Can anyone tell me the possible implications of this?

[AndyOrch]

The DN was dated the 10th ???? 200?, do you remember what date you actually received it? The reason I ask is that they are supposed to give you 14 clear days to remedy any breach otherwise it is invalid. I have seen comical situations where the date on the DN and the date for compliance give the requisite 14 days, but don't allow for postage, so in effect it is dated and would have to be received on the very same day, priceless! Companies employ people that can't count! Am I right in believing the DN was sent by normal post not r/d or g/d?

 

 

 

POC Particulars of Claim

 

Andy

[blind-as-a-bat]

The DN was dated the 10th ???? 200?, do you remember what date you actually received it? The reason I ask is that they are supposed to give you 14 clear days to remedy any breach otherwise it is invalid. I have seen comical situations where the date on the DN and the date for compliance give the requisite 14 days, but don't allow for postage, so in effect it is dated and would have to be received on the very same day, priceless! Companies employ people that can't count! Am I right in believing the DN was sent by normal post not r/d or g/d?

 

 

 

POC Pareticulars of Claim

 

Andy

 

You are correct normal post, but no im afraid i wasnt recording dates recieved untill i noticed delays as you describe recently, but i must admit it wouldnt surprise me I did notice ther is a 3-5 day lag on just about all corispondence, but as i said never thought to keep a record of that till recently.

 

 

give me a min to sort the POC

[AndyOrch]

Ok Blind I think there is enough rope so to speak, proceed as advised and and update your thread when anything transpires. Dont forget to type up the particulars when you get chance.

I would also advise you contact a Site helper and request this thread moved to legal section(just hit the red triangle to the left)

 

 

Speak soon

 

Regards

 

Andy;)

[blind-as-a-bat]

Ok this is an OCR of that section i blieve ive corrected any miss read bits The doublt "the" at the end of the second paragraph is correct, doubt it means anything but i found it funny lol

Particulars of Claim

1 the claimant's claim is for the sum of xxx.xx being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and GE Capital Bank Limited under reference xxxxxxxxxxxxxxxx and assigned to the Claimant on the 6th August. 2008 notice of which has been given to the Defendant.

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon Defendant pursuant to Section 87( 1) of the the Consumer Credit Act 1974.

Pursuant to clause 7 of the agreement, the Claimant also claims contractual interest al a rate of 26.478% per annum from the date of these proceedings to the date of judgment, or sooner payment, accruing at a daily rate of 0.39.

 

Just to re cap CCA and CPR 18 to be sent too CL seperatly today is that all i need to do for now

 

And i will request the thread is moved thanks

[AndyOrch]

Yes Blind thats all ,You. may wish to phone court up (tiny number top right of summons) just to clarify your dates ie AoS and Defence submissions we dont want another fiasco like last nights episode.

 

Regards

 

Andy

 

 

Ps dont sign the above either of them (dont wish to teach you how to suck eggs sorry)

[blind-as-a-bat]

Ok will get that done today and no i will do my best not to leave it to the last min lol, will depend on the responce from the above to how much time we do get left with though.

 

Thanks for all your help, it wont let me tip your scales anymore but its very much apprieciated:)

 

I have a few thought running round my head, if i can sort them into anything sensible re timescales etc later i will post them but will get those letters sorted for now

 

Will update as soon as

[saintly_1]

Thread moved to the legal issues forum

[blind-as-a-bat]

Thanks saintly_1:)

[blind-as-a-bat]

Just been re capping my old threads and i found that the letter dated the 21st of june didnt arrive until the 26th according to a post i made, updated the timeline with a note of it and adding it here for referance, not sure it will be of use as i have no proof as such but it does show its feasable they did the same with the DN, wish i had made a note of that now

[AndyOrch]

Hi Blind

They probally dont have any proof either if it was not posted R/d or S/d do you see what I mean?

 

 

 

Andy;)

[blind-as-a-bat]

Are you saying they are obliged too send it recorded? One thing that did strike me, more so now with the court thing, is all these time limeted comunications that are sent but no proof they where recieved at all never mind when, yet we are expected to provide proof in our defence at court, does that work both ways then?

