*** WON !! *** VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

[RachRad]

Hello All,

Creditor: MBFS
VT date: 5th Jan 2016
Excess Mileage Agreement: 40,000 over 4 years, car was returned with 45,082 after 3 years.

I have just received a court claim latter from the above solicitors for outstanding excess mileage charges after I VT'd my car last year. MBFS initially also attempted to charge me for alleged damage to 3 wheels but they removed all but one charge after I challenged them (there was no damage whatsoever).
I put in a complaint with the FOS who, of course, upheld MBFS case, however they did reemove the charge for the remaining wheel.

All that's remaining is the excess mileage charges which total £905.90

I am trying to hold my nerve, but must admit am getting a bit panicky now. The matter is slightly complicated by the fact that the agreement (and therefore, the person actually being sued) is my mum. For all intents and purposes, the car is mine and all their dealings have been with me, but my mother put her name down for credit purposes.

I'd really appreciate some help in formulating a defence. I have acknowledged the claim form online.

This is MBFS response once I initially challenged thehttp://legalbeagles.info/forums/newthread.php?do=newthread&f=6 x=excess mileage charges:

Dear XXXX,


Further to your recent email, I am sorry for the delay in my response and thank you for your continued patience. The details of your concerns have been forwarded to me for investigation and review.

My understanding of your concern is that you are unhappy with the excess mileage charges and damage charges that you have been invoiced for your A-Class following your Voluntary Termination. I further acknowledge that you feel the invoice of these charges contravene the Consumer Credit Act. I am sorry that you are experiencing this frustration and distress.

I understand that you feel the excess mileage charge of £905.90 breaches the Consumer Credit Act as you feel the act precludes any further charges from being applicable. Your financial agreement was intended for a period of four years with a mileage allowance of 40,000. When a financial agreement is voluntarily terminated, the mileage is calculated on a pro rata basis to determine if the vehicle has accrued mileage beyond the terms of the contract. Your vehicle was returned with 45,082 miles on the clock even though the car was returned over one year earlier. Under the terms and conditions of your financial agreement, that is in excess of what was agreed and the mileage charges are applicable. When the Consumer Credit act affords the customer a right to terminate their financial agreement without accruing further costs, the costs referenced are the monthly rental costs, not costs associated to repairing the vehicle to prepare it for sale. Whilst I acknowledge that this may not have been the answer you were looking for, the excess mileage charge of £905.90 is still applicable. "

After a few letters from DLC, I received one letter from Mortimer Clarke demanding payment but without setting out their case, or following the proper pre-action protocol, and about 3 weeks later have now received the court letter.

PLease help

Thank you so much in advance

[Kati]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

tagging [MENTION=71570]R0b[/MENTION] for help

to LB [MENTION=105277]RachRad[/MENTION] xx

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi Rach,

You need to provide a few things first of all - make sure personal info is redacted. If you are struggling, you can email Kati by using kati@legalbeagles.info
1. A full copy of the MBFS agreement;
2. Correspondence from MBFS confirming they will waive the charges for the wheels (do you have evidence of the car's condition?)
3. A copy of the damage report if you were given one.
4. Post up the Particulars of Claim (word for word and incl. the date of the claim)
5. Any other relevant information

I would also suggest your mother checks her credit file too. She can use Noddle which is free and also Experian which offers a 30 day trial if she hasn't used it before or if she has, then she can obtain a free report by using Money Saving Expert's Credit Club (http://www.moneysavingexpert.com/creditclub). If MBFS have applied a default on the account then your mum could have a claim for breach of data protection and could counter claim up to £1,000. If this is the case she might be wise to consider making a counterclaim as a defence tool to offset the claim being made against her and MBFS might in the end decide to drop the claim if she drops her counterclaim.

Obviously if your mum can't afford the amount being claimed and things get too much for her then she can still make an offer to settle on a without prejudice basis and no admission of liability (and also on the agreement that the default will be removed if one has been applied). In the meantime court hearings can take up to 6 months so you/her should also consider saving some money aside over the next few months too if she intends to defend which means even if she does lose then she can pay it straight off without obtaining a CCJ.

if it is the intention to defend then I will assist wherever possible.

[Kati]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

you can email Kati by using kati@legalbeagles.info

adding a link to this thread so I can find it easily xx

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi R0b

Thanks so much for your reply. I will get all those documents together and post them tomorrow.

We've checked my mum's credit file and the account has been marked as a VT but no default.

My intention is to file a defence and see where that takes me - if things progress to the court room I fear I may back down simply because it is my mum that will have to appear and she knows nothing about the case, plus she's elderly and english is not her mother tongue.

Will get all the documents together and come back to you

Rachel

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

To be realistic from the outset, there is a real chance that this is going to go down to the wire, and as soon as you start looking to settle the claim then they might think they have the upper hand.

Yes, your mum will have to appear however you can act on her behalf if you also attend. There is a piece of legislation called the Lay Representatives (Rights of Audience) Order 1999. This allows you to speak on your mum's behalf in court provided she attends also. I think that once you establish yourself as being the main driver then the focus might shift anyway from her to you.

