zhanzhibar vs Link financial ***WON***

[zhanzhibar]

If they did I can't find it. I will have to do a bit of research me think if its lying around somewhere in the house:(. I did eventually found my HFC-Weightman DN which is a blessing coz the date in my original DN in this case is not the same as the copy that Weightman gave:rolleyes:

[42man]

DEFAULT NOTICE

The Need for a Default notice

• 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 petition.
  

• It is 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
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I 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)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 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, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• 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
  

[42man]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/161927-amendments-default-notices-cca.html

 

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

[zhanzhibar]

Hi all,

 

Update on my case. I received an AQ from Northampton CCBC dated 14th Jan 09. Together with it is the Notice of Transfer of Proceedings transferring the case to my local county court. The AQ is the N150. I never have to fill in an N150 before so I would appreciate some assistance on this please.

 

Also, I am a bit confused with what was sent to me so far especially after my CPR 31.14. Would really appreciate 2nd, 3rd, 4th .... pair of eyes to help me put something in section H - "Other Information" in the AQ.

 

1)GE Money resend me this;

 

 

2) Link send me this back in Oct 22 which also stated a default sum:confused:

 

3) they also send me the CCA after my CPR 31.14 request.

 

 

So here are my questions if anybody out there could help me with:

 

a) Is the default Notice send by GE Money enforceable?

 

b) Can there be 2 default notice for the same loan as per letter sent by Link in (2) above? & Is this enforceable?

 

c) In the agreement in (3) where it says "your rights to cancel". I read somewhere here that if it is a loan that was signed at home ( as in this case) & you don't receive the info relating rights to cancel then the agreement is unenforceable. Is this right? Can somebody clarify me on this one?

 

d) Also am wondering what rules there are on the sale of debt? Am wondering whether the their letter regarding the sale of debt iin my post#22 above is according to law?

 

e) Not sure how to go about do the AQ. I did offer them mthly payment to what I can afford but was blatantly told won't make a dent to the loan.so do i tell the court in the AQ that i did offer as well as challenging the agreement based on the rights to cancel not given to me & therefore agreement not enforceable or just kept quiet about my offer of payment to them & just challenge them on the enforceability of the agreement. I supposed by admitting that i offer them some payment means that I admitting to the loan right?

 

f) What is the difference between AQ N149 & AQ N50?

 

everybody's help is much appreciated.

 

 

Regards,

Zhan

[zhanzhibar]

bump...help anybody?

[42man]

Hi ZZB....

 

Some useful links on the AQ here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

[zhanzhibar]

Hi ZZB....

 

Some useful links on the AQ here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161188-allocation-questionnaire-urgent-help.html

 

Thanks for replying. I'll look into it.

[zhanzhibar]

Hi all,

 

Update on my case. I received an AQ from Northampton CCBC dated 14th Jan 09. Together with it is the Notice of Transfer of Proceedings transferring the case to my local county court. The AQ is the N150. I never have to fill in an N150 before so I would appreciate some assistance on this please.

 

Also, I am a bit confused with what was sent to me so far especially after my CPR 31.14. Would really appreciate 2nd, 3rd, 4th .... pair of eyes to help me put something in section H - "Other Information" in the AQ.

 

1)GE Money resend me this;

 

 

2) Link send me this back in Oct 22 which also stated a default sum:confused:

 

3) they also send me the CCA after my CPR 31.14 request.

 

 

So here are my questions if anybody out there could help me with:

 

a) Is the default Notice send by GE Money enforceable?

 

b) Can there be 2 default notice for the same loan as per letter sent by Link in (2) above? & Is this enforceable?

 

c) In the agreement in (3) where it says "your rights to cancel". I read somewhere here that if it is a loan that was signed at home ( as in this case) & you don't receive the info relating rights to cancel then the agreement is unenforceable. Is this right? Can somebody clarify me on this one?

 

d) Also am wondering what rules there are on the sale of debt? Am wondering whether the their letter regarding the sale of debt iin my post#22 above is according to law?

 

e) Not sure how to go about do the AQ. I did offer them mthly payment to what I can afford but was blatantly told won't make a dent to the loan.so do i tell the court in the AQ that i did offer as well as challenging the agreement based on the rights to cancel not given to me & therefore agreement not enforceable or just kept quiet about my offer of payment to them & just challenge them on the enforceability of the agreement. I supposed by admitting that i offer them some payment means that I admitting to the loan right?

