Help Please Re: CCJ From Northampton CCBC - ***DISCONTINUED***

[Misterzeus]

Thanks citizenB

 

The thing is Mr Z hasn't sent off a CCA or S.A.R request only the Civil Procedures Rule (part 18), he was paying token payments originally, the CCJ came totally out of the blue.

 

I presume the next step will be the court date when it comes through, but if they are successful in getting Mr Z's Defence struck out, he'll have no further say in the matter?

 

Thanks again

 

Mrs Z

[AndyOrch]

Hi Mrs Z

 

I have to agree with CB this is purley a mindgame tactic.From the tone of your post looks like it had the desired effect!!!The change of Sols well they had to bring the big guns in far too complicated for the previous Sols.You really must not rely on the opposition their tactics are only in the interest of their Client and of course your Defence should be struck out goes to say really dosent it? How dare you Defend:confused:

We have issued Directions and the DJ will follow them through they will either have to produce or discontinue no matter how many mingames are proposed the fact will remain have they got a valid enforcable agreement and have they issued a valid DN/termination? No clever trickery responses can get around that im afraid.

Dont be disheartened Mrs Z onwards and upwords you are going to be in for a few more mindgames yet.

 

Regards

 

Andy;)

Edited November 18, 2008 by Andyorch

[Misterzeus]

Andy to the rescue again! Thanks Andy.

 

More mind games - sheesh I have other stuff going on as it is, why is it when it rains - it bl**dy well pours!!

 

Yes, unfortunately it has (or should I say had now) created the desired effect!! Not anymore thanks to you Andy

 

Thanks again

 

Regards

 

Mrs Z

[Misterzeus]

Good morning all, Mrs Z here

 

It seems that the District Judge that read the Claimants AQ asking for Mr Z’s Defence to be struck out - clearly disagreed with them!

 

Mr Z received a “General Form of Judgement or Order” this morning from our local Court.

 

The DJ has ordered that the Claimants provide all the points raised in the Directions that andyorch so kindly provided (thanks so much Andy ) by a date short of the end of December.

 

It goes on to state that if the Claimant fails to comply with this order, the claim shall be struck out forthwith.

 

If they do comply, Mr Z as the Defendant then has 14 days to submit an amended defence.

 

At the very bottom it states: This order has been made with the Court’s own motion. Any party affected by this order may apply to the Court within 7 days to ask for the order to be set aside, varied or stayed (pursuant to Part 3.3 (5) (a) of CPR).

 

May I ask, if the Claimant doesn’t comply and it gets struck out, can it ever be resurrected at any point in the future?

 

So, Andy you were right (as always) that they are trying to play mind games with Mr Z and me for that matter.

 

It’s now a question of wait and see what they come up with I guess!

 

Regards

 

Mrs Z

[citizenB]

This sounds very positive doesnt it ?.

 

Hopefully andy will be along soon to answer the most important question. If it is struck out..can it be resurrected ?

[Josie8]

Good morning all, Mrs Z here

 

It seems that the District Judge that read the Claimants AQ asking for Mr Z’s Defence to be struck out - clearly disagreed with them!

 

Mr Z received a “General Form of Judgement or Order” this morning from our local Court.

 

The DJ has ordered that the Claimants provide all the points raised in the Directions that andyorch so kindly provided (thanks so much Andy ) by a date short of the end of December.

 

It goes on to state that if the Claimant fails to comply with this order, the claim shall be struck out forthwith.

 

If they do comply, Mr Z as the Defendant then has 14 days to submit an amended defence.

 

At the very bottom it states: This order has been made with the Court’s own motion. Any party affected by this order may apply to the Court within 7 days to ask for the order to be set aside, varied or stayed (pursuant to Part 3.3 (5) (a) of CPR).

 

May I ask, if the Claimant doesn’t comply and it gets struck out, can it ever be resurrected at any point in the future?

 

So, Andy you were right (as always) that they are trying to play mind games with Mr Z and me for that matter.

 

It’s now a question of wait and see what they come up with I guess!

