IN THE COUNTY COURT AT NORTHAMPTON
Claim No: 1234567890
BETWEEN:
MONEYBARN NO.1 LIMITED
Claimant
-and -
MISS
Defendant
WITNESS STATEMENT OF KAMILLA CLAXTON
I, Kamilla Claxton, of Athena House, Bedford Road, Petersfield , Hampshire GU32 3LJ STATE as follows:
1. lam a Legal Case Manager employed by the Claimant at the above address. I have lay conduct of these proceedings and am authorised to make this statement on the Claimant's behalf.
2. I believe that the facts stated in this witness statement are true. Except where otherwise stated, those facts are derived from my own knowledge or from the documents to which | refer.
BACKGROUND
3. The Claimant is a finance company whose business includes the provision of credit to customers by way of conditional sale agreements.
4. I make this statement in support of the Claimant’s Application for a return of a vehicle let to the Defendant pursuant to a Regulated Conditional Sale Agreement dated 11 January 2019.
5. It is the Claimant's case that the parties, entered into such and agreement and the Defendant has failed to show that the vehicle was not of satisfactory quality at the point of sale and has failed to maintain payments under the Conditional Sale Agreement.
6. The Claimant will refer to the Particulars of Claim dated 24 March 2022 which set out the main terms of the Conditional Sale Agreement between the Claimant and Defendant.
7. The Agreement
7.1. In or about 11 January 2019, the Claimant received a finance proposal regarding the financing of a vehicle for the Defendant from Motion Finance 2017 Limited.
7.2. Having completed its normal underwriting procedures and in contemplation of entering into an agreement with the Defendant, the Claimant purchased on 11 January 2019 from Crystal Motor Company Ltd, a NISSAN Qashqai+2 motor vehicle with registration EJ62VHZ and identification No SJNJCAJ10U7140431 (“the Vehicle”). For the sake of clarity, the Defendant sourced and chose the vehicle.
7.3. By an agreement made in writing on 11 January 2019 (“the Agreement”), the Claimant agreed to sell on conditional sale to the Defendant the vehicle referred to above. The Agreement was regulated by the Consumer Credit Act 1974 (“the 1974 Act”).
7.4. The period of the agreement was 60 months. The Defendant agreed to pay 60 rentals of £188.16 on each consecutive month thereafter, starting one month after execution (together “the Rentals”).
7.5. The following were express terms of the Agreement:
a. Time for payment of the Rentals (and other sums falling due from time to time under the Agreement) was of the essence (§ 2.7).
b. The Defendant was liable to pay on demand an administration charge of £25.00 on each occurrence of a late payment or unpaid Direct Debit, and also upon termination of the Agreement (§ ‘Charges’) (“Default Charges”).
c. Property and ownership in the Vehicle pass to the Defendant only after she had paid to the Claimant all sums payable under the Agreement; until then the Vehicle will remain the property of the Claimant (§ 4.1).
d. Risk in the Vehicle would pass to the Defendant immediately on the Date of the Agreement or upon her taking possession of the Vehicle, whichever was the earlier (§ 5.1).
e. The Defendant at her own expense was to ensure that the Vehicle was serviced at the intervals recommended by the manufacturer or whenever necessary, replace missing, unfit or damaged parts (however this was made necessary) and having all necessary repairs and maintenance carried out by a servicing agent appointed or approved by the manufacturer of the Vehicle (§ 6.2).
f. The Claimant was entitled to terminate the Agreement, after due notice under the 1974 Act, in the event of the Defendant failing to pay punctually any Rental or other sum due under the Agreement (§ 8&9).
g. On termination of the Agreement as aforesaid, the Defendant was to return the vehicle to the Claimant for sale and once sold the Defendant became liable to pay (i) all arrears of Rentals and other sums due, together with interest thereon; (ii) the balance of the Rentals that would have been payable but for termination and (iii) the Claimant's reasonable costs incurred in recovering and selling the Vehicle, and in enforcing its rights under the Agreement less the proceeds of sale (§ 9).
