HFC Loan Court Claim-Advise needed

[pt2537]

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[caro]

:)Thanks

[SupermanX]

Hi

 

Tks for the replies.

 

I will begin negociations by writing shortly, in the meantime how can i find out if the the default notice is defective

 

Super

[supasnooper]

Superman - have look at this thread post #5

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/164325-date-issue-re-default.html#post1778617

 

 

42man has posted the details of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Hope this helps.

[car2403]

The Default Notice would be defective if it contains penalty charges that are recoverable, in that the amount required to remedy the default will include those charges.

[supasnooper]

Also worth reading this excellent post by x20 who details defective Default Notices.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1739007.html

[Von Greenbach]

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1739007.html

Somewhere the comments within that post applies to me but I wish I could get my head round it.

[car2403]

Also worth reading this excellent post by x20 who details defective Default Notices.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1739007.html

 

If a Judge decides that the DN gave 14 days, this OP's defence will be up the swany as he's admitting he entered in to the agreement. Hinging a defence on a faulty DN on this basis is dangerous, IMHO, as if the agreement turns up and is enforceable, plus the Judges decision on the date of service goes against the OP, the defence will fail.

 

For reference, in Contract Law, anything posted 1st class is deemed as served on the same day - no allowance is made for non-delivery.

[atwozee]

If a Judge decides that the DN gave 14 days, this OP's defence will be up the swany as he's admitting he entered in to the agreement. Hinging a defence on a faulty DN on this basis is dangerous, IMHO, as if the agreement turns up and is enforceable, plus the Judges decision on the date of service goes against the OP, the defence will fail.

 

For reference, in Contract Law, anything posted 1st class is deemed as served on the same day - no allowance is made for non-delivery.

 

Does a default notice come under contract law?

 

I would have thought that the wording in the regulations gives an indication that a time consideration has been given for service – because the regs specifically refer to fourteen days after date of service – if there was not meant to be an allowance for ‘postal service’ then the wording would be different wouldn’t it?

 

The defence does not admit to the agreement being enforceable btw.

[pt2537]

 

For reference, in Contract Law, anything posted 1st class is deemed as served on the same day - no allowance is made for non-delivery.

Erm where does this assertion come from?

 

Both Chitty on contract, Cheshire & fi foot contract law both set out that in relation to withdrawal from an offer prior to acceptance, the withdrawal is not complete until the communication is Received NOT sent

 

can you please direct me to the authority that this is based upon?

[car2403]

Does a default notice come under contract law?

 

Technically, yes, as all CCA's are based on contracts, albeit that the Consumer Credit Act gives additional protection such as the need for a Default Notice under s.87/s.99.

 

I would have thought that the wording in the regulations gives an indication that a time consideration has been given for service – because the regs specifically refer to fourteen days after date of service – if there was not meant to be an allowance for ‘postal service’ then the wording would be different wouldn’t it?

 

I think the same, but I'm not aware of any caselaw to use as precedent. Opinions can be ignored without a binding precedent.

 

The defence does not admit to the agreement being enforceable btw.

 

If the defence admits the entering of the agreement, a Judge will take that as a face value admission - CPR Part 16.5 will be considered and, because the Defence doesn't put the Claimant to proof of having an enforceable agreement, the Judge would be right to think that that is admitted and not look at that part of the argument. What would be more effective, would have been to use the standard holding defence that knocks around this site, with an "in the alternative" statement regarding the faulty DN notice.

 

Erm where does this assertion come from?

 

Both Chitty on contract, Cheshire & fi foot contract law both set out that in relation to withdrawal from an offer prior to acceptance, the withdrawal is not complete until the communication is Received NOT sent

 

can you please direct me to the authority that this is based upon?

 

You're right in thinking I'm in that area, Paul, but it's surrounding Postal acceptance of an offer and the authority is Quenerduaine v Cole (1883) 32 WR 185 & Holwell Securities Ltd v Hughes (1974) 1 WLR 155.

 

Also, there is a presumption, when the postal rule applies, that any withdrawal of acceptance is impossible once the acceptance has been posted (A to Z Bazaars (Pty) Ltd v Minister of Agriculture (1974) 4 SA 392).

 

I am using this as one example of how one area of Law can be used as persuasive precedent in that this is how a postal date of service may be construed.

[pt2537]

but what about the interpretation act 1978? that has something to say on service by post;)

[blind-as-a-bat]

Do you meen this PT?

 

 

7. Where an Act authorises or requires any document to be

 

served by post (whether the expression "serve" or the expression

 

"give" or "send" or any other expression is used) then, unless the

 

contrary intention appears, the service is deemed to be effected

 

by properly addressing, pre-paying and posting a letter containing

 

the document and, unless the contrary is proved, to have been

 

effected at the time at which the letter would be delivered in the

ordinary course of post.

 

 

 

If so does s189 of the CCA act defining it differantly as

“ serve on “ means deliver or send by post to;

 

 

mean that a,

 

contrary intention appears,

 

 

 

 

 

Im getting totally confused on this "date of service" of a default bit, and i now have TS saying its the date of posting, not delivery, as well

 

is true, making that agument that the date of posting is the day of service??

[car2403]

but what about the interpretation act 1978? that has something to say on service by post;)

 

Do you meen this PT?

