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Everything posted by gh2008

  1. We had spoken about costs and the Judge did prompt my friend BUT my friend cannot put a price on having nothing ever to do with this family again. and for the sake of £80 or so ... So best just left ... just fo rinfo - the costs aspect was included in the WS and the Judge dealt with it with the Law in his opening address saying as it was 2 LiPs then the only costs he would allow would be the 'normal' SCT ones
  2. Just to update the thread with the outcome - my friend won (easily) It did actually go all the way to trial !! I assisted my friend as a McKenzie (sp?) friend. The Judge was very good. Explained the Law carefully re bailment Basically and ignoring any of the disputed facts over ownership, whether it was ever in my friend's care or even its value, as the alleged bailment was for the sole benefit of the bailor (the Claimant), then the Claimant had to prove 'gross negligence' in the care of the property in order to be able to make any claim. The Judge carefully explained this at the beginning of the trial. I made a big thumbs up to my friend under the desk BTW the Claimant had COMPLETELY changed the 'story' between the LBA and the WS presented to Court!! The carefully drawn up list of questions to ask the Claimant on the day where he had contradicted himself was swiftly reduced to a single question which just highlighted his complete lack of any proof of anything. My friend did not need to add anything on the day to her defence/ws and the Claimant didn't know how to react to that and didn't ask any questions either So, case dismissed & some more Law learnt Thank you to those who assisted on here.
  3. Thank you for your advice. AFAIK, the missing parts have been missing since it was used in 2010. It is only now, in the POC that he is saying the parts exist and that the defendant is not returning them (which is untrue). Until now (and in the LBA) he was saying that the defendant had not stored it properly and that it had been damaged. In the defence, should it be a short and concise? One just denying the allegations in the PoC? i.e. ownership, that it was ever stored with the defendant's agreement, that it was moved etc should it also cover the fact that the claim is for an unpaid invoice (rather than what it should be)? should it cover the fact that a new replacement is £450? or not go there and confuse things Thanks again for everyone's help - way forward is getting clearer now
  4. Thanks for looking in Andy I will get it scanned in properly and emailed to me tonight and I will post it up.
  5. Sorry, misunderstood your post back to this then I am not sure of the best course of action especially as it is between 2 LiPs
  6. Playing 'Devil's Advocate', the problem I see with that is because of the letter ping-pong, it is clear the defendant knows exactly what the claim is about. In one letter the claimant was told he should not be issuing an invoice and suing for non-payment but suing for damages and that he needs to work out the damages & show the defendant's liability, having first proved it was even his. (At this point we realised that he was not going to stop so were hoping for a proper POC) My experience of small claims is that almost anything goes on the day if it gets to court, especially when it is between 2 LiPs
  7. Yes, throughout the whole sorry mess we have urged him to seek proper legal advice (I think his 'strings' are being pulled by others. But, him & his family know best!! Problem is as they are not really a POC at all it makes it difficult to know what is best action to take, there is nothing to really to get started with. The defendant doesn't have money to go to a solicitor (her parents raised the previous £24k )
  8. Long time since I have been on here - hope you can help a friend of mine in need, I have never come across anything like this so am out of my depth This MCOL POC has been received by a friend. As with all of these types of disputes it is rather sad & very, very messy. In a nutshell (I hope) The claimant's family owned a pub, the defendant lived there with the claimant's sister. In 2008, The claimant's family bought a 12mx6m 'marquee'/party tent for the pub. This was used for various beer festival summer party events and those type of things. In 2009 the pub went bust, the marquee was removed and stored at claimant's premises prior to the receivers attending. Summer 2010 Claimant's sister declares bankruptcy Summer 2010 marquee used at a football tournament by claimant Autumn 2010 sister & defendant became civil partners and marquee was used together with a new identical one (owned by someone else) for the reception at the stables where claimant's sister worked. Pictures from the reception show many missing parts to pub's marquee & held together with ratchet straps & cable ties. Both marquees then left at stables in an open sided barn. Summer 2011 the new marquee was taken from stables by claimant's sister, used by claimant and then removed to defendant's garage by sister (at this point defendant & sister were not at a good stage in their relationship & Police were involved). Claimant's sister sacked for gross misconduct (violence towards staff & customers) at stables Xmas 2011 claimant's sister imprisoned (on remand, refused bail) for criminal offences against defendant Claimant (& other family members) warned by Police re harassment of defendant. New marquee i.e. not the ex-pub's one removed from garage returned to stables by owner to make space for the sister's belongings to be removed from house ready for collection by third party. Spring 2012 claimant's sister imprisoned again for repeatedly breaching injunctions against defendant Claimant collects (his) marquee from stables Writes to defendant, saying badly stored, damaged & incomplete then issues an invoice to defendant for double the price of a new replacement. (Claim is for £900+ new they are £450) During the letter ping-pong, the Defendant questioned ownership, denies any liability for safekeeping/storage (down to sister/claimant), disputes invoice, urges claimant to seek proper legal advice. Claimant confirms ownership as being bought personally by sister (never owned by pub??), then transferred to claimant as part payment of a debt owed to him Claimant also claims lost income as well (subsequently dropped in claim) Defendant requested details of original purchase, date of transfer (as sister went bankrupt on or around the same time so either property not declared or debt not declared at time of bankruptcy). Copies of his accounting records showing the value of the marquee when brought into his business, depreciation etc etc & recording showing historic income generated by the marquee Defendant retracts loss of income & now denies running any business, but stands by issuing the invoice and demands payment LBA received but no copies of documents. Mediation offered at cost to defendant Reply to LBA again requesting documents and adding that photographs of the marquee in 2010 may be used in any defense. Paying for mediation refused but will accept court appointed mediation. So, as I said one real mess. The problems I see in writing a defence are 1. He should be claiming damages not an unpaid invoice then could defend on denying liability etc 2. An incomplete (in 2010 before any involvement of the defendant), commercially used, 7yr old party tent is not worth anything anyway! He is claiming double the price of a new one! Attempted unjust enrichment or what! 3. the POC is err, not sure how to describe it Unfortunately 'the family' want to have a go at the defendant because the sister got booted out of the marital home with nothing except the clothes on her back and several injunctions & restraining orders together with an order to pay the defendant's legal costs of >£24,000 (which obviously she will never get back) So, what is my friend's best course of action. Simple denial defence and let it go to court (if it is not struck out at the court's own will) Full detailed defence to all possibilities Apply for a proper POC Apply for a Summary Judgement / strike out Something else? Hope you can help
  9. there you are Just keep doing what you are doing, and then make a formal complaint - you know the drill
  10. Make your payments and keep a careful record of everything. That's all you can do. MBNA seem to be taking a bit of a bashing at the moment from all sides, you would think they would welcome someone willing to pay with open arms rather than treating them to more of the same .....