7.6. I refer to copies of the relevant documents at pages 1-12 under KC1.
8. Grounds for the Claim
8.1. On the19 August 2019, the Defendant contacted the Claimant to raise issues experienced with the Vehicle. The Claimant raised the concerns as a satisfactory quality complaint. The Claimant further reminded the Defendant of the arrears on the Agreement and advised of the credit file risk to the Defendant if payments continue to be missed.
8.2. Between the 19 August 2019 and 05 September 2019, the Claimant requested that the Defendant provide evidence of the issues experienced being present at the point of sale. The Defendant provided a diagnostic to show a clicking noise in the air conditioning unit and brake and calliper sticking which caused shaking on the steering wheel and loss of power to engine. The Claimant confirmed that the air conditioning unit does not affect the satisfactory quality of the Vehicle and that brake callipers are a wear and tear item. The Defendant was unable to provide any further evidence. Subsequently, the Claimant issued a final response letter to the Defendant on 05 September 2019 which did not uphold the Defendant's complaint. A copy of the final response letter is now shown and produced on pages 13-14 under Exhibit KC1.
8.3. On the 04 September 2019, the Defendant emailed the Claimant to state that she wished would take the Vehicle for an independent inspection and enquired if the Claimant could assist with this. On 06 September 2019, the Claimant responded to the Defendant and confirmed that if the report confirms that inherent and developing issues at the point of sale, the Claimant will reimburse the Defendant of up to £80.00.
8.4. On the 19 November 2019, the Defendant contacted the Claimant to move the direct debit date to 28" of each calendar month. The Claimant actioned the Defendant's request.
8.5. Between 02 December 2019 and 17 December 2019, the Claimant made multiple attempts to contact the Defendant regarding the arrears on the Agreement.
8.6. On the 18 December 2019, the Defendant contacted the Claimant to set up a payment plan for the outstanding arrears. The Claimant set up a payment plan for the outstanding arrears at £20.00 per month.
8.7. On the 21 March 2020, the Defendant contacted the Claimant to state that she continued to experience issues with the vehicle. The Claimant explained that the Defendant could raise another complaint however further evidence would be required to show the issues were present or developing at the point of purchase. The Defendant requested exit options which were provided to her by the Claimant.
8.8. On the 29 December 2020, the Claimant received notification that the direct debit instruction had been cancelled by payer.
8.9. On the 09 July 2021, the Defendant contacted the Claimant to state that she is unhappy with the Vehicle and requested an early settlement figure. The Claimant provided the early settlement figure along with the options available to end the Agreement. The Parties further set up a payment plan for outstanding arrears.
8.10. On the 15 September 2021, the Claimant contacted the Defendant to discuss outstanding arrears on the Agreement. The Defendant stated that the arrears were due to a change in employment. The Parties discussed the Defendant's income and expenditure, set up a payment plan for the outstanding arrears and agreed to review in three months to check if circumstances had changed.
8.11. On the 01 October 2021, the Claimant issued the Defendant with a notice of sums in arrears letter. A copy of the letter is now shown and produced on page 15 under Exhibit KC1.
8.12. Between 26 October 2021 and 23 November 2021, the Claimant made numerous attempts to contact the Defendant regarding arrears on the Agreement via email and text.
8.13. On the 10 November 2021, the Claimant issued the Defendant with a letter confirming arrears are continuing to build and request that the Defendant contact the Claimant as soon as possible. A copy of the letter is now shown and produced on page 16-19 under Exhibit KC1.
8.14. On 23 November 2021, the Claimant sent a default notice to the Defendant pursuant to section 87(1) of the 1974 Act as a result of instalments of £714.76 had not been paid. As the notice was not satisfied in whole or part, the Claimant terminated the Agreement by notice in writing dated 14 December 2021.
8.15. I refer to copies of the notices and a statement of account showing sums due and paid under the Agreement, at pages 20-27 under Exhibit KC1.
8.16. Following termination, the Defendant became liable to return the Vehicle and pay the outstanding sum (calculated as aforesaid) particularised below (“the Balance”):
Total Price £ 13,101.44
Less sums paid by the Defendant £ (7,423.08)
The Balance £ 5,606.92
8.17. The Defendant failed or refused to respond to the Claimant’s demands that she pays the Balance.
8.18. The liability arising upon termination of the Agreement is set out under section 9 of the Agreement where the Claimant is entitled to immediate payment from the Defendant of all payments and other sums due under the Agreement.
