Being sued by Cowboy Builders - please help *** Claim Struck Out ***

[ihateyes]

A very similar case was featured on Don't get done, get Dom or a programme he was on. I am pretty sure the legal advice was to have made some token payments for the contract, as by not paying, it played into the contractors hands.

 

Your very right, but i think this was on channel 5, where there was a program that featured customers in dispute with builders, the law was initially on the builders side.

 

The guy from the mediation service noted from contracts that these guys make up, payment is still due, and in the eyes of the court should still be made, as per contract.

He stated consumers then need to exhaust the mediation service and then court to resolve problems....

 

What he advised is that consumers need to have a bigger input in the contract that is written up, along the lines of:

 

Break the build up into sections.....

pay for each section, and only if work is satisfactory, then the next section is completed and paid for....

 

It was something along those line....

I do agree with Jasper on this, although he have have misrepresented his company, the fact remains he has done work, supplied materials, and thus is due money, which he is entitled to....

 

If after that he has breached the agreement, then the consumer must complain, and sue in court if necessary.......

[wonky100]

Yes the debt collector has been reported to the Police and I will be sending all correspondence with this firm to the OFT tomorrow.

 

We have never been offered mediation and now the retailer is refusing to deal with us, but then again they never had much contact with us anyway, refusing to respond to letters simply by texting to say they didn't have the time.

 

We did agree staged payments and made these with the exception of the final balance as the work was not satisfactory.

 

I did not ask for my money back. I asked my credit card for assistance as I didn't want the final balance taking from my credit card and was told that credit cards are guaranteed so if the retailer requested the final payment even if the work wasn't complete and even if this threw me over my credit card limit, the credit card co would pay whatever they asked for. I have this in writing! I objected to this and this is when the credit card co offered to give me my money back if I sent them all the correspondence and if I wrote to the retailer giving them the opportunity to remove the structure subject to a full refund.

 

Incidentally, the "contract" doe say that if payment is not received then they are allowed to remove. And yes, I would allow them to.

[coledog]

ihateeyes

 

Any legal dispute will depend on the original contract and the remedy of the defects and will be costly for the retailer and Wonkey. The retailer has not done themselves any favours by introducing the harassment and does probably not want a prolonged legal fight. If presented with enough evidence of the cost of remedial work and all the costs wonkey has incurred, they may just back off

 

I would suggest either a solicitor or Wonkey writing to the retailer reminding them that this matter is in dispute, the actions of the appointed DCA representatives is unacceptable and must cease. Under Office of Fair Trading guidelines, a creditor is responsible for the behaviour of their appointed agents. make sure that all this is reported to OFT, Consumer direct should have done this.

[ihateyes]

i hope it all works out for the best, because they way they/dca have treated you is shocking and noone should be put through this.

 

Id be scared to get any work like this done, even a new kitchen being installed is scary when you ready all the horror storys about that.

[unclebulgaria67]

 

I have also been in constant contact with Consumer Direct who did not advise us to pursue a claim under Section 75 however they were aware of this course of action and did advise thank goodness you paid with a credit card.

 

I am not actually sure if I have had my monies refunded under Section 75 or not. I asked the credit card co for assistance as the retailer kept demanding payment when the job wasn't complete and I feared that if we did pay then the job would never be completed. I asked the credit card co for their assistance and they said they'd give me my money back providing I sent them all correspondence and sent the retailer a letter advising that they could come and remove the structure subject to a full refund, which I did but unsurprisingly I never got a response.

 

The credit card co say they have issued a charge back but consumer direct has advised that as it was a credit card payment it had to be Section 75. But if it was Section 75 wouldn't the credit card co have also been responsible for the cash payment and any consequential losses? Wouldn't Section 75 make the credit card co equally liable? Not sure if this would change matters, but am not entirely sure how this has been refunded I've asked my credit card co for a full written explanation as to what has gone on and on what basis they refunded but they won't.

