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

[The Mould]

Your #52 & #78 as regards the agreed payments of £72,which you maintained and did not default on, may well provide you with grounds to plead promissory estoppel in your Defence.

 

Under the equitable doctrine of promissory estoppel, it is settled law that there are two types of principles recognised in law as to the promise – the agreement entered into between the two parties to the contract that a) the agreement to which there was consensus ad idem (which means – both parties agree to the same thing) will extinguish the creditor’s rights under the original contract and the relationship between the two parties will be extinguished along with the contract for all time to come;

 

and then; b) the second type of promissory estoppel is where the parties have agreed that the debtor can repay the debt owed at a lesser rate per month and as long as the debtor performs his obligations to repay the debt at this new and agreed monthly payment, it would be inequitable for the creditor who has given his agreement to the same to insist upon his strict rights under the original agreement /contract at a time when the debtor has not and is not in default of this new agreement, whilst the debtor performs the act required of him under the new agreement, the creditor’s strict rights under the original agreement are suspended and he cannot insist upon the same unless he serves reasonable notice upon his debtor stating that the new agreed reduced payment arrangement will come to an end on such and such date!

 

In your Defence, assert that the creditor is estopped from insisting upon his strict rights under the credit agreement because the same are suspended in the light of his agreement to accept the £72 payments, which you have never defaulted on and at the trial you will rely upon evidence which substantiates this fact and case law which holds in your favour for the full terms and effect of this fact. (Important note! – research promissory estoppel). Verbal agreements are legally binding, so please do not worry if the creditor has not provided you with anything in writing in this respect.

 

Contact the Information Commissioners Office (“The ICO”) and as them for the full contact details of the Compliance Manager of this creditor, then send a Subject Access Request (“SAR”) to the Compliance Manager and request in your letter all personal information that is held by them whether in electronic or manual filing system. You will need to include a fee of £10 for this and send a postal order for this instead of your own person cheque.

 

Further to the above, in your Defence where you make your contentions on the invalid default notice, quote section 87(1) of CCA 1974 (as amended) and state that at trial you will rely upon the Court of Appeal’s judgment handed down on these statutory provisions in the Brandon v American Express case (Important note! – Google this case and quote the precise citation of it) and other higher Court decision handed down on the same which you will refer to at trial in your skeleton argument and submissions on the same.

 

Further, Andy is 100% correct in law as regards the fact that you have paid over two thirds of vehicle price, therefore, creditor not entitled to delivery up of goods as alleged or at all.

 

The promissory estoppel element appears to be the foundation of your case and the invalid default notice and the fact that you have paid over two thirds of the vehicle price under the credit agreement are extremely valuable and irrefutable grounds as to why the Claimant’s claim must fail and cannot proceed any further!!!!

 

As advised, keep the vehicle on your private driveway at all times!!!

 

Any further problems, need for help and support or guidance on civil procedure, then do nothesitate to come back here, we will help you all the way.

 

Kind regards

 

The Mould

[gem77]

Thank you Mould.

Looking into all that now.

 

It just seems to get more and more complicated.

 

Got to have it in the post today looks like I will be glued to the computer screen for most of the day.

 

ok I have amended it slightly. Adding a bit about the promissol estoppel and elaborating other sections.

 

 

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

 

However under section 7.4(2) of the CCA where by the claimant must state in hispoint of claims what the circumstances arethat require him to obtain a court order for enforcement, the claimant hasfailed adequately detail this.

 

Also the DN stated in the point of claims fails to comply with his statutoryduties under section 87(1) of the CCA 1974 (as amended) due to his admittancein the point of claims that this was posted on the 25th July 2013 via 2nd classpost. Therefore this was not received by myself until 30th July 2013. Thedefault notice has given me till the 13th August 2013 to remedy the breach. Thisfalls short of the statutory 14 full days to remedy the breach by 1 full day. Iwill rely upon the Court of Appeal’s judgment handed down on these statutory provisionsin the Brandon v American Express case.

