VG - Vs Northen Rock - Charging Order

[ScabHunter]

Oh dear SH I thought I was understanding all this crap!!!

 

OK, the defence that you tided up for me above does that cover both issues when I go to my hearing or is that a defence just for the redetermination?

 

Do I have to do a separate objection letter to stop the interim charging order being finalised?

 

No, sorry if I have complicated matters for you.

 

The defence is in fact a combined defence against redetermination, and an objection to the charging order being made final.

 

As it includes the objection, it should be forwarded to the alleged creditor at least seven days before the hearing.

 

No further letters are necessary, although you may want to write a covering letter just pointing out that the objection is contained within the defence.

 

There will also be a letter from your partner stating their objection, which is referred to in the defence, and should be attached.

 

SH

[Von Greenbach]

I'm usually the one confusing people SH, I didn't want to send the otherside anything as I don't really want them to get there act together before the hearing and combined with the fact they ignored my CPR 18 request.

 

Anyway I'll send a copy of my court documents to them.

 

Hope everythings OK with you SH.

[Von Greenbach]

Going through my paperwork I've just come accros a letter issued between the default notice & the N1 claim form being issued.

 

The letter is requesting the FULL amount and states my agreement is now cancelled.

 

Does this letter have any bearings on my case?

 

*I was always under the impression I never received a termination letter my own stupidity for filing it in the wrong place*

[ScabHunter]

Going through my paperwork I've just come accros a letter issued between the default notice & the N1 claim form being issued.

 

The letter is requesting the FULL amount and states my agreement is now cancelled.

 

Does this letter have any bearings on my case?

 

*I was always under the impression I never received a termination letter my own stupidity for filing it in the wrong place*

 

The answer to this is yes AND no. Sorry to be cryptic.

 

What it means is that NR can now have no justification for claiming that they had never terminated the agreement. They may well have claimed this in view of the defective DN, claiming that as they had never terminated the agreement, they could issue a fresh, valid DN and then terminate the agreement properly.

 

This would have been a false claim, as the court claim itself is an effective termination of the agreement, because it demands the repayment of the full balance.

 

This letter, however, leaves the matter in absolutely no doubt. The agreement was explicitly terminated after the issuance of the invalid default notice. Keep that letter safe!

 

The situation is still as it was before, just more obviously so.

 

SH

[Von Greenbach]

OK SH thanks for the confirmation.

[Von Greenbach]

Sorted

Edited January 10, 2009 by Von Greenbach

[Von Greenbach]

Does anyone have a direct link to this legislation:

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

 

I need to use the text within an Exhibit.

[42man]

VG there is some info on defaults here

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/132160-really-confused-3.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/95027-cabot-county-court-claim-17.html

 

RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

 

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

 

Apologies if you have seen some of these before....

 

• 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
  

[caro]

In the CAG Statutes Library http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html#post1209707

 

Might be worth a browse in there if there's any other documents you need.

[Von Greenbach]

ah ha, thanks Caro I've looked everywhere on the net except there!!!

[caro]

That's one of the great things about CAG VG. It has excellent resources.

[Von Greenbach]

Thanks Caro I've got what I'm looking for

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1411&d=1193876108

 

I'm really happy now I can refer the judge to the exact legislation.

[caro]

It might be an idea to use a highlighter pen to mark the particular sections you're referring to.

[Von Greenbach]

Good idea Caro

 

Thanks

[Von Greenbach]

I'm looking for some advice here as something's not right.

 

I received a defective DN dated 7th then received a "Formal Demand" / Termination letter dated 21st, that's a clear 14 calender days from generating the DN to termination without allowing for postage.

 

Which part is incorrect, is it the DN by not allowing 14 days or is it the termination letter?

 

And how do I get which part they've done wrong over to the judge

[banker_rhymes_with]

Hello VB!

 

Which part is incorrect, is it the DN by not allowing 14 days or is it the termination letter?

 

The DN is invalid if it has not allowed you 14 Clear days.

 

The Termination letter cannot really be invalid as such, because it's just a letter to say they have Terminated. In effect, it's just a statement to say they have ended the Agreement. However, that doesn't alter the fact that the Agreement has been ended by them. It's their problem if they have ended the Agreement in a situation that is not ideal for them.

 

Whatever you do, don't ever say the Termination isn't valid! That is just a statement, like being Pregnant. Someone is either Pregnant or they are not, they can't be half Pregnant.

 

They have either Terminated or they have not, a letter is sufficient to say they have and there is no going back from that.

 

Quick summary:

 

With a valid Agreement, and with a valid Default Notice (that you failed to remedy), then any Termination by them would be Lawful. They can then enjoy the benefits of s87.

 

With a valid Agreement, and without a valid Default Notice, then the Termination by them would be Unlawful. They then lose any of the entitlements outlined in s87 because they need a valid Default Notice to enjoy them.