8.19. The Claimant did not receive any correspondence from the Defendant following the termination of the Agreement. Therefore, the Claimant instructed recovery agents to attend the Defendant's last known address in attempt to make contact with the Defendant and come to an arrangement following the termination of the Agreement.
8.20. On the 18 January 2022, the agents spoke with the Defendant who advised that she had made a complaint to the Financial Ombudsman Service (FOS). The Claimant closed the agent instruction as they had made contact with the Defendant.
8.21. On the 04 March 2022, the Claimant issued the Defendant with a final response letter to the complaint raised on 24 January 2022 where the Defendant was unhappy with the quality of the Vehicle, total amount payable on the Agreement, and agents being instructed without an Order from the Court. The Claimant did not uphold the Defendant's complaint. A copy of the final response letter is now shown and produced on pages 28-34 under Exhibit KC1.
8.22. Between 18 January 2022 and 15 March 2022, the Claimant had not received any correspondence from the Defendant nor FOS, therefore, the Claimant subsequently instructed DWF Law LLP (DWF) to commence litigation for the return of the Vehicle.
8.23. On the 17 March 2022, DWF sent a letter before action to the Defendant. A copy of the letter is now show and produced on pages 35-38 under Exhibit KC1.
8.24. On the 24 March 2022, the Defendant contacted DWF to advise that she has a complaint with FOS and concerned regarding the recovery of the Vehicle. DWF confirmed that the Vehicle will not be collected without a Court Order.
8.25. The Defendant has not provided sufficient proof to show that the Vehicle was faulty at the date of purchase.
8.26. The Vehicle is currently showing as taxed, insured, and holding a valid MOT.
8.27. The Vehicle passed an MOT on 16 January 2019, 5 days after the Defendant had taken possession of the Vehicle with an approximate milage of 93,801 miles. The Vehicle had passed the latest MOT conducted on 28 April 2022 where the approximate milage was 121,941 miles.
8.28. The Defendant has had considerable use of the Vehicle with little to no payments being made.
8.29. The Vehicle is depreciating in value without payments being made which is not beneficial to either party.
8.30. The Claimant therefore requests an order for the return of the goods forthwith, and permission to access any premises pursuant to Section 92 of the Consumer Credit Act 1974 in order to maximise the chances of recovering the Vehicle.
8.31. I would then request that the Claimants monetary claim be adjourned with liberty to restore following collection of the Vehicle and its sale as it will only be at that time that the Claimants will be able to quantify their loss pursuant to Clause 9. In these circumstances, the Defendant is of course entitled to be credited with the value of the Vehicle which can only be ascertained once it has been delivered to the Claimants and the same has been sold.
The Claimants also claim the fixed costs of this action in accordance with the CPR Part 45 for the Return of Goods Hearing listed on the 22 September 2022 at 11:00 AM.
Statement of Truth
I believe that the facts stated in this Witness Statement are true. | understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth
Signed:
Kamilla Claxton
Legal Case Manager
Dated: 13 September 2022
IN THE COUNTY COURT AT NORTHAMPTON
Claim No: 1234567890
BETWEEN:
MONEYBARN NO.1 LIMITED
Claimant
- and -
[WITNESS NAME]
Defendant
WITNESS STATEMENT OF [WITNESS NAME]
I, [WITNESS NAME] of [WITNESS ADDRESS] STATE as follows:
1. I am the Defendant in this case and I make this witness statement in readiness for the fixed hearing on 22nd September 2022 at 11am. This statement is in direct response to the claimants filing of a witness statement dated 14th September 2022 by Kamilla Claxton (the 'Alleged Witness'). The Defendant avers that the Alleged Witness bases her entire Witness Statement on hearsay evidence of the Claimant's computer system.
It is disputed that the Alleged Witness bases any of her statement on actual fact witnesses and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant.
The failure of such systems have been brought to light by the recent case where sub- postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:
The Defendant avers that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act ('No Notice Served'). The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.
2. The contents of this witness statement are true to the best of my knowledge, information, and belief.
BACKGROUND
3. It is not disputed that the Claimant is a finance company whose business includes the provision of credit to customers by way of alleged conditional sale agreements. The Defendant avers that the Claimant is has adopted a business model of lending in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending.