 

“The Court held unanimously that Mr Brandon did indeedhave a real prospect of success with his defence based on the invalidity of thenotice. The Amex case based on default was, in the view of the Court,untenable. The default notice on its true construction did not give Mr Brandonthe requisite 14 clear days in which to remedy his breach. A failure to complywith the time period provided by statute could not be overlooked as de minimis.If the default notice had not or might not have allowed the minimum statutoryperiod for Mr Brandon to remedy his default then it was at least realisticallyarguable that such a defect in the notice could not be dismissed as de minimis,both as to the nature of the defect and the prejudice caused thereby”.

 

. In light of the claimants clear failure tocomply with this he cannot proceed with these enforcement proceedings.

 

I have attached a copy of the default Notice stated in the point of claims andalso point out that the amount of arrears and the paid to date figure stated indefault Notice somewhat differ to those on the point of claims.

 

With the default notice stating there are arrears of£1620.18, with a paid to date figure of £15085.02 and the point of claimsstating there are arrears of £2173.33, with the paid to date figure of£14531.87.

 

This also indicates that I have in fact paid well overtwo thirds of the of vehicle price, therefore, the claimant is not entitled todelivery up of goods as alleged or at all.

 

I the defendant also wish to make an application for an order under unfairrelationship paragraph 10.2 of the CCA. This is due to being advised via Telephoneby a representative of the claimant that I could continue to pay £72.85 a monthand that although I would still receive default letters to ignore them. Hestated 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 view of the above, the creditor is estopped from insistingupon his strict rights under the credit agreement because the same aresuspended in the light of his agreement to accept the £72.85 payments, which I havenever defaulted on and at the trial you will rely upon evidence which substantiatesthis fact and case law which holds in my favour for the full terms and effectof this fact.

 

In light of the claimants clear failure to comply with the correct CCAprocedures and the promissory estoppel it there by invalidates this action.This claim therefore, ought to be struck out.

 

Does this sound better?

[Andyorch]

Run through it shortly gem and trim and tweak.

 

Andy

[gem77]

Thanks Andy. You Star

[Andyorch]

#####Defence#####

 

Paragraphs 1-7 are admitted and accepted.

Paragraphs 8- 15 and ABC are denied.

 

The Claimant has failed to elaborate in its particulars the exact nature of breach which requires them to seek a court order pursuant to CPR 7B PD 7.4 (2)

 

Total payments made to date £ xxxxx which equate to over a third of the total paid and therefore the claimant is denied the delivery up of goods.

 

The Default Notice served fails to comply with his statutory duties under section 87(1) of the CCA 1974 (as amended) due to his admittance in the point of claims that this was posted on the 25th July 2013 via 2nd class post. Therefore this was not received by myself until 30th July 2013. The default notice served allows 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. I will rely upon the Court of Appeal’s judgment handed down on these statutory provisions in the Brandon v American Express case.

 

Furthermore it is averred that the claimant is in breach of promissory estoppal having agreed a reduced payment arrangement which has been maintained to this date, the claimant is therefore estopped from any further enforcement.

 

The Claimant is put to strict proof to:

 

(1) Show how the Claimant has the legal right, either under statute or equity to issue a claim and by reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed.

 

 

 

Ok gem check for accuracy and complete any missing xxxxxx and or edit to suit.

 

Regards

 

Andy

[gem77]

Thank you Andy. Should I attach a copy of the DN to show the errors?

Mainly the difference in the amounts?

 

oh and the total paid to date do I add the 2 payments I have since paid?

[Andyorch]

Yes and yes gem:wink:

[gem77]

really appreciate all your help with this Andy.

 

just one quick question. the date of service states it is 2 days after posting and 14 days to send my defence. What happens if the 14th day is a Saturday? The court isn't open on a Saturday is it so if it was sent recorded surely they wouldn't get it till Monday as there would be no one there to sign for it?

I am posting it today to get there tomorrow but just wondered how that would stand.

[Andyorch]

Email also and dont forget the claimant.

[gem77]

Oh Am I suposed to send it to the claimant. it didn't say that on the forms just to send to the court.

[Andyorch]

Always file and serve gem

[gem77]

Just been through everything they sent me and it only says to send it to the court and the court will send it to the claimant. Missed todays post now. should i post them a copy tomorrow?

[Andyorch]

I would gem you know how the courts operate:roll:

[gem77]

ok will do. x

[gem77]

Got their witness statement the other day. They have stated on it that they want the car back and the order should not be suspended.

