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Everything posted by mpmmpmpmp

  1. The original creditor must be the one to resubmit afaik. As soon as your debt is factored this is never going to happen imo.
  2. What was your credit limit on the card? The Default Notice does not give 14days from the date of service as it must, this is fatal to their claim. There is Court of Appeal precedence in Brandon vs American Express Services Europe Ltd which says less than 14days being given for compliance would not be overlooked as de minimis both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice. Read that judgement and provide a copy to all parties if it isnt already too late.
  3. Hard lines Cam, sounds like you got shafted. If there is no date on the DN how can they prove it was served in the correct timeframe? This is where I think including every failing possible within both s87/s88 and the Schedule 2 regulations is necessary. Even if it only creates a small element of doubt you may get a reserved decision whereby the Judge looks into it properly and comes to the correct decision. I think there is a definite bias from the Deputy District Judges in these cases to the Solicitors, it's as if they think you're belittling their profession by daring to go to court without representation.
  4. Commiserations Benny, did the fact that the s78 was unreadable hold no merit? There are examples of Judges going the other way on that if you care to read them, google cabot financial vs bachellier for one example. Unbelievable the discrepancy between Judges verdicts in these cases.
  5. According to the statement your credit limit is £8400, why did they default you at £8100 saying you must pay £400 immediately? Is that the correct Default Notice issued to you? It has no mention of terminating your account either. If the figures are wrong on the Default Notice you have a very real chance of only having to pay interest even if the Judge finds in their favour regarding CCA request for whatever reason. Google Woodchester Lease Management Services Ltd v Swain & Co and have a read of that judgement.
  6. I never received any documents after my SAR so Im not sure what it contains. I was hoping to find a discrepancy between my original agreement and the reconstituted agreement which would show it wasnt a true copy of the original agreement as it must be. Don't think it really matters as s78 requests are only valid on live agreements(something I wasnt aware of at the time).
  7. Your post doesn't make sense. Google Rankine vs American Express for Case Law on the matter of s78 request. To quote the Judge 'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor ‘under an agreement’. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the word ‘enforce’ is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.’ To clarify - my posts were not intended to belittle any of your opinions or statements, I just wanted to inform Betty about things which may help or harm her.
  8. A Default Notice must be in the prescribed form detailed in The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. To quote Action intended to be taken by creditor or owner 6. A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement— (a)to terminate the agreement; (b)to demand earlier payment of any sum; ©to recover possession of any goods or land; (d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred; (e)to enforce any security; (f)to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, It was a Judge, in a Court, in a Consumer Credit case who informed me about the s78 not being applicable to terminated agreements so take from that what you will.
  9. The Default Notice provided does not comply with s88 of the CCA. There is no mention of your account being terminated as a result of not making the payment. It also does not include the Name and Address of Barclaycard as it should. The date is blanked out so I cant tell if you received the 14 clear days required either but definitely check this, even if it seems that it gives the required days check there are no bank holidays or anything. It is supposed to give you 14 clear days from date of service (Royal mail delivery, the same rules don't apply as they do with court documents service times). If I was you I would incorporate this into my Supplemental Witness statement, s78 requests are only valid on live agreements which you can argue yours is as a result of the account not being terminated correctly. Fingers crossed you get a Judge who's sympathetic. I'm not a solicitor, everything I know is a result of going through the same thing and finding out what I could.
  10. Its not over until its over Big. Any luck and the Judge wont accept their Default Notice
  11. Another excellent, informative post dx. Nice job making every sentence on my last post a new paragraph. Youre the man!
  12. 87 Need for default notice. (1)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, by reason of any breach by the debtor or hirer of a regulated agreement,— (a)to terminate the agreement, or (b)to demand earlier payment of any sum, or ©to recover possession of any goods or land, or (d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or (e)to enforce any security. http://www.legislation.gov.uk/uksi/1983/1561/schedule/2/made - tells you what must be contained in a DN for it to be valid. Yours fails on alot of things as it is a template. 61 Signing of agreement. (1)A regulated agreement is not properly executed unless— (a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b)the document embodies all the terms of the agreement, other than implied terms, and ©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible. Im not sure how to advise you with s61 but it shows your agreement is improperly executed. Maybe Andyorch can advise you there. You must quote acts and show the Judge where things fail, they will not do it for you and will probably rule against you if you dont. You need to understand all of your arguments and have them in writing in front of you before you enter the court. You will be very nervous and you are going against a professional. Can you think of one thing where someone on their first time doing something is going to beat an experienced professional? If you prove their documents fail to comply with the Act you can only hope the Judge makes sure the law is followed. They may still take the view, 'you have a debt pay it'. Sorry to be all doom and gloom. Im not a solicitor or an expert so take my advice for what its worth.
