Repo order help with defence needed.

[cosalt]

also, phone the claimant and ask him to put possession on-hold until you have a set aside decision - if he's nice he'll do it.

 

LA

 

Can't seem them doing that, their behaviour so far proves how arrogant they are

[Lord_Alcohol]

Thanks LA, so are you saying just put it briefly like you have said even on the back at Part C which asks for evidence in support of this application.

 

I really cant afford to get this wrong

 

If you have a copy of the doctored DN, attach that. Also attach a copy of the original defective DN, and maybe highlight the dates.

 

Also note down the 1983 Regs for DNs, just to help the court see the error. This is at Schedule 2, Section 3© - do you have these Regs to hand? If not, this is what they state;

 

if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken;

 

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

 

If there is anything else wrong with the contract, just note that down too and say you want it considered.

 

I would also state that you qualified your admission re the debt to the judge, but that the judge ignored the qualification.

 

Have the bailiffs now taken the car? If not, you must get them to show you the warrant/order, ID and certificate. It is very odd if they have the possession order while you have no copy.

 

LA

[Lord_Alcohol]

Can't seem them doing that, their behaviour so far proves how arrogant they are

 

Give it a go - if they tried to repossess without receiving the order or a warrant they have broken the law. Putting things on-hold may help them put things right, even in a token way.

[Ell-enn]

If they are not county court bailiffs then even if they have a copy of the warrant they can't take the vehicle off private land. Only a county court bailiff can do that - a bailiff from a private bailiff company can't.

 

The ones who turned up at your place today must be collection agents (or from a private bailiff company) sent by the finance company, a county court bailiff would not turn up to repossess without the warrant in his hand.

[cosalt]

If you have a copy of the doctored DN, attach that. Also attach a copy of the original defective DN, and maybe highlight the dates.

 

Also note down the 1983 Regs for DNs, just to help the court see the error. This is at Schedule 2, Section 3© - do you have these Regs to hand? If not, this is what they state;

 

if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken;

 

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

 

If there is anything else wrong with the contract, just note that down too and say you want it considered.

 

I would also state that you qualified your admission re the debt to the judge, but that the judge ignored the qualification.

 

Have the bailiffs now taken the car? If not, you must get them to show you the warrant/order, ID and certificate. It is very odd if they have the possession order while you have no copy.

 

LA

 

If I draft up something and post up will you take a look for me ? I want to get this hand delivered tomorrow and will ask about the transcription whilst there.

 

No they have repo'd yet. They only had a letter from the claimant and some silver badge that looked like something from a toy shop

[Lord_Alcohol]

If I draft up something and post up will you take a look for me ? I want to get this hand delivered tomorrow and will ask about the transcription whilst there.

 

No they have repo'd yet. They only had a letter from the claimant and some silver badge that looked like something from a toy shop

 

Yes sure, post it up. Emandcole, M and others hopefully can comment too.

 

So the repos people just had a letter? And tried to take the goods without authority? Did you get names? It is an offence to do that, also against bailiff industry guidelines (not that any bailiff follows them...).

 

LA

[cosalt]

ok how does this sound, this will be on the main section with the first para on the front.

 

 

 

 

I believe the Judge has made an error in his judgement by ignoring the requirements laid out in section 87 and 88 of the Consumer Credit Act 1974. The claimant issued a default notice that failed to allow sufficient time from date of service or even a date to remedy the default.

 

Section 87 of the Consumer Credit Act 1974 clearly states that in order for the claimant to reclaim any goods subject to the agreement or demand any sums due under the agreement they must first issue a Default Notice that complies with the requirements of Section 88 of the Consumer Credit act 1974

 

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.

88.

Contents and effect of default notice.— (1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than [fourteen] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [fourteen] days have elapsed.

I am of the opinion that the Judge has no authority to grant a judgement in favour of the claimant when they failed to comply with the requirements of the Consumer Credit Act 1974. that states in order for a claimant to demand sums not due and/or reclaim any goods subject of the agreement they must first issue a default notice that complies with the requirements laid out in section 88.

 

[Lord_Alcohol]

Good so far cosalt.

 

A couple of minor points;

 

1. You could highlight the need for a date, and the error in your DN

 

2. You could highlight the fact that the CCA says must and not may or should. There is no flexibility granted to the claimant. A DN must be compliant.

 

3. Is there case law you can refer to?

 

You won't forget to mention the doctored DN either will you?

 

LA

[cosalt]

How about this-

 

I believe the Judge has made an error in his judgement by ignoring the requirements laid out in section 87 and 88 of the Consumer Credit Act 1974. The claimant issued a default notice that failed to allow sufficient time from date of service or even a date to remedy the default.

 

 

Section 87 of the Consumer Credit Act 1974 clearly states that in order for the claimant to reclaim any goods subject to the agreement or demand any sums due under the agreement they must first issue a Default Notice that complies with the requirements of Section 88 of the Consumer Credit act 1974. The Judge ignored this fact.

 

To comply with the act a Default Notice Must state a date by which any breach should be remedied and this date Must be at least 14 days from date of service of the Default Notice not 14 days from the date of the Default Notice. The Judge ignored this fact.

 

The act is clear in that the Default Notice must be precise, not should be or may be. There is no provision for a variation of this, nor can any error be regarded as de - minus. The Judge ignored this fact.

 

The Default Notice issued by the Claimant failed to show a date to which to remedy by nor did it allow the required 14 days from date of service. The Claimant also attempted to introduce a further Default Notice in a witness statement in an attempt to comply with the requirements. this further Default Notice was later admitted, in a witness statement by the Claimant to be a forgery. The Judge ignored this fact.

