Repo order help with defence needed.

[Lord_Alcohol]

The court have said point blank I can't apply for set aside, it must be appeal, if I do appeal once this is done it will stop the repo order and the order to pay costs.

 

I think the claimants will be scratching their heads now because I think they concentrated on the repo as they thought the vehicle was worth more than the outstanding amount and by repo they would get their money. Now they know it is only worth a couple of hundred at the most and will need recovering offsetting any value, they wont get their money unless they back to claim the money, which presumably based on my fiancial position could be £10 a week.

 

Could it be worth offering them a one off settlement now, as its in their control to either go further or not, especially if I make it clear an appeal is being prepared.

 

It's always worth negotiating.

 

If they have now realised that the car isn't worth much, they might now focus on a money claim for the unpaid amounts. It's not clear from the order whether they would need to start a new claim. If they have to start a new claim for money, then you have another opportunity to defend (unless it's the same judge ).

 

Personally, if the court will not budge on set aside or give reasons for not allowing it, then I would appeal.

 

LA

[Lord_Alcohol]

However bearing in mind the court told me I couldnt appeal, which we know is wrong, is anyone able to confirm conclusively that I can or cant do a set aside ?

 

Well you know my view on that...

[cosalt]

Well put simply. I don't know what to do now

[colin21958]

Well put simply. I don't know what to do now

 

I would follow his Lordship's advice! Call or visit the court and explain the situation to the court manager and explain that you would like to make an application for a set-aside, but that if this is definitely not going to be allowed then you will be appealing, then do whiichever you need to do. That's what I'd do, I think you have a strong case if it goes to appeal, or even if you get a set aside hearing...

 

Colin

Edited May 27, 2010 by colin21958
I wish I could spell, or type, or both!

[frettful38]

Well put simply. I don't know what to do now

 

 

Its obvious the court is arsing about, and probably ain't got a f#####g clue what to do so why don't you just put in for an appeal and forget setting it aside?

 

Its up to you cosalt but obviously the court is wasting valuable time [your time] and this is not good. Once you put in an application to appeal that should slow things down until your get everything in order AGAIN.

 

You should ask this court and the who ever your talking to have that got a bloody idea what the hell there on about:-x

[Lord_Alcohol]

I would follow his Lordship's advice! Call or visit the court and explain the situation to the court manager and explain that you would like to make an application for a set-aside, but that if this is definitely not going to be allowed then you will be appealing, then do whiichever you need to do. That's what I'd do, I think you have a strong case if it goes to appeal, or even if you get a set aside hearing...

 

Colin

 

I agree!

 

LA

[Lord_Alcohol]

Its obvious the court is arsing about, and probably ain't got a f#####g clue what to do so why don't you just put in for an appeal and forget setting it aside?

 

Its up to you cosalt but obviously the court is wasting valuable time [your time] and this is not good. Once you put in an application to appeal that should slow things down until your get everything in order AGAIN.

 

You should ask this court and the who ever your talking to have that got a bloody idea what the hell there on about:-x

 

I agree with this too!

 

Your choice cosalt - both options are fine.

 

LA

[colin21958]

Its obvious the court is arsing about, and probably ain't got a f#####g clue what to do so why don't you just put in for an appeal and forget setting it aside?

 

Its up to you cosalt but obviously the court is wasting valuable time [your time] and this is not good. Once you put in an application to appeal that should slow things down until your get everything in order AGAIN.

 

You should ask this court and the who ever your talking to have that got a bloody idea what the hell there on about:-x

 

...Yep, or you could do that of course...! ...

[colin21958]

So, at least we're all agreed then!

[frettful38]

So, at least we're all agreed then!

 

 

Agree? we aint got time to agree JUST DO IT as starsky would say to hutch

[colin21958]

Agree? we aint got time to agree JUST DO IT as starsky would say to hutch

 

Absolutely, I'm still with you on that one too!

