Mortimer clarke saying agreement of termination date is acknowledgement

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

You could test them and ask them to clarify their argument, with a copy of the BMW case and an explanation of how it relates to your specific contract. No need to tell them you have a copy of the contract... it goes without saying that they would not have issued a claim without having sight the contract, of course, because that would imply their statement of truth was dishonest.

*coughs very hard*

[Don Quixote]

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

In which case, in my very humble opinion, they are trying it on.

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

I’m having a look over the full BMW judgment, here. It may be more complex than I thought. Can you post up the rest of the contract? Need to do some like-for-like comparisons.

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1959.html

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

image.jpgimage.jpgimage.jpgimage.jpgimage.jpgHope this is ok to read

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Ah, a bit of reading...

Can you please advise:

1. When was a default notice issued?
2. Did you hand the car back, or did they have to repossess (this could be the problem, though their contract wording remains equivocal)?
3. Did the original creditor issue a termination notice and, if so, when?
4. Did that termination notice come after repossession, and did it include all charges? I ask this because their contract allows them to claim ‘pre-estimated’ compensation – so no reason to delay a claim, possibly.

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

To the best of my knowledge as I don't have any paperwork as it was so long ago

1.dont know
2. They repossessed the car but can't remember when
3.dont know
4.dont know

sorry this is vague but I don't have any paperwork as I say it was so long ago I think it all got thrown

would also point out the car was faulty but couldn't take back to where I got it as they went bust and that's why I stopped paying as I had warranty but the lender said it wasn't them to uphold the warranty was the garage but as they went bust I was left with a faulty car which should never should have passed the mot they gve me with it
when they repossessed the car it was broke couldn't even be driven as the bloke who come to take it didn't even clamp it as it couldn't move but this all would be had to prove

[nemesis45]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Hi Responding to PM.

The BMW Finance - v Hart judgement in the Appeal Court concluded the "Cause of Action" was the point that the creditor could demand immediate payment in full from the debtor /hirer so one can take this as the date you received a Demand for Payment, or the default being issued.

It is my opinion and reasoning that he solicitors are wrong all fees/charges/ allocated to the account by a 3rd party have no bearing on the point that the alleged debt became statute barred.

nem

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

So is this agreement of termination date then something they have made up?
How should I reply to the letter about this bmw v hart so I state this is not the case and the debt is statute barred

thanks for looking

[nemesis45]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

No I think not personally that MC are chancing their arm.
BMW - v Hart imo does not assist their case their Lordships concluded that the point when payment could be demanded in full was the start of the 6 year period.
Their claim that this is not the case and has no merit to my mind.

nem

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

is there any draft of a letter i could send back to them as i simply dont want to just say what you are stating is rubbish and its statute barred
also as this case is stayed and has been since end oct 14 how likely would they be to get the stay uplifted?
thank you

[nemesis45]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

It seems that MC are chancing their arm here, hoping you
will capitulate.

There is no template for this scenario.

Given time I can draft a letter for you if you wish.

nem

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

If you could that would be great as I'm stuck what to do

[nemesis45]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Ok I'll get on that later today.

nem

[thewalkinglark]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Cheers can you let me know when you have done
thank you very much

[Don Quixote]

Re: Mortimer clarke saying agreement of termination date is acknowledgement

Morning thewalkinglark.

I’ve been trying to hunt down a copy of the actual BMW contract referred to in the case law they’re quoting but unfortunately haven’t been able to find it. So I’d be tempted to stick by my earlier comments, that the clause in the BMW case (some of which is viewable in the BMW judgment) is specific to that case, and that contract alone.

There’s no similar clause in their contract as far as I can see – in my opinion they would be clutching at straws trying to claim that BMW is a generic judgment that works for their totally-different contract.

From their wording, they rely only on the provisions of the CCA. So they would have been able to issue a DN just after the first missed payment, and you would have had around 20 days in total to comply. So at a stretch, after one month and 20 days, they could have had in place the mechanism to enforce. They might have some argument to proceed, depending on what date in September they issued. In that respect it’s tight, but also very questionable. I doubt they’d want it tested in court.

Also, as mentioned, their contract allows them to pre-estimate losses, so they don’t have to wait – like BMW – to assess their loss. I think that works against them – they can’t have it both ways.