Interesting point and thanks for the contribution

As always, the lack of definitive case law is a hurdle as always

To settle this argument once and for all would require an appellate court Precedent

I think a debtor is at a disadvantage using the above scenario as a defence without a clear definition, and having to rely on judicial interpretation is unwise

I think osbourn's rhetoric speech today on more cuts sums it up for 2015

we probably have a decade of these cuts

I asked the question for which no reply under statute or case law has been used to substantiate any different

I will wait for more comments

Thanks for the debate and we agree to disagree

AGREED BUT THEN WE GO INTO THE PROVISIONS OF SECTION 88

88 Contents and effect of default notice

.(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid

WE WILL ALSO BE VENTURING INTO THE DEFAULT AND TERMINATION REGS

BUT AS STATED WE ARE GOING OFF TOPIC, LETS GET BACK TO THE MATTER AT HAND

To rectify a breach a default notice under 87(1) will be served

The debtor has to bring the account back up to the level that no breach occurs

That is paying back any missed contractual payments within 14 days

BUT WE ARE GOING OFF TOPIC NOW

LETS STICK TO THE QUESTION AT HAND

50% liability of not on termination

7 Need for default notice.

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

Section 87 notices, SAY 87(1) is a mechanism to terminate the agreement if the creditor so wishes, and only on the arrears, not the TAP

What would be the process of an agreement terminated by the creditor?

All the creditor will be entitled to would be 50% of the TAP

To claim any more will be classed as unjust enrichment

There is no provision within the CCA 1974, or case law to support claiming the full value of the contract on termination, only 50 %

Case law to support it was the Waragowski clause,

WHICH IS NOW IRRELEVANT ON REGULATED AGREEMENTS

quote

When an agreement is breached and the cause of that breach goes to the very heart of the agreement, that breach can be accepted by the innocent party and he can then claim all sums payable under the contract.(this is not opinion, law 101).

But we are talking of an agreement specifically regulated under the CCA 1974, not normal contract or Legal personality,

The CCA 1974 is the statutory authority and if the Waragowski judgement is no longer applicable to the CCA 1974,

I ask again: How can the Waragowski clause still be used

The key to this is if the debtor accepts the breach and does not dispute it,

IF THE TOTAL AMOUNT PAYABLE IS DISPUTED

whole new ball game

It is confirmation i am after, one way or another, not hearsay

To be honest, i have done two set aside myself a few years ago, it does not really need a solicitor, i am unsure even if your solicitor can now claim legal aid for his services

Your defence will be what has been submitted on the N244 form

Most judges are OK with a litigant in person and offer a lot of leeway

Judges use judicial discretion and make allowances. It is what is put on the application that counts. No case law is needed

I will always advocate using a solicitor if you can, its getting a solicitor to agree on legal aid that will be the problem

No matter what happens, you need to jump on this now, and get it dealt with one way or another

So we have now confirmed it was the DCA IND and Hagarty

You need to put in an N244 application to have the judgement set aside, this will cost £80.00

It will then be up to a judge to agree to this or dismiss the application

I can draw up a draft application but you need to fill out the n244 form , at the same time ask for the fee exemption form if on benefits or low income

The sooner this application is submitted, the sooner all action will cease as they have to deal with the N244 application first.

The judge may say no to set aside, yet he may say yes, and all that is at stake is £80.00

Its your choice now and i will welcome further comments

yes the lower case was in a county court and does not set precedent but can be used to support your argument in court

lets leave out Rover v Siddons then

The Waragowski judgement that creditors use is no longer applicable to regulated agreements

SO I ASK AGAIN

If the Waragowski clause is no longer applicable under statutory provision, by what authority can creditors demand sums in excess of the 50 % mark

Believe me i do understand the issue and i pose my questions to get objective replies that i can substantiate

THROUGH EITHER CASE LAW OR STATUTORY PROVISION

INTERESTING

As stated, the judge can only say no, it might be yes

Thanks for the comment, it is appreciated but i am after objective reasoning, not opinions or subjective comments

