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Everything posted by Haunter

  1. I have already said DCA's have no power. I'm not scaremongering at all. I'm talking about the new owners if the accounts are sold, they become the creditor. Original creditors do accept full and final settlements in in genuine cases, such as ill health for example. The creditor will not freeze interest and charges on the account simply because his debtor asks him to, he will want to know why, and telling him that you are suffering ill health is a genuine reason and the creditor must then help his debtor. Haunter
  2. There must be a genuine reason for seeking a full and final settlement payment with a creditor, the valid reason must be communicated to the creditor otherwise the creditor is not obligated to provide any help to his debtor. Aneb has a health condition and she has said that her position is not going to improve in the near future, she has some funds available and she wants to settle her debts so that she doesn’t have to worry about them, this is the purpose of her thread/case posted here. Her creditors will want to know why she is asking them to accept a lesser amount in full and final payment to settle the accounts, ill health is a genuine reason and this should be communicated to her creditors who will then be obligated to assist with the change in her financial position which has come about through no fault of her own. It has already been suggested (by the site team) that aneb should send a template letter asking for interest and charges to be frozen on the accounts due to ill health. There’s no ‘scare mongering story’ posted by me, DCA’s and court proceedings may be a while away, but this will happen, and aneb is trying to avoid that and all the severe stress it brings, by being pro-active while she is in the position to negotiate a settlement with her creditors so that she can concentrate solely on her health condition. Dragging the matter out by sending subject access request and not informing the creditors of her health condition, will only cause stress to aneb, and her creditors will get the DCA’s involved immediately and soon afterwards they will sell the accounts and the new owners will get very aggressive in their pursuance of her for the debt, interest and charges will be added to the account each month, her liability will increase. While all this is going on, the funds that aneb has available now will reduce, she is not currently working due to ill health and so those funds will be used to support her living requirements, and she will lose the opportunity to settle her debts, which will completely defeat the purpose of why she posted here in the first place, that is, seeking practical advice on full and final settlements. Aneb, do you know if there is any PPI on the agreements? Haunter
  3. When you are suffering from ill health, the last thing you need is a load of stress from worrying about your debts and how to keep paying each month. I think it would be far less stressful for you if you write a letter to each creditor and inform them of your ill health and that you currently have access to some funds and you would like to offer a settlement payment in full and final payment of the account, and can they please provide you with a figure that they would be willing to accept as a full and final payment to settle the account, close it and mark the balance as ‘0’ on their internal records and your credit files. Do you know if there is an PPI on the accounts/agreements? If your ill health is not likely to improve in the future, the funds you have available now might not be available and if you default on the accounts your creditors will pass the matter to debt collection agents and they will make your life a living hell, they have no power but they will ring your phone off the hook and bombard you will letters chasing the debt. Sooner or later the accounts will be sold and the new owners will commence with court proceedings to recover the debt, this will cause you untold distress and increase your liability, the end result could be CCJ’s against you and this will ruin your credit worthiness, but moreover, your health will suffer further because of this. It is clear that you are trying to be pro-active so as to avoid the above-stated action, and it is clear that you are not trying to welsh on your debts. Simply ask your creditors, by writing to them, how much they will accept in full and final to settle the account, when they respond with a figure, you can then write again and tell them you can’t afford that sum but you can offer £xx and ask them if they will accept that in full and final. Keep all negotiations on full and final in writing only, do not agree a figure over the phone, and do not send any cheque payment until the creditor has stated his agreement to the amount he will accept in full and final in writing. As stated by another (site team I think), ask your creditors to freeze all interest and charges on the accounts while you negotiate a full and final settlement agreement with them. Happy New Year Haunter
  4. “Other half opened a M&S account in September 1989.” The agreement is subject to the CCA 1974 before it was amended in 2006, if the agreement does not comply with the statutory requirements of containing all the prescribed terms within the ‘4 corners’ of it, then you can rely upon s.127(3) of the 1974 Act before it was amended and the authority Wilson v First County Trust, House of Lords decision on this point, where it was held that such an agreement was irredeemably unenforceable against the debtor. s.127(3) of the 1974 Act was repealed by the amendments in 2006! Check your own records of the account statements and compare them with the amount stated as arrears in the default notice, if they are not the same, then the default notice is not accurate and therefore invalid. Bear in mind that before the 1974 Act was amended the time limit to remedy the breach stated in the default notice was 7 days (it’s 14 days now since 2006). As they haven’t complied with your s.77/78 request under the CCA, they are not entitled to enforce the agreement, although they will probably comply with it now after the recent hearing. The PPI on the agreement is a relevant and material issue, because PPI is a fraud on the consumer (it was never “mis-sold”), this means that the agreement is a prohibited article under ss.1.7(b)(i) & 1.8(d) of the Police and Criminal Evidence Act 1984 as it has been used in connection with fraud contrary to s.1 Fraud Act 2006, in your case as the agreement is dated 1989, the PPI is deception under the Theft Act 1968. As the agreement has been assigned, the Claimant is recognised as a creditor under the 1974 Act and therefore he is legally responsible for the PPI on the agreement and liable to pay it all back to you. Work out how much PPI is due back to you and counterclaim for it. The illegality principle applies to the agreement and the court (no court in the jurisdiction) can assist the Claimant on his claim: The illegality principle – the law The rule stated by Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341, 343, is a rule of public policy that; “The principle of public policy is this; ex dolo malo non oritur actio ["no action arises from deceit"]. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted.” In Patel v Mirza [2016] UKSC 42, Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed) said: [1] “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” So spoke Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, 343, ushering in two centuries and more of case law about the extent and effect of this maxim. He stated that the reason was one of public policy: “If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.” [120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.” Happy New Year Haunter
  5. In the first post you said "the insurance companies", did both insurance companies find that no party was liable, or, is the claimant's insurance company disputing liability? Haunter
  6. What are you intending to defend with macker? Haunter
  7. The only thing that you have to file to the court is your Defence, but you do actually have to have a Defence. If you have a Defence, then post it up here for comments, suggestions, advice, and if it is a valid one, then send it to the court only by Royal Mail Special Delivery. What is your Defence so far? It's unfortunate that you stopped making payments on the payment plan. Haunter
  8. Your friend is not obligated to answer the leading questions posed by the solicitors. DPD are most likely using the same insurance company and their solicitors, and they are most likely relying upon the insurance company's investigation into the accident and its findings. The claimant appears to be contesting the findings of the insurance company and he is holding DPD liable for the accident. Haunter
  9. Were you still making the payments in accordance with the payment plan at the date they issued these proceedings? If you can't remember, check your bank account statements. This is important because the payment plan supersedes the original terms and conditions of the amount you have to pay monthly, and if you are or were still making the agreed reduced monthly payments, then the creditor is estopped from bringing his claim to enforce the agreement for the full amount. Haunter
  10. OK, our posts crossed there. It is down to the court to decide whether to allow any enforcement action in the light of your application, which the court has now acknowledged receipt of and will make an order on it which may involve the parties attending a re-determination hearing if the claimant rejects your offer to pay monthly. If the claimant now seeks to send the bailiffs around, the court may consider such action to be premature as you have made an offer to pay the judgment debt monthly. Haunter
  11. As you jointly own your home, the claimant could obtain a charging order against your interest on your home. Have you asked the court to re-determine the amount you have to pay and to set it at monthly payments? I think the first thing you should have done is lodge an appeal. Unless the court puts a stay of execution on the order, the claimant can take whatever legal action is available to him to take. You still have time to lodge an appeal. Haunter
  12. Your friend should inform the solicitors that he is not filling out that witness statement as it is loaded with questions designed to procure the particular answer/response that they want him to say to the court, and that he is aware of cases where the witness and the solicitor who drafted such witness statements have ended up in a lot of trouble, including witnesses who have been given prison sentences in relation to such witness statements. As they are not willing to cover his reasonable expenses he should refuse the witness statement. Also, even if your friend does act as a witness, whether voluntarily or by witness summons, he will not be represented by the solicitors or anyone else, he will simply be a witness to the facts of the case before the court. Haunter
  13. I haven't made any assumptions, my post is based on the facts posted by cupid07. The claim has been made against DPD and not the driver (the friend), the friend is being asked to fill out a witness statement. A person does not have to be 'employed' as in PAYE on the payroll of a company for that company to be vicariously liable for any wrongful act of its employee, a main contractor can be held vicariously liable for any wrongful act of his sub-contractor, see the legal policy underlying the principle vicarious liability and the substantive case law on the point. upid07, your friend will not be held liable for the claim if he makes a witness statement, as long as his witness statement is based on the truth of what happened, how the accident occurred. Haunter
  14. DPD are asking your friend to be a witness in this matter. Is the witness statement loaded with questions for your friend to provide answers to? If it is, he must not fill it in. If he is to be a witness then his witness statement must be in his own words and based on facts which he has personal knowledge of. DPD are vicariously liable for the claim, the relationship between your friend and DPD is employer and employee relationship. You have already said that insurance company has found no-one to be at fault, therefore your friend is not liable for the claim. Your friend is not a party to the proceedings, therefore he is not privy to the same and not entitled to a copy of the court documents. If your friend does act as a witness, he must keep in mind that he is a witness for the court, as all witnesses are. If he is served a witness summons, he must attend the trial otherwise he will be in contempt of court and can face a prison sentence or a fine or both! Haunter
