Help with cca?/GE money.

[guzzleguts]

Thanks CB, thats great advice from car.

 

Appreciate your time CB.

 

GG

[guzzleguts]

Hi CB

 

When you get a min could you ask car or someone else that may know the answer to this.

 

Does the creditor have to serve a DN before they Default you at the CRA?

 

Ive read everything that car has posted, but cannot find an answer to this.

 

Appreciate your help on this.

 

GG

[guzzleguts]

Hi all,an update.

 

My application notice for a strike out will now be heard at the same time as the CMC hearing.

 

Can someone tell me do i take all relevant documents i rely on to court with me, do i take copies for the court. And do i need to do a Witness statement for the court if so do i have to file it at court before the hearing?

 

Any help would be great.

 

GG

[citizenB]

GG I am going to alert the site team to your query.

 

Meanwhile, you might want to have a look at Ghostdebt's thread.. same length as yours but looks to be with the same company and solicitors. Some good information regarding the CMC meeting as well and what happened next.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/184852-c-l-finance-ge.html

 

 

HTH

[citizenB]

Hi GG,

 

It has been suggested you take everything you have in respect of your case and the application to set aside.

 

Also, have a look at BRW's informative post on what to pack.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

 

HTH

[guzzleguts]

Thanks CB

 

GG

[guzzleguts]

Hi CB

 

If i intend to use any documents IE skeleton argument wit statement etc, do i need to file them at court before hearing?

 

Thanks

 

GG

[42man]

I'm pretty sure that you do not have to file a skeleton argument at the court. But make sure you have all the relevant information and the high court cases to hand....

[guzzleguts]

Thanks 42man

 

Is it just the woodchester case or are there others you could point me towards, for invalid DN's

 

GG

[guzzleguts]

Hi im in court in the coming week for my application to strike out which i expect to win, could someone tell me as i expect to win because of a dodgy DN, do i need to claim costs at the hearing or apply after the strike out.

 

And do i need to file anything at court before the hearing.

 

Any help much appreciated.

 

GG

[surfaceagentx20]

Guz,

 

Let's see if I've got this straight. You have filed an application (N244 plus fee right?) to strike your opponent out on the grounds that it had failed to give disclosure in compliance with an order of the court. The hearing of your application is to coincide with a CMC next Tuesday when the court will give case management directions.

 

I also take it that the opponent has still not complied with the order? What excuse does the opponent offer?

 

My view is that as part of the case management directions, unless it has already done so, the court will make an 'unless order'. That is, an order which says, in terms:

 

'Unless the opponent complies with the order of (date) by giving disclosure of (desacription of document) to GG by 4:00pm on (date) the Particulars of Claim shall stand stand struck out and the claim dismissed and (GG) shall be at liberty without further order of the court, to apply for judgment upon his defence and for his costs of the case to be paid by (the opponent) to be assessed on the standard basis if not agreed.'

 

For reasons which will be obvious therefore, I doubt the court has already made an unless order because if the opponent was already in breach of an unless order there wouldn't be any need for you to apply the court to strike out.

 

A failure to comply with the unless order is where the PF85A comes in.

 

I'd go to court armed with a statement of costs which I had served on the opponent not less than 24 hours before the hearing. Assuming the court makes an order against the opponent upon your application, ask the judge to award you the costs of the application and present your costs statement to enable him to summarily assess those costs.

 

If the court strikes out the claim at the hearing, ask the court to award you the costs of the case to be paid by the opponent to be assessed on the standard basis if not agreed. Those costs will, as you know, be subject to litigant in person limitations.

 

A skeleton argument ought not to be necessary on an application to strike out or for a sanction owing to a failure to give disclosure pursuant to a court order. It's factual and usually uncomplicated. There has either been compliance or there hasn't. Your application notice ought to have included a built-in or separate supporting witness statement exhibiting any documents you intended to rely on. The only occasion I would expect you to want to rely on a second or subsidiary witness statement would be where some witness statement had been filed in opposition which you wished to answer.

