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Hi,
We have started small claim process through the Scottish courts and need some advice
Relates to damages to a car we VT’d Feb 2015 and discovered April 2018 BMW had been marking delinquent payments for last 3 years. Originally charged us £688, we disputed and they reduced to £235.We disputed again and it was back n forth for a couple of months then we heard nothing until we got declined for car finance April 2018.
To (try) cut story short, their lawyers have sent letter of response to the Order of the Sheriff and we would like to know how to respond.
They say: when the vehicle was inspected on return to the Respondant the damage to the vehicle was valued at £688.The Respondant considered that some of the damage to the vehicle was caused by fair and tear and did not seek to to recover it from the Claimant ( this is incorrect, they only reduced because we challenged the amount and we have the letter to prove this).
The Respondant wishes to correct the statement made in Their Response form that the amount claimed by them had been reduced following representations made by the Claimant. The amount claimed by them had been reduced by the Respondant on consideration of the vehicle condition report.
The Respondant issued a default notice on April 2015 and claimant contacted respondant to dispute saying he had not committed to liability for damage, damage was minor and that the vehicle was in appropriate condition for its age.
In regards to the markers on the credit file they go on to say: The Respondant did not specifically provide the Claimant with notice that the sum due would be noted on his credit file. the Respondant is not aware of any contractural provision or statutory provision which requires them to do this. The default notice issued to the Claimant was in accordance with the requirements of the CCA
is this correct? I’ve read the principles of the CRA and they write that “in all instances you should be told whether and how the information will be reported on your credit file”
it also says data should be fair, accurate,consistent, complete and up to date however these delinquent markers were not reporting on our credit file in 2016 and must had been added much later on (a year after we VT’d the car).
They then say “ The Respondant was entitled to notify the sums due to them as a default in terms of the loan agreement entered into with the Claimant. Section 1 “other charges” provides that the Respondant will charge if the vehicle is returned not in good repair and condition allowing for fair wear and tear. Part 2 of the agreement “missing payments” provides that the Respondant will report missed payments to credit reference agencies. Page 3 of the agreement “our use of your information” provides that the Respondant may give default of any default or failure to keep to the terms of the agreement to the CRA.
I have read a lot of the posts on here (absolutely invaluable) and this has helped with our defence but I want to make sure we are going down the right track.
I will refer to section 189 “the total price of goods” where it excludes any sum payable as a penalty,compensation or damages for breach of an agreement. I believe they will point to section 100 (4) however?
I don’t believe they are correct referring to the damages as “missing payments” since the damages amount was not part of the total sum owed - we have letters between ourselves and the Respondant and they are entitled “damage invoice”
If it was a missing payment, as they have inferred in the response, then why was usual due process not followed whereby late payments would be marked on credit report followed by default then CCJ?
Also, is the onus not on the Respondant to prove the damage was done by ourselves? I was going to refer to Brady/St Margaret case for this?
Any advice is greatly appreciated
Kirsty
We have started small claim process through the Scottish courts and need some advice
Relates to damages to a car we VT’d Feb 2015 and discovered April 2018 BMW had been marking delinquent payments for last 3 years. Originally charged us £688, we disputed and they reduced to £235.We disputed again and it was back n forth for a couple of months then we heard nothing until we got declined for car finance April 2018.
To (try) cut story short, their lawyers have sent letter of response to the Order of the Sheriff and we would like to know how to respond.
They say: when the vehicle was inspected on return to the Respondant the damage to the vehicle was valued at £688.The Respondant considered that some of the damage to the vehicle was caused by fair and tear and did not seek to to recover it from the Claimant ( this is incorrect, they only reduced because we challenged the amount and we have the letter to prove this).
The Respondant wishes to correct the statement made in Their Response form that the amount claimed by them had been reduced following representations made by the Claimant. The amount claimed by them had been reduced by the Respondant on consideration of the vehicle condition report.
The Respondant issued a default notice on April 2015 and claimant contacted respondant to dispute saying he had not committed to liability for damage, damage was minor and that the vehicle was in appropriate condition for its age.
In regards to the markers on the credit file they go on to say: The Respondant did not specifically provide the Claimant with notice that the sum due would be noted on his credit file. the Respondant is not aware of any contractural provision or statutory provision which requires them to do this. The default notice issued to the Claimant was in accordance with the requirements of the CCA
is this correct? I’ve read the principles of the CRA and they write that “in all instances you should be told whether and how the information will be reported on your credit file”
it also says data should be fair, accurate,consistent, complete and up to date however these delinquent markers were not reporting on our credit file in 2016 and must had been added much later on (a year after we VT’d the car).
They then say “ The Respondant was entitled to notify the sums due to them as a default in terms of the loan agreement entered into with the Claimant. Section 1 “other charges” provides that the Respondant will charge if the vehicle is returned not in good repair and condition allowing for fair wear and tear. Part 2 of the agreement “missing payments” provides that the Respondant will report missed payments to credit reference agencies. Page 3 of the agreement “our use of your information” provides that the Respondant may give default of any default or failure to keep to the terms of the agreement to the CRA.
I have read a lot of the posts on here (absolutely invaluable) and this has helped with our defence but I want to make sure we are going down the right track.
I will refer to section 189 “the total price of goods” where it excludes any sum payable as a penalty,compensation or damages for breach of an agreement. I believe they will point to section 100 (4) however?
I don’t believe they are correct referring to the damages as “missing payments” since the damages amount was not part of the total sum owed - we have letters between ourselves and the Respondant and they are entitled “damage invoice”
If it was a missing payment, as they have inferred in the response, then why was usual due process not followed whereby late payments would be marked on credit report followed by default then CCJ?
Also, is the onus not on the Respondant to prove the damage was done by ourselves? I was going to refer to Brady/St Margaret case for this?
Any advice is greatly appreciated
Kirsty
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