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

[dx100uk]

they can only send one DN,

 

they cant send them out every month

they prob meant Default Sum Notices?

 

dx

[gem77]

oh could be DX. They all looked the same to me. will have a look through them.

 

Right I have had a look. Yes the monthly ones were Default sum notices

 

however I found 4 other default notices they have sent me.

 

So they have sent me 5 in total.

3 in 2011 ,

1 in 2012 and

then this last one they sent in July.

 

What does this mean?

[Andyorch]

Gem this is a returns hearing and to fight it successfully you need to know the above CPR ...inside out and backwards.

 

Does their particulars of claim contain all the following points?:-

 

Matters which must be included in the particulars of claim

 

7.1 Where the Consumer Credit Act procedure is used, the claimant must state in his particulars of claim that the claim is a Consumer Credit Act claim.

7.2 A claimant making a claim for the delivery of goods to enforce a hire purchase agreement or conditional sale agreement which is:

(1) a regulated agreement for the recovery of goods, and

(2) let to a person other than a company or other corporation, must also state (in this order) in his particulars of claim:

(a) the date of the agreement,

(b) the parties to the agreement,

© the number or other identification of the agreement (with enough information to allow the debtor to identify the agreement),

(d) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor passed to him,

(e) the place where the agreement was signed by the defendant (if known),

(f) the goods claimed,

(g) the total price of the goods,

(h) the paid up sum,

(i) the unpaid balance of the total price,

(j) whether a default notice or a notice under section 76(1) or section 88(1) of the Act has been served on the defendant, and, if it has, the date and the method of service,

(k) the date on which the right to demand delivery of the goods accrued,

(l) the amount (if any) claimed as an alternative to the delivery of goods, and

(m) the amount (if any) claimed in addition to –

(i) the delivery of the goods, or

(ii) any claim under sub paragraph (l) above with the grounds of each such claim.

 

Regards

 

Andy

[gem77]

Hi Andy,

The POC are on page 2 of this thead but the answer to the above is as follows.

 

Matters which must be included in the particulars of claim

 

7.1 Where the Consumer Credit Act procedure is used, the claimant must state in his particulars of claim that the claim is a Consumer Credit Act claim. yes they have

7.2 A claimant making a claim for the delivery of goods to enforce a hire purchase agreement or conditional sale agreement which is:

(1) a regulated agreement for the recovery of goods, and yes they have

(2) let to a person other than a company or other corporation, must also state (in this order) in his particulars of claim:

(a) the date of the agreement, yes

(b) the parties to the agreement, yes

© the number or other identification of the agreement (with enough information to allow the debtor to identify the agreement), yes

(d) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor passed to him,

(e) the place where the agreement was signed by the defendant (if known), yes

(f) the goods claimed, yes

(g) the total price of the goods, yes

(h) the paid up sum, yes although it differs from the DN stating I have paid less

(i) the unpaid balance of the total price, yes again more than actually is owed

(j) whether a default notice or a notice under section 76(1) or section 88(1) of the Act has been served on the defendant, and, if it has, the date and the method of service,yes

(k) the date on which the right to demand delivery of the goods accrued, yes although this was the date they started proceedings not the date on DN

(l) the amount (if any) claimed as an alternative to the delivery of goods, and yes but wrong as the paid up sum is wrong

(m) the amount (if any) claimed in addition to – yes have no idea what the figure they have given means

(i) the delivery of the goods, or Not sure what this means ??

(ii) any claim under sub paragraph (l) above with the grounds of each such claim. or this??

At the bottom it states , AND THE CLAIMANT CLAIMS:

A. An order for delivery up of the goods as detailed in item 6.

B. The arrears of instalments and half the total amount payable under the hire purchase Agreement

C. The costs of this action.

 

is that what (i) & (ii) means??

[Andyorch]

Yes Gem...also they must state the breach with more clarity

 

7.4

(1) This paragraph applies where a claimant is required to obtain a court order to enforce a regulated agreement by:

(a) section 65(1) (improperly executed agreement),

(b) section 105(7)(a) or (b) (security not expressed in writing, or improperly executed),

© section 111(2) (default notice etc. not served on surety),

(d) section 124(1) or (2) (taking of a negotiable instrument in breach of terms of section 123), or

(e) section 86(2) of the Act (death of debtor or hirer where agreement is partly secured or unsecured).

