Mortimer clarke saying agreement of termination date is acknowledgement

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

It’s all a bit irrelevant anyway, unless they apply to lift the stay.

You can stick to your guns and wait and see if they decide to lift the stay, or you could apply for the case to be struck out.

If you last made payment on 1 Aug 2008, and they issued in Sep 2014, then they didn’t miss by much – most would argue the cause of action accrued when the first due payment was missed, which would be on or around 1 September 2008. Unless the original contract specifically expresses a different provision, of course, which is very rare. Whatever, they were too late.

Charges later added to the account by the OC are irrelevant, as you have been advised – complain to the FCA about the fact that they are deliberately misleading you as to the true legal position.

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

It’s all a bit irrelevant anyway, unless they apply to lift the stay.

You can stick to your guns and wait and see if they decide to lift the stay, or you could apply for the case to be struck out.

If you last made payment on 1 Aug 2008, and they issued in Sep 2014, then they didn’t miss by much – most would argue the cause of action accrued when the first due payment was missed, which would be on or around 1 September 2008. Unless the original contract specifically expresses a different provision, of course, which is very rare. Whatever, they were too late.

Charges later added to the account by the OC are irrelevant, as you have been advised – complain to the FCA about the fact that they are deliberately misleading you as to the true legal position.

Thanks for reply they haven't shown me any proof of this agreement of termination date they just keep saying it all they have me was a statement of when I paid and when there was repossession fees which they are saying contributes to this agreement of termination, should I say I want proof of this agreement of termination also they are still offering me 40% discount on this

would also like to put in the letter this

our clients position is that the limitation period in this case runs from the date the agreements were terminated. We would refer you to BMW financial services (GB) ltd v hart (2012) EWCA civ 1959 in which it was held that limitation runs from termination which is the creditors acceptance of the debtors repudiation of the contract.

We we advised that the repossession fees in early 2009 supported our clients position that the agreement was terminated in early 2009 and that the matter was not statute barred

i don't understand this?

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Well, as I mentioned, it depends what’s in the contract. In the case they mention, the BMW agreement specified TWO missed payments as the point at which BMW would terminate. But this MUST be specified, otherwise the contract is unfair and open ended, and a creditor would never terminate officially to ensure the SB clock never started running!

So what you need is a copy of the original contract. Their reference to the BMW case only applies IF a similar arrangement was in place with your contract. You need to hope theirs was not an industry-standard agreement.

Mortimer Clarke are trying to say that the original creditor was entitled to wait six months to terminate, which would probably be unfair, and I doubt that’s in the contract. However, as I mentioned, they issued a claim within six years plus two months, which would just fall within the BMW scenario (though that’s not actually what Mortimer Clarke are claiming, it seems – their contention is that early 2009 repo fee was the cause of action, which is wrong, but they may accidentally actually have a point).

Here’s the nub: do you have a copy of the original contract?

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

BTW, here’s a good reference and explanation of the judgment they refer to:

http://motorlaw.blogspot.co.uk/2013/...td-v-hart.html

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Yes I have a copy of the agreement what should I look for in this please

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

The termination clauses. Perhaps scan and post?

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Will take a pic and post thanks

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

image.jpgimage.jpg

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Hope you can see this ok let me know what you think thanks

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

When was a default notice issued?

I can’t see any clauses there similar to the BMW specific clauses. Looks like a standard explanation of what happens in a normal CCA breach – ie. a default notice is a prerequisite to enforce, but by this time the breach has already occurred, of course. There is no specific clause here that states they can ONLY make a claim once the agreement is terminated. It seems there WAS such a clause in the BMW case they seek to rely on (though we don’t have a copy of that agreement).

So, (i) the BMW case is, in my view, irrelevant as the contract is materially different, and (ii) they are applying it wrongly anyway.

Methinks they stuffed.

Let’s see what others think.

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Here’s something to note, and it’s important in respect of the Consumer Credit Act: you can make a claim in court WITHOUT issuing a default notice and that notice not being complied with.

What you can’t do is ENFORCE, ie. get judgment.

That’s why the BMW contract was specific, and this one was not. The wording is vital. Their wording does not preclude them from issuing a claim.

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Should I reply to them in a letter saying something like this or should I just try and get this struck out
Im sorry for all these questions but as of now no one has really gave me any answers and I thank you a lot

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Would also like to add they are still offering 40% the overall amount which I find very strange

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Yes, the 40% offer is odd, but bear in mind that it still represents a huge profit on what they paid for the debt. Also, I doubt they want the contract tested on the basis they are claiming.

Let’s see what opinion the others have on your agreement compared to the BMW case they’re relying on.

You can only work with the facts – by having a copy of your agreement, you can more easily decide how strong your position is. Likelihood is they don’t have a copy of the agreement and are blindly relying on the BMW case, which would be a of case deliberately trying to mislead you if so (and worthy of complaint to the FCA).

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

They do have a copy of the contract as they sent me one with the statement they sent me