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Everything posted by pt2537

  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.
  16. sorry maybe not making my point clear, it is often the case that i dont frame my point well enough on these boards, what i was saying was, if the claimant accepts his notice is bad, then reissues a new notice, then the debtor remedies the breach by payment of the arrears, the Claimants cause of action becomes extinguished as there is no longer an actionable breach (s89 ). The Claimant would have to discontinue and then pay the Defendants costs, as he could no longer sue for the full balance This is the point which was of concern to the DJ Also the Judge interpreted Harrison at the final hearing to mean no enforcement because he found the notice was bad, he even refused the recovery of the arrears.
  17. can you post the agreement so that we can see if it is indeed a fixed sum loan If it is then the car is indeed yours to do with as you wish and any hpi marker ought to be removed forthwith
  18. We are just about to file a defence which raises these issues, i do honestly expect the opponents will discontinue and come to a payment arrangement which is what they ought to have done, as they are in breach of 78,86a-d and 87 CCA in any event. will let you know what happens
  19. Yeah that was before Harrison was handed down though Peter that case, however, i do not think that the same would happen if the OP had placed reliance on it
  20. I find it helpful for people who have been trying to service their debts but the lender has refused all offers to pay. Nationwide are one such lender who despite offers of over half the contractual payment when customers are in difficulty and prove their financial circumstances do not allow for the full payments, still choose to litigate without a second thought. It is lenders like that who will get caught in the guidance. I dont expect the courts will ever write off the debt, but the Court does have the power to reset the installments to a manageable level, the Bentley case shows this http://news.bbc.co.uk/1/hi/business/8332124.stm The courts are more willing to give a remedy which is balanced and fair as opposed to writing off in total
  21. we are awaiting the transcription of the judgments
  22. a very powerful and persuasive document has been released by the OFT recently http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft1107.pdf it is something which i understand has been relied upon by people in litigation to assist in showing an unfair relationship under s140a CCA 1974 The part in question is section 7 from page 65 onwards,
  23. To reaffirm my previous post The Op ought to seek disclosure of the template which the Bank uses. This can be done by request using part 18 for further information, i did a thread on CPR 18 but do not have the link to that thread any longer. Alternatively the OP could make an application for disclosure of the template.This would incurr costs if unsuccessful, but it is a balance that needs to be considered, on the one hand having at-least the template to scrutinise or on the other having nothing at all. or at a CMC the court could be invited to make an order for disclosure of the template If the Claimants case gets to trial and the notice is bad then there is a fair chance they will lose with adverse costs. Harrison vs Link has been taken in a number of cases to be the authority for the proposition that a "bad" notice cannot lead to any enforcement and accordingly the Claim should be dismissed. This has happened in a number of claims recently as opposed to staying the proceedings, as one judge commented that it would prove impossible if the Debtor remedied the breach for a claim to go anywhere as the Claimants cause of action would be extinguished by the reissue of the new notice, furthermore the new notice would be a new cause of action in essence so would leave the pleaded case needing amending with costs to be paid to the Defendant if the Claimant sought to amend. It seems the judiciary are dismissing claims where the notice is bad and making the creditors apply for leave to reissue
  24. But they cannot, just slap a default on your credit file willy nilly People rely on McGuffick as the authority that they can, but you need to read what Flaux J said, he stressed that his judgment that his judgment dealt only with enforcement under breaches of s78(1) Lord Hoffman in the House of Lords case of Dimond v Lovell said that Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. The court in this case declared the rights of the parties, and held the agreement to be unenforceable, the Defendants do not have to pay any further sums, the Claimants claim fails. So i dont see how you can sell the debt back to the OC and then circumvent the Judgment of a competent court, the correct route for this company would be appeal out of time to reverse the order of the court yet it has not taken that route and instead harrasses the client threatening legal action it cannot take and demanding monies the sums of which are NOT oweing!!!! cut the cake any way you want, what is claimed IS NOT owed
  25. The basic indemnity principle means that the loser pays the winners costs. If the Court grants the injunction, then the Claimants costs should be borne by the Defendant as if the Defendant had not conducted themselves in such a manner the action would not have been needed in the first place.
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