Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

[Bradford1956]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

Have just spoken to the fraud section of the SRA on 01213296827 who say that the investigation has been escalated to the next level. They say to ring back in a week for a further update. I suppose if enough people were to ring that number it could speed up the process a little.

[Amethyst]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

Okay ta ... just another route to have a nosey down xx

[Amethyst]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

Have just spoken to the fraud section of the SRA on 01213296827 who say that the investigation has been escalated to the next level. They say to ring back in a week for a further update. I suppose if enough people were to ring that number it could speed up the process a little.

Nice one Keep us informed as and when you hear anything.

[mystery1]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

Hi guys,

Thanks for the response and help so far.

I think I have now uploaded the images of the claim form.

Many thanks,
Aidan

In the absence of any further info i'd suggest along the lines of


IN THE [TOWN] COUNTY COURT CASE No.BETWEEN
[IVOR PROBLEM] Claimant
AND
[JUSTIN TIME] Defendant
AMENDED DEFENCE




1. The Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.


2. I am the Defendant, xxxxx, a brain surgeon.


3. I am the registered keeper of vehicle, registration number xxxxx and was the driver on xxxxx


4. I have no knowledge of paragraph 1 in so far as Civil Enforcement Limited and the landowners are concerned and the claimant is put to strict proof that they have a valid contract with the landowners. If they do not have a proprietary interest in the land they have no basis to demand money and no right to assign a debt to another party. In any event if the assignment is legal it was not for the full amount. The claimant is attempting to recover sums that they are not entitled to should they be entitled to anything, which is denied. I believe the claimants claim for £130 is an attempt to be unjustly enriched.


5. Paragraph 2 is outside my knowledge and is neither admitted nor denied.. The claimant is put to strict proof.


6. Paragraphs 3 & 4 are neither admitted or denied. The claimant is put to strict proof they are entitled to enter in to a contract. Any contract must have offer, acceptance and consideration both ways. There is no consideration from Civil Enforcement Ltd to motorist; The gift of parking is the landowner’s, not Civil Enforcement Ltd’s. There is no consideration from motorist to Civil Enforcement Ltd.


7. Paragraph 5 is denied as the claimant was not entitled to demand money from the defendant as none was owed. In any event, even if it was, the sum demanded was not as the full amount of the penalty was not assigned.


8. Paragraph 6 is neither admitted or denied. Interest is not due as there is no base debt on which interest should be charged. The claimant is put to strict proof that any amount is due and that the further £40 is not in itself a penalty.


9. The claimants claim fails to meet CPR 16.2 (1) (a). It does not include a concise statement of the nature of the claim. It's either a contractual charge, damages for breach of contract or damages for trespass.

10. The Solicitors regulation Authority has no knowledge of Mr M. Shwarts being the solicitor who signed the claim form. The claimant claims £50 for a solicitor. The claimant is put to strict proof of entitlement to this charge. The defendant also states that even if he is a genuine solicitor the statement of truth is defective in accordance with CPR 22 and invites the court to use it's case management powers to dismiss the claim.


11. The claimants claim is also denied for the following reasons :-


A. The sign was not an offer but a threat of a punitive sanction to dissuade drivers from parking without payment and was therefore a penalty clause. It was not an offer to pay for a period of parking. The charge was held to be a penalty in the appeal ruling of Civil Enforcement Limited v McCafferty Their claim is based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part. Any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero .




B. A charge of £90 is above and beyond that which the local authority charges for a penalty charge notice. Civil Enforcement Ltd are a member of the BPA. The BPA code of practice at 19.5/6 states "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.


19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading. "

The charge, according to the signs, is to deter abuse which is a clear penalty and in breach of it's own trade code of practice.




Case Law Relied Upon:


a) With regard to point 4 & 6, there are two Court of Appeal judgments of note, ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case. In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and
dismissed the claim. No transcript is currently available.


b) With regard to point 9 I rely upon the following cases and evidence:


OBServices v Thurlow (Worcester County Court, 2011) (Appeal hearing before Circuit Judge).3JD00517 ParkingEye v Clarke (Barrow-in-Furness, 19/12/2013) Deputy District Judge Buckley ruled that the amount charged was not a genuine pre-estimate of loss as any loss was to the landowner and not the Claimant. “The problem which the present Claimants have, however, in making this assessment is that on any view, any loss is not theirs but that of the land owners or store owners”


3JD02555 ParkingEye v Pearce (Barrow-in-Furness, 19/12/2013) This case followed on from the previous case and Deputy District Judge Buckley ruled the same way.(No transcript is available)


3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). The judge ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss as the loss for a four minute overstay was negligible.


3JD03769 ParkingEye v Baddeley (Birmingham 11/02/2014) District Judge Bull. The judge found that the defendant's calculation of ParkingEye’s pre-estimate of loss of around £5 was persuasive. As ParkingEye could not explain how their alternate calculation of £53 was arrived at, he accepted the defendant's calculations. The
transcript is not yet available.




The Office of fair Trading agreed with this, pointing out that all costs must be directly attributable to the breach, that day to day running costs could not be included and that the charge cannot be used to create a loss where none exists (Appendix A).


Appendix B contains the minutes of the British Parking Association where parking charge levels were decided, showing that there was no consideration whatsoever
given to pre-estimate of loss, and that at least one factor was to set the charges the same as council penalties. The minutes also show there is no financial basis for the 40% discount but that it is needed to ‘prevent frivolous appeals. Any charge set to deter is a penalty. A charge set to the level of a penalty is a penalty.


Conclusion


I deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to strike out the claim as being without merit, and with no realistic prospect of success.


Statement of Truth
I believe that the facts stated in this Defence are true.
Dated this 2nd day of June 20....
To the court and
to the Claimant


..........................
JUSTIN TIME
Defendant
of [Address],
at which address he/she will accept service of proceedings.






The 2 appendix items can be found http://www.parking-prankster.com/sample-defence.html although the lettering is different you should know which is which.

It is best to add to your defence anyting which helps, for example, not being the driver, not breaching any terms of a sign anyway etc etc.

M1

[Amethyst]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

Just on the Shwarts issue - http://forums.pepipoo.com/index.php?showtopic=95360&hl=

[Amethyst]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

This is interesting (for those who have been looking into the Shwarts issue ) - more than likely completely coincidental and I'm just noticing as I've read the name recently, but anyway...

http://www.sra.org.uk/consumers/soli...081047.article



He's also here

http://www.duncanlewis.co.uk/Michael...ow_Office.html

[mystery1]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

http://www.legalbeagles.info/forums/...ement-of-truth

A letter/email to see if your local court is interested in stopping claimants take the mick out of them.

M1

[Guineveretoo]

Re: Debt Enforcement & Action Ltd - MR. M SHWARTS - Help please

I am new to this forum, and still trying to find my way round all the different threads on this topic, so this may not be news, but I received notification from the SRA in January that it was a typo, and the name of the solicitor is Michael Schwartz and that he is a legitimate solicitor.

ETA As I expected, it has been covered in a different thread. Sorry

[joey-solic]

i appreciate your work, and i would welcome you to register with the UK solicitors

[joey-solic]

You may get help from Criminal Or Motoring Solicitors

[joey-solic]

i think you must consult motoring solicitors,

[ostell]

Dumbo !* This thread is over 5 years old. And multiple posts