 

f) What is the difference between AQ N149 & AQ N50?

 

everybody's help is much appreciated.

 

 

Regards,

Zhan

 

 

Hi All,

 

Would really appreciate some help please on my queries (a) to (e) above as I would like if possible to incorporate them in sec H "Other Information"?

 

Zhan

[zhanzhibar]

Bump...anybody...help please...

[zhanzhibar]

anybody ...Help please

[zhanzhibar]

Polite bump...would really appreciate some advice please re my queries above please.

 

zhan

[steven4064]

Comments in red

 

So here are my questions if anybody out there could help me with:

 

a) Is the default Notice send by GE Money enforceable? DN's aren't enforceable as such. THis one looks OK provided they actually gacve you 14 days from the date of receipt.

 

b) Can there be 2 default notice for the same loan as per letter sent by Link in (2) above? & Is this enforceable? No but the Link letter is not a DN

 

c) In the agreement in (3) where it says "your rights to cancel". I read somewhere here that if it is a loan that was signed at home ( as in this case) & you don't receive the info relating rights to cancel then the agreement is unenforceable. Is this right? Can somebody clarify me on this one? The cancellation rights have to be given at the time or sent within 7 days. If not, the agreement is not enforceable (provideed it is a cancellable agreement that is)

 

d) Also am wondering what rules there are on the sale of debt? Am wondering whether the their letter regarding the sale of debt iin my post#22 above is according to law? I haven't looked, but they only have to inform you -there is no standard format

 

e) Not sure how to go about do the AQ. I did offer them mthly payment to what I can afford but was blatantly told won't make a dent to the loan.so do i tell the court in the AQ that i did offer as well as challenging the agreement based on the rights to cancel not given to me & therefore agreement not enforceable or just kept quiet about my offer of payment to them & just challenge them on the enforceability of the agreement. I supposed by admitting that i offer them some payment means that I admitting to the loan right? there is advise on completing the AQ and draft directions (seperate thread not the ones in eth AQ thread) in the bank templates library

 

f) What is the difference between AQ N149 & AQ N50? N149 is for claims under £1500, N150 for those over (ie where a fee is payable)

 

everybody's help is much appreciated.

 

 

Regards,

Zhan

[zhanzhibar]

c) In the agreement in (3) where it says "your rights to cancel". I read somewhere here that if it is a loan that was signed at home ( as in this case) & you don't receive the info relating rights to cancel then the agreement is unenforceable. Is this right? Can somebody clarify me on this one? The cancellation rights have to be given at the time or sent within 7 days. If not, the agreement is not enforceable (provideed it is a cancellable agreement that is)

 

HI Steven,

Thanks for replying. I thought if they put it in the agreement about your rights to cancel then it is a cancellable agreement.How does find out whether it is a cancellable agreement or not?

 

I remember signing the loan at home so am assuming that there will be a cooling off period and therefore should be given cancellation rights. Question is how do I proof this?

 

Thanks again for replying.

 

Zhan

[zhanzhibar]

Hi all,

 

I am wondering if somebody could explain to me in simple english what this extract that i got from the statute law database means:

Section 67: Cancellable Agreements

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(a) the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or

(b)the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a relative of his);

(iii) the negotiator in any antecedent negotiations.

l

like what does antecedent negotiations means?

 

All help is appreciated.

[zhanzhibar]

Hi All,

 

I need to send this AQ by latest Saturday as it need to be in court by Monday 2nd Feb.

This is what i am thinking of putting as my section H:

 

 

In the XXX Court

 

Claim number xxxxxxx

 

 

 

 

 

 

 

 

Between

 

Asset Link Capital (No 1) Ltd - Claimant

 

 

 

 

and

 

 

zhanzhibar & OH - Defendants

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Notice of cancellation rights in accordance with section 64(1)
  
• Calculation of the charges stated in the statement
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

and on the 2nd page:

 

 

N150 Allocation Questionnaire

 

 

 

 

Section H - other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further.

