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nicklea

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Everything posted by nicklea

  1. Although it's a bit too late now. I really would suggest that you would need to argue that while you did sign an application form that you do not accept that the agreement was reduced to writing. pt2537 made these comments on the subject:-
  2. With pleading the defects, I can't find pt's threads at the moment - trying to search on this site is very difficult. But there is a link here to a skeleton argument that covers some of the issues:- http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=3364743&viewfull=1#post3364743 If there is a problem with the date and number of days for service then you also need to plead that as well. If you haven't received any notices of sums in arrears then you can also rely on section 86D CCA which means that they cannot enforce the agreement in the same way as they cannot enforce an agreement if they don't respond to a s77/78 request:- 86D Failure to give notice of sums in arrears (1) This section applies where the creditor or owner under an agreement is under a duty to give the debtor or hirer notices under section 86B but fails to give him such a notice— (a) within the period mentioned in subsection (2)(a) of that section; or (b) within the period of six months beginning with the day after the day on which such a notice was last given to him. (2) This section also applies where the creditor under an agreement is under a duty to give the debtor a notice under section 86C but fails to do so before the end of the period mentioned in subsection (2) of that section. (3) The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance. (4) The debtor or hirer shall have no liability to pay— (a) any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; or (b) any default sum which (apart from this paragraph)— (i) would have become payable during the period of non-compliance; or (ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period). (5) In this section ‘the period of non-compliance’ means, in relation to a failure to give a notice under section 86B or 86C to the debtor or hirer, the period which— (a) begins immediately after the end of the period mentioned in (as the case may be) subsection (1)(a) or (b) or (2); and (b) ends at the end of the day mentioned in subsection (6). (6) That day is— (a) in the case of a failure to give a notice under section 86B as mentioned in subsection (1)(a) of this section, the day on which the notice is given to the debtor or hirer; (b) in the case of a failure to give a notice under that section as mentioned in subsection (1)(b) of this section, the earlier of the following— (i) the day on which the notice is given to the debtor or hirer; (ii) the day on which the condition mentioned in subsection (4)(a) of that section is satisfied; © in the case of a failure to give a notice under section 86C, the day on which the notice is given to the debtor.
  3. I would suggest that this only applies to post 2007 agreements. With pre-2007 agreements then section 127(3) has not been repealed
  4. But don't forget that this agreement was taken out after 2007 so section 127(3) doesn't apply.
  5. Thanks, it's nice when people you respect give you praise. nana, I made a little mistake above. When I said:- I should have said Kotechka, not Carey. The relevant case is:- Kotecha v Phoenix Recoveries [2011] EWCA Civ 105 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/105.htm
  6. To be honest, this reads to me more like a witness statement, or perhaps a combination of defence and witness statement. Perhaps it might be beneficial to seperate out the two parts? I really would suggest that you do NOT want to admit to entering into an agreement with the creditor. I would suggest that you perhaps say that you signed an application form but that the agreement was not reduced to writing, if they have not been able to supply a signed copy of the agreement. If they haven't replied to your request then that is a defence. You might also wish to refer to Carey. But the thing is that you haven't pleaded what the defects are. If you have a read of some of the posts of pt2537 you will see that this will be very beneficial to your position, indeed he suggests that there is case law that you MUST plead the defects. Do you actually understnad what the above means? I see that you took this from a poster called The Mould. As other people have already said about his posts, this is very experimental and if you try to use this then you will very much be a guinea pig for the Mould's experiments and theories. Also, I note that you haven't mentioned anythinga bout section 86D. Have they given you correct notice of sums in arrears? If not then this is also a defence.
  7. OK, To start with, they don't have to provide anything with your signature on or actual copies of any original documents. Have a read of this thread to understand why- http://www.consumeractiongroup.co.uk/forum/showthread.php?284049-SAR-and-RECONSTITUTED-AGREEMENTS If they have sent you information that is not in an understandable form then I would suggest that you give them a call and ask for clarification. If that doesn't work then write to them and tell them that you will be issuing a court claim if they don't provide it. If they haven't provided you with a copy of the original terms and if you took out PPI but it isn't included on the agreement that you received then what I would suggest you do depends on your circumstances. If you are currently paying off this debt OK with noi problems then I will suggest one thing, if you're not currently paying it off then I will suggest something else. As I said above, it all depends. If you are curretnly paying off your debt and you want to make a claim for mis sold PPI then, again, I would suggest that you give them a call and tell them that your statements show that you've been paying PPI so it must have been on the original agreement and you want to see a correct version. If there's no luck with that - again write to them and threaten them with court. If you have not been paying this debt then I would suggest that you make a request for these things under s77/78 CCA. Their failure to respond properly will then be a defence if/when they take you to court. Trouble is I don't know what your situation is - I can only guess.
  8. Tingy, I totally agree with you. In most of these cases, where SDs are just sent by oridinary post, I would suggest that the creditor has got absolutely no intention of followiing through with the threat. In these cases, I really would suggest the best thing is to ignore them. But there are a few cases where people have had these delivered personally through the door or sent by recorded delivery and these have then been followed by bankruptcy petitions. The issue that I'm trying to highlight here is that people shouldn't try to set aside SDs without having appropriate grounds for doing so and, unfortunately, not being able to telephone the named individual is not grounds to get a SD set aside - in my opinion.