 

I also paid several thousands on my credit card on the same day and several thousands some weeks later when the brickwork was up to roof height.

 

At this stage we were a little worried with tradesmen threatening to down tools and the fact that when we went to make the 2nd large payment we were told this would have to be cash or cheque and they sent someone round to collect on a Sunday morning. We told them no, payment by credit card as this is what had been agreed. They said they were having problems with their machine and couldn't take payment. We stood our grounds and hey presto, the money was taken from my credit card the following day. So I don't know what the issue was there.

 

 

So as long as you have paid some money using a credit card, the credit card company are party to the contract and you may have some comeback.

 

Have you written to the credit card company, so they are totally up to date with all the issues and can take any actions that they consider necessary ?

 

I am not totally sure of the legal side, as to whether the credit card company can get involved in the current dispute. I would have thought that they would have had be involved in looking into the legal aspects of the case and to help their cardholder.

[coledog]

For info - this is the relevant bit of OFT guidelines to do with appointing third parties, possibly only relevant if the Retailer has a Consumer credit license but you get the gist, quote it to em anyway.

 

Creditor responsibility for third parties

 

1.9 If consumer credit licence holders choose to do business or continue to do business with third parties engaged in questionable fitness behaviour, then their own fitness will be called into question. Our aim is to ensure that creditors do not ignore the unfair practices of debt collectors, whether in-house or external, acting on their behalf. It is not for the OFT to specify in this guidance how choices about third party selection are made nor to advise on desired conduct between third parties. However, during any investigation in this respect, we would expect to see that care had been taken in the selection process, complaints had been investigated and that firm action had been taken as appropriate. It would be unlikely that we would take action against a creditor who could demonstrate such action had been taken.

The rest of the OFT guidelines are here. Have a look at how many these clowns are breaking and take your pick. Not backing off when they are told there is a genuine dispute is the big one.

 

http://www.consumeractiongroup.co.uk/forum/content.php?416-The-OFT-Debt-collection-guidance

[wonky100]

The credit card co have said they are not able to offer any further advice or get involved in any dispute between us and the retailer. I had told the credit card co that we had been approached by a solicitor. Not sure I have told them about the debt collectors though, think this would be futile.

[Undercover-Elsa]

Wonky, I think I would have done exactly the same as you in the circumstances. Putting everything else aside, despite the cost to the retailer, the structure sounds as if it's not fit for purpose.

I assure you your integrity is not in doubt, and I know that you've done anything and everything you can so far to try and resolve it.

This is, I believe, why Bankfodder suggested the claim, in order for it all to be laid before the court to sort out. However I think the last thing the retailer wants to do is see you in court, hence the switch to dodgy DCA when their Letter Before Action didn't work.

 

Bankfodder doesn't seem to be online at the moment, but I'd wait and see his response now that all the info is available. You really have been treated terribly by both the retailer and the DCA, and it's understandable how much this has upset you.

 

Elsa x

[wonky100]

OH has just spoken to a solicitor, someone he knows through badminton which is why he could contact this guy at this time on a Sunday. We hadn't contacted a solicitor before as we thought speaking with Trading Standards, Consumer Direct, our credit card co, the solicitor on the train and our household legal advice dept was enough. But obviously not. This guy is having a think about the situation and said he'll call us tomorrow evening. But his initial thoughts are ask the independant structural engineer to put a price on the conservatory and then make a full and final offer of this amount.

 

I must confess to not really wanting to do this after the retailer has refused to answer so many of our letters and after they have instructed debt collectors. Also, what's to say the debt collector won't still harass us if we agree to pay the retailer something?

 

Other than being worried out of my mind and the fact that I've got 2 children, so I want to cause as least trouble for them as possible, I'd be very tempted to say either see you court or do your worse. Is that so wrong?

[BRIGADIER2JCS]

Not wrong IMHO, but could open up a larger claim if the offer is rejected, exspencive?

