repossesion

[buzzard10]

I have had a reply saying that the matter has now been passed onto the litigation dept. and that they will be in touch soon.

[harrassed senior]

Hi, just reading through and thought I would clarify one point, not that I think it will make any difference. Assuming the payment you missed was due in August, when you paid the September payment they will have used that to off-set the August Arrears, and so on and so forth, so by their reckoning, you become a month in arrears every month as you settle the month before. Probably doesn't make any difference, but thought it worth a mention.

 

Looks like things are going your way so well done.

[emandcole]

I have had a reply saying that the matter has now been passed onto the litigation dept. and that they will be in touch soon.

 

Bet they will. Be interesting to see how they want to handle it.

[buzzard10]

I have now received a much more interesting letter from their collections dept.

 

They state that this was not an unlawful termination, and the issuing of the DN was due to the arrears on account and the fact that they had been trying to contact me for 4 months without success.

 

They then go to say that 'without prejudice' they are prepared to continue with the agreement providing I bring it up to date.

[emandcole]

I have now received a much more interesting letter from their collections dept.

 

They state that this was not an unlawful termination, and the issuing of the DN was due to the arrears on account and the fact that they had been trying to contact me for 4 months without success.

 

They then go to say that 'without prejudice' they are prepared to continue with the agreement providing I bring it up to date.

 

Of course they would state that. I'd probably ask them to explain which part of all this wasn't an unlawful termination. The default they chose to issue and they chose to terminate on was invalid, what part of that do they not get?

 

Given the circumstances I'd politely decline their offer and ask once more for an accurate arrears balance. Ask them if they'd like to persist with their stance on this, in which case you will consider a damages claim for injury to credit. Interesting eh?

[buzzard10]

Thanks Em, You have been a great help.

 

I have been thinking over this all weekend and reading up on the 'invalid default notices' thread. I'm actually very nervous at the thought of it possibly going to court, as I don't know how 'good' I will be trying to defend myself, I'm ok once I've read up on everything, but the thought of getting a creditor friendly judge is a bit scary and if that did actually happen, what would the outcome be if I lost?

Would I lose the car, still have to pay what I owe + costs?

[emandcole]

This is why it is so important for you to study the actual laws and regulations yourself as one day you may be called to explain your reasoning to a judge who may or may not be creditor friendly. Clearly, making like a goldfish whilst pointing to a bit of paper you've printed from cag will do you no favours!

 

In contrast, being able to calmly explain your reasoning and importantly backing it up with sound legal argument and case law is critical. Just remember, the creditor has as much to lose by taking it to court to risk losing as you do, all the more so if they've not played ball.

 

This is why the creditor will throw terms around like they're sending it to their litigation department (ooh, scary) and will make all manner of suggestions in an effort to spook you and intimidate you into ignoring their faults and just paying them. Keep it all in perspective.

 

Ultimately, you have legitimate reason to place this in dispute, they have issued an invalid default...not you. They asked for the full balance, thus removing your prior agreement which allowed you to enjoy making partial payments on a monthly basis...you merely accepted their offer to terminate.

 

Accordingly, you've now asked for the arrears, which as you've probab;y read is all they are entitled to and naturally they've freaked out and are burying their hands in the sand. Not your fault, period.

 

As for losing if a creditor friendly judge awards against you if they've missed/ignored a valid point of law you can appeal and get it looked at properly. Yes, it's a hassle but its also a means to an end if you are in the right. Not all judges are completely familair with CCA law and this of course goes into contract law so occasionally you will have to argue your point.

 

The key issue therefore is to know your stuff, present it concisely and with delicacy, demonstrate how it is entirely comparable to your situation and let the judge do the rest. We are of course jumping the gun which is easy to do. Keep reading, let us know what you get and we can respond as and when necessary.

 

You do of course have the option at any time of re-commencing payments but doing that would undo your current position, perhaps leaving you in the same vulnerable state you were in before you started this thread. In truth a default on your credit file is as serious as a CCJ from a lenders perspective so from a future credit point of view you have, some would argue, very little to lose.

 

Stay positive and keep studying ok?!

[buzzard10]

Thanks again! I still haven't replied to their last letter, as I m still a bit worried. I hardly slept last night because of wondering what to do.

 

I know I can't turn up in court and not be articulate enough to argue my case, but I am basically a very shy person and I have never even been in a court room before, so I know I will feel like a fish out of water ............. however, I do feel that I want to fight this, so basically I'm just trying to get some background knowledge of what to expect.

 

What would the court be like, would I have to stand up at the front with loads of people watching? Would a solicitor be necessary or advantagous?

 

Also the fact that I 'ignored' their calls etc. for 4 months would go against me, wouldn't it?

 

Last question........do you know a good book, or website (other than this fab one ) that I can read for a bit more knowledge?

[emandcole]

I've been to court only once myself, and the first time for me was last week so I'm hardly old hat at this. My point is that many of us have not been to court as we've done the preperation beforehand to ensure that a dispute either cannot or does not get to court.

 

Of course there will be times when perhaps the creditor has actually done everything correctly and then it's only right and proper in the case of a debtor not performing that the creditor is allowed to re-claim their money. It's only fair after all.

 

Courts are very different to what I suspect you have in mind. In many cases involving debt disputes all you'll get is a room, the judge sitting at a big desk with a few fat books laying around and the people involved for either side with their various files etc. There is no jury or groups of strangers in there unless perhaps your case is of interest to the public in some way and even then if the press did want to attend the judge would have to allow it. This won't happen to you, it's just another dispute about an agreement and of no interest to anyone other than the parties involved.

