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pt2537

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pt2537 last won the day on November 17 2010

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  1. I think that like in anything legal, its a mixed bag of results. for example, we lost slater, we won Harrison, we won a PPI case recently having the agreement declared unenforceable and lost our first case this year on the same facts so i think it depends on the variables, such as court, judge, whether the judge is pro bank or anti bank etc these are things that cannot be foreseen sadly.
  2. maybe the opponents in the other cases didnt rely on the Barnes case either. Certainly in every case where the Court has been referred to this case in my experience the Court has refused a time order if the repayments would exceed the time frame of the agreement, for example if the agreement was 48 months and the Debtors proposal would make it become 60 months the Court has refused such an order
  3. In the "Barnes" case the court said that If,despite the giving of time, the debtor is unlikely to be able to resume payment of the total indebtedness by at least the amount of the contractual instalments, no time order should be made. In such circumstances it would be more equitable to allow the regulated agreement to be enforced. This is the difficulty i have faced. It has been the Creditors objections to the granting of the time order that have caused the problems due ot the case authorities i refer to
  4. oh no i agree with you, but the view we have seen has been if there is a debt, which there most-likely will be, and the debtor has not been paying it which is the norm otherwise why would you get a default notice, then the Courts seem to , unless the debtor can give a time for remedying the breach which is inside the agreement repayment period, take a hard line and allow judgments instead It seems very difficult to get a time order for someone who cannot afford to pay is all im saying.
  5. yes, but the view also proffered by District Judge Sparrow for example is that the Creditor is also entitled to a judgment which he can then enforce through attachment of earnings or charging order Todate we have not managed to get a time order due to the fact that most of our customers cannot afford to pay enough to achieve a time order
  6. That has always been the problem we face when applying for a time order, and that exceprt is from blackstones, and refers to the cases we have been referred to when the opponents have opposed a time order
  7. why do you need to do the Defence this weekend? I wouldnt rush things In fact, id say given my experience with your opponents, and given the strength of your case, and given the extra time you have you should not try to rush through your defence. It looks to me there are all manner of issues here, problems all over the place and not to mention that some of the terms produced arent compliant with the Unfair Terms in Consumer Contract Regulations 1999 and also some are an attempt to contract out of the CCA 1974 which automatically voids them per s173.
  8. Hmmm, i see a difficulty here Cabot havent actually pleaded correctly. They havent said there was an agreement, nor have they pleaded a Default notice or notice of sums in arrears They havent even pleaded a breach of contract. So This is a headache for them if you make it such, but if you let them off the hook then you are doing yourself a disservice. I wrote to them for a client a while ago, you may be able to adapt the letter to assist you here goes
  9. One pointer, i wouldn't use abbreviations, CCA while you may understand what it refers to, the person the other end may not. also im baffled by this I dont see how the validity of the Default notice can be questioned, if the Claimant hasnt complied with s78 CCA 1974 for example as it would be the s78 breach which precludes the enforcement. If the Default notice is not compliant with the regulations then this gives a further limb to attack on, it is not however in place of the s78 breach but in addition to it. If they cannot prove service of the notice of assignment then they may still rely on equity as their aid so that would not defeat their claim either
  10. are you sure the default is ok? most ones i see say " 23 days of the date of this notice" which is far from ok Also Nationwide are very quick to avoid the OFT responsible lending guidance and litigate against people, so there may well be issues you can raise
  11. no the OFT guidance is something the Court can consider The Court has very wide powers under the Consumer Credit Act 1974, s140a give the court the power to consider "Anything" done by the creditor or its agents
  12. the application for the Time order is here http://www.hmcourts-service.gov.uk/courtfinder/forms/n440_0499.pdf It is notoriously hard to obtain as the courts appear to construe the provisions of 129 CCA as very narrow. Blackstones Civil Practice sets out the routes to obtaining a time order and the case law etc I will post up what they say later
  13. a bad notice cannot allow for enforcement, that is established Litigation is about tactics. If you can manoeuvre your opponent into a position where he does not have the upper hand, where it is commercially non-viable to continue the claim, where he faces costs etc, then you will be able to bring him to the table in most cases and use this to negotiate. A bad notice assists, why? well if the Claimant seeks to issue a new notice he has to amend his pleaded case!! costs follow the event so the Defendant is then entitled to the costs of amending his defence plus his LIP research costs etc. This can run to a couple of £k So the Claimant may well be able to be manoeuvred into a position where he faces the OFT guidance on responsible lending, the prospects of costs etc and decides to accept a reduced offer of payment on a tomlin order it has its advantages However when you get to trial and the Claimant has not made good a bad notice, lest not forget some banks are arrogant and think their sh!t dont stink etc, so we have a trial then they ought to lose. This is the pattern it seems from the cases ive seen discussed with other fee earners You can never have a one size fits all reply, this is the difficulty and i think that there are circumstances where you can defeat a claim with a bad notice and make it financially non viable for the claimant.
  14. In respect of time orders They are useful, but notoriously difficult to obtain This is what one of the leading texts for practitioners says
  15. EDIT Caro can i direct you to KEith Harrison vs Link Financial Limited Lloyds TSB bank Plc vs Simpson Then please tell me the default notice argument is pointless. The first case is a High Court judgment so is binding upon the lower courts It is also not, contrary to suggestions, easy to put right such a failing as a bad notice, it is more complicated than that.
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