[cosalt]

Right appeal it is then, not only for my benefit but for the benefit of anyone with a dodgy DN.

 

I could try and negotiate but why should I? I know I am right so why give in ?

 

I'm going to appeal, win and get all my costs back and CAG will benefit from a donation as a result !

 

cosalt.

[colin21958]

Right appeal it is then, not only for my benefit but for the benefit of anyone with a dodgy DN.

 

I could try and negotiate but why should I? I know I am right so why give in ?

 

I'm going to appeal, win and get all my costs back and CAG will benefit from a donation as a result !

 

cosalt.

 

Go for it...! And you can rest assured of plenty of help from everyone here...! Especially as it's an issue which affects so many people here!

[cosalt]

Now I just need help with the forms.........

[colin21958]

Now I just need help with the forms.........

 

We'll muddle through I'm sure!

[frettful38]

Right appeal it is then, not only for my benefit but for the benefit of anyone with a dodgy DN.

 

I could try and negotiate but why should I? I know I am right so why give in ?

 

I'm going to appeal, win and get all my costs back and CAG will benefit from a donation as a result !

 

cosalt.

 

 

Good now thats what I like. I don't want to go in to too much detail, but anyone who read my thread "is it a mistake or fraud" would look at this thread as a walk in the park.

 

Bottom line was in my case is that I knew that there was something wrong, and despite all the thrashing and belting from legalpickle I still did not want to give in. In fact I was so determined I was right that I could not ever take no for an answer, I fought and fought and when I had nothing left I fought some more, and I WON.

 

So cosalt like I said you can do this, trust me when you win you will feel on top of the world like I do today, just better remember not to stay up there too long hey , got more matters to deal with.

 

Anyway, my advice is stay calm, think clearly and positive. If you think and believe your right then you have to fight. That is my middle of the years new resolution.

 

agree everyone?

 

I WON WITH LEGALPICKLES HELP, AS I WOULD NOT HAVE BEEN ABLE TO DO IT IF IT WAS NOT FOR HIM, FORGOT TO MENTION THAT ABOVE, DON'T WANT ANOTHER BASHING FROM HIM

[cosalt]

As I see it to put in an appeal I initially need to supply the following:-

 

Completed form and number of copies as requested.

 

Copy of order being appealed.

 

A skeleton argument, which I assume can be based on what I said for the set aside - help adapting may be required !

 

A copy of the order refusing permission to appeal, together with a copy of the judges reasons.

 

Now I believe the last point involves form N460 ? which the judge should have completed. I asked the court about this and they said although they have heard of the form, the judge does not have to complete one at this level, only if at the next stage the circuit judge refuses will it be completed.

 

If and when the appeal is granted permission, I then will need further things such as the judges transcript etc. Can someone confirm this is correct ??

[frettful38]

I don't know the exact procedure and hopefully someone will be able top advise further, maybe you could pm PT2357 and point him to your link, he is very good at this stuff.

 

Hope this is of some help,

 

http://www.rcjadvice.org.uk/documents/Howtoappealacourtdecision.pdf

[colin21958]

Anyway, my advice is stay calm, think clearly and positive. If you think and believe your right then you have to fight. That is my middle of the years new resolution.

 

agree everyone?

 

Of course! :D:D everyone will agree! We're a very agreeable lot!

[cosalt]

I don't know the exact procedure and hopefully someone will be able top advise further, maybe you could pm PT2357 and point him to your link, he is very good at this stuff.

 

Hope this is of some help,

 

http://www.rcjadvice.org.uk/documents/Howtoappealacourtdecision.pdf

 

Thanks that link is very usefull.

 

I have pm'd pt2357 but he says he will not acceot pm's asking for help so I hope ive done the right thing

[colin21958]

Thanks that link is very usefull.