(2) The claimant must state in his particulars of claim what the circumstances are that require him to obtain a court order for enforcement.

 

 

Admission of certain claims for recovery of goods under regulated agreements

 

8.1 In a claim to recover goods to which section 90(1)1 applies:

(1) the defendant may admit the claim, and

(2) offer terms on which a return order should be suspended under section 135(1)(b).

8.2 He may do so by filing a request in practice form N9C.

8.3 He should do so within the period for making an admission specified in rule 14.2(b). If the defendant fails to file his request within this period, and later makes such a request, the court may take the failure into account as a factor when deciding what order to make about costs.

8.4 On receipt of the admission, the court will serve a copy on the claimant.

8.5 The claimant may obtain judgment by filing a request in practice form N228.

8.6 On receipt of the request for judgment, the court will enter judgment in the terms of the defendant’s admission and offer and for costs.

[Andyorch]

This may also be useful in any defence:-

 

Notice to be given to re-open a consumer credit agreement

 

10.1 Paragraph 10.2 applies where –

(1) a debtor or any surety intends to seek an order relating to an unfair relationship between a creditor and that debtor, arising out of a credit agreement (taken together with any related agreement);

(2) a claim relating to that agreement or any related agreement has already begun; and

(3) section 140B(2)(b) or section 140B(2)© applies.

10.2 The debtor or surety must serve written notice of intention on the court and every other party to the claim within 14 days of service of the claim form.

10.3 A debtor or surety (as the case may be) who serves a notice under paragraph 10.2 will be treated as having filed a defence for the purposes of the Consumer Credit Act procedure.

[gem77]

Thanks Andy,

 

It does state at the top of the POC : Following default under a hire purchase Agreement detailed below the Claimant is entitled to the return of the goods the subject of the agreement, payment of the arrears, one half of the total price and further sums due thereunder.

 

Is that the more detail you mean?

 

 

Now the way I am reading this is that not only do they want the car back but also the £2000 they state I owe.

 

Sorry to be acting dumb Andy but what does that paragraph 10.1 & 10.2 actually mean? How would I use it in my defence?

[gem77]

I have an N9C form should I fill this in then as well as my defence?

[Andyorch]

Thats what i was referring to they fail to state what breach.

 

10.1/.2 refers to making an application for an order under Unfair Relationship which can be submitted with your defence should you feel its apt.

 

Only fill in the form N9c if admitting....not if defending.

[gem77]

I could make this order under unfair relationship due to the fact that they had agreed to me paying the reduced payments and as long as I continued to do so everything would be fine and to just ignore the letters?

 

I don't want to admit and get an instant CCJ as I don't think I should have one when I did what they had said. (although this was done over the phone and I do not have it in writing.....yes Stupid I know)

[gem77]

My defence can comprise of the POC not stating clearly the breach under the CCA procedure 7.4(2),

The faulty DN being 1 day short of the mandatory 14 days

The paid up sum being incorrect and does not match with the DN

 

and the unfair relationship where by allowing me to pay the reduced amount and leading me to believe that they would be happy with this and to ignore the DN's of which they have issued me with 5 in 2 years.

[Andyorch]

Thats about the size of it Gem if you wish to defend.... also the amount paid if more than two third of the total price........on the admittance side using the the form N9c would obviously allow for a CCJ but it also allows for retention of the vehicle/ payment proposal/and suspension of the returns order.

[gem77]

if I don't use the partial admittance and the judge throw's out my defence I am more likely to loose the car?

 

I really don't know what to do.

 

I just want to carry on paying what I have been it will be paid off in about a year and hopefully sooner as I have found a card I used to have with mis sold ppi which I am going to try to claim back. If I get that back I was gong to us it to pay off the car.

I just don't really want another ccj hanging over me.

 

oh and then there are the court fee's I suppose If I partially admit to it then I will have to pay all those as well. more added to the debt then!!!

[Andyorch]

Its a difficult choice gem I suppose when you consider the +/- you have nothing to lose by continuing with your defence.

 

Regards

 

Andy

[Andyorch]

Information to consider:-

 

1.However, if you keep your car on private property, such as your drive or a locked garage, the company must first get a court order to do so. This is regardless of how little you’ve paid. I would certainly keep it in a garage if possible.