 

Regards

 

Mrs Z

 

 

Yes they can make application for the claim to be reinstated but they would have to show good reason why they hadn't complied. However in practice in 3 out of 5 case the court probably would at this stage pf proceedings allow the claim to be reinstated

[Misterzeus]

Thanks citizenB It certainly sounds more positive now, I mean, the DJ could so easily have struck out Mr Z's Defence as the "Claimant" requested!

 

Thanks Josie8 With regards my question of if the Claimant doesn’t comply and it gets struck out, can it ever be resurrected at any point in the future? I meant if they don't comply with the "current Order" issued by the DJ at our local court can they (the Claimant) come back in say 6 months or later if it's been "struck out" in our favour?

 

Thanks again

 

Regards

 

Mrs Z

[citizenB]

Hi Mrs Z,

 

I am sure andy or josie will confirm that if a DCA/CC wants to have a second stab at you, they will have to get the courts permission. Plus of course they would still have to provide the information, which at the moment, they dont appear to have.

[Misterzeus]

Thanks citizenB

 

I'm probably just panicking

 

Mrs Z

[citizenB]

Thanks citizenB

 

I'm probably just panicking

 

Mrs Z

 

Practise makes perfect 8) :lol:

[Josie8]

Good afternoon all, Mrs Z here.

 

Well, after Incasso receiving a copy of Mr Z’s AQ yesterday (I checked on RM website), he has had a reply from Cobbetts Solicitors today! They certainly didn’t waste any time in replying!

 

They enclosed a “Notice of change of Solicitor” for Mr Z’s records and a copy of the Claimants AQ.

 

Under “Other Information” they have stated:

 

We respectfully request that the Defendant’s Defence be struck out pursuant to CPR 3.4 (2) (a) on the grounds that the same discloses no reasonable grounds for defending the Claim and that the Defence be dismissed accordingly pursuant to CPR 24.2 (a) (ii) and (b) as the Defendant has no real prospect of defending the claim and there is no other compelling reason why the case should be disposed of at trial.

 

 

Under A Settlement

 

They’ve ticked “no” in all the boxes and given the reason:

 

Given the contents of Section 1 of this document, the Claimant does not feel it is appropriate to undertake negotiations at this stage.

 

I will be honest and say that Mr Z left out the extra information concerning excess charges that Andy kindly provided as he realised that the charges weren’t as bad as he had first thought.

 

Locking the stable door after the horse has bolted springs to mind now! But alas, it’s too late for that!

 

I am of the impression that they are confident that the CCA is enforceable or the fact that they actually do hold a fully executed “agreement” and not the application forms sent to Mr Z both times?

 

Any help very much appreciated, thanks

 

A very depressed Mrs Z

 

 

standard procedure by RBS to swap Incasso for Cobbetts..............& to try for summary judgment...........can I ask if they served a valid default notice? I only ask because usually RBS default notices are invalid

[Josie8]

standard procedure by RBS to swap Incasso for Cobbetts..............& to try for summary judgment...........can I ask if they served a valid default notice? I only ask because usually RBS default notices are invalid

 

Sorry its Co Op isn't it & I've just checked the thread. The default notice is deffective. If they make a formal application for summary judgment let me know and I'll let you have the appropriate defence that up to now has led to them discontinuing cases

[Misterzeus]

CitizenB -

 

Thank you very much for your help and guidance Josie8

 

Cobbetts were clearly trying to gain judgement without it going to trial and our local Court DJ has put a stop to that by issuing Cobbetts with a compliance Order.

 

Forgive me for seeming thick but I read it that if they (Cobbetts) don't comply with said Order by said date, the DJ will strike it out anyway?

 

The case went in to Stay in August and Cobbetts took over after Incasso had the Stay lifted in late October from Northampton CC.

