Ihatebanksandbankshateme
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Everything posted by Ihatebanksandbankshateme
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Ok, and in that case good luck , ignore relevance, raise irrelevance, lose and pay Restons costs when they win, a good idea no? Ill keep my counsel from here on, it seems the White book, written by some of the leading legal minds currently is wrong and your posts on this forum are right, bravo bravo.
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With respect, its hardly hi jacking to point out some important issues which the original poster may well need to consider before launching a defence. The above information is something which ought to be considered carefully. An unlicenced trader commits an offence, if contrary to the Consumer Credit Act 1974 he undertakes debt collecting. That Sir is beyond argument. As such, again not a belief but a clear fact, a criminal offence upon which a claim is founded cannot lead to a successful litigation, again that is fact and not supposition. Id urge the OP to at least consider these points and read Hicks v Walker & Reynolds at least
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For completeness, this is what the White book actually states about holding defences, wise to consider in my view
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Im afraid a holding defence amounts to nothing more than an abuse of the Courts process. The White Book and Blackstones are clear on this point. I would also suggest that the criminal offence would be worth looking at, but dont take my word for it, check Cabot Financial UK Limiteds permissions, then check s21,39 and 40 CCA 1974 and then read Hicks vs Walker & Reynolds. Once youve done that you should google Ex Turpi causa non oritur actio you will see that this provides a complete defence to a claim based upon a illegal act. Debt collecting is defined in s145 CCA should you wish to look it up, it is an ancillary credit activity and requires FCA Permission, no permission then its an offence to debt collect even if you use an agent ( see Hicks)
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Not strictly true im afraid, see Arrow Global vs Alison Frost. In Frost they won because they were able to convince the Court that they "would have" had a compliant agreement. Now while one may say that is the wrong finding of fact for a Judge to make, none the less it would be very difficult for a self representing litigant to challenge
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Cabot Financial (UK) Limited do not have permission for debt collecting, see the FCA register for further info. This is a criminal offence contrary to the Consumer Credit Act 1974 and also there is a complete Defence where a party acts illegally, see Ex Turpi Also it would come under the Proceeds of Crime Act too hope this gives food for thought. Id also suggest you may wish to look at the Civil Procedure rules certainly in connection with the statement of truth, you should really have a statement of truth that says The Defendant believes that the contents of this Defence is true. That is the general way of presenting a statement of truth, and CPR 22 makes it clear that a defective statement of truth leads to the party being unable to rely on the contents of the document verified with the bad statement without permission of the Court first.
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For completeness, the above is taken direct from the High Court ruling.
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Wrong, the High Court confirmed this in Jones v Link Financial Limited. The assignee becomes the creditor for the statutory purposes.
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Exactly, need to know whats happened, was there any request for discovery , were any documents provided, what was the Defence, was there any dispute being raised over the matter?
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I think at this stage getting the background to the case is most important, as even if the order provides a right to set aside unless the case has merit and arguments can be formulated as to why the case has a prospect of success or in the alternative the defence needs amendment or the Claimant hasnt provided discovery, without that background you arent going to be able to do diddly squat with the case moving forward. Thats the biggest problem i see here
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A defence must comply with CPR rule 16, if it does not then the Court will strike it out generally. If you can post a little more information then that would be helpful, however you must move promptly other wise you will be in extreme difficulty.
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I do read them yes, and i happen to understand it too, but hey ho thats life i guess.
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McGuffick was concerning principle 1, and the question of whether recording a Default was enforcement within the meaning given by the 1974 Act. This case concerned principle 4 of the DPA, the question posed as correctly identified by Briggs LJ was whether it was accurate to describe a debtor as a defaulter where the agreement was unenforceable. The Court noted that such circumstances arose out of a creditors breach of the consumer protection legislation. I fail to see how people are unable to read this case correctly, and as for the "lawyers concerned agreeing" Do you know Mr Cooper ? Ms Urell or Thomas Brennan? or the team that were behind this matter? because if you did, then id dare say you would have been corrected by now.
