Blackhorse Claim form& return of goods order - ***Claim Struck Out***

[gem77]

Thanks DX

[dx100uk]

can you also scan up the original agreement please

 

use this method

its better:

 

set your default scan page size to A4 less than 300DPI [150 will do]

scan the required letters/agreements/sheets - as a picture[jpg] file

don't forget you can use a mobile phone or a digital camera too!!

'

BUT......

ENSURE: remove all pers info inc. barcodes etc using paint program

but leave all monetary figures and dates.

*********************************************************

{DO NOT USE A BIRO OR PEN OR USE SEE THRU TAPE OR LABELS]

try www.pdfescape.com TO BLANK STUFF,

*************************************************************

or

DO IT IN MSPAINT.EXE or any photo editing program

goto one of the many free online pdf converter websites ...

http://freejpgtopdf.com/

..

if you have multiple scans/pics

put them in a word doc FIRST and convert that to PDF

or use www.pdfmerge.com

 

convert existing PC files to PDF [office has an installable print to PDF option]

..

 

it would be better to upload a multipage pdf if

you have many images too rather than many single pdfs

.

or if you have PDF as an installed printer drive use that

or use word and save as pdf

try and logically name your file so people know what it is.

though dont use full bank names or CAG in the title

i'e Default notice dd-mm-yyyy TSB

.

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

.

dx

[gem77]

OK DX I have scanned it in and wiped out personal info

just got to pop it on here

but Got to go get the kids from school now.

 

Will do it asap.

[gem77]

Ok think I have managed it.

[dx100uk]

yep that's great

 

dx

[gem77]

Thank you for all your help DX.

[The Mould]

The DN is dated the 24 July 2013, notwithstanding that, the Claimant has admitted in his Particularsof Claim, para12, that said statutorynotice was posted out on the 25 July 2013 by 2nd class post.

 

2nd class post is = 4 days, the 25 July 2013 wasa Thursday, therefore, allow Friday, Saturday, then Monday and the DN is servedon you on the Tuesday 30th July 2013. It states therein that you arerequired to remedy before the 13thAgust 2013, the DN falls short byone clear day of the statutory 14 clear days that creditor must allow you underthe CCA 1974 (as amended), it is, therefore, invalid.

 

See- Brandon v American Express Court of Appeal, thecreditor cannot continue with these proceedings to enforce the agreement incontravention of statutory requirements imposed upon him under the CCA 1974 (asamended). See also s.87(1) CCA 1974 (as amended) - Seek a strike of the claimon these grounds!

 

Double check the arrears stated in the DN to establishwhether accurate or not.

 

Kind regards

 

The Mould

[gem77]

Thank you The Mould,

I will double check those tomorrow but think they are right apart from 2 more payments that have been paid since the DN was sent.

 

They had put in an additional sheet saying I had to pay a further £600 in charges.

 

This was on a blank white sheet though not headed paper and on the POC they have deducted these from my paid to date figure.

 

They obviously know they are unlawful so trying to hide them.

[The Mould]

double check those figures.

 

However, the fact will remain that the default notice in question does not allow the statutory 14 clear days to remedy the breach relied on as stated in the notice,

 

therefore, the creditor cannot continue with these proceedings to enforce the agreement because that would be in contravention of statute

 

- namely s.87(1) CCA 1974 (as amended), the Court of Appeal clearly stated this in the Brandon v Amex case

and in that case I believe that the DN served by the creditor fell one clear day of the mandatory 14 clear days to remedy.

 

Also, see - Woodchester v Swain and Harrison v Link Financial as regards defective/invalid statutory default notices being served

before the creditor can become entitled to claim and commence enforcement proceedings for full balance claimed.

 

I also believe, reading your case, that you have a Defence set-off against the amount claimed,

but remember, the creditor must first serve upon you a valid statutory default notice before he can become entitled to terminate and demand the full balance claimed.

 

In the light of the default notice relied upon by the Claimant (your creditor) being invalid under said statute,

his claim must fail and be struck out;

 

the Court will not strike out unless you draw the Court's attention to statutory requirements imposed on creditor/Claimant under s.87(1) CCA 1974 (as amended)

and the case law I referred you to above, which I advise you to print off and peruse.

 

Kind regards

 

The Mould

[dx100uk]

thanks mould

 

dx

[dx100uk]

mould

can I ask your further involvement here please:

http://www.consumeractiongroup.co.uk/forum/showthread.php?403662-Claim-form-received-from-Drydens-MBNA-debt-poss-faulty-DN

 

dx

[gem77]

Hi Mould,

 

Right the arrears they state in the DN are correct for the time it was sent. 2 further payments of £72.85 have since been paid.