  9. You also have case law on your side as well. The law in this area receieved some clarification a couple of years ago in Collier v P & MJ Wright Holdings. The basic rule is that part-payment of a debt is not good consideration for a promise to forgo the balance (by the creditor). This is the common law rule from Pinnel's case and Foakes v Beer. However, if a creditor voluntarily accepts an agreement for the debtor to pay part of the debt in lieu of the balance and the debtor pays it, promissory estoppel will prevent the creditor from going back for the full balance (Collier v P & MJ Wright Holdings):- http://www.bailii.org/ew/cases/EWCA/Civ/2007/1329.html
  10. This is difficult to answer as you have given so few details. As with most things - it depends. It largely depends on what you specifically asked for and what they actually provided. Although please be aware that with a SAR you have no right whatsoever to see any original documents. The data controller may choose to provide them to you but they don't have to. They can just provide the information that is contained on these documents.
  11. Well, as in all sorts of cases, it's not quite as simple as that. It's often said on this forum that if you try to contact someone on the telephone 3 times and you can't then this is enough to get the SD set aside. Unfortunately, I would suggest that this isn't the case. If you actually have a read of the relevant part of the Insolvency Rules, it just mentions ''communication'' - not ''communication by telephone'':- I would suggest that the inclusion of the words ''if any'' indicates that there is no presumption that communication MUST be by telephone. Even if no telephone number were to be given then an address would be sufficient for the debtor to enter into communication. Therefore, even if you have not been able to communicate by means of the telephone, as long as there is an address the debtor has been given the ability to communicate with the named individual. I know this may be poorly worded but, I would suggest, any half-competant solicitor that a debtor is facing would be able to word it much more effectively in front of any judge.
  12. This is right - sort of. If you admit receiving the SD then it doesn't matter how it was delivered. IT is valid if you acknowledge it - regardless of how it is delivered. If the SD is served by personal service or recorded delivery then you really should take it seriously.
  13. Never mind about asking permission, you haven't had notice of the assignment back to the OC so they have no standing before the court
  14. You haven't said if they did actually turn up and post it through your letterbox. If they did then, as long as they provide an affadvit of service, they can present a bankruptcy petition. Whether they will or not is a different question. I would suggest that, if they did serve it by putting it through your letterbox that you should get it set aside. Their failure to reply to your CCA request, as long as you have evidence that you sent it, is enough to get the SD set aside.
  15. First of all I will say that I am not the person to give any advice at all on the merits of claiming your LIP costs of 9.25 per hour. I'm sure that others will come along and help you with that. However, having said that, there are a couple of issues where I would suggest that you really will not get anywhere:- If you had to pay a fee then, yes, you could possibly make a claim. However, if you didn't have to pay anything to the solicitors then what are you trying to claim? There was a recent case in the Court of Appeal that confirmed that sanctions not provided for under the Act are not available. What this means is that if the debt didn't come under the CCA then you would be able to claim for restitution oif payments made under a mistake of law and also interest on those payments for the time value of the debts as well - there is case law that supports this. However, the CCA clearly states that you can't claim this for debts regulated by the CCA. Have a read of some of the posts of pt2537. He tried to do this for one of his clients and was succesfull at first instance but was soundly beaten in the Court of Appeal after the creditor appealed the outcome.
  16. Yes, wait until next week. There's no point in doing anything else if the bailiffs can get your money for you. I would suggest that it is unlikely that they will get it deferred but it is important that you turn up to any hearing to make sure that the judge hears your point of view. You are right about how the HCEOs work. I only mentioned it in case the bailiffs have any bother and can't get your money for you.
  17. If you have no luck with the bailiffs then try a High Court Enforcement Officer - those guys are generally a lot more effective than court appointed bailiffs. There's a link here to someone with a similar problem:- http://www.consumeractiongroup.co.uk/forum/showthread.php?302629-writ-of-fieri-facias
  18. Yes, as otherwise they may try and claim that they started court proceedings within the 6 year timescale and so the debt isn't statute barred
  19. The banks were challenging the FSA over their guidance on claiming back PPI. The Court rejected their arguments this morning:- http://www.bbc.co.uk/news/business-13128692
  20. As ganymede says, there are several and they will do all the work for you. Here is another one:- http://www.highcourtenforcement.net/
  21. Just a small point, but I would suggest that you clearly state that when they started the court claim agianst you in 2008 that the debt was already statute barred then.
  22. I would suggest, as the Mould says above, that a lot will depend on what you actually asked for and how you worded your request. Did you specifically ask for a list of the default charges that have been applied to the account? They can only supply you with information that they actually hold. If they don't hold records of telephone conversations with you then they cannot supply them. Section 16 would only apply to Building Societies in your case. I believe that Northern Rock converted to a bank back in the 1990s so would not be covered by this. As I said above, did you specifically request information about the charges? It's difficult to give any suggestions without knowing how you worded your original request. I would suggest that you need to be as specific as possible when requesting information.
  23. If you are attempting to get it set aside then you have obviously received it so this is not relevant. This would only be relevant if they were going for a bankruptcy petition and you were denying that you had ever received the SD
  24. Yellow, If you have not received a default notice then that means that they cannot enforce the agreement at the moment. Have a read of some threads here to see how to word this. The penalty charge issue is complicated by the fact that this is a bank current account. However you may want to have a read here for some ideas of how to word your application:- http://www.moneysavingexpert.com/redir/929cf5f3
  25. You may also want to have a read of this, it might help:- http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=3364743&viewfull=1#post3364743
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