I have posted up the case law to support my reasoning and case law dictates that all the creditor can claim is the 50% mark on the agreement

Please prove me wrong with either statute or case law

Ims21

sending a pm

I ADVISE AGAINST POSTING UP THE COURT LETTER FOR THE REASONS GIVEN

I am going to recommend that vilka phones Hagarty to see if they issued the claim and what address the claim form was served on

Any comments

Vilka

I would phone the debt collection agency most welcome accounts were passed over to administer

IND

Tell 08456704459

Ask them are they handling your account, and was a CCJ issued by the solicitors Hagarty

Ask them what address the claim form was sent to

I cant believe i have just recommended someone contact a DCA

The ccj is not that old

12 MONTHS AGO

give me 5 minutes

Agreed

It will be down to the District Judge to make that decision on the basis of the application

What ever happens, the judge can only say no

He might say yes

All for £80.00

mere way

ruddington fields

nottingham

Phone the court, give the claim number and ask who are the solicitors acting for welcome

i can put a hold of this action to give breathing space, but you need to be quick

Phone the court NOW

They may answer up till 430

First thing we need to substantiate is

Who is the claimant

Date default judgement was awarded

What address the N1 claim form was served on

We then fill out an N244 and apply to set aside the judgement for non receipt of claim form

If Hagarty is behind this then the CCJ will be quite recent

The set aside application will cost £80.00

If on state benefits or limited income a fee remission will apply

Please do AS THIS NEEDS DIRECT ACTION

Who was the claimant

IND/Hagarty

Welcome do not instigate court claims

You can set aside if you did not receive the claim form

Has the court sent you confirmation of your set aside application

if they have, these muppet's are in trouble

I have started a new thread on this matter

I have started this thread as my grey cells are in overdrive at the moment. just been having a short discussion on this and do not wish to hijack that thread

This is all to do with the termination of a HP agreement by the creditor for failure to keep to the agreed payments, and the creditor demanding back the full contractual value of the agreement contract.

In Yeoman Credit, Ltd. v. Waragowski

A clause is written into an agreement that the creditor can claim back the full contractual payments on any breach by the debtor on termination of that agreement. The Waragowski judgement is known as the Wargowski clause.

The Wargowski case can now legitimately be applied only to unregulated agreements. The Consumer Credit Act 1974 now affirms that the Wargowski clause has no relation to agreements Regulated by the CCA 1974

The Judgment in Rover v Siddons

The case in question involved a consumer who bought a car on hire purchase, but then fell behind with his payments. The consumer did not understand, or try to exercise, his right to terminate at any point. Eventually the finance company served a default notice and terminated the agreement. The finance company repossessed and sold the car. Some time later they sued the consumer for the full cost settlement, making reference to a liquidated damages clause in the agreement. The District Judge also made it clear that the consumer’s entitlement to terminate the agreement was only extinguished at moment when the creditor terminated. It was therefore right to assess the finance company’s losses by reference to sections 99 and 100 of the Consumer Credit Act. The liquidated damages clause was found to be an unenforceable penalty clause and the claim was dismissed.

The judgment in Rover v Siddons shows where a finance company terminates a hire purchase agreement and then tries to rely on a liquidated damages clause, will help the debtor offer a robust defence to their claim

The District Judge also made it clear that the consumer’s entitlement to terminate the agreement was only extinguished at moment when the creditor terminated. It was therefore right to assess the finance company’s losses by reference to sections 99 and 100 of the Consumer Credit Act. The liquidated damages clause was found to be an unenforceable penalty clause and the claim was dismissed.

SO I WILL ASK THE QUESTION

Why have civil claims placed before the courts not been challenged on creditors claiming the full liability of any alleged repudiatory breach by the debtor of a Hire Purchase agreement.

The law as it stands only supports a 50% liability ????

Just a reference for other posters

Would i ever doubt your knowledge base as being the "ONE" Neo