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There is a really good commentary on this case which can be found here http://www.lexology.com/library/detail.aspx?g=aedf1de1-114d-418d-8646-b25d1340de6d Worth reading, and for those who think McGuffick is still good law, ponder this, the banking worlds barristers have written a write up on the case accepting that McGuffick has been thrown in the bin. Take a look at Mr Hibberts (Henderson Chambers) commentary on the case. Happy days. Oh and the CRA system according to insiders cannot be adapted to satisfy this problem.
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The case of Phoenix Recoveries vs Dr Ian Cresswell should assist here, the case is reported elsewhere but involves the same type of agreement which was found to be unenforceable by the circuit Judge at Birmingham Civil Justice centre HTH
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Just to add, it seems it would be a part 20 counterclaim against Littlewoods. Also, another important point to canvass, is this when you opened the littlewoods account? ie 2007? or was the account opened sooner? If so, then the second limb of the challenge to this may be under s61(1) Consumer Credit Act, but first things first what is the date of the account being opened, as opposed to the transaction for the Hoover?
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assuming your not caught by Limitation then you should have an absolute defence to the claim relying on the Sale of Goods Act 1979(as amended) It seems to me the goods may not be fit for purpose, of satisfactory quality or if sale by description then perhaps even "not as described You would have a potential counter claim it seems too
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No, i disagree. If the goods are protected goods under a HP agreement then they cannot be repossessed without a Court order. Also, they cannot enter private property (s92 CCA 1974) without a Court order and to do so is a breach of statutory duty!!
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had you paid more than one third of the total price of the goods? before the repo of the car? if you dont know then go check how much you paid and how much you had to pay. Very important. Theres a case in the Court of Appeal soon on repo of protected goods, so that may help. There is no quick fix im afraid, but if they unlawfully repo your car then you may be entitled to a remedy under s91 Consumer Credit Act 1974 so worth checking
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No it would not be a fair assessment at all. Poles apart from when i stand. I just happen to keep my finger on the pulse more than others in the world of consumer credit litigation thats all. As for my identity that shall remain a matter for me and only me. Of course, if by correctly pointing out the law i am deemed pro bank, then perhaps i should become pro consumer and tell you to follow the incorrect line of attack, then comfort you when you lose? id prefer not to but if thats how we want to play things then im happy to. I can assure you my credentials stand up to scrutiny.
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Indeed, and that would be HFC Bank v Moody. There are about 6 other judgments which go the other way on these things, sadly the banks dont seem keen on taking these cases up to the Court of Appeal
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I have a paper copy, but i have been asked not to distribute it, because it is simply a county court decision. However while stare decisis doesnt operate, there is a view that County Court rulings are persuasive and it is likely that a Judge would follow the ruling of the Recorder. I am trying to get this posted on BAILII, and will let you know when it is up there
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Arrow Global Guernsey Limited v Frost Bristol County Court Recorder Simon Monty QC
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They did actually, it was remitted to the County Court, went before a Recorder, and was settled. They did remedy the s78 breach however, although the victory was a phyric victory in real terms, they spent some 30k to recover 20k
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No, you would be placing yourself in difficulty if you cease payments and the creditor reconstitutes the agreement, because you then are in breach of contract whereas the creditor has remedied his breach, see Kotecha v Phoenix, it is clear s78 can be remedied. If you wish to raise a challenge to unenforceability under s61(1)(a) then you should read HFO v Patel which is an appeal court case (Unreported) the appeal court ruled a debtor must make a positiive assertion that there is no signed agreement or that the agreement is improperly executed. Of course, if its interest they want to charge, if there is a breach of contract, ie t he debtor stops paying, then they must serve notice of sums in arrears in the prescribed form before they can become entitled to levy interest on the account. Of course, these breaches are remediable too. as far as full and final, dont get caught by the Pinnels / Foakes v Beer case, as payment of a smaller sum in satisfaction of a larger sum is not good consideration to discharge a contract. However, if there is accord and satisfaction, or even better a payment offered by a third party in settlement, and it is done so on the basis of cashing the cheque is acceptance of the offer, and if rejected the cheque should be returned, then you may have a strong binding agreement. See Bracken v Billingshurst for the leading authority on this point.
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