  13. s78 doesnt mention needing a signed agreement. You need to show the judge where it says this. Why does it matter that the default notice isnt valid? A judge wont plead your case for you. Sorry to be pessimistic I just think you can improve that witness statement.
  14. Fair enough I dont imagine proving theyre providing false documents will harm you anymore so since youve admitted receiving a NoA. See what the people who helped with your defence have to say on the matter.
  15. Maybe you would be better putting it in then, I dont know to be honest. My concern was if you show the Judge the genuine NoA you have proved for them that they own the debt and have fulfilled their duty to tell you. Im sure AndyOrch will give you an opinion on the matter in due time.
  16. Was it? Must have missed it, working full time and trying to figure this stuff out leaves you tired. The default notice doesnt comply with the act so is worth saying so imo. I wouldnt provide them with the genuine Notice of Assignment either if I was you. Feel obligated to tell you I am not a solicitor or an expert in consumer credit agreements I'm just sharing what ive found being in a similar position to you. Double check everything. There is nothing in my thread regarding that Dx, good job contributing to the thread buddy. Have fun adding paragraphs.
  17. Have you altered the Default Notice to hide information or is that what they served on you? They quote s136 of the Law and Property act as right to transfer the debt and sign it off from HSBC, according to s82 of the Consumer Credit Act it must be the Assignee who issues the Notice of Assignment. s136 says the assignor can sign it off. Which takes precedence on a consumer credit agreement, does anyone know? Is it irrelevant? Without the signed original I think you can be pretty confident the CCA wont be accepted, I would find the correct part of the act and quote it if I was you. I think its s61 and s127(3) in your case, I may be wrong. I would include the failings of the default notice as well if I was you. s87-89 details what it must include.
  18. Still a day after the court order so worth asking to be struck out imo. Did it come via recorded/special delivery? What date is on the WS? You will probably be advised to upload the document but make sure you remove all your personal information/claim no./ anything that can identify the case. Youre going to have to quote acts to show why its not enforceable without a signed agreement so start finding them. Its not good enough to just say 'hasnt got this and that' you must show why and where it says it must have it if youre going to win. Best to have more than one argument as well imo just incase. Im not an expert so take my advice with a pinch of salt and do your own research. Good luck. If you dont want to do the above, a solicitor will cost around £200 to look at it, £300 to write a WS and ~£175/hr in court from what I have found. No guarantee they will win either.
  19. (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms; What is a 'unilateral power of variation'? Change of APR, change of credit limit?
  20. They may file with the court on one day and send yours another. Id put a wager on them filing theirs with the court three days prior to the hearing and you receiving it the day before. Definitely request any documents received after the court order states be refused at the beginning of the hearing. Their solicitor will argue the order says may be refused not will be refused so it will be down to the Judge.
  21. Another thing, I requested a SAR on the 8th Feb via the online page Barclays have set up, given they have not contacted me for payment yet Im guessing I will not have this by the end of March for the hearing. If I put as the last point in my WS that 'If the judge does not accept any of my points I would request an adjournment until I have received the SAR from Barclaycard as I believe this will prove the reconstituted agreement is not a true copy of the original agreement as ordered it must be in p108 of Carey VS HSBC.' How do you think that would go down? I already plan on providing the email sent as evidence and have wrote a paragraph explaining how 'I have requested the SAR and had I received the recon CCA 12+2 days after I requested it then I would have had more than enough time to obtain the SAR in time for the original hearing. Further highlighting how accepting the claimants late disclosure of evidence gives them an unfair advantage in this case'.
  22. The only other issues on the Order are that 'The claimant will send the defendant copies of any case law it intends to rely on by 4:00pm on xxx February.' The wording of the paragraph before this is what makes me wonder if this should be my first argument. 'And upon the defendant requesting an adjournment to take legal advice for the Claimant to be prevented from relying on evidence served in breach of the court order of xxx.' At the original hearing the Judge was very critical of the late submission of evidence, even suggesting striking out the case rather than adjourning the case when I asked for an adjournment. It was only when I was stupid enough to admit to the Barclaycard that an adjournment was agreed. Makes me wonder why would the Judge order case law be served on me if they didnt intend to accept the evidence though.
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