 

If so does s189 of the CCA act defining it differantly as

 

mean that a,

is true, making that agument that the date of posting is the day of service??

 

Im getting totally confused on this "date of service" of a default bit, and i now have TS saying its the date of posting, not delivery, as well

 

[/left]

 

The issue is that there are different ways to view the issue, depending on how your own personal mindset works, so this would be for a Judge to decide...

 

More Judge Lottery...

[blind-as-a-bat]

The issue is that there are different ways to view the issue, depending on how your own personal mindset works, so this would be for a Judge to decide...

 

More Judge Lottery...

 

So nasty creditor can issue a default (read print) leave it sitting in the post room for a few days, send it via UK Mail who, by there track record, the mixture of the two takes anything from 5-15 days to deliver the dam thing (dont bother argueing that, i had one letter that took 28 days to reach me:eek:) meaning the 14 days allowed to address the default could be up before you even recieve it, but no one can prove it as UK Mail are not franked with a date :-| and thats OK

 

Am i missing something?

 

I think i need to borrow your avatar car2403, sums up just how i feel

[SupermanX]

Hi

 

do i need to file any witness statements in response to the SJ application before the deadline set by the court while negociating a settlement?

[car2403]

Hi

 

do i need to file any witness statements in response to the SJ application before the deadline set by the court while negociating a settlement?

 

Yes, but only worry about that if they don't agree to vacating the hearing on the basis that you are willing to agree a settlement, first.

[SupermanX]

I've sent them a settlement offer today and have invited them to vacate the SJ hearing while we are negotiating. The witness statement deadline is on 05.01.08

 

Can you help me preparing that in case I have to submit b4 the 5th? should they refuse to vacate

 

Many tks

Super

[car2403]

Yes, but there is little to go on at this stage because of the claim and the issues with the agreement.

 

Was the settlement offer "without prejudice save as to costs"?

 

Don't wait for them to receive it and reply - I'd suggest that you call them to discuss, given the tight deadlines, and get verbal agreement to vacate, then email/fax the settlement to them and get a response by email/fax. The timing of this is critical, as you need something to say they will vacate prior to the hearing - if push comes to shove, you may have to attend the hearing and provide that evidence to the Judge to show that settlement is being discussed and the hearing shouldn't be heard.

 

If they don't agree to vacate, we'll have to consider other options, but lets cross that bridge when we come to it.

[caro]

I'd suggest that you only phone if you can record the call. Email or fax by all means, but unless you have it in writing or can record it there is scope for misinterpretation, misunderstanding or outright denial of saying something should it get to court. Too easy to backtrack if it's verbal, and sometimes you can say things you regret if you aren't quick enough thinking on your feet during a phone call.

 

As a starter for your witness statement if you want to be prepared, just in case and to ensure you don't have to rush it if things don't get resolved in time, I suggest that you jot down clearly in your own words the whole sequence of events that have led you to this stage. It'll just help you to be clear in your own mind, and give you a framework to build on.

[car2403]

I'd suggest that you only phone if you can record the call. Email or fax by all means, but unless you have it in writing or can record it there is scope for misinterpretation, misunderstanding or outright denial of saying something should it get to court. Too easy to backtrack if it's verbal, and sometimes you can say things you regret if you aren't quick enough thinking on your feet during a phone call.

 

I'd normally agree, Caro, but the timescales on this one are quite tight, which is why I suggest calling.

 

If they do want to talk about the case, just say you are only calling to get agreement to vacate and begin settlement negotiations, which can be done by post/fax/email, etc.

 

As a starter for your witness statement if you want to be prepared, just in case and to ensure you don't have to rush it if things don't get resolved in time, I suggest that you jot down clearly in your own words the whole sequence of events that have led you to this stage. It'll just help you to be clear in your own mind, and give you a framework to build on.

 

To be honest, IMHO, there isn't any point spending a lot of time on a WS at this stage - if settlement negotiations don't go well and they don't agree to vacate the hearing, there's a possibility that Summary Judgment may be entered, so we may need to consider Admitting the claim anyway. This is one of those bridges I didn't want to cross at this stage...

[caro]

You're probably right car but I'm a belt and braces type lol. If things didn't go as hoped I was just thinking it might be as well to be prepared. There isn't a lot of time to get it done if things don't go to plan and the WS is needed. It's the OP's call how they want to play it. Just giving an option.

[car2403]

You're probably right car but I'm a belt and braces type lol. If things didn't go as hoped I was just thinking it might be as well to be prepared. There isn't a lot of time to get it done if things don't go to plan and the WS is needed. It's the OP's call how they want to play it. Just giving an option.

 

Agreed... Options would be good on this one, IMHO...

[SupermanX]

The offer was made "without prejudice save as to costs"

 

I will call them in the morning to see if they are willing to vacate the hearing and will then follow it by an email confirmation.

 

Will post their reply in the morning.

 

Super

[SupermanX]

I have trouble speaking to Reston's, the person dealing with the case is not around. I've sent an email as well as voice mails.

 

I think i need to prepare the witness statement as the deadline is Monday in case i cannot get through.

 

are there any examples of how WS should be done? can you kindly help?

 

tks

super