 

At the CMC the court will probavbly bolt on some directions which will flow on from the opponent's compliance with the order dealing with disclosure. Typically the directions will involve standard disclosure of documents, whether expert evidence is to be admitted and if so the form of that evidence, the exchange of lay witness statements of fact, and arrangements for trial.

 

x20

[guzzleguts]

Hi x20

 

No the claimant has not complied with it and hasn't offered any explanation why.

 

I didnt send the application notice with any witness statement attached, i didnt realise i needed too. I did fill out the notice explaining why i thought it should be struck out and the fact that the claimant had not supplied all the doc's.

 

You mention that i need to file any other doc's to the court before tues, that i will rely on, does that include the doc's that the claimant has already filed in conection of the order ( ie the DN an application form ) can i still use them?

 

Yes the original order from the court was a general form of judgment or order. Not an unless order.

 

If the court doesn't strike the claim out, will i be able to argue on tues about the invalid DN, and get the claim struck out then on tues?

 

Is it ok to serve the opponent 24 hrs before the hearing even though it hasn't been struck out yet? if so i better send them today.

 

Thanks For your help x20 on both threads, can't thank you enough.

 

Regards

 

GG

[surfaceagentx20]

If you have not filed a N244 application notice the court can not be guaranteed to entertain an application to strike out or give summary judgment or pass some onerous order on your opponent. That would be so regardless of whatever day of the week it is. The court will treat the hearing as a CMC and address standard case management directions. A failure to comply with a previous order of the court can be dealt with by the DJ but to make sure, file your N244. Don't think the court will make contentious decisions on a straghtforward CMC unles there's a proper application with evidence.

 

Further, don't expect to be awarded the costs of an application you haven't made.

 

x20

[guzzleguts]

Hi x20

 

Sorry for the confusion my fault, i have made an application to strike out that hearing was going to be in Oct but now has been brought forward for tom, what i was saying in the above post is that i havent served the claimant with a statement of costs as there was not enough time to do so, but il take 2 copies tom just in case.

 

Thanks x20

 

Regards

 

GG

[42man]

6. 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 enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

[guzzleguts]

Thanks 42man much appreciated.

 

Thanks CB

 

GG

Edited September 8, 2009 by citizenB

[guzzleguts]

Title change please, their claim was struck out, no one turned up from the other side the DJ was not happy and said its struck out as they couldn't be bothered to defend their claim.

 

I am well chuffed but a little disappointed that i couldn't contest their claim and test all the DN info that i had collected in my bundle.

 

But a big thank you to you all, especially CCM, CB and 42man. And invaluable advice from x20.

 

I will submit my costs to the court on a PF85A, and a donation will be made soon as the cheque clears. I couldn't of sorted out costs at court because i hadn't served the claimant with a statement of cost before the hearing, never mind learning all the time.

 

GG

[r&b]

well played GG, congratulations.

[citizenB]

Excellent news GG.

 

Is this totally done with now ?.. if so, I will move you into the success forums as well.

[guzzleguts]

Thanks r&b and CB

 

Yes its done and dusted, i can not see how they could appeal, and if the way the DJ spoke about them, good luck with them trying anything.

 

I will now file and serve documents for a costs certificate.

 

GG

[guzzleguts]

x20

 

I am not sure the PF85A is right for this costs claim, i think its the N252 and Bill of costs served on the claimant, could you confirm that for me.

 

Thanks

 

GG

[surfaceagentx20]

The PF85A is a simple document used to certify an opponent's non-compliance with an unless order and gain the consequential advantages the unless order afforded. It has nothing to do with costs assessment proceedings.

 

To begin detailed assessment proceedings you will need to complete a N252 and attach a bill of costs and the order giving rise to your costs entitlement and send these to the paying party.

 

x20

[guzzleguts]

Thanks x20

 

 

GG

[guzzleguts]

The 25 days are up for the n252, anyone got any experience on Default costs certificates.

 

GG