Guess this is how they make all those millions in profit. wait for someone to want to lower their payments then wait till most of the loan is paid off then demand the car back knowing full well it's worth a lot more than is actually owed. If the courts do go in their favour they have got it made. A rich mans world I guess.

 

They have included the agreement and a statement, the default notice and the notice of termination.

 

It also states that the claimant also requests that the money claims to be adjourned generally with liberty to restore. What does that mean?

[The Mould]

Your Defence remains solid and recognised in law against this action. Try and get used to being intimidated by these robots, unpleasant I know, but you have a great Defence, estoppel, invalid default notice and you have paid over two thirds of the costs of vehicle under the agreement.

 

As said before, keep the vehicle on your private driveway at all times when not in use.

 

If any vehicle recovery companies turn up, report back here immediately for advice as to your position based on law in this matter.

 

Kind regards

 

The Mould

[Andyorch]

" It also states that the claimant also requests that the money claims to be adjourned generally with liberty to restore. What does that mean? "

 

There are two parts to this claim gem the above and the return of goods which you are now defending.So they have shelved the money claim for now.

 

Andy

[gem77]

Oh I see. Thank you both. I know I should be used to their intimidation tactics by now but it still gets to me each time. Especially with court looming next week. I don't do too good at these things especially if I get put on the spot my brain tends to go to mush. But I will be reading up and trying to memorise the estopal law and the faulty default case etc. for the few days before it.

[The Mould]

Are you still paying that £70 odd pounds to your creditor?

 

Kind regards

 

The Mould

[The Mould]

£72.85 is what I meant.

 

Kind regards

 

The Mould

[gem77]

Yes Mould I am. Will be paying this months in a couple of weeks time.

[The Mould]

Estoppel is the foundation of your Defence then. s.87(1) of CCA 1974 (as amended) and you have paid two thirds of vehicle price under the agreement completely defeats the relief he seeks under his claim.

 

Your Defence remains irrefutable, the claim must fail in the light of such.

 

Kind regards

 

The Mould

[gem77]

Thank you Mould. Have done a bit more reading on some threads on here this evening.

Just hoping my brain works next week and I remember it all.

 

Thank you again for all your help and reassurance.

[gem77]

Well I think I have them a tad worried received this letter this morning

 

Thank you for forwarding a copy of your defence dated 3rd October 2013 in respect of the above claim.

 

We have tried to contact you by Telephone to discuss the content of the defence, but were not able to reach you.

 

Please be advised that there is an error in the presentation of our claim in respect of the paid up sum, however the actual balance remains correct. We apologise to you for this error.

 

Therefore it is our intention to ask the court to vacate the hearing on 18th October 2013 so that we can apply for leave to amend the particulars of claim.

 

The rest of the detail contained within your defence would be the decision of the district judge at the date of the hearing to decide whether you were given enough time following the amount of days to remedy the breach.

 

The previous agreement for a reduced payment plan was in place for a fixed period and this was confirmed to you in a letter dated 7th Feb 2012.

 

Before we apply for leave to amend the particulars of claim we are contacting you with a view to having this matter resolved by way of a consent order. Should you agree to this, it would mean that there would be no actual county court judgement awarded against you and it would give you the opportunity to continue to make payments by regular monthly instalments. In addition to this our client is prepared to reduce the balance outstanding from £2173.33 to £1350.00.

 

If you wish to proceed with the consent order can you kindly advise us within 14 days of the date of this letter.

 

Should the matter to proceed at hearing, we shall file our amended particulars of claim and request judgement be made in our client's favour for the outstanding sum of £2173.33 together with costs.

 

So what does a consent order actually mean, Will I still have to attend court?

All I want is to be able to pay what I have been paying and keep the car without another CCJ on my name.

 

And as for the bit about the reduced payment plan It was after the fixed period that they are talking about that I spoke to them again about continuing the reduced payment and they agreed so that blows that part of their letter out of the water.

They obviously know they are in the wrong if they are willing to reduce the amount to £1350.00.

[dx100uk]

I wold guess that's the penalty charges and all the int they cost you.

 

looks like a result for you.

 

i'll let the other s comment.

 

dx