[unclebulgaria67]

OH has just spoken to a solicitor, someone he knows through badminton which is why he could contact this guy at this time on a Sunday. We hadn't contacted a solicitor before as we thought speaking with Trading Standards, Consumer Direct, our credit card co, the solicitor on the train and our household legal advice dept was enough. But obviously not. This guy is having a think about the situation and said he'll call us tomorrow evening. But his initial thoughts are ask the independant structural engineer to put a price on the conservatory and then make a full and final offer of this amount.

 

I must confess to not really wanting to do this after the retailer has refused to answer so many of our letters and after they have instructed debt collectors. Also, what's to say the debt collector won't still harass us if we agree to pay the retailer something?

 

Other than being worried out of my mind and the fact that I've got 2 children, so I want to cause as least trouble for them as possible, I'd be very tempted to say either see you court or do your worse. Is that so wrong?

 

I think that was how the conservatory dispute featured on a TV consumer programme was sorted out. They basically commisioned a structual report, which put a price on the conservatory as it was and a costing of how much it would cost to put right the work that had already been done wrongly. They then deducted what had already been paid to the contractor, leaving an amount for the settlement. Probably due to the TV programme, the settlement was agreed. See what the solicitor tells you, but I think this approach is reasonable and can be explained if it ended up in court.

[coledog]

Basically what I did in my case - in that I paid a surveyor to do a full report and I also obtained estimates for rectifying the work from other contractors. In your case, if the only way of fixing this is to rebuild the structure, get evidence of this and costs. The conservatory should be in the state it would have been if built as agreed with the company and contract originally.

 

In my case, the cost of rectification was more than the amount I had retained and I added the surveyors and legal fees.So I actually threatened to sue for the additional costs.

 

The retailer has not done himself any favours by failing to rectify the work and the harassment by the DCA.

 

What I would do immediately is either yourself or get the solicitor to, write to the retailer and tell them that this is what you will be doing. Tell them, in no uncertain terms, that the behaviour of their appointed agents is unacceptable and has been reported to the police and appropriate authorities. Tell them to stop this immediately and you will contact them again with your proposals for resolving this matter, in due course, once the necessary reports are available. Send recorded delivery.

 

I suspect that this company do not want this to go to court or have lots of additional expense.

 

Remember that the DCA is in the pay of retailer who is ultimately responsible for their behaviour and unless this retailer is a complete Cowboy, will have to take notice of your approach and concerns.

 

These things can take over your life and family, so take care and think things through

Edited June 13, 2011 by coledog

[wonky100]

Debt collectors now reported to OFT.

 

Have also spoken to Consumer Direct who have advised us not to issue a claim in the small claims. They said this would be pointless. Even if we won re the small cash deposit, the retailer could still pursue us for the rest. The retailer would not be able to counter sue as what they perceive is a debt is too large. Therefore we cannot force the retailers hand to sue us and just have to sit back and wait, as the debt collector isn't entitled to collect the "debt" without a ruling against us.

 

Consumer Direct will report the debt collector to Trading Standards Liverpool.

 

Couldn't wait for my OH's contact to ring us back tonight and have rang another solicitor. He wants approx £750 just to read through the paperwork and advise. That's before he sends the retailer/debt collector a letter.

 

If we start making any kind of offer like previously suggested, doesn't this look like we're admitting that we owe them? All we have done is followed the advice given to us by Trading Standards, Consumer Direct and my credit card co and we're now in a horrible place.

 

Now definately thinking, sit back and wait to see if we are pursued through the courts, 'cause we'll need a solicitor then. Just not sure my nerves can take it.

[Jasper1965]

hi wonky.

 

I really hope that you don't feel anybody here is questioning your integrity I certainly don't, not before I read your long post or after and anyone who takes a few minutes to read that can be left in no doubt as to what you've had to endure to date.

