unknown CL Finance Sainsbury Card CCJ registered 7th December - help o set aside ***WON They Discontinued**

[avarils]

Photobucket link:

 

http://i659.photobucket.com/albums/uu312/avarils/agreement.jpg

[itsamomentintime]

is there a 'your rights to cancel' section?

 

if not its useless

[avarils]

Hello,

 

A long time since my last update on this one. The court has set a date in late September for a trial.

 

I have not been provided with anything from the claimant regarding documents. I do have a copy of the POC, but that's it.

 

Do I need to do a CPR 31.14 request to get these documents or should I have been sent these anyway as a matter of course?

Thanks

[avarils]

hello,

I have received a letter from the solicitors stating that they would still like to offer me the opportunity to settle.

I don't know what paper work they have.

Even though a court date has been set, can I do a CPR 31.14 request to see what paperwork they have? thanks

[supasnooper]

hello,

I have received a letter from the solicitors stating that they would still like to offer me the opportunity to settle.

I don't know what paper work they have.

Even though a court date has been set, can I do a CPR 31.14 request to see what paperwork they have? thanks

 

 

Yes you can.

 

I'd read this thread - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

I do trust you have sent a Subject Access Request to the original creditor.

Edited July 12, 2010 by supasnooper
added info

[avarils]

Yes I did send a SAR.

 

I got back a load of information including an credit agreement, but no default notice.

 

I'll read the thread you have suggested. Thanks!

[supasnooper]

Make sure you ask them in Court to prove the service of a Default Notice..........it is a legal document and a legal requirement that one is served before any legal action should have commenced.

[avarils]

This is the part of the defence that Nicklea kindly put together for me that deals with the default notice:

 

Valid Default Notice

 

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

12. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the 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 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

 

I'm hoping that once I send them the CPR 31.14 request, they won't be able to produce a copy of the DN, or not reply back in time (they have been late with every piece of their correspondence so far). I will then be in a position to ask the court to strike the claim out. If it does get to that stage I'll research all my options.

[avarils]

Sorry, I forgot to ask, should they not have a valid DN, can I counter claim at this stage for defamation of character (ideally I just want them to drop the whole thing and a counter claim may well convince them to do that)?

[supasnooper]

Sorry, I forgot to ask, should they not have a valid DN, can I counter claim at this stage for defamation of character (ideally I just want them to drop the whole thing and a counter claim may well convince them to do that)?

 

 

Not something I can advise on I'm afraid, but I think you'd be heading for very expensive litigation if you tried to counterclaim for defamation.

[Ganymede]

Not something I can advise on I'm afraid, but I think you'd be heading for very expensive litigation if you tried to counterclaim for defamation.

 

 

To sue for libel the libelous statement must have been published to a 3rd party and I doubt very much that starting a court claim falls within this definition.

The statement must also:

• Be to a person’s discredit.
  
• Tends to lower him or her in the estimation of others.
  
• Causes him or her to be shunned or avoided.
  
• Causes him or her to be exposed to hatred, ridicule or contempt.
  

 

I would imagine the fact that the statement is true and that you do owe the creditor money is the best defence to the libel claim!

[avarils]

I was thinking that they have registered a default with the credit reference agency although I have not seen any default notice and HFC failed to produce one when i sent them a SAR.

 

i had a read of this case:

Kpohraror -v- Woolwich Building Society [1996] 4 All ER 119

 

The situation seems the similar.

 

At this stage I simply want to 'encourage' them to discontinue....

[avarils]

Hi,

 

I have not received anything back from the CL finance regarding my CPR 31.14 request above.

I spoke to them and they told me that they are still waiting for a copy of the default notice from their client.

 

In this instance is the best course of action for me to make an application to the court on a n244? This requires a fee of £75. Is there any other way of forcing them to provide me with a copy of the documents they intend to rely on in court?

[avarils]

Good news. Howard Cohens have withdrawn. I think they realised without a default notice they had little chance.

Thanks to everyone who helped me on this site!

[AndyOrch]

Well done Avarils now look up wasted costs you may be entitled to claim.

 

 

Regards

 

Andy