[AndyOrch]

Hi

 

Well such an important doc in cases like these you would expect so and is even refered to in the regs re secure delivery, however in reality this invairably ever happens.

With regards to your summons dont believe evrything your opponents (oops Claimant ) states its in your interests to be one in front all the time hence the things I have advised you to put in place.Prepare to set the case.Regarding the P.O.C, it does not mean you have to admit the debt by challenging them.Defences are drafted to refute the Claimants P.O.C nothing more nothing less not to argue or present your autobiography simply to refute and halt/question their claim. I will try to illustrate by advising what I write when drafting defences. First, I always write(or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has!

Can I recommend not admitting any liability for the debt, partial or otherwise. If the credit agreement has not been provided or partially furnished by GE M as the result of a CPR 18/CCA request , then you have no way of ascertaining if the contract is legally valid under the CCA 1974. In the absence of this information, you are unwisely, in my opinion, admitting liability for a debt, that hasn't been proven to exist or one that conforms to the requirements of the CCA 1974.

 

You might be thinking that of course a debt exists! However, for the purposes of the law, the existence of the debt is determined by a credit agreement being furnished by your creditors and one that is deemed to be properly executed, which means its layout and content conforms to what the CCA 1974 prescribes..

 

I trust the above is of help

 

 

Regards

 

Andy:cool:

[blind-as-a-bat]

we are on the same wavelength and yes the above is very helpfull, you may have noticed writing is not a strong point of mine:rolleyes: so that does help a lot:)

 

I am finding it hard just what pieces to use to form a defence, but as i havnt got enough info yet thats too be expected i suppose and then its a matter of applying that info to our best advantage

 

I was looking through that post you where dealing with last night and will read through a few more while waiting for the responses i need so hopefully i will have got the nack of it when the time comes

[AndyOrch]

Excellent gleen as much as you can from these forums and you will be well prepared.BTW if nothing is produced before defence submission we enter what is called an Holding Defence so dont worry about non disclosure

 

Here is another Thread you find of interest same Claimant same Sol

 

Fish Out Of Water needs Help - CL FINANCE/COHEN Claim Form

 

Have fun and dont let this consume your time( well not too much)

 

 

Regards

 

Andy;)

[blind-as-a-bat]

Letters sent, and thanks for the link its a good starting place.

 

I will also take your other advice too and have the rest of the night away from this as my heads full anyway lol,

 

Need to clear it before reading up on defences as it wont sink in otherwise

 

Thanks again and im sure i will have some questions once i start getting into reading up on this deffence bit.

[blind-as-a-bat]

So much for swatting up on my defence for this, now the TSB has re-apeared

http://www.consumeractiongroup.co.uk/forum/legal-issues/156033-blind-clark-mitchell-lloyds.html#post1663492

 

Just threats from there solicitors so not that major but could have done without it right now

 

Oh well

 

Anyway back to this threads subject, all letters logged as recieved on the RM website so we will see what happens now.

[blind-as-a-bat]

More a note to self really , but after finaly getting to read a few threads, one in perticular that is very close to mine,

the following seems to apply

 

Please tell me if im barking up the wrong tree though

 

The DN although allowing 14 days did not allow for postage (let alone there delayed version of postage) so may not be valid.

 

Question- is DN valid if nothing better than the part agreemant they have produced?

 

Question- even though GE issued a default, should CL have done so also?

 

There is a question over the validaty of the assignmant, wont claim to understand why yet but need to look into that a bit closer as it looks as if it may be very important to the defence if same applies here

[AndyOrch]

More a note to self really , but after finaly getting to read a few threads, one in perticular that is very close to mine,

the following seems to apply

 

Please tell me if im barking up the wrong tree though

 

The DN although allowing 14 days did not allow for postage (let alone there delayed version of postage) so may not be valid.Important to retain the envelope and date stamp otherwise difficuilt to prove that said the regs say it should be secure delivery considering it importance

 

Question- is DN valid if nothing better than the part agreemant they have produced? Only if the agrrement is valid with all its prescribes

 

Question- even though GE issued a default, should CL have done so also?