I'm as keen as anyone to help you with this but I felt that the best way to begin helping was to spell out the reality of the situation you've inadvertantly found yourself in. It's very difficult to say it without appearing disrespectful to people but I felt that the first two pages of this thread and everyone who had given you input off site had glossed over certain rather pertinent matters in their haste to help you and aagain I'm not now nor ever was in doubt that you needed and deserved help.

I'm all for flag waving and being pro-active but when and only when it's to somebodys advantage and knowing a little of the delicacies of these wrangles I didn't feel you were in anywhere as strong a position legally as you thought for the first two pages of this thread.

the main culprit here imo is Consumer direct:

first big mistake was to advise you to do a sec 75 chargeback.

the second big mistake is what they told you today. "who have advised us not to issue a claim in the small claims. They said this would be pointless. Even if we won re the small cash deposit, the retailer could still pursue us for the rest. The retailer would not be able to counter sue as what they perceive is a debt is too large"

They are correct on the first part ie they could still pursue you for the entire balance but they are wrong to tell you that they can't counter sue as the debt is too large. you could start a claim against them for say £500 in the small claims court and they could counterclaim the full cost of the works plus damages, to say they can't is just wrong and has probably been said because the full amount exceeds the small claims limit.

 

Now finally some good news from me.

I understand the contract included a clause for them to remove materials in the event of non payment and that you offered them the opportunity in writing at an earlier stage of the dispute. If I'm correct they haven't enforced this contractual clause to date.

This is good on two levels:

i) you can prove you attempted to pursue the remedy stipulated in the contract and that they failed to abide by their own terms and conditions.

ii) You can now formally revoke their right to remove materials from your property and revoke their right to enter your property at any time citing threatening behaviour from their representatives.

 

part ii) may not make sense but it might set the upper limit on any claim against you from them at the raw cost of materials supplied (ie their contractual remedy for non payment). you have shown willing and they have chosen to follow an alternate route to the one specified in the contract. this is a big plus.

 

So as it stands now:

 

They've done "the work".

You've paid very little towards the cost. (I know it does but really I'm not implying anything here just being factual).

the remedy for non payment was that they could remove the materials. this was agreed between all parties.

you offered them this remedy.

They failed to take it and mitigate their "loss".

You have been criminally harrassed by their representatives.

You now are wholly unwilling to allow any representative of this company on your property thus you can no longer offer them the remedy.

you are however a reasonable and fair person so you would invite them to bill you for the costs of the raw materials (effectively the remedy above). Or you could have them independently valued.

BUT

This leaves you at a disadvantage contractually because you have incurred numerous costs and damges. you will therefore be looking to deduct these costs and damages and the cash deposit from any settlement. It sounds like it might need demolishing so these costs could be very significant and imo you are entitled to the costs involved in returning your property to the condition it was in before they commenced.

 

An offer spelled out along these lines is difficult for them to refuse as you are still effectively offering them the contractual remedy which is the first thing a Judge would look for anyway.

It is also likely to be worth very little in real terms to them and they might be well advised to walk away in the face of such an offer.

 

So food for thought. good luck with this and please accept any perceived criticism from me was constructive not destructive, the turn your thread has taken since my input appears to me at least to vindicate this as you're getting a better level of discussion.

 

regards.

 

jasper!!

[wonky100]

Thank you Jasper.

 

I am sorry for taking offence at your original thread but this is a very difficult time for us.

 

My OHs contact rang us back last night and he has offered to look through the paper work and discuss further with us at no cost. He has also offered to write to the retailer / debt collector subject to a nominal charge. I do not know what he intends to say to them yet as he hasn't seen the paperwork. I will be photocopying all the paperwork in my lunch today. I have a large jiffy envelope of correspondence, mainly from us to the retailer which in the main was ignored.

 

For the record, the conservatory is still not finished. Whilst there is an argument regarding the level of workmanship, we still do have a "hole" in our ceiling. This isn't open to the elements as such just to the outer layer of the roof. Yes, it could be agrued that this is our fault as we refused further access, but only after numerous opportunities to remedy and after the retailer verbally threatend to illegally remove the structure.