 

 

One thing I am not sure of is whether I can put the request on the calculation of my charges .. I thought i ask to see whether those so-called charges is strict proof a genuine pre-estimate of the losses incurred at the time of the breach of the alleged agreement.

 

Any suggestion appreciated. Thanks

[freakyleaky]

Hi all,

 

I am wondering if somebody could explain to me in simple english what this extract that i got from the statute law database means:

 

Section 67: Cancellable Agreements

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(a) the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or

(b)the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a relative of his);

(iii) the negotiator in any antecedent negotiations.

l

like what does antecedent negotiations means?

 

All help is appreciated.

This might help explain. (I have flagged your thread up for the rest of the team.)

Regulated Agreements

If the agreement is regulated then Section 56 of the 1974 Act will apply. This states that:

(1) In this Act "antecedent negotiations" means any negotiations with the debtor or hirer-

(b) conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or

and "negotiator" means the person by whom negotiations are so conducted with the debtor or hirer.

(2) Negotiations with the debtor in a case falling within subsection (1)(b) ... shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity.

This means that if the supplier makes representations of fact during negotiations (which the consumer relies on) and they cause her to enter into the agreement then the 1974 Act states that it will be as though the finance company has made the same promises. This means that a consumer has a potential claim to resind the contract (essentially cancelling it) for misrepresentation (subject to her proving there was a statement of fact, which she relied on and then entered into the agreement) or, if she has lost her right to rescind, claim damages for misrepresentation from the the finance company.

A problem with this rule recently surfaced in the case of Black Horse Limited v Langford [2007] EWHC 907. In that case, the supplier sold the goods to a broker. The broker then sold the goods to the finance company, who then let them to the consumer. The Court decided that because the goods had been sold to the finance company by the broker, not the retailer, then Section 56 did not apply and the consumer had no claim against the finance company for the representation.

It is therefore important for any consumer to check whether the retailer is selling the goods to the finance company or to the broker. If the goods are sold to the broker, the consumer will have no claim against the finance company (but may, of course, have a claim against the retailer under a collateral contract).

[zhanzhibar]

This might help explain. (I have flagged your thread up for the rest of the team.)

Regulated Agreements

If the agreement is regulated then Section 56 of the 1974 Act will apply. This states that:

(1) In this Act "antecedent negotiations" means any negotiations with the debtor or hirer-

(b) conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or

and "negotiator" means the person by whom negotiations are so conducted with the debtor or hirer.

(2) Negotiations with the debtor in a case falling within subsection (1)(b) ... shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity.

This means that if the supplier makes representations of fact during negotiations (which the consumer relies on) and they cause her to enter into the agreement then the 1974 Act states that it will be as though the finance company has made the same promises. This means that a consumer has a potential claim to resind the contract (essentially cancelling it) for misrepresentation (subject to her proving there was a statement of fact, which she relied on and then entered into the agreement) or, if she has lost her right to rescind, claim damages for misrepresentation from the the finance company.

A problem with this rule recently surfaced in the case of Black Horse Limited v Langford [2007] EWHC 907. In that case, the supplier sold the goods to a broker. The broker then sold the goods to the finance company, who then let them to the consumer. The Court decided that because the goods had been sold to the finance company by the broker, not the retailer, then Section 56 did not apply and the consumer had no claim against the finance company for the representation.

It is therefore important for any consumer to check whether the retailer is selling the goods to the finance company or to the broker. If the goods are sold to the broker, the consumer will have no claim against the finance company (but may, of course, have a claim against the retailer under a collateral contract).

 

Thanks for looking in & thanks for the explanation on what is antecedent in FL. Okay I am a bit confused now as I don't know how to relate that case with mine.

 

Our story in summary, we bought windows for our house in April 2005 with Safestyle with the loan they offered with GE Money.I remember signing at home with OH. In 2007, we ran into financial difficulties & tried to negotiate a proposed payment. They didn't refuse nor accept the proposed payment & then the letter from Link Financial arrived informing about the sale of the debt. Their very nasty towards me with letters & telephone calls which i didn't pick up. & so it goes on & on until now.

 

I have been doing a bit of research in here & found out last night that there is another case very similar to mine http://www.consumeractiongroup.co.uk/forum/legal-issues/123052-help-needed-please.html but this has gone cold so I do not know what is the outcome.