There's nothing stopping you from defending the claim and looking to settle at the same time. As I said, if you can afford to save up the amount being claimed by the time the court hearing comes round then it would be logical to attend court and defend it anyway because you would then have nothing to lose.

Once you've uploaded the relevant documents I'll take a proper look.

Can you confirm the date of the claim form and when you acknowledged the claim to defend?

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Thank you for this, I had no idea i would be allowed to speak on her behalf.

The date on the claim firm is 4th Aug 2014. I did the AOS online on 8th Aug but made a bit of a booboo: i signed it off with my details rather than my mums which they rejected on the 9th. I can't seem to resend the amended AOS online so hopefully they will accept the original paper form by post??

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

I would give the Court a call and just double check, the Money Claims Online service has an email address that you could also send it to which is ccbc@hmcts.gsi.gov.uk. For any avoidance of doubt I would also send the acknowledgment of service to the solicitors too so they are also on notice the claim has been acknowledged (just in case its not update on MCOL since some firms can be very underhand).

Since it is your mother who is the contracting party, everything will need to be signed by her where required. You can provide a witness statement too as well as her when it comes to that but lets just do one step at a time.

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

I will get on to this asap today once baby wakes up from her nap. Thank you for all your help, i'd be lost without it. Will come back to you later this evening with the required info.

Rachel

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Thank you x

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi Rach,

You need to provide a few things first of all - make sure personal info is redacted. If you are struggling, you can email Kati by using kati@legalbeagles.info
1. A full copy of the MBFS agreement;
2. Correspondence from MBFS confirming they will waive the charges for the wheels (do you have evidence of the car's condition?)
3. A copy of the damage report if you were given one.
4. Post up the Particulars of Claim (word for word and incl. the date of the claim)
5. Any other relevant information

I would also suggest your mother checks her credit file too. She can use Noddle which is free and also Experian which offers a 30 day trial if she hasn't used it before or if she has, then she can obtain a free report by using Money Saving Expert's Credit Club (http://www.moneysavingexpert.com/creditclub). If MBFS have applied a default on the account then your mum could have a claim for breach of data protection and could counter claim up to £1,000. If this is the case she might be wise to consider making a counterclaim as a defence tool to offset the claim being made against her and MBFS might in the end decide to drop the claim if she drops her counterclaim.

Obviously if your mum can't afford the amount being claimed and things get too much for her then she can still make an offer to settle on a without prejudice basis and no admission of liability (and also on the agreement that the default will be removed if one has been applied). In the meantime court hearings can take up to 6 months so you/her should also consider saving some money aside over the next few months too if she intends to defend which means even if she does lose then she can pay it straight off without obtaining a CCJ.

if it is the intention to defend then I will assist wherever possible.

Hi,

Please find attached (I hope!)

1. HP AGreement
2. Emails saying they will drop the alleged damage charges (the remaining wheel charge was waived by the FOS, I have a letter from them too but need to dig it up)
3. BCA damage report

Will take a photo of the particulars of claim and post up now.

Thank you
Rachel


MBHPredacted20170811_22000293.pdfMBBCAreport20170811_22165646.pdfMBdecision120170811_22182374.pdfMBdecision220170811_22201806.pdf

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Here are the Particulars of Claim..

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Thanks, bit late for me to look at everything tonight in detail but I will try to look at it over the weekend.

So you have 33 days to file a defence from the 4 August which should be enough time to file a robust defence. The Particulars from Mortimer Clarke are pretty crap - they appear to be alleging that vehicle damage, excess mileage and rent is due when this is clearly not the case based on what you've provided.

In the meantime, I would suggest you take a look at how to draft and outline a defence by looking at the link below. Why don't you try and have a stab at the first draft and post something up. You can use the VT guidance to assist you and you will need to reply to all 3 allegations, so you might be best sub-heading each one to make it clear which part of your defence you talk about each allegation.

http://legalbeagles.info/library/gui...-court-claims/

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi Rach,

I've not managed to take a proper look through your documents yet, but I've attached an example defence for you to examine and use as a starting point. I would like to caveat this by saying the defence is not exhaustive and you may need to add a few things to it to suit your own case.

There are a lot of words in brackets which requires you to amend or insert further information - make sure to remove the square brackets once you've done this. There is also reference to a Court of Appeal case which I can provide you with nearer the time but you don't need to enclose it for your defence. Its unlikely that you will be able to copy and paste all of your defence in the box online so you will need to email it to MCOL (ccbc@hmcts.gsi.gov.uk) and also worth sending a copy to Mortimer Clarke too by post, keeping a proof of postage receipt.

Happy to look over your draft if you post it up once you are done.

Any questions let me know.

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

HI R0b,

Thank you for looking at my documents. I have found the letter from the FOS waiving the remaining charge for the last wheel.

I will definitely attempt a first draft at the defence. I have an interview for a new job this Weds (eek!) so am prepping for that, so will get to work on my defence as soon as that's done.

Talk soon

Rachel