 

Without a valid Agreement, the Default and Termination are irrelevant because there is no Agreement that can be defaulted and there is no Agreement to Terminate...s87 is irrelevent!

 

And how do I get which part they've done wrong over to the judge

 

See the above! Plus my other Posts! The answers to all of this are in my other Posts to you, so it may be an idea to go back and re-read them because you must get the issues clear otherwise you'll have trouble getting them over to a Judge on the day.

 

Cheers,

BRW

[Von Greenbach]

Hi BRW

Whatever you do, don't ever say the Termination isn't valid! That is just a statementRW

 

OK thanks for that, I did state within my defence that termination was unlawful which I'll now amend.

 

This is quite a long defence and I'm using exhibits from legislation together with your comments / members comments on here there's been quite alot to take in, SH has created assisted brilliantly with my defence which I'm just tidying up.

 

I feel fairly comfortable with the defence I have.

[banker_rhymes_with]

Hello VB!

 

OK thanks for that, I did state within my defence that termination was unlawful which I'll now amend.

 

The Termination was Unlawful if they failed to Serve you with a valid Default Notice before they Terminated.

 

I think you may be thinking of Unlawful and Invalid as being the same thing.

 

Don't use the word Invalid when it comes to the Termination, as that suggests it was a mistake and so never happened.

 

You want it to have happened.

 

You can use the word Unlawful, because that doesn't affect the validity of the Termination.

 

It's the same as my Car analogy...just because the speed limit says 70mph, that does not mean someone cannot do 150mph.

 

70mph = lawful

 

150mph = unlawful

 

Both are valid speeds. Doing 150mph cannot be invalid just because it is unlawful. The Car can still do 150mph.

 

In this case, your Lender Terminated, but Unlawfully at 150mph instead of lawfully at 70mph. That's their tough beans.

 

I hope that makes sense!

 

Cheers,

BRW

[Von Greenbach]

OK BRW

 

This is what I'm going to put back in:

 

The default letter was issued on xxx, the Formal Demand” / termination letter was issued xxxxx.[Exhibit xxx] between issue and termination is an exact 14 calender days, this is without allowing for postal delivery of either letter, and therefore the claimant has acted unlawfully by terminating my agreement and totally disregarded legislation laid down in the details above.

 

How does that sound?

[banker_rhymes_with]

Hello VG!

 

Sounds OK...maybe spell it out in tiny tot language so the Judge doesn't miss anything:

 

The default letter was issued on xxx, the Formal Demand” / termination letter was issued xxxxx.[Exhibit xxx]. Thus, between the Default Notice issue and termination letter issue exactly 14 calender days elapsed. From this evidence it is quite clear that absolutely no allowance had been made for postal delivery of either letter. The alleged Agreement was therefore terminated less than 14 Days after the Date of Service of the Default Notice, rendering the Default Notice invalid and the termination unlawful. The net effect being that the Claimant cannot now enjoy the benefits of s87.

 

Cheers,

BRW

Edited January 12, 2009 by banker_rhymes_with
Typo!

[lexis200]

Hi

 

Sorry for the hijack, but would someone mind having a look at this DN my OH received today from MBNA please? It seems like there's a lot of knowledge knocking about on this thread and I was hoping to take advantage!

 

http://www.consumeractiongroup.co.uk/forum/mbna/156409-lexis200-mbna-just-starting-10.html#post1915298

 

Thanks

 

Lexis:)

[Von Greenbach]

Update:

 

My application to have judgement set aside has been listed for a hearing 23rd February together with the redertimination and final charging order.

 

There is an advantage and disadvantage with the new date, the advantage is it will give the claimants more time to decide whether they have a winable case based of unlawfully termination of the agreement and defective DN.

 

The disadvantage being it will allow the claimants more time to prepare an attack based on the defective DN and unlawfully termination of the agreement.

[ScabHunter]

Update:

 

My application to have judgement set aside has been listed for a hearing 23rd February together with the redertimination and final charging order.

 

There is an advantage and disadvantage with the new date, the advantage is it will give the claimants more time to decide whether they have a winable case based of unlawfully termination of the agreement and defective DN.

 

The disadvantage being it will allow the claimants more time to prepare an attack based on the defective DN and unlawfully termination of the agreement.

 

I do feel it is a significant step in the right direction, though. It will at least give you the chance to put your case forward that judgment should never have been awarded against you in the first place. You never had that chance before.

 

SH

[Von Greenbach]

I guess you're right SH, I was looking forward to my hearing this Friday just means waiting another 4 weeks.

 

Oh and the date should be 20th February, not 23rd god knows where I got 23rd from.

[hammyhound]

Good luck VG your case is now before mine. I too am glad I requested the adjournment. I have since found out about the attempted deception the solicitors have made and how the court cocked up.

 

I know you wish the date was Friday but at least you have more time to collate evidence etc and build up a better defence.

 

Keep posting.

 

Hammyhound