zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[zhanzhibar]

Thanks for that Steven

 

I was just going through everything i've done in this case & realised something. This is an extract from my defense i sent to them on 24th June;

 

The Need for a Default notice

29. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

30. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

31. Notwithstanding point 28, the Defendant put the Claimant to strict proof that any default notice sent to me was valid. The Defendant note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

32. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid default notice, the Defendant suggest the Claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

33. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

I haven't received any copy of default notice from Brachers, so can i use this in my amended defense?

Edited November 2, 2008 by zhanzhibar
missing word

[steven4064]

yes. 'Despite repeated requests, B... have not suuplied a copy of any Default Notice served as required by s87 of the CCA 1974 nor proof that such notice was sent' or something of the sort Possible repeat bits from paras 29-33 of your defence, or at least refer to them.

 

You could ask the court to strike out the claimants case on this basis and on the basis of CPR 3.4 (2)(a) and (b):

 

3.4 (2) The court may strike outa statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings"

 

 

 

(a) - because without a DN they have no reasonable grounds and therefore no chance of success,

(b) because to bring a case in violation of sucah a basic and well-known principle must amount to abuse of process

[creditcardmug]

The DN doesn't give you 14 days to remedy therefore invalid

 

Put them to strict proof they sent it including proof of postage.

[steven4064]

Well spotted CCM

[tiokim]

bump

[bazaar]

Hi Zhan

CCM has correctly pointed out that their default is incorrect due to time allowed.

Your question of IP address etc. can probably wait until you really need to use that card ( No pun intended;))

In USA if you apply on-line they send out an acceptance for you to sign, not sure if this is the case in the UK, but I would think so. But my point earlier is that you sign a credit card with your signature, NOT your IP address, (If you would ever know), IP addresses change constantly, unless you have a dedicated server blah blah, (you get the point?) They will have to prove it was you sat at the comp at that time. Sorry if I seem to be going on a tangent here, but I sometimes get angry with all the shenanigans.

good luck

[steven4064]

It's different in the UK, bazaar. Under the 2004 legislation, they do not need to send ouyt a form to sign - a computerised record with IP address is enough to form a legally binding agreement (notwithstanding what you righthly say about IP adresses)

[bazaar]

Hi Steven, well it was worth a try. But their IP argument is still flawed, because you'd have to log on same as you would this site or even indeed the MCOL for them to prove it was indeed the person they state. I'm just trying to think aloud here, it may be a card for later on

[steven4064]

If you change ISPs you get a new IP address too

[zhanzhibar]

Hi Zhan

CCM has correctly pointed out that their default is incorrect due to time allowed.

Your question of IP address etc. can probably wait until you really need to use that card ( No pun intended;))

In USA if you apply on-line they send out an acceptance for you to sign, not sure if this is the case in the UK, but I would think so. But my point earlier is that you sign a credit card with your signature, NOT your IP address, (If you would ever know), IP addresses change constantly, unless you have a dedicated server blah blah, (you get the point?) They will have to prove it was you sat at the comp at that time. Sorry if I seem to be going on a tangent here, but I sometimes get angry with all the shenanigans.

good luck

 

Hi Steven, well it was worth a try. But their IP argument is still flawed, because you'd have to log on same as you would this site or even indeed the MCOL for them to prove it was indeed the person they state. I'm just trying to think aloud here, it may be a card for later on

 

If you change ISPs you get a new IP address too

 

Well that's what i thought which led to my query post#67 on this thread. Thanks for confirming that issue .

 

I am still not sure what i should do now actually. Haven't heard from the court yet. In 2 mind whether should just submit an amended defense or wait for an order gfrom the court. What do you all suggest i do pls?

 

Thanks

Z

[creditcardmug]

Anyone can change their IP address simply by rebooting their router.

[zhanzhibar]

Anyone can change their IP address simply by rebooting their router.

really? Now that one I didn't know. So how do i find out what is my IP address?

[creditcardmug]

Type "my ip" into the address bar or google

[steven4064]

Anyone can change their IP address simply by rebooting their router.

