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vint1954

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vint1954 last won the day on February 7 2010

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About vint1954

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  1. Here you go Dotty, http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html Hae you tried more coal in the Laptop! Usually works for me.
  2. The Brandon v Amex appeal, states that iregularities within the DN are NOT de-minimis
  3. There is a defined requirement for a valid Default Notice to lawfully terminate an Account whilst in default. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement. I refer the Court to the recent ruling of HHJ Chambers QC sitting as a Judge of the High Court in Keith Harrison vs Link Financial Limited EWHC 2011 B3 where at paragraph 75 when addressing a default notice he stated……… The notice of enforcement 75. The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement CANNOT be attempted in dependence upon it. ………………………. Accordingly the Claimant cannot enforce the agreement due to the fact a Default notice has not been served.
  4. Couple of points that may help your WS, if you have pleaded them: In any event I can show the Court that on balance the documents relied upon by the Claimant do not satisfy the requirements of s78 and I will refer the Court to the case of Carey vs HSBC [2009] EWHC 3417 (QB) and also the Court of Appeal ruling in Devendra Kotecha vs Phoenix Recoveries [2011] EWCA Civ 105 which show that the documents the Claimant provided do not comply with s78 (1) and accordingly the Claimant is not entitled to judgment. There are a number of reasons why the documents produced by the Claimant do not appear to comply with section 78(1). It is established law that the Claimant need not produce the actual signed agreement to comply with section 78, however the Claimant must provide a complete copy of the original agreement (Para 7 Kotecha) including any terms and conditions incorporated into the document. In reply to the Defendants section 78(1) request dated xxxxxxxxx the Claimant failed to respond in full. This response from the claimant, consisted of a one page application, devoid of any prescribed terms. The Claimant failed to produce a true copy of the original terms and conditions, a true copy of existing terms, or a true statement of account at this time, which he is required to do in response to a request made under s78 (1) of the Consumer Credit Act 1974. Indeed Carey vs HSBC held that the s78 request was for information purposes to tell the debtor the terms of his agreement as it currently stands as well as what the original terms were. Exhibit xxx Includes the documents supplied by the Claimant to my original s78 request I additionally refer to the comments of DDJ Bradley in the case of HFO Capital Limited v Robinson, where it was confirmed that an s78 request must be responded to at one time, not piecemeal. Accordingly, the claimant had failed to comply with s78(1), however proceeded to issue a Money Claim on xxxxxxxx through Northampton BCC. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 Para 33. “33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.” I will additionally show that the terms relied upon were not provided at the time of execution of the agreement. If the Court finds the terms were not present then that would be a matter for the discretion of the court as to what remedy the Claimant and Defendant would be entitled to, therefore that on its own suggests that the matter should be dealt with at trial. Referring back to the Court of Appeal ruling in the Kotecha case where Lloyd LJ stated: In order to comply with the request the creditor must supply a copy of the whole of the agreement, not just part of it. Any terms and conditions incorporated have to be supplied. I invite the Court to take the view that the documents do not satisfy s78 as it stands and dismiss the Claimants claim with costs in favour of the Defendant.
  5. Your witness statement will be crucial. Have they fully complied with any s 78 request? Was this an application form? Was the DN complient?
  6. You could have gone on the disputed debt as well. It is filed now so just sit tight.
  7. Bev, Is the evidence that the court is waiting for, connected to your CPR request?
  8. What on earth do they mean " the defendant is put to strict proof" It is your defence, they have to prove the other way! It is not for you to prove. Idiots! ( them that is)
  9. Indeed will. Hopefully the judge will throw the SD out,as they have nothing else to go on. Judges do not like the SD system used as a means of debt enforcement.
  10. Will, Did the court suggest that they had not even received the SD application
  11. It appears that they have sent the SD to the wrong court.
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