of the regs in respect of the lack of the above and bringing a claim without the above i.e. no agreement as yet and an overstated balance without substantiation. This will give you an early indication of the strength of their case. The more they argue their case and the more they try to convince you of the strength of their position, the more they will reveal about what they intend to do and what they already have. This will at least prime you for a WS if the matter proceeded past mediation. Once you have both presented you positions through the mediator you will have a better understanding of the claimant, issues they may not have revealed previously and their appetite for negotiation. You also need to consider your approach, you risk/ reward ratios of taking the matter to court as opposed to settling on the information you now have. I get the feeling you do not contest you owe them money but just the amount and you would like to test them to see if they can produce and agreement? At this point you will need to review the information and decide how your stance has changed if at all, then how this changes your initial target for settlement i.e. what is the maximum you are prepared to go to and on what payment terms you will agree to and what agreement terms you will accept. For example you may decide your case is terminally flawed and agree the full amount, over 60 months at £61.35 with a 14 day payment default remedy. You may decide you have good grounds with elements of weakness and decide a 50% reduction over 36 months with a 28 day payment default remedy is more appropriate. The negotiation is down to your personal risk/ reward ratio appetite and has to be right for you, keeping in mind the CCJ avoidance you state is important. You do not appear to be letting yourself get blinded by the fight which is good, so consider the virtues of closure, settlement and an affordable, workable solution on your terms with no negative impact on your credit rating. A

Having a quick read of your thread and I will post shortly

How did they get your name initially, if your flatmate set it up in your friends name? Thanks A

Glad you are pleased with the outcome A

I am sure others will be along at some point to advise you, but could you just clarify something:- Your flat mate opened a catalogue account in your friends name; and you started to pay it? At what point did this involve you and why did you start paying for it? Thanks A