4. It is disputed that the Claimant's Alleged Witness statement offers anything other than hearsay in support of the Claimant's application for a return of a vehicle let to the Defendant pursuant to a Regulated Conditional Sale Agreement dated 11 January 2019 (the 'Void Agreement'). The Defendant avers that the Alleged Witness has no personal knowledge of any facts in the case and no weight should be given to the Alleged Witnesses statement in deciding facts in this case.
5. It is disputed that the parties, entered into such an agreement and the Defendant has failed to show that the vehicle was not of satisfactory quality at the point of sale and has failed to maintain payments under the Void Agreement. The Defendant avers that the Void Agreement was void form the outset due to the Claimant's failure to comply with Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending. The Defendant avers that this matter is the subject for a formal investigation by the Financial Ombudsman respectfully asks that the Court reserve any final judgment in this case pending the outcome of the Financial Ombudsman's investigation.
6. It is denied that the Particulars of Claim dated 24 March 2022, set out the main terms of the Void Agreement between the Claimant and Defendant. The Defendant avers that the Particulars of Claim have already been responded to by the Defendant's filing of a Defence in this case.
7. The Void Agreement
7.1. It is not disputed In or about 11 January 2019, the Claimant received a finance proposal regarding the financing of a vehicle for the Defendant from Motion Finance 2017 Limited. The Defendant avers that the Claimant engaged in irresponsible lending in breach of the Consumer Credit Act and the Void Agreement was void from the outset due to irresponsible lending practices:
https://www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void
7.2. It is not disputed that Having completed its normal underwriting procedures and in contemplation of entering into an Void Agreement with the Defendant, the Claimant purchased on 11 January 2019 from Crystal Motor Company Ltd, a NISSAN Qashqai+2 motor vehicle with registration EJ62VHZ and identification No SJNJCAJ10U7140431 (“the Vehicle”). It is disputed that the Defendant sourced and chose the vehicle. The Defendant avers that she was the victim of pressure sales tactics by the motor vehicle retailer. It is disputed that the claimant was put under pressure by crystal motor company ltd and Moneybarn to proceed to buy the car. The Defendant avers that she had only just started looking and she was young and naive and pressured into the Void Agreement with tactics such as suggesting that this was the best deal I was going to get with her current credit score.
7.3. It is not disputed that that an Void Agreement was made in writing on 11 January 2019. It is not disputed that the Claimant agreed to sell on conditional sale to the Defendant the vehicle referred to above. It is not disputed that the Void Agreement was regulated by the Consumer Credit Act 1974 (“the 1974 Act”). The Defendant avers that the Void Agreement was entered into in the dealership where the Defendant was not given any time to consider the terms and conditions being imposed, thereby making them UNFAIR terms, or afforded any opportunity to read emails or paperwork until after the point of sale making any terms HIDDEN in UK contract Law.
7.4. It is not disputed that the period of the agreement was 60 months and the Defendant entered into a Void Agreement which agreed to pay 60 rentals of £188.16 on each consecutive month thereafter, starting one month after execution (together “the Rentals”).
7.5. It is not disputed that the following were express terms of the Void Agreement:
a. Time for payment of the Rentals (and other sums falling due from time to time under the Agreement) was of the essence (§ 2.7).
b. The Defendant was liable to pay on demand an administration charge of £25.00 on each occurrence of a late payment or unpaid Direct Debit, and also upon termination of the Agreement (§ ‘Charges’) (“Default Charges”).
c. Property and ownership in the Vehicle pass to the Defendant only after she had paid to the Claimant all sums payable under the Agreement; until then the Vehicle will remain the property of the Claimant (§ 4.1).
d. Risk in the Vehicle would pass to the Defendant immediately on the Date of the Agreement or upon her taking possession of the Vehicle, whichever was the earlier (§ 5.1).
e. The Defendant at her own expense was to ensure that the Vehicle was serviced at the intervals recommended by the manufacturer or whenever necessary, replace missing, unfit or damaged parts (however this was made necessary) and having all necessary repairs and maintenance carried out by a servicing agent appointed or approved by the manufacturer of the Vehicle (§ 6.2).