  11. Your contributions to answering a pretty simple question astound me as ever ..... I take it, from the noise of the thread that you don't actually have an answer ..... other than trying to persuade everyone that 'by Peter'sLaw' by not paying contractually agreed instalment they are not in breach of the contract hmmmm
  12. imho you've got another x years of this until it becomes Statute Barred !! this is the problem with these accounts left in limbo Even in Harrison, as far as I can see, the only bar is on enforcement. Enforcement is the obtaining a Judgment so anything up to that is 'fair game' Just keep a careful record of everything and it is a good idea not to ignore all of the incoming noise, just keep stating your position. jmho
  13. Good, Northampton will hopefully tell you whether it is still with them or whether they have transferred it out. Try and get them to send you copies of the paperwork. You want, as a minimum, a copy of the N1 and the Order
  14. So does everyone agree that a creditor does NOT need to serve a valid Default Notice in cases where a debtor is in default in order to be paid sums not yet due? I am surprised !!
  15. Ok, on Monday, ring both Birmingham County Court and the Northampton Bulk Centre and, quoting the claim number tell them about the letter (they won't be interested though) BUT you need to ask them what state the claim is in. They will hopefully tell you, you could also ask for copies of the paperwork which they may or may not send. If it is already at Birmingham you would be well advised to make an N245 application for a 'stay of execution pending an application to have the judgement set aside' However my guess is that it will be still 'sitting' at Northampton as a Default Judgment against you. Once you have that info we can work on the 'next step' with dear Mr Carter Most importantly, don't worry because the Judgment is for the amount it is (if there is actually one) the ways it can be enforced are more limited than if it had been larger. BUT, just because it is for a small amount, don't ignore it. Keep smiling
  16. (as the SD part of this is already being dealt with quite properly - just some other questions) I presume you have reported them to Trading Standards with a copy of the report you had done. Have you given them the opportunity to 'put right' the bad work? Is the cost of putting the work right in excess of the amount withheld?
  17. I'll be back later this evening and post some info for you. Have a search around the site as there have been many of these before. gh
  18. Yes, thank you - it was the Order bit I was missing .... bearing in mind what has and what hasn't been ruled as enforcement, even a case such as this from the High Court still seems to leave the account (and the debt) in a state of unenforceable but reportable limbo
  19. I am interested in that fact that in Harrison an order was sought that he was "not liable for any sum standing to his debit under the agreement" The Judgment implies that the Claimant also sought relief under S140(b) The DJ does not seem to explicitly rule on either of those matters. He does deny the counterclaim for the balance but does not say that following service, even now, of a compliant DN a further claim would not be entertained. Just interested as to whether this agreement is now deemed terminated and if so then when and by whom was it terminated? Was the agreement declared as being irredeemably unenforceable? I did notice that the DN 'issue' was not given "great weight" In fact more weight was given to the fact that the debtor just stopped payments
  20. I would write a formal complaint to MBNA singling out this issue. I would also complain to the ICO, because they have already clearly breached the DPA You *could* also make an application to Court for an Order for them to disclose the statements. CPR31.12 (as long as it is not on SCT - if it is then you would have to ask the Court to 'use its general powers' I think) jmho
  21. We all know what S87 says But what does that actually mean?? With reference to a fixed term loan agreement, debtor was in breach, creditor served a wholly ineffective DN, and then the agreement was terminated by bilateral agreement (let's ignore the details of that last bit please) The result at trial was that the debtor was held to be liable to the full balance of the account less an early settlement rebate calculated to the date when the termination was accepted. Now, bearing in mind this termination was wholly due to the debtor's breach and that no other notice under S98 or S76 was served I wrote this in relation to the actions a creditor can do without having served a valid DN and it went totally unchallenged!! I can think of at least 1 very real argument to challenge that position and would be interested in others' thoughts on the matter
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