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hungrybear

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Posts posted by hungrybear

  1. 1842 pre dates the establishment of the Royal Mail postal service, the quoting of this case is a blatant attempt at misdirection. They are talking 'dangling swinging oval things between the male legs'. And in any event it has sod all to do with delivery. This is about service of a document under an act of law and what constitues service NOT what constitutes delivery by the royal india shipping company, captian blyth or long john silver!

     

    You are prepared to swear on oath in court that a SORN was posted as previously stated and that this constitues service of the document within the meaning of the licenceing regulations as a consequece of section 7 of the interpretations act 1978.

     

    The case they quote is not relevant and in any case would be superceded by the Interpretations act. If they think they have a case then they should issue court proceedings which will be vigorously defended because the Interpretations act, together with witness statements, constitutes an absoukte defence. Kindly note that this matter is fully disputed and that as such you are legally prevented from involing a third party such as a debt collector until any liability has been established.

     

    Also, the acknowledgement letter system is an internal DVLA system which has no basis in law. This system attempts to impose a reverse burden of proof, which is not lawful and is not legally admissible in a court accept in cases where a reverse burden is allowable , such as section 5a of the sale of goods act.

     

    - Basically you should tell them that they are talking rubbish, that you know they are and that they probably do too. So, they should either take it to court or sod off

     

    section 7 of the Interpretations act 1978:

     

    7 References to service by post

    Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

     

    - if they want to superceed this with case law, which they cannot because a judge cannot rule against absolute statute, then the case would have to be from 1979 or later.

  2. Just filling my online defence, daft question I know "Do I want to file a counter claim?" The account has charges and PPI but I have no idea, can I claim them back from the new owner? Can I counterclaim at a latter date or should I just tick yes?

     

     

    I'm really confused can someone give me a poke please.

     

    Thanks

     

    Pumpytums

     

     

    Well if you are defending in full ie deny the whole claim then the answer is no - as I belive is the case. BUT if you were only contesting charges / PPI then that would go here as a counter claim.

     

    Make sense?

  3. Hi, Ok to go down this route would I need a full transcript of the court case?, and if so how would we get this?. Would she then present this to the DVLA through a solicitor?. Thanks all for the help so far.:)

     

     

    well if she only had a provisional and no l plates etc when 'done', then she would have been convicted of otherwise than in accordance as well as DD.

     

    I would contact the court and see what info they still have as a first thing. There is a danger with DVLA that it will just end up easier and cheaper to retake the test. But I just thought I'd throw in the obvious lack of an offence - which is endorseable and would be on the licence even if with no point for 4 years

  4. Would you suggest offering the solicitors a voluntary charge on the property? If they refused and it went to court, would that be a way of getting the proceedings halted, by pointing out they have turned down a reasonable way of securing the finance? On the stat demand it reads;

     

    The creditor demands that you pay the above debt or secure or compound for it to the creditors satisfaction.

     

    Could they refuse this?

     

     

    They could but they would be mad in normal circumstances. If your client does not dispute the debt then a voluntary charge is worth considering. I would suggest offering a partial charge and a partial repayment plan if that is possible for your client - eg 80% charge and 20% repayment or 60:40 etc - you get the idea. BUT it also depends on what other debts s/he has and what the status of them is.

     

    A voluntary charge is preferable if appropriate because it leaves him in charge of his finances without a bankruptcy order and an official receiver and the associated costs. With bancrupcy the OR takes over pretty much, although the obvious upside is that there is more of a clean slate after the 1 to 3 years - but there is a lot to loose, esp. if they have a job that specifically excludes bankrupts as well - they could end up with no house and no job:eek:

  5. Certainly does ;)

     

    Thank you.

     

    In a good way I hope, despite that damn badge on your avatar!

     

    I assume you were pre-empting a we could not terminate because it was in dispute arguement therefore we can reissue the DN. The first part of the Rankine ruling is all about legal action whilst in 78(6) dispute. The court ruled that 78(6) dispute does not prevent court action PLUS there is not mention in 76 or 98 of contingency on any part of 78.

  6. The stat demand is well past the 18 days though, isn't it?

     

     

    yes BUT I do not believe that prevent resolution. Disputing the debt is part of a resolution process without court action under the Insolvency Act. You need to write and explain the nature and scope of the dispute. At the end of the day the goal of both sides should be resolution without court intervention.