  15. Where a creditor terminates the agreement by way of issuing a default notice under the statutory provisions of the CCA 1974, and that default notice does not comply with the statutory requirements, the creditor cannot then rely upon contractual termination under the agreement. The Court of Appeal in Brandon v American Express held this rule of law in favour of Brandon. An invalid default notice cannot be rectified by a creditor after he has terminated the agreement on that invalid default notice. I am aware that in Harrison v Black Horse, the Mercantile court said that a bad notice can be made good, but it did not set out the circumstances where a bad notice can be made good. It is clear from the Brandon v American Express case that a bad default notice cannot be made good if the creditor has terminated the agreement on it. After realising he had terminated the agreement on an invalid default notice, the creditor in Brandon attempted to rely upon his right to terminate under the contractual terms and conditions of the agreement, the Court of Appeal said a creditor either terminates under the statutory route or under the contractual clauses route of the agreement, he cannot use both routes. While a credit agreement is regulated under the CCA 1974, it is still a contract under English law and is subject to the rules and principles of English contract law. In macker’s case, if his creditor has terminated the agreement on an invalid default notice, he cannot unilaterally reinstate the agreement to make it ‘live’ again so that he can serve a valid default notice on macker, the agreement is a bilateral one and it would require macker’s express consent to resurrect it from its legally dead grave. In the Brandon case, the Court of Appeal qualified the importance of service of a valid default notice, and the adverse consequences for a creditor who fails to comply with the statutory requirements of default notices in relation to terminating the agreement by the statutory route. The issue of the default notice in macker’s case posted here is just one issue, but it is not a minor or inconsequential issue, quite the contrary. Until macker updates his case with the details of the payment plan and the default notice, and any other relevant information, it is not yet possible to say whether he has any defence against the claim. Haunter
  16. Did you keep up with the payment plan? Are you still making payments in accordance with the payment plan now? Do you still have the default notice? If yes, is the amount stated on the DN as being in arrears correct, and does the DN give you the statutory 14 days to remedy the breach? In your CPR r.31.14 request, you want disclosure of a copy of the agreement and a copy of the notice of assignment, both of these documents are mentioned in the Claim form. What do you intend to defend with? Loads of questions I know, but your answers will help a lot to help you prepare your defence. Haunter
  17. Firstly, Christmas day, Boxing Day and New Years Day are all holidays that are not deemed to be business days, so you can add on those 3 days. Your N244 application might not be dealt with quick enough and you could end up being out of time to appeal, which would mean you would have to seek relief from sanctions in your Appellants notice and for an extension of time for appealing. Did you make an offer to pay without any admission of liability? You cannot rely on CAB as a guarantee that nothing will happen, CAB are not an authority. Haunter
  18. The court should be open on the 27th, 28th & 29th Dec. Can you remember what the order said about the claimant serving his particularised POC? The claimant may need to go back to the court to enforce the judgment against you before any bailiffs are sent to your door. Try not to worry too much at the moment. As regards your N244 application, what order are you seeking from the court? Have you started drafting your Appellants notice? Haunter
  19. The gift was still given to a third party and not a beneficiary under the Will. Do you know if any IHT was even due from the estate? Your sister's property has no bearing on your late mother's estate, your sister was the owner (joint) of the property and not your late mother. Have you got a personal beef with your sister? Haunter
  20. If the ex husband is not a beneficiary under the Will, then the gift has been made to a third party and not to a beneficiary under the Will and therefore is not included in your late mother's estate. If the value of the estate at the time of death was under the IHT threshold, then no IHT is due. Haunter
  21. The judge has not actively managed the case in accordance with the overriding objective of the CPR, r.1.1, and r.1.2. The op did send communications to the court informing of the claimant's non-compliance with the order well in advance of the trial/hearing, the court disregarded it. The op is not at fault and the judgment against him is an irregular one and cannot be allowed to stand. Need to know the exact wording of the court order, all paragraphs verbatim. Haunter
  22. The gift was made to the ex husband and not to the op's sister. When was the gift given to the ex husband, before or after the divorce? Haunter
  23. Most of the payment will go to IHT. Depending when the gift was made, it will be subject to the taper rules. What was the value of your late mother's estate at the time of her death? What is the value of the gift she paid to the ex husband? If the gift was given/paid to the ex husband and your late mother did not benefit from it, then it might be the case that you and other beneficiaries and the IHT are owed nothing. Was your sister's home jointly owned with her ex husband? Questions, questions. It all depends on the circumstances, but based on what you have said so far, it appears your late mother made a gift to the ex husband and not your sister. What are you trying to achieve? Does your sister have children under the age of 18 living at home with her? Haunter
  24. In the circumstances of yaliyas's case, her infringement was clearly an innocent one, again, s.97 of the CDP Act 1988 provides her with a complete defence against the allegation made by the solicitors. I would suggest that you point this fact out to the solicitors, and do not send them any money and do not sign any of the documents they sent you. Haunter
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