 

 

 

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.

88.

Contents and effect of default notice.— (1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than [fourteen] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [fourteen] days have elapsed.

I am of the opinion that the Judge has no authority to grant a judgement in favour of the claimant when they failed to comply with the requirements of the Consumer Credit Act 1974, and therefore the judgement granted is incorrect.

 

[nks22]

Maybe make reference to Woodchester, particularly as it too is concerned with a repossession case:

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[cosalt]

Maybe make reference to Woodchester, particularly as it too is concerned with a repossession case:

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

 

Thanks I was thinking about refering to something but am concerned this is already too long.

 

Whilst what I have put seems to cover it, I have been down this line and am sure the judge just takes one look at it and ignores it ?

[cosalt]

Right, I need to get this nailed tonight if I want a chance at sorting it out.

 

I want to get the set aside in tomorrow am, have I missed anything ? Too much info ? not enough ?

 

any further advice much appreciated

[colin21958]

I don't think it's too long, and I would think would only be improved by adding the Woodchester case law. Just my opinion of course...

[cosalt]

Thanks for that, I think I will go for it then.

 

Should I just refer to the woodchester case or quote from it ?

[cosalt]

lots of guests watching this thread

[colin21958]

Thanks for that, I think I will go for it then.

 

Should I just refer to the woodchester case or quote from it ?

 

I would think quoting something would be worthwhile where it directly supports your case, but keep it to a minimum...

[colin21958]

lots of guests watching this thread

 

Because it is so important; everyone is relying on defective DNs (me included) and if the Judges just brush this aside it's going to affect almost everyone! I don't believe they can get away with this at the end of the day. As someone said earlier, you may have to fight for it, but justice should prevail in the end (otherwise what's the point of having a legal system at all! ).

 

Wish someone was looking at my threads!

[cosalt]

Stick some links to your threads on here, it can't do any harm

[colin21958]

Stick some links to your threads on here, it can't do any harm

 

OK, thanks. Here they are...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/258341-urgent-help-required-disclosure.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/252630-application-set-aside-default.html

 

Any comments/views/assistance from anyone would be very gratefully received...

 

Colin

[Lord_Alcohol]

How about this-

 

I believe the Judge has made an error in his judgement by ignoring the requirements laid out in section 87 and 88 of the Consumer Credit Act 1974. The claimant issued a default notice that failed to allow sufficient time from date of service or even a date to remedy the default.

 

 

Section 87 of the Consumer Credit Act 1974 clearly states that in order for the claimant to reclaim any goods subject to the agreement or demand any sums due under the agreement they must first issue a Default Notice that complies with the requirements of Section 88 of the Consumer Credit act 1974. The Judge ignored this fact.

 

To comply with the act a Default Notice Must state a date by which any breach should be remedied and this date Must be at least 14 days from date of service of the Default Notice not 14 days from the date of the Default Notice. The Judge ignored this fact.

 

The act is clear in that the Default Notice must be precise, not should be or may be. There is no provision for a variation of this, nor can any error be regarded as de - minus. The Judge ignored this fact.

 

The Default Notice issued by the Claimant failed to show a date to which to remedy by nor did it allow the required 14 days from date of service. The Claimant also attempted to introduce a further Default Notice in a witness statement in an attempt to comply with the requirements. this further Default Notice was later admitted, in a witness statement by the Claimant to be a forgery. The Judge ignored this fact.

 

 

 

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.

88.

Contents and effect of default notice.— (1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than [fourteen] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [fourteen] days have elapsed.

I am of the opinion that the Judge has no authority to grant a judgement in favour of the claimant when they failed to comply with the requirements of the Consumer Credit Act 1974, and therefore the judgement granted is incorrect.

 

 

This looks fine cosalt, but it's de minimis not de-minus (sorry to be pedantantic).

 

The judge I think made his decision on an apparent admission of the debt, so could be worth stating that you only offered a qualified admission but that the judge appeared to ignore the qualification (which was that the claim was based on erroneous documentation).

 

LA

[Lord_Alcohol]

Thanks I was thinking about refering to something but am concerned this is already too long.

 

Whilst what I have put seems to cover it, I have been down this line and am sure the judge just takes one look at it and ignores it ?

 

I would defo mention Woodchester - this is very relevant.

 

The court may see this and prefer a set aside to an appeal which may very well be successful. The court may not wish to see their name splashed all over the legal press following a bad judgement and successful appeal.

 

The judge or court cannot ignore case law. Precedence is, I think, the basis of our legal system.

 

LA

[cosalt]

This looks fine cosalt, but it's de minimis not de-minus (sorry to be pedantantic).

 

 

LA

 

 

LOL I thought it didnt look right ! Should that say pedantic ??

[cosalt]

Ok what I will do is put section 87 & 88 on a seperate sheet together with the duff DN and forged DN and refer to them as attached.

 

I will add a statement that refers to woodchester and also a statement that mentions the fact the judge made his decision based on an admittion of debt which was wrong.

 

cosalt

[Lord_Alcohol]

LOL I thought it didnt look right ! Should that say pedantic ??

 

:D:D

[Lord_Alcohol]

Ok what I will do is put section 87 & 88 on a seperate sheet together with the duff DN and forged DN and refer to them as attached.

 

I will add a statement that refers to woodchester and also a statement that mentions the fact the judge made his decision based on an admittion of debt which was wrong.

 

cosalt

 

Perfect!

Edited May 27, 2010 by Lord_Alcohol
Typos and not enough pedantry