However having read the thread last night, post#130

 

 

According to the OFT if an agreement says it is cancellable then it is to be treated in exactly the same wasy as any other cancellable agreement which means all the details itemised in the regultions(19883/1553) should be followed together with the requirements for inclusion of the information in all copy docs as per sections62 63.

 

 

And PB also put this in post #123 of the same thread

 

If the agreement was signed away from creditors premisie and if there was previous face to face contact with the creditor or their agent then the agreement is cancellable and cenacellation rights should have been issued as per regulations in all copy documents,notice the bit about face to face or anticedant negotiations as they call them, just because the agreement is signed at home does not make it cancellable unless it is covered by distance marketing regulations which going by the date on your contract yours isn't.

If the agreement says that cancellation details will follow then it is to be traeted as a cancellable agreement no matter what, or where it was signed.

 

There should however have been sent a copy of the executed agreement 7 days after it was executed by the creditor as per section 63

 

 

and then I also found out about Moorgate Services V Kabir (1995) where the defendant appealed against a decision of Croydon County Court taht he was liable to the plaintiffs of £14,600 in respect of credit agreement arguing that the agreement was unenforceable because he had not been given proper notice of his right to cancel when signing at home. the court held that under s67 this was a cancellable agreement.

 

I need to find out more about this case like what kind of loan tht kabir went into with them. Is it a home lending?

Anybody with further info on this please?

[zhanzhibar]

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Notice of cancellation rights in accordance with section 64(1)
  
• Calculation of the charges stated in the statement
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

Hi all, i would really appreciate some comments on the red note above? Can I ask this in my draft order of direction?

[42man]

Hi Zhanzibar....I don't see any reason why you cant...!!

[zhanzhibar]

Hi all,

 

Thanks for all the help re link for the completion of the AQ but can someone explain to me what is pre-action protocol in that N150 form. In my case I am not sure whether to tick yes or no in both parts?

 

Please... I got to post this tomorrow morning.

[zhanzhibar]

Also on the witness name: can it just be my name as the witness even though both myself & OH are the defendant, the OH being the 1st defendant? It's just that he might not be able to attend the hearing.

 

 

Please... any suggestion is appreciated.

[zhanzhibar]

The other thing is the claim amount is £5,493.20. Can I tick small claims track reason being it is just over £5k. Or shall i tick the fast track & let the judge decide.

 

Please..please.. I need some guidance on this. Thanks in advanced

[MARTIN3030]

Its discretionary for the Judge-the 5k is not absolutely rigid,if you tick small claims and Judge decides otherwise then so be it...I have known these amounts to be allowed.

(although the other side may not agree )

Both your names and sigs should be on the witness statement.If he does not attend it will still be taken into account because its a statement of truth.The general guidance on the trial on the day is as follows;

 

If you cannot attend give 7 days notice and claim will be heard in absence.

If you do not attend and give no notice your defence could be struck out

If you attend but other side does not,then Judge may decide based on your submissions.

 

If your OH does not attend with you on the day,simply excuse his absence to the Judge/DJ and maybe a good idea just to take a short letter from him apologising for his absence-this shows respect for the Court and does no harm.

 

Pre action protocols are the correct stages that should be followed before deciding on litigation-that includes exhausting all reasonable avenues to try to reach settlement before going to court-if you are happy that this was done this then tick accordingly.

Edited January 30, 2009 by MARTIN3030

[zhanzhibar]

Hi Martin,

 

Thanks for looking into this. For the pre-action protocol I have tick in part 2: No pre-action protocol applies to this claim. Have you exchanged information and/or documents (evidence) with the other party in order to assist in settling the claim? I put NO & in an attachement put this as my reason for saying NO;

 

"This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim but have had only part response from the claimant in this regard."

 

Is this okay or shall I just say yes to the question?

 

Thanks again for helping.

 

Zhan

[zhanzhibar]

And for reason to go to small claims track, this is what I put;

 

Its is respectfully requested this case be allocated to the Small Claims Track, it is a straight forward case and just marginally above the £5,000 limit and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

Will this be okay as a reason? I know you said at the end of the day its up to the judge but i don't want to get to the wrong side of the judge