 

I have pm'd pt2357 but he says he will not acceot pm's asking for help so I hope ive done the right thing

 

PT is busy, but I would think he will let you know who to contact, or forward your message to someone who can help... If you don't hear back from him try contacting one of the other site team members (anyone who is online - check the bottom of the home page for people who are online) and they will put others in contact with you who can help; they did for me...

[vint1954]

Here is the argument step by step as to why a DN can be faulty. Just amend to your situation.

 

 

 

 

To explain simply, why your conclusion is incorrect, I would refer you to the consumer credit act 1974, in particular to sections 87 & 88 below.

 

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.

 

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

 

Section 88.

 

(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.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes Operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (I) is not duly paid, or (where no requirement is made under subsection ~1)) if the fourteen days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

You will note from section 87 above, that for xxxxxxxxx ( Name of OC ) to enjoy the benefits of that section, you are required to issue a Default Notice, compliant with section 88 of the act. Part 2 of section 88 above, demands that the debtor be given 14 clear days from service, to rectify any breach. I have highlighted that point, to enable you to easily find it.

 

For the avoidance of doubt, Service, in this instance by post, is laid down in the Interpretation Act 1978, further updated 1116th April 1985. The relevant section is copied below for your convenience.

 

1. Interpretation Act 1978, Section 7

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "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 effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

The default Notice issued by xxxxxxxx ( Name of OC) failed to allow for service as clearly required by the act, and as such was defective. 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

I hope that you can see from the above, why your letter dated xxxxxxxxxxxxxxxx, is misguided in its contents and how the Default Notice issued to me on xxxxxxxxxxxxxxx, is fatally flawed. Your subsequent actions, seeking the benefit of s 87 of the consumer credit act 1974, following the issue of a defective Default Notice, led to an unlawful rescission of contract, which I have previously accepted in writing.

 

I await your response, detailing the true arrears at the time of rescission, against which I will make a claim against xxxxxxxxxx ( Name of OC ) for that unlawful rescission.

 

Yours xxxx,

[diddydicky]

albiet in good grace i think you are being wrongly advised

 

a judgement made by a judge who is alleged to have misdirected himself in reaching that judgement is not a matter for a set aside application- it is a matter of an appeal to a higher court and you have/are wasting time messing about with set aside applications

 

you need to get on with the appeal process

[cosalt]

Thanks DD, I think we have established an appeal is the way forward, especially due to the fact that rightly or wrongly the court wont accept the set aside.

 

I need someone who has gone through / is going through the appeal process to advise what to do.

 

The forms are pretty straightforward but it doesnt make it clear what information is needed at this stage. ie does my initial applicatio only need a copy of the judgement, my skeleton argument etc. Will I only need the transcript etc once the application has been accepted and is moving towards a hearing.

 

Its the same as anything really, once you have done it once its easy, but I am sat here not really having a clue. The court office whilst appearing helpful dont really help.

 

I feel my appeal could be very important to a lot of people as well as me so its important its done quickly and right.

 

I have pm'd ( wrongly I believe ) pt2537 asking for guidance but I dont think he can help anymore.

 

What now, I want to get the appeal in today.

 

My key queries are.

 

1. What bits of my defence do I need for the skeleton argument and how do I lay it out, should it be to the point or comprehensive.

 

2. The form asks for an N460 which lays out the judges reasons for not allowing appeal. The court says I dont need it, and the judge doesnt have to complete one.

 

3. Do I need the transcript now or do I just need to get the ball rolling to use at a later date

 

any guidance appreciated

[frettful38]

Thanks that link is very usefull.

 

I have pm'd pt2357 but he says he will not acceot pm's asking for help so I hope ive done the right thing

 

 

sorry cosalt but you may have misunderstood what I advised, which is understandable with all your going through. I said that you should pm PT your link as he does not give advice by pm. I can understand that PT must be very busy, but just trying to do anything that helps, and a few telling offs along the way is OK, I mean just look at LP and me

 

sorry if I did not make myself clearer, so lets get moving on what next to do which is more important.