f. The Claimant was entitled to terminate the Agreement, after due notice under the 1974 Act, in the event of the Defendant failing to pay punctually any Rental or other sum due under the Agreement (§ 8&9).
g. On termination of the Agreement as aforesaid, the Defendant was to return the vehicle to the Claimant for sale and once sold the Defendant became liable to pay (i) all arrears of Rentals and other sums due, together with interest thereon; (ii) the balance of the Rentals that would have been payable but for termination and (iii) the Claimant's reasonable costs incurred in recovering and selling the Vehicle, and in enforcing its rights under the Agreement less the proceeds of sale (§ 9).
The Defendant avers that the terms and conditions relied on by the Claimant are both UNFAIR and HIDDEN terms.
7.6. It is not disputed that copies of the relevant documents are exhibited by the Claimant at pages 1-12 under KC1 of their Alleged Witness statement.
8. It is disputed the Claimant has any Grounds for the Claim:
8.1. It is denied on the19 August 2019, the Defendant contacted the Claimant to raise issues experienced with the Vehicle. The Claimant raised the concerns as a satisfactory quality complaint. The Claimant further reminded the Defendant of the arrears on the Void Agreement and advised of the credit file risk to the Defendant if payments continue to be missed. I had been raising complaints about this since receiving the car to which I was told its under warranty so was dealing with crystal motors I have an email dating 21/05/2019 explaining that I have been waiting for over 5 weeks for it to be resolved in that time I had made plenty of phone calls to the claimant which again Moneybarn was extremely unhelpful I also explained that I was paying it out of my own pocket and could not afford that months payment and was going to pay more the following month. I’m sure Moneybarn calls are recorded.
8.2. It is agreed Between the 19 August 2019 and 05 September 2019, the Claimant requested that the Defendant provide evidence of the issues experienced being present at the point of sale. The Defendant provided a diagnostic to show a clicking noise in the air conditioning unit and brake and calipers sticking which caused shaking on the steering wheel and loss of power to engine. It is DISTPUTED that The Claimant confirmed that the air conditioning unit does not affect the satisfactory quality of the Vehicle and that brake caliper’s are a wear and tear item breaks were damaged from when I received the car and that they lied to tell me they was replaced I had not drove it far enough for the breaks to have worn down to metal. It is disputed that The Defendant was unable to provide any further evidence I continued to make phone calls but stated I didn’t have any more money to afford more diagnostics and the repairs. Subsequently, the Claimant issued a final response letter to the Defendant on 05 September 2019 which did not uphold the Defendant's complaint. It is not disputed that a copy of the final response letter is exhibited by the Claimant at pages 13-14 under Exhibit KC1 of their Alleged Witness Statement.
8.3. It is disputed that on the 04 September 2019, the Defendant emailed the Claimant to state that she wished would take the Vehicle for an independent inspection and enquired if the Claimant could assist with this. On 06 September 2019, the Claimant responded to the Defendant and confirmed that if the report confirms that inherent and developing issues at the point of sale, the Claimant will reimburse the Defendant of up to £80.00. at this point I had already paid a greater amount and show proof of this and yet it was still not good enough for anyone to help me with the car I decided to cut my losses as being on benefits and having a disabled child meant I can no longer afford it upfront
8.4. It is agreed that on the 19 November 2019, the Defendant contacted the Claimant to move the direct debit date to 28" of each calendar month. It is not disputed that the Claimant actioned the Defendant's request.
8.5. It is disputed that Between 02 December 2019 and 17 December 2019, the Claimant made multiple attempts to contact the Defendant regarding the arrears on the Void Agreement.
8.6. It is agreed that on the 18 December 2019, the Defendant contacted the Claimant to set up a payment plan for the outstanding arrears. The Claimant set up a payment plan for the outstanding arrears at £20.00 per month.
8.7. It is agreed on the 21 March 2020, the Defendant contacted the Claimant to state that she continued to experience issues with the vehicle. It is disputed that The Claimant explained that the Defendant could raise another complaint however further evidence would be required to show the issues were present or developing at the point of purchase. It is agreed that The Defendant requested exit options which were provided to her by the Claimant.
