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    • I have had a secondary thought.  I borrowed £s from a completely separate entity 6y ago. It was personal and unsecured. I was going to repay upon sale of the property. But then repo and I couldn't.  Eventually they applied and got a charging order on the property.  Their lawyers wrote that if I didn't repay they may apply for an order for sale.  I'm not in control of the sale.  The lender won't agree to an order for sale.  The judge won't expedite it/ extract from trial.  Someone here on cag may or may not suggest I can apply for an order v the receiver?  But could I alternatively ask this separate entity with a c.o to carry out their threat and actually make an application to court for an order for sale v the receiver instead?
    • You left the PCN number showing, but no worries, I've redacted it. Euro Car parks are very well known to us.  I've just skimmed through the titles of the latest 100 cases we have with them (I gave up after 100) and, despite all their bluster and threats, in not one have they taken the Cagger to court. You stayed there for 2 hours &:45 minutes.  I'm guessing the limit is 2 hours and 30 minutes, right?  
    • If the claimant fails to draft directions the court can order a Case Management Hearing to set them but normally in Fast Track claims the claimant sets the directions...Unlike small claims track which are always set the court.
    • Not Evris offer, the court offers mediation service.   All claims proceed to hearing if mediation fails /not happen.   Why do you not wish to attend in person to stand your claim ?     Absolutely you must comply with the courts directions or your claim risks being struck out. Preparation for a hearing should happen irrespective of mediation.   https://www.consumeractiongroup.co.uk/topic/460613-suing-a-parcel-delivery-company-when-you-dont-have-a-direct-contract-with-them-–-third-party-rights-copy-of-judgment-available/#comment-5255007   Andy  
    • LPA.  (I'm fighting insolvency due to all the stuff that he and lender have done).  He appointed estate agents - (changed several times). Disclosure shows he was originally appointed for a specific reason (3m after repo) : using his powers as acting for leaseholder to serve notice on freeholders (to grab fh).  There was interest from 3 potential buyers. He chose one whose offer depended on a positive result of the notice.  Disc also shows he'd taken counsel advice - which was 'he'd fail'.  He'd simultaneously asked to resign as his job (of serving notice) was done and he'd found a buyer.  Lender asked him to stay on to assign notice to the buyer.  Notice failed, buyer didn't buy.  So receiver stayed.  There was 1 buyer who wanted to proceed w/o fh but receiver/ lender wasted 1y trying to get rid of them!  Disc shows why. But I didn't know why at the time. In later months Lender voiced getting rid of receiver. Various reasons - including cost.  But there's a contradiction/ irony: as I've seen an email (of 4y ago) which shows the receiver telling lender not to incur significant costs and to minimize receiver costs.    Yet lender then asked him to serve another notice - again counsel advice indicated 'he'd fail'.  And he did fail.  But wasted 3y trying and incurred huge legal costs - lender trying to pass on to me. Lender interfered - said wanted to do works.  Receiver should have said no.  But disc. shows he agreed to step aside to let them do the works - on proviso lender would discuss potential costs first (they didn't), works wouldn't take long (took 15m), and lender would hold interest (they didn't) (this last point is crucial for me now - as I need to know if I can argue that all interest beyond this point shouldnt be allowed?)   I need to check receiver witness statement in litigation with freeholders to see exactly what he said about 'his position'. But I remember it being along the lines of - 'if the works increased the value of the property he didn't have a problem'.  Lender/ receiver real problems started at this point. The cost of works and 4y passage of time has meant there is no real increase in value. Lender (or receiver) didn't get any permissions (statutory or fh) (and didn't tell me) and just bulldozed the property to an empty shell.  The freeholders served notice on me as leaseholder for breach of covenants (strict no alterations).  The Lender stepped in (acting for me) to issue notice for relief of forfeiture - not the receiver.  That wasted 2y of litigation (3y if inc the works) and incurred huge costs (both sides).  Lender's aim was to do the works that every potential buyer balked at due to the lease restrictions.  Lender and receiver knew couldn't do works w/o fh permission. Lender did them anyway; receiver allowed.  Receiver remained appointed.  I'm arguing lender interfered in receiver duties.  Receiver should have just sold property 4-5y ago w/o allowing any works.  Almost 3y since works finished the property remains unsold (>5y from repo). The property looks brand new - but it was great before.  The lender spent a ton of money - hoping that would facilitate a quick sale.  But the money they spent and the years they have wasted has meant they had to increase sale price.  It's now completely overpriced.  And - of course - the same issues that put buyers off (before works) still exist.   The receiver has tried for 2y to assert the works increased value. But he is relying on agents estimates - which have proved highly speculative. (Usual trick of an agent to give a high value to get the business - and then tell seller to reduce when no-one buys.). And of course lender continues to accrue interest (despite 4y ago receiver saying pause interest). Lender tried to persuade receiver to use specific agent. Disc shows this agent was best friends with the lender's main investor in the property.  Before works this agent had valued it low.  After works this agent suggested a value 70% higher!  The lender persuaded receiver to sack one agent and instead use this agent.  No offers. (Price way too high).   Research has uncovered that this main investor has since died.  I guess his investment is part of probate? And his family want it back?    Disc shows the sacked agent had actually received a high offer 1y ago.  Receiver rejected it.  (thus I don't know if the buyer would have ever proceeded). He was relying on the high speculative valuation the agents had given him to pitch for the business. The agents were in a catch-22.  The receiver sacked them. Disc shows there has been 0 interest ever since (inc via new agent requested by lender). I don't think lender or receiver want all this to come out in public domain via a trial.  It will ruin their reputations. If I can't get an order for sale with lender - can I apply separately against receiver?
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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
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Lowells Claimforn - old Capital One***Claim Discontinued***


