Goods not as described

[Bananass]

Re: Goods not as described

Couple more questions.
1. Am I correct in thinking that if the credit card provider (ccp) is liable then it is liable in exactly the same way as the trader ? That is to say if the trader is liable for general damages then so is the ccp if the trader doesn't pay up - not just a refund of my cc payment ?

2. If and when I agree a settlement with the defendant do I have to tell him I am going to pursue the bank for the balance ? I imagine once I get onto the ccp the ccp will get onto the trader which won't make the trader very happy if he thinks it's all been settled.

3. Last for now - I am thinking of contacting the trade body I had earlier complained to but some of the information I think they should know about has only been provided to the court and to me - would it be seen as an abuse of process if I gave them that information ?

[Bananass]

Re: Goods not as described

Hello, I have agreement to settle, the defendant wants me to end the case before the money is paid - is there a way of doing this which still leaves the agreement open to enforcement in the event the defendant does not pay or should I simply insist on payment first ? Thanks.

[R0b]

Re: Goods not as described

Hello, do you have a court date yet? Never revoke your claim without payment being made or having something in place, a consent order which is agreed and then submitted to the court would allow you to pursue your claim in the event they do not pay.

[Bananass]

Re: Goods not as described

No court date. I was thinking a consent order was the way to go but google searches only bring me to divorce settlements. Can you advise on how to draft a consent order or point me in the right direction please ? Thanks as ever.

[R0b]

Re: Goods not as described

See attached a draft consent order - fill in the missing details

[Bananass]

Re: Goods not as described

Brilliant, a lot less complicated than I was expecting !

Thanks very much for your help.

[R0b]

Re: Goods not as described

Just be aware, the first paragraph essentially states that the sums owed in the consent order shall be final and neither party can make any further claims in respect of the issue. IF you are happy with that make sure you put the correct sums in there, I would hope you are also recovering your application fees also as part of the agreed settlement

[Bananass]

Re: Goods not as described

Yes fees are included - I am very happy with the settlement. Just to clarify - this would end the matter between myself and the defendant but I would still be able to pursue my credit card provider for the difference between the settlement and the total claim if I so chose (and it met the requirements of a section 75 application) ?

[R0b]

Re: Goods not as described

Replace the 2 paragraphs with the following wording, it will allow you to recover the remaining balance through the credit co, or at least attempt to.

UPON the Claimant and Defendant agreeing that the provisions of this order are accepted, the Defendant undertakes to the court that within [7/14/28] days from the date of this Order shall pay the sum of [£XXX.XX] payable to the Claimant.

[Bananass]

Re: Goods not as described

Thanks !

Sorry to be thick but is the "date of this order" the date I put on it or the date that the court approves it ? That is to say does the defendant wait for the court's reply before paying ?

[R0b]

Re: Goods not as described

The date of the order means the date of when the last signature is written, so where it says at the bottom dated this .... Of 2016.

Send the consent order to be signed by the defendant, have them return wet version by post and copy by email, print sign and put the date of when you signed it. This will be the date of the order, and submit to the court.

The court will usually just rubber stamp it by way of an order but doesn't stop the defendant from paying you in the meantime. A breach of an order by the court can amount to contempt of court so it is in the interests of the dealer to pay ASAP. Anyway, If the dealer fails to pay within the agreed time of the consent order you will be able to apply for judgment and enforce the order by whatever means necessary.

[Bananass]

Re: Goods not as described

Thanks yet again. Will get that away tomorrow (well today now)

I hope I haven't kept you up !

[Bananass]

Re: Goods not as described

Update - received cheque for just over 70% of claim which should by now have cleared. My sincere thanks to all who helped - it is one thing knowing the law it is quite another knowing how to use it.

The detail from R0b was priceless but all the contributions were very much appreciated.

Now I take on the credit card provider...

[mariefab]

Re: Goods not as described

Well done!

[Amethyst]

Re: Goods not as described

Great news, well done [MENTION=73510]Bananass[/MENTION], and nice one [MENTION=71570]R0b[/MENTION] ....

are you taking on the FOS and 'consumer champion trade body' as well ?