 

So how do I go about trying to get it set aside. what forms do I need to fill in?

 

Really greatful for your help on this as this one has me stumped on what to do.

 

Many thanks

gem

[gem77]

I should dispute part of the claim and refer to the DN that states the figure I have repaid which is different to those on the POC and also at the beginning of my defence point out the errors in the DN and make referals to the cca 1974 and to the Brandon v Amex case????? would be this the right thing to do Also should I fill in the admissions part as well.

 

Sorry to be a pain but my head is just going round in circles.

[Andyorch]

Any submitted admissions or partial defences will automatically award a CCJ against you Gem

 

Regards

 

Andy

[The Mould]

No, in your Defence,

you dispute the claim in its entirety and the Claimant’s alleged entitlement to enforce the agreement against you.

 

You assert that the DN relied upon is invalid, therefore, claimant has no right, as alleged, under s.87(1) of CCA 1974 (as amended) tothe entitlement of relief sought as alleged or at all.

 

In the light of Claimant’s clear failure to comply with his statutory duties under s,87(1) of the CCA 1974 (as amended),

he cannot proceed with these enforcement proceedings and you rely upon the Court of Appeal’s decision handed down in Brandon v American Express,

 

copy thereof is served attached hereto which you respectfully invite this Court to peruse,

further, you also rely upon the authority of Woodchester v Swain,

copy thereof is served attached hereto,

which you respectfully invite this Court to peruse as regards the issue of the invalid statutory default notice relied upon by the Claimant, which, as a matter of statute renders his action as groundless because the said notice contravenes the provisions imposed upon the Claimant under the said statute and thereby invalidates this action.

 

His claim, therefore, ought to be struck out without any further ado based on the foregoing and the overriding objectives of CPR.

 

Kind regards

 

The Mould

Edited September 26, 2013 by citizenB
reformatted

[gem77]

Thank you guys. I am breathing a huge sigh of relief that I asked you before doing anything or I may of signed my own death warrant

 

I put in that last paragraph you wrote then Mould?

Just clarifying to make it clear in my muddled head

 

Should I also send a copy of the DN as the court will not have a copy so will not see what makes it invalid,

 

should I also put in a paragraph to say what the exact error is?

 

Kindest regards

Gem

[citizenB]

If you are only at the defence submission stage, then you do not need to send any documents to the court. If the claim continues, then you will be asked to provide a Witness statement at a later date and also be asked to disclose documents you will be relying on.

[gem77]

Ok Thank you citizen. I am only at the defence submission stage. But have a court date already of 18th October as they submitted direct to my local court and it is for a return of goods hearing.

[citizenB]

Ah righto.. in which case if you are submitting your defence to a physical court, it might be a different process. I have asked andyorch to look in.

 

When do you need to submit your defence, by ?

[gem77]

Thanks citizen

 

Got about another 7 days. They have given me 14 days received it on the 20th Sep.

[Andyorch]

Gem

 

Take a read here of the process

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07b

 

Regards

 

Andy

[citizenB]

gem, my apologies, I wasn't aware of the kind of account this was.. I will leave you with the Mould and andyorch to confirm the attachment of documents and how you need to advise the errors of the Default notice

[gem77]

No problem citizenb Thank you anyway for your help.

 

Thanks For the link Andy I have had a read. Still a little confused. I do wish it could be a bit more clear cut.

[Andyorch]

Run through the relevant CPR which I have posted and use it as a check list to see that the claimant has complied with all the process and points required.....if not any found can also form part of your defence.

 

Regards

 

Andy

[gem77]

Hi Andy.

 

I have been trawling through it all and from what I can make out they have followed the procedure. It is mainly the default notice that Mould picked up on.

 

Although I really feel they have treated me unfairly as I asked them about refinancing

they sent me out the forms but were going to charge an extra £1000 to do that so I decided not to as it wouldn't benefit me at all.

 

Also I was told on the phone by them that as long as I keep paying the £72 each month I would be fine

and that I would keep receiving the DN letters but they had to send the by law and just to ignore them.

 

This is just what I have done now I got to go to court and could loose the car as well as the £15000 I have already paid.

 

oh and the fact that the figure sums paid to date doesn't match up either from the POC and DN.

 

DN states £15085.02 and POC £14531.87