     

    Up to 18 days you can apply for a set aside; after 21 days they can commence action BUT I do not believe that resolution through payment plan and/or a charge and/or dispute have any such timescale. Otherwise the ONLY course of action now would be court action and I cannot see how that would ever be the intention of the legislation Plus, I cannot see any timescale restriction on resolution from what I have read.

     

    At the end of the day if you write, the worst they can do is say sod off we're going to court which then tells you their next step and gives you an attempted resolution and dispute letter to show the court.

     

    It is what I would do because, quite frankly I cannot see any option other than sticking your client's head in a bucket of sand and hoping they forget to begin proceedings!

  7. These probably are very stupid questions but:

     

    a) can a bank terminate an agreement whilst there is an ongoing dispute? As far as I know 78(6) does not prevent termination. I am pretty sure that the Rankine case could be used to argue that termination as a necessary part of legal action would be allowed

     

    b) on its own does that make their action unlawful or only if combined

    with other factors such as invalid DN's? only a non compliant/no DN can lead to unlawful rescission on termination.

     

    c) is there legislation to help the consumer in this respect?

    hope that helps

  8. thanks DB....ive read all the thread, what is res judicata, and is it relevant to my own case?....

     

     

    It means that you cannot bring a new claim which is substantively the same as one that has already failed in the legal process.

     

    Not relevant to an appeal, BUT would prevent them re-issuing any new claim.

     

    so, basically the appeal is the end of the road

  9. Hi all.

     

    Just wondered if any of you could look over my defense and point out anything that's wrong or anything i should add. It's my first ever defense, so excuse me if it isn't very good.

     

    Thanks.

     

     

     

     

     

     

    IN THE NORTHAMPTON COUNTY COURT

     

     

    Case No: xxxxxxxxxx

     

     

    BETWEEN:

    CL Finance Limited (Claimant)

    And

    xxxxxxx – (Defendant)

     

    DEFENCE

     

    1 I am the Defendant in this action and make the following statement as my defence to the claim made by Howard Cohen, acting on behalf of CL Finance Limited.

     

    2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

     

    3. It is denied that the Claimant served upon the Defendant a default notice pursuant to Section 87(1) of The Consumer Credit Act 1974, and which was in prescribed form and compliant with the provisions of Section 88 of the Act.

     

    the defendant is prepared to swear on oath that no such DN was served and puts the claimant to strict proof of compliant service of a compliant DN

     

    4. In accordance with point 3, Section 87(1) of the Act states that ‘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’ and therefore the Claimant has no right of action.

     

    5. The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to the alleged cause of action. No particulars are offered in relation to the method by which the Claimant calculated any outstanding sums due, or the date that (delete) on which a Default Notice was issued to the Defendant that is required for the Claimant to have a legitimate right of action under the purported Agreement or any other matters necessary to substantiate the Claimant’s claim.too complicated a sentence. re-arrange into 2/3 sentences

     

    6. A copy of the mentioned credit agreement that the Claimant cites in the Particulars of Claim and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. Nor has the claimant taking any resonable steps to provide this subsequently persuant to cpr part 16.

     

    7. A copy of the mentioned Default Notice cited in the Particulars of Claim, and as required by Section 87(1) of the Consumer Credit Act 1974, has not been attached to the claim form.

     

    8. No copies of statements relating to the purported credit agreement have been included with the claim form and no particulars have been offered supporting the Claimants claims of my indebtedness to them.

     

    9. Furthermore, on 30 November 2009 I requested the disclosure of information pursuant to the Civil Procedure Ruleswhich? 31.14 / 18?, which is vital to this case from the Claimant. The information requested amounted to copies of the credit agreement referred to in the particulars of claim and any default or termination notices.

     

    10. The Claimant has failed to comply with my request for disclosure entirely and it is suggested that such failure highlights that there is no case for me to answer.

     

    11. Since the Claimant has failed to comply with the request for disclosure as outlined in point 10, it is requested the court consider striking out the Claimant’s statement of claim under cpr 3.4.2 as it fails to disclose reasonable grounds for bringing the claim and offers no legal case to answer.

     

    12. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as they disclose no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.cpr 16 is a SHOULD supply documents with the POC. CPR 3.4.2 is the request for strike out

     

    13. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of Section 87 you are sure it is 87 you wish to rely on here and not 61 and/or 127 of the Consumer Credit Act 1974, the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedure Rules: over-complicated, break it up a bit

     

    a) A true copy of the executed credit agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

     

    b) A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

     

    c) A full breakdown of how the sum claimed has been calculated;

     

    d) A copy of any Default Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

     

    e) Any other documents the Claimant may seek to rely on.