 

I will advise the outcome in due course.

 

Thanks everyone

[Undercover-Elsa]

Hi Wonky,

That's good news, what a good guy. I have a feeling he'll say pretty much what Jasper's said above, which is an excellent and detailed evaluation based on the fuller details supplied.

As your solicitor friend is doing the assessment at no cost, might be an idea to also print out the OFT Debt Collection and CPUTR 2008 Guidelines for his easy reference, as unless he specifically specialises in these issues he may not have them to hand.

Good luck with it and please keep us informed.

At least if anyone turns up now you can tell them the next and only contact they will have on this matter is via your solicitor.

 

kind regards,

 

Elsa x

[coledog]

Sounds a bit more positive!

[Jasper1965]

Whilst there is an argument regarding the level of workmanship, we still do have a "hole" in our ceiling. This isn't open to the elements as such just to the outer layer of the roof. Yes, it could be agrued that this is our fault as we refused further access, but only after numerous opportunities to remedy and after the retailer verbally threatend to illegally remove the structure.

 

 

I don't think any such argument has legs as you can quite easily prove that you gave them a reasonable time to sort the problems out.

 

all in all it sounds like things are moving much more positively now.

[Undercover-Elsa]

Hope so, Jasper. Waiting with baited breath to see what the solicitor said.

[wonky100]

Hi all

 

Will be next week before we hear from the solicitor. Will keep you all posted.

[wonky100]

Hi again

 

Just been on Opus Agency Ltd's website again and noticed that it said something along the lines of, why not include RESOLUTE GROUP in your T&Cs. So I've googled Resolute Group and have found a website for a company at the same address in Liverpool as Opus Agency Ltd but they also have an office in London. Nothing on Companies House. Just wondering if anyone has heard of these guys.

 

Also, the status of the retailer is now Active - Proposal to Strike Off. This is because their accounts are overdue and this is Companies House's actions. This is the 2nd time that Companies House have tried to strike them off for overdue accounts (the other company that is still active is already in the process of voluntary strike off but this has been suspended due to an objection but I don't know if this is by joe public or HMRC. I've been told if it is joe public the suspension is only for 3 months but if HMRC it's 6 months, so am waiting to see if the strike off suspension continues beyond mid July).

 

Thanks

[BRIGADIER2JCS]

It gets deeper and deeper:madgrin:

[wonky100]

We've had another visit!!!

 

Received a call whilst at work this afternoon from a neighbour who advised me that 2 men were trying to get into our house (I think they were trying to open the front door, whilst I don't think they were using any force, why were they trying to get in my house? They have no legitimate reason to do so).

 

My neighbour has given me a description of the men and the reg no of the car that they had parked on our drive!

 

I rang 999 as advised by the Police, but they didn't attend!

 

My OH has rang the Police Officer who attended 2 weeks ago and he is going to come round this evening.

 

They have pushed an envelope through the letter box which says "Please call" and there is a business card inside for Stephen French (BA Hons) Chairman, but it doesn't seem to say what the name of company is. It does say problem solver extraordinaire and states debt recover, security consultancy and arbitration. So looks like the matter has been passed on to another company.

 

I've googled Stephen French in Liverpool and if it's the same man, he has a bad past, although he claims to turned the corner.

 

OH will be checking the CCTV when he eventually gets home (I don't know how to work it).

 

Now stood here not knowing what to do for the best. What I'm definately not doing is collecting the children from out of school clubs until the very last minute.

 

Still waiting on the solicitors advices, but then again my OH didn't drop the paperwork off until Tuesday. That's just my OH, he doesn't worry over anything.

[unclebulgaria67]

If the Police don't deal with this as they should, make a complaint.

 

If the case link below relates to the same Mr French, he has a reputation for agressive behaviour. If they visit again then dial 999.

 

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1726.html

[BRIGADIER2JCS]

You could inform you local police that you are expecting to be visited

by a known criminal and you a seriously afraid of what might happen.