 

Thanks again, much appreciated

 

Mrs Z

[Misterzeus]

Good afternoon all, Mrs Z here

 

Mr Z has received a bundle from Cobbetts by special delivery. Here’s what it contains:

 

A witness statement by a team manager

An alleged CCA (same as sent before that Andy says is unenforceable)

Statements

A couple of pages of transcripts re phone calls and post

No copy of the Default Notice

 

A letter (link below) with just Dear (no name and no amount)

 

http://i305.photobucket.com/albums/nn216/Misterzeus/Co-opdone.jpg

 

 

Following is a scanned copy of the Default Notice received in Feb (I copy typed it earlier on in the thread because I hadn’t learnt how to scan!!). Also, I wrongly stated that Mr Z had acknowledged the DN! It was the “Warning - Notice of Default Is Imminent” letter that Mr Z actually acknowledged in writing.

 

http://i305.photobucket.com/albums/nn216/Misterzeus/co-opDNdone.jpg

 

The DJ stated that Cobbetts must comply with:

 

 

• Compliant copies of the Credit Agreement and any documents referred to within it which comply with the Consumer Credit Act 1974 and all subsequent regulations, which the Claimant seeks to rely upon
  

 

 

• Default notice compliant with Section 87 (1) of the Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended
  

 

 

• Document, contract or deed of assignment (if applicable)
  

 

 

• Notice of assignment, with proof of service
  

 

 

• Copies of any statement or other document relied upon
  

 

The DJ goes on to state that the Defendant has 14 days after service of documents in accordance with paragraph 1 (this gives the date the Claimant had to supply all the above).

 

Now, I’m presuming that Mr Z has 14 days from the actual compliance date given by the DJ (almost the end of December) to file an amended defence?

 

Any opinions /advice would really be appreciated, thank you

 

Regards

 

Mrs Z

[banker_rhymes_with]

Hello Mr & Mrs Z!

 

The Default Notice is invalid, and they have Terminated the alleged Agreement.

 

That should limit them to only being able to Claim what was due for Payment prior to the Termination, i.e. any Lawful Arrears/Missed Payments.

 

The Default Notice is dated 06/02/2008, and they say you needed to remedy the default by 20/02/2008.

 

Unfortunately, for them, that does not allow you 14 Clear Days. They have not allowed for Postage.

 

Assuming they sent the Default Notice on the Wednesday 6th Feb 2008 via 1st Class Post, then the Legal Date of Service would be two Working Days thereafter, i.e. Friday 8th February 2008.

 

14 Clear Days from the 8th makes a Deadline of 22/02/2008.

 

They have given you until 20/02/2008 making just 12 Clear Days, so they have failed to give you the Statutory 14 Clear days, making the Default Notice invalid.

 

The Default Notice also looks pooched on the prescribed wording, as they have failed to emphasise the words that should be underlined, i.e.:

 

THEY HAVE DONE IT LIKE THIS

 

WHEN IT SHOULD BE LIKE THIS

 

OR IT SHOULD BE LIKE THIS

 

 

OR IT SHOULD BE LIKE THIS

 

The point being that the words underlined must be given greater emphasis than the words either side.

 

If they have also got the Arrears sum incorrect as well, then the Default Notice is pooched on all main issues, any one of which should render it invalid.

 

If they then went on to Terminate the alleged Agreement on the back of this, i.e. an Unlawful Termination, or Unlawful Rescission of Contract...potentially allowing Mr Z to Claim against them for Compensation, see:

 

...the 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 an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

They cannot issue a new Default Notice, because the alleged Account is no longer live...and so cannot have a new Default Notice issued upon it.

 

That then denies them any entitlement to enjoy the benefits of s87, meaning they cannot ask for early repayment of sums not actually due before Termination.

 

That would mean they can forget asking for the main balance, all they can ask for would be the lawful/valid Arrears...and to claim them, they would still need a valid Agreement.

 

I hope this helps.

 

Cheers,

BRW

[Misterzeus]

Wow BRW!! Thank you so much for such a thorough reply!!

 

So, can Mr Z file an amended defence stating the non compliance of a properly executed CCA and an invalid DN (no copy in this latest "bundle") and do you think that there's a chance that the DJ would uphold this?