jack21
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Hi Andy

 

Had the hearing today and was successful in getting the judgement set aside with a new hearing date to be set.

 

The judge was satisfied pretty much immediately, after about 2 minutes, that I wasn't aware of a hearing date but then he wanted to be sure I had grounds for a successful defence before setting aside.

 

my defence was based on the fact they had not supplied a compliant Notice of Default.

There was a lot of toing and froing between their solicitor, myself and the judge on the issue for about 25 minutes but he eventually ruled in my favour.

 

Thanks for all your help on this, it still isn't over, but I am now so relieved ;)

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Well done Jack...just post to your thread when you are in receipt of the court order and further directions.I assume we will move straight to witness statements and disclosure.

We could do with some help from you.

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  • 1 month later...

Hi

 

I have now got a new hearing date for the above claim. The 25th August. I will need to submit witness statement and any other documents needed by the 11th August.

 

I will come up with a draft statement and put it up on here over the next few days. Would you be able to check over it for me?

 

Thanks

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Hi Andy

 

Please can you have a quick look at this witness statement.

 

The main points are :-

1. The credit agreement is deficient of the prescribed terms and is therefore incorrectly executed, pursuant of 61(1)a of the CCA.

2. An improperly executed agreement can only be enforced by way of order of the court, pursuant of 65(1) of the CCA.

3. The court is unable to make an enforcement order on a credit agreement deficient of the prescribed terms, pursuant of 127(3) of the CCA.

 

I have also included the fact they have failed to provide a valid copy of the default notice, however I don't know if that is necessary given the above points?

 

 

 

Thanks a lot for your help.

Lowell-Witness.pdf

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Good attempt Jack...you have all the main points covered.....I would also include the following before your first paragraph....

 

1. The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. It is my understanding that they 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.

We could do with some help from you.

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Thanks Andy

 

Based on the points made, can you see me not succeeding with the defence? I can't see how the judge can find in favour of the claimant as the defence is based on points of law and not open to interpretation by the judge.

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its a witness statement not a defence..

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thanks Andy

 

Based on the points made, can you see me not succeeding with the defence? I can't see how the judge can find in favour of the claimant as the defence is based on points of law and not open to interpretation by the judge.

 

Any judgment should be based on points of law not interpretation...but that will be down to quality of the District Judge presiding.I really cant make any forecasts Jack as to how it will swing...all you can do is present the facts of the case and errors of the claimant pursuant to the CCA1974..whether or not he wishes to comply with the law is the judges decision.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

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Yes, as I understand it, in the points made in the witness statement for my defence the judge should not rule against it as they are based on points of law rather than being based on loose evidence supplied by the Claimant.

 

However,

seeing the quality of the judges that preside over such hearings, and how much opinion may be factor in their decision making, it may well go against me.

 

This would then leave the Judge open to an appeal on the judgement, as the defence was made on points of law and not matters open to interpretation.

 

I am quite sure that no judge would willingly make them selves open to an appeal on a judgement, no matter what opinion they have of the case.

 

If things turn out badly, it goes to an appeal.

 

chances of success should be better than good, but it depends on the judge.

 

Which I think is crazy, to be honest.

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  • 2 weeks later...

hey you won!!

 

 

well done cag

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Hey good news Jack and a very well done...persistence paid off in the end.

 

Thread title amended to reflect the outcome

 

Delighted for you.

 

Andy

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group - The National Consumer Service

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