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Everything posted by vint1954

  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.
  12. Fingers crossed Will. Keep in touch with the court by phone, to see if there is an outcome.
  13. Dotty, A point for your DN defence The Default notice is a bad notice. 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 the notice is indeed bad for the reasons stated above. It is also noted that the provisions of s78, s87 & s88, are for application to live accounts only. Having terminated the agreement, the Claimant is no longer in a position to rectify these defects in the statutory documents issued.
  14. As 42man says, YOU MUST ATTEND. You will need to put your case in person.
  15. Have you heard back from the court as to the stayed status? If not, it may be worth a call to Northanmpton.
  16. Hi Dotty, If Barclays issued you with a DN, which I presume that they did, the new owner cannot Default you again. They can only update that notice. When they purchase a debt, they take on the liabilities and responsabilities of the OC, in an absolute assignment. Where are you with that one Dotty?
  17. Yes, you need to send a copy to the court. You may be able to do this online, but I would always check with the court by phone after. Also do not let the date for submissin of your defence slip by. If the court has not extended the time, all you can do is submit the defence you have, with the caviat that you can amend your defence, once the claimant has supplied the documents you have requested. DONT TRUST THEM TO PLAY FAIR. Once you have all of the documents, then you have 14 days to submit your defence. Watch them like a hawk. It may pay you to PM Andyorch of ask CitizenB to do so. Vint
  18. No, if it is DLC that owns the debt, then they MUST respond. The only time to send anything to Cahoot, would be if you sent an SAR to them.
  19. The CCA request and the letter need to go to whoever owns the debt. If that is still the original greditor, then it should go to them.
  20. You should send the letter in post 6. If you are only paying £1 per month at the moment, I would keep on doing so for the time being because if you stop now, it could sting them into life. It will be unusual for a Creditor just to give up in the eary days. As I have said before, unenforcability is not a short journey and you don't want to get it wrong. You need to press them to comply with s78 forst of all. If they do not, or cannot, then the next stage is to decide what to do next, but you must get it in writing before thinking of anything else. I have postd before what they need to provide you with. Failure to comply with s78 is a defence in court, however many judges do not know the full extent of CCA 1974, so a judgement could easily go against you. It would also mean a costly appeal should this happen. I am afraid that there is no magic bullet, but you need to follow a prescribed path for unenforcability.
  21. Those charges will be in your agreement with Argos and will be for specific situations such as going over your limit, failing to make a payment. NOT for sending a letter. As CB says, respond by stating that you are in an agreed payment plan with Argos and that they must return the account to them. Failure to do so, will result in a complaint to the OFT.
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