8.8. It is disputed that on the 29 December 2020, the Claimant received notification that the direct debit instruction had been cancelled by payer.
8.9. it is disputed that on the 09 July 2021, the Defendant contacted the Claimant to state that she is unhappy with the Vehicle and requested an early settlement figure. The Claimant provided the early settlement figure along with the options available to end the Void Agreement. The Parties further set up a payment plan for outstanding arrears. The Defendant avers that it was the 14th July and she was told I would have to pay a further £4,474.23 to terminated the Void agreement giving the fact she was in arrears and couldn’t afford to keep the car on road I was not able to pay that to end it.
8.10. It is disputed that On the 15 September 2021, the Claimant contacted the Defendant to discuss outstanding arrears on the Void Agreement. The Defendant stated that the arrears were due to a change in employment. The Parties discussed the Defendant's income and expenditure, set up a payment plan for the outstanding arrears and agreed to review in three months to check if circumstances had changed. It was explained that once the Defendant had done an expenditure the claimant then saw that I only had £12 each month to spare this included raising 3 children fuel and other things and yet I was told it was acceptable to pay even though I was behind on many other bills.
8.11. It is disputed that on the 01 October 2021, the Claimant issued the Defendant with a notice of sums in arrears letter. A copy of the letter is now shown and produced on page 15 under Exhibit KC1. The Defendant avers that she never received this letter.
8.12. It is disputed that Between 26 October 2021 and 23 November 2021, the Claimant made numerous attempts to contact the Defendant regarding arrears on the Agreement via email and text. The Defendant avers that no phone calls or texts were made.
8.13. It is disputed that on the 10 November 2021, the Claimant issued the Defendant with a letter confirming arrears are continuing to build and request that the Defendant contact the Claimant as soon as possible. A copy of the letter is now shown and produced on page 16-19 under Exhibit KC1. The Defendant avers that, again, this was not received
8.14. It is disputed that on 23 November 2021, the Claimant sent a default notice to the Defendant pursuant to section 87(1) of the 1974 Act as a result of instalments of £714.76 had not been paid. As the notice was not satisfied in whole or part, the Claimant terminated the Void Agreement by notice in writing dated 14 December 2021.
8.15. I refer to copies of the notices and a statement of account showing sums due and paid under the Agreement, at pages 20-27 under Exhibit KC1.
8.16. It is disputed that Following termination; the Defendant became liable to return the Vehicle and pay the outstanding sum (calculated as aforesaid) particularized below (“the Balance”):
Total Price £ 13,101.44
Less sums paid by the Defendant £ (7,423.08)
The Balance £ 5,606.92
8.17. It is disputed that The Defendant failed or refused to respond to the Claimant's demands that she pays the Balance. The Defendant avers that if she had received these letters, then she would have responded.
8.18. It is disputed that the liability arising upon termination of the Void Agreement is set out under section 9 of the Void Agreement where the Claimant is entitled to immediate payment from the Defendant of all payments and other sums due under the Void Agreement.
8.19. It is disputed that The Claimant did not receive any correspondence from the Defendant following the termination of the Void Agreement. Therefore, the Claimant instructed recovery agents to attend the Defendant's last known address in attempt to make contact with the Defendant and come to an arrangement following the Claimant's alleged termination of the Void Agreement.
8.20. It is denied on the 18 January 2022, the agents spoke with the Defendant who advised that she had made a complaint to the Financial Ombudsman Service (FOS). The Claimant closed the agent instruction as they had made contact with the Defendant. I rang them after being harassed to tell them that the car was no longer running and that I didn’t no need to hand over the car as it should be done by a court order they tried to bully me into giving the car back to them to which I called there office to explain that I was in touch with the financial ombudsman and that they said they would be dealing with it. Again, you agents continued to come out for the next 5 months saying they was being pressured by the Claimant despite the Defendant explaining that she was going to court Intended to defend the Claim and that this was harassment and it wasn’t until the Court made a call to them, that this harassment stopped.