 

Also, the date given for the Claimant's compliance with the DJ's order - 29th December, does Mr Z have from that date to file an amended defence or is it 14 days from today (on receipt of the bundle from Cobbetts)?

 

Thank you very much again, Merry Christmas and a Happy New Year from both of us.

 

Kind Regards

 

Mrs Z

[banker_rhymes_with]

Hello Mr & Mrs Z!

 

So, can Mr Z file an amended defence stating the non compliance of a properly executed CCA and an invalid DN (no copy in this latest "bundle") and do you think that there's a chance that the DJ would uphold this?

 

Also, the date given for the Claimant's compliance with the DJ's order - 29th December, does Mr Z have from that date to file an amended defence or is it 14 days from today (on receipt of the bundle from Cobbetts)?

 

I regret that I can't advise safely on some of the Court issues, as I have not got that far, yet, from own experience.

 

Those questions would best be answered by the CAG members with more experience in those areas, Andyorch, PT2537, Surfaceagentx20 etc...and many others who I apologise for not mentioning.

 

Thank you very much again, Merry Christmas and a Happy New Year from both of us.

 

But the invalid Default Notice is not something that can be ignored.

 

Search out the Posts made by Surfaceagentx20 on this, as they have summarised the issues far better than me.

 

And a very Merry Christmas and a healthy, happy and prosperous New Year to you both.

 

Cheers,

BRW

[Misterzeus]

Thank you once again BRW, very kind of you.

 

As you have recommended, I will search through the posts of Surfaceagentx20 and seek what we have to do next.

 

By the way, after re-reading the the witness statement the letter posted in the link above is supposed to be a template Default Notice. That's a joke because it's nothing like the one we received! He says that as the letter is automated , the bank is unable to retrieve a true copy of the letter sent to the defendant!

 

Kind Regards

 

Mrs Z

[Misterzeus]

Good morning all, Mrs Z here

 

Mr Z has asked me to post a question or two!

 

As presumably the "bundle" we received yesterday was also sent to the Court, and they have not complied with the DJ's order, will Mr Z's amended defence not be the same as before, but also adding on about the Default Notice?

 

On the other hand, Mr Z is of the mindset that the DJ should throw out the Claimant's case as they've not complied - meaning there should be no need for him to submit an amended defence.

 

Personally, I believe that Mr Z will still have to submit an amended defence, which leads me to the question of the time scale, but he wanted me to ask you kind peeps!

 

The DJ gave the Claimants until the 29th December to comply, so am I right in thinking that Mr Z will have 14 days from the 29th December to submit the amended defence?

 

We would really appreciate some advice here, thank you.

 

Kind Regards

 

Mrs Z

[Misterzeus]

Please can anyone advise?

 

Mrs Z

[citizenB]

If the DJ gave until the 29th to comply, then yes, the amended defence would be 14 days after that.

 

Although having said that, if they comply before hand does that mean the clock starts ticking from the date you received the bundle ???

 

Hmmm, I wonder if it would be worth asking surfaceagentx20, andyorch, pt2457 for guidance on that.

 

Hope all is well in the Zeus household.

[Misterzeus]

Thanks citizenB

 

That's what we're wondering!

 

Hopefully someone in the know will be able to advise us!

 

We're fine thanks, hope you are too.

 

Merry Christmas and a Happy New Year to you

 

Mrs Z

[Misterzeus]

Good afternoon all, Mrs Z here

 

Sorry to be a pain but can anyone please advise?

 

If Mr Z does have to get an amended defence in and the clock started ticking on the 18th (signed for special delivery) then we need to start preparing

 

Thank you in anticipation

 

Mrs Z

[citizenB]

just giving you a gentle nudge. Have you tried pming andy.. I think he was helping with your original defence wasnt he ?

[Misterzeus]

Thanks citizenB!

 

I can't PM Andy as he can't/won't accept PM's!!

 

Thanks for the nudge though, really appreciate it.

 

I will check the Courts website to see when they (local Court) close for Christmas and get Mr Z to ring and ask. I Just hope they've not closed already:eek:

 

Thanks again

 

Mrs Z