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DoINotLikeThat

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  1. Just got a notice of discontinuation! Was probably not going to defend (given the fact that it was allocated to fast track and I was worried about the costs)! Does this mean I've won, or can they come back later and have anothjer go at me?
  2. Credit card and I was definitely in breach - as the DN said. Still don't know why they sent a DN if they think they can get away with the clause giving them the 'right to terminate at any time'.
  3. The default notice I received was defective by at least two days (if first class post), so I sent them a letter (from examples on here) to say why the agreement had been terminated unlawfully. I got a reply which stated, amongst other things, that their T&C "confirm that the agreement can be ended at any time if reasonable notice was given..." and that "no collection activity took place until after the notice of default date had expired". They concluded that the DN was, effectively, irrelevant. If they are right that they can end the agreement at any time (they said they will do this occasionally because they are "a resposible lender"!!!), what is the point of sending the DN? Any ideas of how to respond will be gratefully received!
  4. Thanks Docman, lot to think about! Hi Hammy, SCM were the solicitors in my case. What about your default notice - is it just a template like the one they sent me, with xxx in place of dates, amounts etc? If yours goes to court like mine, you may get a better DJ than me. I know some people may say that if you are prepared, with all the arguments, case law etc etc you will win (and by implication, if you lose it's because you are not properly prepared ), well I had everything prepared, I had researched here, and used other sources, for many many hours, and as an ex teacher I am confident enough to be able to prepare and present my arguments, yet I still lost! Now I may be partly to blame, but I agree with those who use the term Judge Lottery! Sorry to be so negative, but I just had a bad experience. Maybe I'll have better luck with the appeal. I've found a local advice centre who can get legal aid for a barrister's opinion (but not for representation) before I make the appeal. If this is positive (which I think it will be, for all the reasons Docman, and many others who contribute to this forum have argued) then there may be a silver lining. Which brings me to my next point! Does anyone know if a lay adviser can represent at an appeal (I know they can in the smalls claim court) or does a rep have to be legally qualified to address the court?. The advice centre are not too sure of this (although the adviser seemed more than competent when discussing my case today, and has represented and been successful in court at the stage I've just encountered). Anyway, good luck Hammy.
  5. Wilson v First Capital Trust (Lord Nichols words from the case were 'Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. - I can't think of a clearer statement to counter any argument about Carey v HSBC.) Even Waksman J stated at the start of the judgment that it was in relation to S78! Thanks for your reply. I actually used the very same Wilson quote you mention (even had a copy of the full case with me). I asked for leave to appeal and the DJ (who was actually very polite throughout, allowed me uninterrupted say - but then totally ignored evrything I said! rather have a rude DJ who actually knew the law) agreed, sent me out to get a form from the usher, filled it in and signed it (I haven't actually looked at the form yet - I'm still a bit shell shocked). I think I will appeal, but wary of the costs of losing (and I'll have to reasearch how to actually do an appeal). Any thoughts on whether it's worth investing in a barrister's opionion before I appeal (my brother will lend me the money)? If this is a good idea, how do you actually go about finding a barrister?
  6. Well, hearing yesterday. Judge Lottery? More like Judge farce! Went in hour late, DJ said he had not read the papers. Then he said there had been a recent case which settled these matters once and all, but couldn't remember the name of the case. Both me and the solicitor for Lloyds TSB said Carey? Ah yes, that's the one he said, but he didn't have a copy. I gave him a spare copy I had. Then he said it's nearly luch, I'll have read during luch and can we come back at 2 o'clock. Lloyds TSB had supplied a reconstituted agreement - a photcopy of an unsigned application form, with T&C on the reverse. It did not contain my name and address so, I told the DJ, it would not even satisfy Carey, let alone the stricter test of enforceability. I also pointed out that, although I wasn't relying on failure to satisfy a S78 request - I had made one in the past -, it is unenforceable (although maybe only temporaril for this reason alone. LTSB 's witness statement actually stated that the T&C page as those "which applied in 1988 and not those which applied at the point the Defendant's agreement was intered into in 1985. However, save for the rates of interest (!!!! -the exclamation marks not in the original!) the T&C in the reconstitued agreement are indentical as those shown..." The solicitor kept banging on about Carey, and how LTSB - and I kep banging on that Carey was simply to do with S78 requests etc (I was well prepared and did have all the legal arguments, copies of various cases familiar to regular)CAGers. As for the Default Notice, LTSB had produced a template where in the place of dates, arrears figure etc they had XXXXX. There was a computer record showing the DN had been issued and when the agreement was terminated, which the solicitor said showed that there was more than 14 days before it was terminated. I stated the obvious in respect of this!! I was getting more and more stressed, and even had to use my little spray at one point (dodgy ticker!), and I think I kind of gave up after about an hour. Anyway, the judgement (tried to note this as accurate as possible: "On the basis of Carey, bank provided a reconstituted agreement ... and I ahev to say that in these particular circumstances what has been produced is acceptable as a reconstituted version. The Casey of Carey said that a lender should not mislead - the defendant has not been misled. The agreement is enforceable...." He didn't even mention the DN. I was granted leave to appeal. So after all that (sorry it's so long)., what if I appeal and get another judge who is equally as bad, I'll just lumber myself with thousands of pounds of costs. How do you appeal anyway? ANy ideas welcome.
  7. Is there a definitive answer on this? Do banks need to issue a default notice for overdrafts before they can terminate them? I wrote to the bank to argue that they had unlawfully terminated my current account because they had not issued a default notice as (I thought) was required by S87(1) of the CCA. Their reply is as follows: "The Termination Notice was issued correctly under Sections 76(1) and 98 (1) of the CCA. Please note section 97 (1) relates only to loan accounts." I accepted that overdrafts are exempt from Part V, but (using arguments from this forum) said that an overdraft IS a regaulated agreemnt within the meaning of section 10 (1) (a). Where do I go from here?
  8. Hi, thanks for replying. I got here because of ill-health, had to give up work, couldn't pay etc etc - probably not dissimilar to a lot of people who come to this forum. As far as this debt is concerned, I attended a hearing in May (previoulsy defended on gorunds that creditor did not have credit agreement, only the application form, etc - again, familiar arguments to a lot of cases on here). Judge was fairly sympathetic, but when the claimant's solicitor chimed in with the Carey case (i had prepared for this - used argument re this being only for S77/78, no agreement at all anyway let alone a reconstitued one!), judge then made the order that they produce the agreement with the name and address on it. I said that this may satisfy S78, but would not make the debt enforceable, but DJ said he'd made his order and, more or less, that's it! The claimant hasn't even complied with this order yet (deadline was 25/06/10). SO I think strike out application may be a good idea. But do I do this at the hearing, or do I apply for it beforehand?
  9. Yes, first opened in 1985. But according to the solicitors, it has had two different account numbers since, no 'new' credit agreements. Do I even need to worry about this? After all, their letter says they don't need a 'new' agreement for the changes, so we're back to the original one in 1985 which they admit they don't have (let alone a default notice). Should I just concentrate on this?
  10. thanks for the link FTM,. There's a lot to get my teeth into!
  11. thanks to both for your replies. I will click the red triangle!
  12. No-one? Oh well, I'll just try and cobble something together...
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