     

    14. Alternatively, if the Court is not in agreement with point 13, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 13 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Courts permission to amend my statement of case accordingly. not sure of the point of this arnt you recovering 13?

     

     

    Statement of Truth

     

    I xxxxxx, The Defendant, believe the above statement to be true and factual

     

     

     

    Signed:

     

     

     

    Dated:

     

    as said above, we need more info to comment fully, it's hard to help fully without the poc and the history to back up what is going on. Dare I suggest that it's a bit wordy and your sentences are over complicated in places. Short punchy points in one or two sentences that get to the point quickly - else the judge MAY get fed up trying to understand it.

     

    A few comments in red

     

    - hope you take the criticism in the spirit of helping that is intended and well done for having a bash and not just pleading for someone to write it for you.

  10. if you wife was convicted but not of driving otherwise than in accordance with a license then she must have had a full license at the time of the offence. It's a bit of a vicarious argument but it is worth a try.

     

    DVLA often get licenses wrong but they refuse to admit any fallibility.

  11. Hi everyone

     

    I replied to Halifax along the lines suggested by Hungrybear and pointed out to them that my defence had already been submitted to the court and reminded them that their offer and actions were somewhat disingenuous given the defective default notice and subsequent unlawful recission. I have now today received a statement from Halifax after many months of not receiving any, having not made any payments to the account since I placed it in dispute in December of last year. What are they playing at??? Hmmm:(

     

     

    As m said, this was a new rule brought in by the 2006 act. they have to send regular statements on any account which is basically on their debt book. The statement has no effect on the status of the debt or anything else.

  12. loop, you do need to write and accept the unlawful recsission. For two reasons one it will focus their minds, such that they have, and two it will let them know that you know that relevant laws.

  13. Ok how about the following thanks M&M,

     

    One question the bit thats says

     

    1. I XXXXXXXXX(name) of XXXXXXX(what goes here address or town???)yes, although of sound mind and body would give you one up on the other side!

     

    Red text is added.I'll use green then

     

    Thanks

     

    Pumpytums

     

    In the xxxxxxxx County Court

    Claim number

     

    Between

     

     

     

    xxxxxxxxxxx- Claimant

     

     

     

    and

     

     

     

     

     

    xxxxxxxxxxxx- Defendant

     

     

     

     

     

     

     

    Defence

     

    1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

     

    Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

    2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

     

    3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

     

    a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due,or any other matters necessary to substantiate the claimant's claim.

     

    b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

     

    c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

     

    d) A copy of any termination notice served under section 76 and/or section 98 of the CCA, on the alleged account, has not been served attached to the claim form.

     

    e) A copy of any notice of assignment compliant with the provisions of the Law of Property Act 1925, on the alleged account and proof of original service of said assignment to the defendant, has not been served attached to the claim form.

     

    f) The defendant requested information referred in the claim under CPR 18 & CPR 31.14 from the claimant by Royal Mail Special Delivery. The request was received by the claimant on the XX December 2009, compliance with the requests has now expired. The defendant wishes to make the court aware that the claimant is trying to frustrate proceedings and denying the defendant an opportunity to file a defence and counter claim.

    5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

     

    6. I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

     

    I respectfully request that the court consider striking out the claim under cpr 3.4.2(a) because it is not fully particularized nor offers any legal cause of action.

     

    I respectfully request that the court consider striking out the claim under cpr 3.4.2© because, in light of the failure to respond to both cpr 31.14 & 18 requests, the Claimant is unable to substantiate their claim with documentary evidence.

     

    Statement of Truth

     

     

    I xxxxxxxxxxx, believe the above statement to be true and factual

     

     

    Signed .....................

     

    Date

     

    A few suggestions

  14. thas is past tense

     

    thee is the correct word sithee

     

    It was in quotes because it was colloquial northern speak!:p and anyway with an apostrophe (tha's) it would be present possessive, assuming of course that it was ever a real word!

     

    And as dicky says loop you must now accept their unlawful rescission.

  15. as an issuer of proceedings they have a duty of care to make sure they are in a position to back up their POC - it does not matter if they issue one N1 a year or 200 a minute. If they do not have documents they they are not entitled to rely in the fact that they MAY exist.

     

    This letter is total bull. Ignore totally. Stick to the timescales as said above.

     

    This type of condescending letter really annoys me.

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