That doesn't work. The DHCP server will normally allocate the same IP address to the same MAC address (although it doesn't have to). The only way to be sure to change your IP address is to change your router or your ISP (on some routers you can change the MAC address but you should only do that if you know what you are doing)

[zhanzhibar]

CCM,

Just did what u suggest. Guess what? My IP is nothing like what they state in the POC. Interesting....

[steven4064]

I think ISPs may keep records though. I don't knnow how long for.

 

Try putting the IP address they have in What Is My IP Address? - Lookup IP Address Location (Trace IP/Track IP) and see who owns it

[zhanzhibar]

Steven, just did what you suggest. Not sure what you mean by who owns it but what it did show:

 

General Information

Hostname:

ISP:

Organisation:

Proxy:None detected

Type:Cable/DSL

 

Geo-Locatioon Information

Country: UK

State/Region:C7

City:

Latitude:

Longitude:

Area code:

 

So just wondering, how to know who owns it?

 

Also, sorry to keep asking this but what do you all suggest I do now? Wait for an order from the court or just prepare an amended defense & submit to court?

[steven4064]

If I put my IP address in I get:

 

General Information

 

 

Hostname: XX-XX-XX-XX.cable.ubr03.wiga.blueyonder.co.uk

ISP: Telewest Broadband

Organization: Telewest Broadband

Proxy: None detected

Type: Cable/DSL

 

 

Geo-locataion information

 

 

Country: United Kingdom

State/region: H2

City: Golborne

Latitude: 53.4667

Longitude: -2.6

Area Code:

 

 

(XX-XX-XX-XX is my IP address)

[zhanzhibar]

aaah...okay, thanks. When i compare,both ip addresses (the one from brachers & the one from the website), they are not quite the same.

 

Whilst you are online or anybody pls, what do you all suggest I do? Should i send an amended defense to court or wait for an order fr court?

[steven4064]

I need to reread your thread - I'll try and look in the morning

[zhanzhibar]

thanks:)

[steven4064]

Just to make sure I have understood everything - post #65 gives details of correspondence.

 

AIC have started proceedings and you sent in a pt2537 defence.

 

AIC or someone has provided you with a valid DN but not an executable agreement (you mention screen dump - is this of an application form after 2004?)

 

You are querying the amount because they have added over £1k in fees

 

Are you claiming unlawful charges (late payment fees, etc)?

 

You ask about an amended defence - is that just because of the DN they sent or are there other changes?

[zhanzhibar]

Hi Steven,

 

I am thinking of preparing an amended defense because they never supply me with any copy of default notice. The default notice you see in post 65 is the one i received last year back in March 2007.

 

Another reason on why I am thinking of amending my defense is the excessive referral fee although have to admit I am still doing some research on this one under Unfair Contract Terms Act 1977 (if anybody out there know more about this than I do & think i have ground on this basis...please let me know as I am in need of some assistance )

 

Zhan

[zhanzhibar]

A quick question for you all out there,

 

When i send the CCA request back in june 2007 & they failed to comply & therefore section 78(6) of the CCA 1974 apply to them i.e. they are not entittled while the default continues to enforce the agreement & if it is more than one month they commit an offence.

 

Does this mean that while they are in default they cannot slap on interest on the balance from June 2007 onwards as that is when I asked for the CCA?

 

Thanks in advance for looking in

[steven4064]

Hi Z

 

Unless it's a bsiness account, the UCTA1977 is not the right act - you need the UNfair Trerms in Consumer Contracts Regulations 1999 plus the OFT Debt Collection Guidelines (which I quoted earlier, I think).

 

If they haven't complied with your CCA request then they must not enforce the agreement and that includes adding interest. (The offence bit has been repealed). However, the 1983 regulations spell out what they need to do to comply. As a minimum, they must send a copy of an apppication form (which does not have to be signed) and current T&Cs. If they have sent that, then they have complied with your CCA request. Having said that, that particular combination of documents would not be enforceable.

 

Can you tell me about the screen dump I asked you about in post #97, please.