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B-B

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  1. He will have to wait until the official receiver has conducted the initial assessment. Is there a mortgage lender? (letters etc) Ultimately it will be the overall position of the asset in relation to the creditors that will determine the viability of any tenancy but the likelihood is that the creditors will want it sold to allow funds to be made available. This could take a while to getting this stage though. The property can be sold with the benefit of the current tenancy, and a new owner may wish to continue if sold as an investment. Some obligations under the tenancy will continue until terminated either by the tenant or by the entity with whom the landlords interest rests. I think a judge will want his tenancy honouring in so much as he be given the correct notice (2 months ) before granting a possession order, but it would depend upon the grounds that possession was applied for, but the notice of any application would then also present the interested party with whom he can enter into talks going forward. Few legal points: 48 Notification by landlord of address for service of notices. (1)A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant. (2)Where a landlord of any such premises fails to comply with subsection (1), any rent or service charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection. (3)Any such rent or service charge shall not be so treated in relation to any time when, by virtue of an order of any court, there is in force an appointment of a receiver or manager whose functions include the receiving of rent or (as the case may be) service charges from the tenant. L & T 85 - inform tenant of assignment of landlord’s interest. (1)If the interest of the landlord under a tenancy of premises which consist of or include a dwelling is assigned, the new landlord shall give notice in writing of the assignment, and of his name and address, to the tenant not later than the next day on which rent is payable under the tenancy or, if that is within two months of the assignment, the end of that period of two months. I'd advise living as normal until somebody makes contact. B
  2. Hi, If you are certain the mortgage is unsustainable then it is obviously in your interest to select the exit route most advantageous to you. This is unlikely to be an auction sale and for any sale to proceed at a sum less than that owed to your lender,"short sale", would require the consent of the lender. Dependent upon the circumstances consent can be obtained if packaged correctly. Unless you are bankrupt, It is almost always better to engage with the lender's loss mitigation depth as early as possible, or better still engage the services of an asset manager/loss mitigation service yourself. They will assist with exiting in a better position and will often convince the lender to cover their costs. Never bury your head though. B
  3. Thanks 42Man, Would Un-enforceability due to their admission be an absolute defence ? B
  4. Hi 42Man, They appear to have simply cut and paste the poc from the stat demand into the new claim. Our statement at the stat demand hearing alleged unfairness within the meaning of CCA74 140a & UTCCR which they never addressed at all,l but more so it alleged un-enforceability through breach of the act in not issuing the required notices within the prescribed period (at all) plus enclosures etc. They confirmed in their witness statement that no notices had ever been issued. Can this witness statement be referred too in the new proceedings ? B
  5. Hi all, The Stat Demand was set aside. We went with the sole intention of establishing a "Triable Issue" i.e disputing the deb,t and in the case the judge agreed the debt was legitimate failure to issue default notice or rather "notice of sums in arrears". We also added utccr and unfair relationship but basically the judge was satisfied the dispute was enough. I will post some documents shortly written by legal firms advising corporate clients (the other side of the fence so to speak) that helped convey the correct sentiment in our statements, I believe this helped with the judge. The creditor has now issued a County Court claim so on with that now,. The defence will pretty much be the same but what I'm wondering and struggling to find any cases/examples is how best to use the Stat Demand Hearing and outcome thereof to our advantage. Can you refer to Judges comments, the claimants previous witness statements etc etc ? help appreciated as always..... B
  6. Thanks 42Man, some great stuff and a great structure to add to. I'll post the finished defence so as to assist anybody else. The name is my wifes maiden name(as was the original agreement) and first name is misspelled. Will they need to produce the original agreement ?
  7. Only via telephone to say look we haven't had a quote and we don't want to pay the same price. (Contract hire rentals are determined by vehicle value at the start etc) Does the person making a Stat Demand have to be the person named in part B thereof ? Do misspelled names have any bearing ? ( they didn't have my wifes first name until checking her credit file and have taken it down wrong) Would they have to produce the original agreement at any stage ? Is the lack of a default notice a major issue ? Found these on UTCCR: ©making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone; ( could ask for the vehicle back at leisure ?) (h)automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early; ( Automatically extending per se, or the onerous conditions of fixed term contract etc etc Possibly ?) (m)giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract; ________________________________________
  8. Thanks 42Man, Which element would you lean toward as being the best chance of success ? We don't mind having to pay something but getting stuffed for the lot +interest is just too big a pill ! My thoughts at the moment are: i. Dispute amounts etc ii. No agreement to extend (signed or otherwise) iii. Vehicle only supplied in legal roadworthy condition for the 6 months after contract end iv. Vehicle returned as soon as requested. v. Protocol failures, CCA1994 ? (default notice, dispute etc) in relation to original agreement vi. UTTCR for onerous terms continuing after end of original agreement Your help on a defence would be greatly appreciated and of course anybody familiar with UTCCR Reg's ? Thanks
  9. 42Man, Do you think the Part 8 section below might fall into UTCCR territory ? ---------------------------------------------------------------------------------------------------------------------- 8. Delivery-up of the vehicle. Upon the termination of this agreement however so arising the hirer shall cease to be in possession of the vehicle with the owners consent and shall return the vehicle in good condition( wear & tear etc etc) If the hirer retains possession or use of the vehicle (with or without the consent of the owner) after the termination of this agreement the obligations of the hirer under this agreement shall continue as if this agreement had not so terminated and such use or possession of the vehicle shall not be construed as a renewal of this agreement, the hire being obliged to deliver up the vehicle following a request to do so by the owner. ____________________________________________________________________________________________________
  10. Can somebody please advise on which they feel is the strongest elements of the case ? Thanks
  11. So, In sending a statutory demand claiming terms of an agreement have not been adhered to and the claiming of interest etc without first sending a notice of default (in a prescribed format ?) they are in breach of CCA1974 reg's ?
  12. Do the CCA1974 Regulations extend through all avenues of recourse, insolvency, bankruptcy, County Court ?
  13. No default or No Default notice ? Could they serve one now ? They seem to be relying on selectively trying to enforce certain parts of the original agreement whilst not using any specific breach as a default under or referring to the CCA1974. Just "regulated agreement in writing" or "the agreement" Are all arguments ultimately going to come back to this original agreement ? Would they need to produce this ? What other processes could they have been in default of that would prevent enforcement ? Thanks Guys
  14. Do you think these obligations could be interpreted as extending to and repeating the payment profile & rentals ? Quote: 4. Hirers Payments The hirer shall pay to the owner the rentals, administration fee and if applicable the excess mileage charges in cleared funds and on the due dates for payment as specified in the key financial information. KEY FINANCIAL INFORMATION: Period of Hire & Rentals: First Rental £ Subsequent Rentals : 23 Period of Hire is for 24 Months from and including (insert date of delivery) --------------------------------------------------------------------------------------------------------------------- We have also never received any kind of default notice for breaching any agreement, is this relevant ?
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