Not unless the original breach had been rectified which in most case is rare hence the need to assign to another DCA

 

There is a question over the validaty of the assignmant, wont claim to understand why yet but need to look into that a bit closer as it looks as if it may be very important to the defence if same applies here

There are numerous reasons that may render said NoA flawed

 

 

Keep swatting Blind you are doing well ask me another:D

 

 

 

Regards

 

Andy:cool:

[blind-as-a-bat]

The reason i ask "Question- is DN valid if nothing better than the part agreemant they have produced"

 

is the fact that in all they have sent me nowhere does it state under what situation a default would be issued and indeed the POC refers to clause 7 that doesnt seem to be there either only confirms and strengthans my case that there reply to my CCA was incomplete

 

I think i got confirmation that this fails the prescribed terms under section 61 but the bit i dont get is that knowing the terms if they existed where probebly printed on the reverse of the agreemant firstly does that not make the agreemant flawed as it is unclear at the time of signing that they where there as it does not state that there are other conditions elswhere in the front if indeed that is the complete front.

 

And even if that is a non starter how can GE,CL or anyone else prove that the terms where there if they cant produce the origanel document as just produceing a sheet of terms and conditions seperatly proves nothing in my mind as i could easily make an agreemant so to speak saying the MD of CL owes me money that would be the same as what they have sent, if i get a sample of his signature, after all DCA,s arnt the only people that can use photo shop

 

So what i dont get is do they HAVE to produce the origanel in court, and if they dont is it game over? or is it not that simple? I just cant see how what they have sent so far, a dodgy photo copy or scan that looks as if it was at some point faxed (or run through a very naff scanner at best) due to the steps in the straight lines plus a seperate sheet of T&C,s can be clased as proof in court as they would be so easy to forge by anyone

[AndyOrch]

Hi

 

Ok you are getting the idea now, down to the nitty gritty.You will find 1000s of threads here on Cag discussing same issues.Numerious reasons to why and if and how ,which Iwouldnt have time to go into here.

Yes they must produce the original if to be enforced in a Count C claim not a microfish/ photostat etc and thats one of the other main contentions is there a reverse side/When these companies transfered the info to their systems a lot didnt realise that the CCA1974 made stipulations that the the T&C must be within the signed document sheet.

Failing that clearly linked that the T&C must be refered to or linked ie lettered or numbered if in fact there was a reverse or second sheet.This is why most send out the application form with seperate T&C and usually todays not at the time of application.You will read terms on here of " the 4 corners " this embodies the above.

With regards to the default being issue this will no doubt be encompassed somwhere within their T&Cs some issue defaults immediatly after 1 missed payment some will let it ride a little.Issueing defaults like confetti is a risky buisness as we then get into the Data Protection Act rules defamation etc etc...

 

I trust the above is of help

 

Regards

 

Andy;)

[AndyOrch]

Moving on from that When you consider the potential liability of the creditor/DCA for harassment, breaches of the Data Protection Act, defamation, unlawful registering of a Default Notice and that all this is made 10 times worse for them if the agreement is invalid, I don't see where risk comes into it. I do see a risk however, in relentlessly chasing the creditor/DCA having built no case against them, which significantly reduces any claim for damages you might have against them. At the very worst, if the agreement is valid, you'll only have a claim for harassment. But depending on the level of harassment this may significantly reduce or even rid you of the debt. These are matters which will vary from case to case, so it's impossible to give precise predictions as to the outcome. However, I would contend that the more issues you have to raise in respect of their conduct, the greater the opportunity for getting rid of the debt. If their behaviour cancels out your debt-great! If it reduces it, that's great also. In the end it is better that the matter goes to Court, for finality. If you are in some sort of reduced payment arrangement with the creditor/DCA, your credit rating will effectively be shot to pieces forever and a day! At least if the worst did happen and you got a CCJ, you know it will be over in 6yrs! That's why I say you really do have to consider the bigger picture and whether or not you actions are really doing you any favours. Court will bring matters to a conclusion, which really is the best thing. Who wants to live in constant fear of what the creditor might do next? By being proactive, in the sense of building your case, and preparing yourself and your case for Court, you have nothing to fear! Court action is threatened to get debtors to do what the creditor/DCA wants, it is a very effective leverage tool. My view however is that a change of attitude is required, away from feeling powerless, beholden and cowed by the prospect of Court. Fighting back isn't daunting, acceding to the demands of creditors and DCA's, now that's scary!