8.21. It is disputed that on the 04 March 2022, the Claimant issued the Defendant with a final response letter to the complaint raised on 24 January 2022 where the Defendant was unhappy with the quality of the Vehicle, total amount payable on the Void Agreement, and agents being instructed without an Order from the Court. The Claimant did not uphold the Defendant's complaint. A copy of the final response letter is now shown and produced on pages 28-34 under Exhibit KC1. The Defendant avers that she was also unhappy with the fact the claimant was using this Void Agreement even though it had false statements from me with regards to my earnings I questioned irresponsible lending as well as breach of contract. The Defendant draws the Courts attention to Defence Exhibit 'CL1' page 1, attached at the end of this Witness Statement, which is a copy of the mail.
8.22. It is disputed that Between 18 January 2022 and 15 March 2022, the Claimant had not received any correspondence from the Defendant nor FOS, therefore, the Claimant subsequently instructed DWF Law LLP (DWF) to commence litigation for the return of the Vehicle. The Defendant avers that she had made contact with the financial ombudsman on the 4 January 2022 and was awaiting them to give instruction.
8.23. It is agreed that on the 17 March 2022, DWF sent a letter before action to the Defendant. It is not disputed that a copy of the letter is exhibited by the Claimant on pages 35-38 under Exhibit KC1.
8.24. On the 24 March 2022, the Defendant contacted DWF to advise that she has a complaint with FOS and concerned regarding the recovery of the Vehicle. DWF confirmed that the Vehicle will not be collected without a Court Order.
8.25. It is denied that The Defendant has not provided sufficient proof to show that the Vehicle was faulty at the date of purchase. The Defendant avers that she has shown and had a number of emails calls texts showing that the car was faulty.
8.26. It is agreed The Vehicle is currently showing as taxed, insured, and holding a valid MOT. The Defendant avers that since this court case she has not been able to get a new car so she have had no option but to spend more money on the car to make it road worthy for her children and so I can continue to work.
8.27. It is disputed that The Vehicle passed an MOT on 16 January 2019, 5 days after the Defendant had taken possession of the Vehicle with an approximate mileage of 93,801 miles. The Vehicle had passed the latest MOT conducted on 28 April 2022 where the approximate mileage was 121,941 miles. It is disputed that the Defendant has had considerable use of the Vehicle with little to no payments being made. The Defendant avers that giving the company that she brought the car from, she has since had people that would be happy to stand as a witness prove that they too have been sold bad cars from the company and that in fact the mot center is next door and is friends with them they are okay to turn a blind eye to work. The Defendant avers that millage is due to having to need a car as again she has a disabled son and need to get to hospitals and places for him and the vehicle has cost the Defendant an extra £700 in repair and maintenance.
8.28. It is disputed that The Vehicle is depreciating in value without payments being made which is not beneficial to either party. The Defendant avers that she has already given the Claimant over £7000 to which the car is now worth on sites a total of £2500 but you are still trying to claim back the car and £5000 from the Defendant and therefore it is of no benefit for the Claimant to request the return of the vehicle. The Defendant avers that the Claimant is attempting betterment by asking for the return of the vehicle.
8.29. For the reasons stated above, it is denied that the Claimant is entitled to request an order for the return of the goods forthwith, and permission to access any premises pursuant to Section 92 of the Consumer Credit Act 1974 in order to maximize the chances of recovering the Vehicle.
8.30. It is disputed that the Claimants monetary claim should be adjourned with liberty to restore following collection of the Vehicle and its sale as it will only be at that time that the Claimants will be able to quantify their loss pursuant to Clause 9. In these circumstances, the Defendant is of course entitled to be credited with the value of the Vehicle which can only be ascertained once it has been delivered to the Claimants and the same has been sold. The Defendant respectfully requests that the Court dismiss the Claimant's claim in it's entirety.
8.31. It is denied that the Claimant is also entitled to claim the fixed costs of this action in accordance with the CPR Part 45 for the Return of Goods Hearing listed on the 22 September 2022 at 11: 00 AM.
9. The Defendant avers that the Claimant's claim is without merit and vexatious. The Defendant respectfully invites the Court to dismiss the Claimant's claim and allow Defendants costs as are permissible under civil procedure rule 27.14.
Statement of Truth
I believe that the facts stated in this \/fitness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth
Signed: [WITNESS NAME]
DEFENDANT
Dated: 17 September 2022