 

As for representing yourself you do of course have the option of employing a solicitor but it really depends on how comfortable you are with your own case, how much you can afford and perhaps the seriousness of the matter. For example it's not worth employing a solicitor for a parking ticket dispute but worth considering if your home is at risk, it's all relative.

 

You could look at using a solicitor and see if you'd qualify for any help in the event that this was taken to court? Perhaps give you some peace of mind. As for stuff like ignoring phone calls it doesn't matter. The court will be interested primarily in the paper trail and not an argument over who said what in some phone call. Transcripts may be helpful but often the claimant will be reluctant to release any calls that were damaging to them and can simply state that the call you were referring to was not recorded. Concentrate on the paper trail always.

 

As for being shy you would need to overcome this to some extent if the creditor did decide to litigate but the court experience really is nothing more than a chat about a disagreement, don't turn it into something it isn't in your own mind ok? Just send a letter back once more asking for the arrears balance, it doesn't matter why and when they chose to default you, that's of no consequence to you at all. They defaulted incorrectly and then terminated by demanding the full balance. They know it and their offer for you to recommence the agreement is simply a chance for them to undo their poor practices.

 

As for good books cag does do a guide to the small claims court procedure which no doubt will be very helpful and the purchase of this will help cag to continue to do its good work. Not sure where to find out, perhaps do a serach of cag books for example. Stay calm ok?

[buzzard10]

What did you go to court for, do you have a thread on here? Hope the outcome was favourable?

 

I'm not going to say "thanks" again, please take it for granted that I'm always grateful for you help and advice.

 

I haven't replied to their letter yet, but have decided to fight it, so putting one together in my head at the mo, do you have any ideas on what not to write in it?

 

Also, one other question, the arrears on the DN have been paid as they took that exact amount out by direct debit after the TN, so does this mean that "the arrears" are now paid?

[emandcole]

Issues with a creditor who basically failed to reserve any contractual right to apply charges to an account, I asked them why they'd applied them when the T&C's made no mention at all of such costs and they chose to sulk for 10 months before selling the account to a DCA. The creditor after this sale then issued a seperate letter apologising for the fact they sent no final response before they sold it and tried to apologise with a cheque for £50.

 

You can read it all here: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221243-link-financial-check-out.html

 

As for the letter keep it simple, explain they issued a faulty default notice and then terminated with the issue of a demand for the full balance. The final payment they had was to go towards any arrears and as you've accepted their offer of termination, there is no longer any contract between you. Ask once more for the arrears balance minus the payment you've already made. Keeping it simple will ensure you don't wander off and add the unnecessary bits you've asked about.

 

As for your final question specifically about the arrears I guess the answer would be yes. If that payment was made after the termination you had accepted (and you had accepted it at that time ) then technically if that payment matched the arrears they were asking for on the default notice the account is settled. Obviously if that's the case reflect that in your letter by telling them after the termination was accepted that you paid the arrears balance and as such there is nothing left to pay. Ask them for confirmation that the account has been settled.

[zaidey]

i would personally!!!! stop the direct debit to welcome and make sure u tell ur bank to not allow any more monies to be sent to welcome...

 

welcome have a nasty way of re-issuing dd and using debit/credit cards on there files...to keep there months collections going....

 

lol search my threads on how im dealing with welcome atm....they even clamped my car without a court order....

 

be strong and hopefully welcome will liquidate themselves, once the pound starts to drop more

[buzzard10]

update - I have received two letters today, one is a mandatory arrears notice and the other one is telling me that as I have breached the terms and conditions of the conditional sale agreement they are notifying me of their charge for doing so. So I guess it's a default sums notice.

[buzzard10]

Shall I send them a letter saying I'm confused why these letters have been sent as the acc is in dispute and also ask them to confirm receipt of the arrears?

[emandcole]

Least they can get something right. Let's hope you get something more useful soon.

[buzzard10]

I think we both posted at the same time then emandcole, did you get my post number 64? about the letter, I have already drafted one as I think it may be important to keep up the correspondence on my side too otherwise it could look in court that I was 'ignoring' their letters.

[buzzard10]

I'm going to get the letter off in the post today, I'm not really sure if it's necessary or not but I don't want to simply 'ignore' their letters in case it goes to court.

[emandcole]

Hi, yes sure, do what you're comfortable with but also remember that you need to act as if the account has been terminated also so don't feel the need to pander to them in any way.

 

Make sure you issue any letters with the words

 

Ref: Terminated Account XXXXXXXXXXXX (Add account numbers)

 

This will re-enforce the situation and make them realise you are under no illusions as to the nature of the correspondence between you

[buzzard10]

They've gone very quiet.............calm before the storm perhaps?

[emandcole]

Probably now realise they've messed up, and worse for them that you know what's what . We'll see what tactic they adopt next...most likely be a string of letters threatening all sorts, normally what they resort to when they have little in the way of legal standing.

[buzzard10]

Still no letter, (I'm getting to the point where I can't wait for the postman) but I've just had a voicemail asking me to call the "pre-legal" team back ............as if !!!!

[emandcole]

Yep...all in writing please

[buzzard10]

I have recieved a letter today sayin that the account has now been passed onto the litigation department

[emandcole]

They've only just passed it to a litigation department? Don't seem too keen do they? Ok, we'll see what happens next. They'll either go down the ignorance route and insist they're right or they'll admit in some way that there is a problem and try to get round it in another way.

 

If they have any sense they'll adopt the latter but time will tell, either way it's all for them to sort out so sit tight .

[buzzard10]

not had anything in writing yet from their litigation department, but I have had another default sum notice and an annual statement (funny as I never got one last year), the cheeky so and so's have added over £160 in charges for letters, telephone calls, interest and returned dd's!!!!