 

 

 

Andy;)

[blind-as-a-bat]

Creditors used to worry me, which was one of the reasons behind my descisions to just go Bankrupt, it was the easiest way to get them of my back, and in my situation the implications of being a bankrupt held no meaning. And in a strange twist it also helped me get some of my self confidence back.

 

After which i have spent a lot of time advising and supporting others through it on moneysavingexpert and in the course of doing so it opened my eyes to the working of the credit and debt collection industry which has changed my whole view on the situation hence the change of tact when things went south again regarding my OH,s situation.

 

Having nothing to lose as you have all options open too you does help bring the problem down to size, and knowing the creditors will never win helps a great deal.

 

I was fare with them to start with, explained the situation and asked for understanding, and i was egnored so they have only themselves to blame, if they had been reasonable there was a chance we could have reached an agreemant and in time they may have got there money back now that is looking less likely due to there responce, the twist is beating them on the CCA front is now the last chance they may have to get anything, but on my terms, but even that feeling of being fare is fading fast after the way GE have acted in this.

 

Any way i digress, those responces have made at least one area a lot clearer We shall have to see what they come up with, but on reading the other threads it wont be much if anything, so it seems a case of going through the motions and hope the judge on the day, if it gets that far, is not a fan of DCA companies. although my defence is getting stronger i feel unless they pull any big surprises

[AndyOrch]

There is something I forgot to mention earlier....Given the ever rising levels of personal debt in this country and also the recent credit crunch, creditors are prepared to issue Court claims much sooner than previously they would. They are also willing to issue claims where previously they wouldn't have considered it.

 

So anyone who has entered into some sort of pmt arrangement with an OC/DCA, shouldn't for a moment complacently believe that a Court claim won't be issued against them. The only loyalty an OC/DCA possesses is to the bottom line, which is profit and recouping debts one way or another! If making money/reducing losses gets harder and they have to do business in a more difficult financial climate, the first people they will go after are debtors, make no mistake. Anyone who isn't fulfilling their contractual obligation to pay, isn't protected from legal action by a pmt arrangement. Such agreements are not legally binding on the creditor and they can drop such an arrangement like a bad habit, if they are so inclined. This is happening more often and will continue to get worse, which is why it is absolutely imperative that everyone in this position starts collating evidence to use against an OC/DCA. The earlier this is commenced the better and for goodness sake don't delude yourself into thinking that it won't happen to you! There's a very good chance it will, so the better prepared you are, the greater chance you have of winning your case!

 

Regards

 

Andy

[blind-as-a-bat]

ok ive managed to get a piecefull half hour to really look at things so lets pull the DN apart to start with. the date of writing was the 10th, wich just happens to be a sunday so it could not have been posted untill the 11th wich means reciept at best would have been 12th or 13th.

 

Given till 24th to correct the alledged breach before the D would be enforced, so that only gave me 11- 12 days, but realisticaly i bet it was more like 8-10 as all there corispondnces seem to take 3-5 days for delivery.

 

so even sticking to what i can prove unless someone put it through our letter box on sunday it flawed as at best it allowed 12 days not 14

 

anyone see anything wrong in my logic on that one if not that is a part of my defence sorted.

[The GodMother]

I dont see any problem with it. especially as you say the date was a sunday. I clearly doubt anyone would have put it threw ur door on a sunday. Do u have proof of the date the item was recieved?