 

2. Work out if you have paid over a third. Take into account the deposit you paid and the value of any part-exchange. If the finance company takes your car without a court order or your consent, and you have paid over a third, you should get a refund of all the money you've paid in the agreement.

 

3. Decide if you can you do without the car. Bearing in mind that you’re struggling with your bills, would it make more financial sense to give it up and get a cheap, reliable second-hand car? Remember, though, that you’ll probably still be obliged to pay up to half, if you haven’t already done so.

 

4. If you can’t do without the car, make it a priority debt and pay less to other debts such as unsecured personal loans. However, don’t forget your other priority debts:

 

5. Before the court issues a Return Order, you will receive claim forms and will have the opportunity to plead your case in court. If you can offer a repayment plan that pays off the debt in a reasonable period, as well as the ongoing monthly payments, the court is likely to refuse the finance company’s Return Order.

 

6. Always try to negotiate with the finance company first to make a plan to pay off the debt. It’s not often that they’ll let you pay less per month than the monthly payment was supposed to be, but it can happen.

 

7. Failing that, you can apply for a Time Order from the court. You use this when you’re having temporary difficulties. The judge can agree that you pay reduced payments for a short while and can increase the length of the contract.

[gem77]

I have paid off way more than a third.

total price £16705

I have paid £15200 there abouts only have £1500ish left to pay.

 

The car is a necessity As I have 3 young children the eldest of which has a mental health illness and no way I could take him and the other 2 safely on public transport. For this reason I did make it a priority debt and they agreed I could pay reduced payments.

 

That is how it stands.

[Andyorch]

Excellent 2 and 5 above then the court is likely to refuse the finance company’s Return Order.

[gem77]

if I defend putting my case across the court should go in my favour? (I know it depends on the judge on the day) but in hind sight I do have a strong case to put across?

[Andyorch]

One would assume so but nothing is definite gem but your total paid and the errors with the DN and unfair relationship are very strong argument.

[gem77]

Thank you Andy. I am going to sit and draft it this afternoon. I really appreciate all your help in this it has helped me get it a little clearer in my mind.

[Andyorch]

Post it once completed gem and I will cast my eye over it.

[gem77]

Thank you Andy.

[gem77]

OK here goes.

 

I the defendant agree that the agreement between myself and the claimant for the goods stated in the point of claims did exist and that the total price of the goods is also correct.

 

However under section 7.4(2) of the CCA where by the claimant must state in his POC what the circumstances are that require him to obtain a court order for enforcement the claimant has failed adequately detail this.

 

Also the DN stated in the POC fails to comply with his statutory duties under s. 87(1) of the CCA 1974 (as amended) due to his admittance in the POC that this was posted on the 25th July 2013 via 2nd class post. There fore this was not received by myself until 30th July 2013. The default notice has given myself till the 13th August 2013 to remedy the breach. this falls short of the statutory 14 full days to remedy the breach by 1 full day. In light of the claimants clear failure to comply with this he con not proceed with these enforcement proceedings.

 

I have attached a copy of the DN stated in the POC and also point out that the amount of arrears and the paid to date figure stated the the DN somewhat differ to those on the POC's.

 

I the defendant also wish to make an application for an order under unfair relationship paragraph 10.2 of the CCA. This is due to being advised via Telephone by a representative of the claimant that I could continue to pay £72.85 a month and that although I would still receive default letters to ignore them. He stated these had to be sent by law and not to worry about them.

I the defendant have been paying and continue to pay the agreed £72.85 a month. I regard this to be miss leading and unfair treatment.

 

In light of the claimants clear failiure to comply with the correct CCA procedures it there by invalidates this action. This claim there fore, ought to be struck out.

 

 

 

How is that. Sorry about the spelling mistakes. got to go pick kids up so had to type it up on here rather quickly

[Andyorch]

You seem to have left out the strongest part of your defence gem ...you have paid over a third of the total price...therefore they are unable to recover the car.

 

Needs a bit of work...I will take a look later in the week Gem.

 

Regards

 

Andy

[gem77]

Oh yeah. forgot that bit Andy. Thank you. I have to have it to the court by friday. Seems very unfair they only give you 14 days. Hardly time to get advice and prepare a defence. I spent all last week reading and researching and trying to get my head round it.