C L Finance (GE Store card) - Failure to comply with CPR request.**SETTLED BY CONSENT**

[GhostDebt]

Nearly there, not long to wait now.

 

Just one question.

I remember seeing a thread about assignments and the documents being on a cd and can't remember where it is. Any ideas??

[hammyhound]

Just subbing GD and good luck

[GhostDebt]

Hello all,

 

Brilliant Day...

 

Been to Court and claim/counterclaim dismissed part way through by way of consent order agreed between the parties.

 

The Judge was very good and was in our favour and would likely have ruled against the Claimant but we decided to settle for various reasons.

 

The upshot though to be wary of, is using S.196(4) of the LPA as whilst our interpretation of it is that the NoA must be sent by a registered mail service, the Barrister for the Claimant was going to argue if we had not settled that the term 'registered letter' actually refers to a letter containing the registered company address/registration number.

 

At least we now have closure and can put an end to it rather than have it drag out for longer. The consent order is in our terms so we are happy with the outcome. i.e

Claim and counterclaim dismissed

No order for costs

Claimant to remove all third party data including registered DN's

Full and Final Settlement, and neither party can commence any further legal action relating to the agreement.

 

So, basically we won (Nothing to pay).

 

Many thanks to everyone who helped and offered guidance it is much appreciated.

 

Best regards.

[citizenB]

 

The upshot though to be wary of, is using S.196(4) of the LPA as whilst our interpretation of it is that the NoA must be sent by a registered mail service, the Barrister for the Claimant was going to argue if we had not settled that the term 'registered letter' actually refers to a letter containing the registered company address/registration number.

 

 

 

 

 

I rather suspect that this is a load of bowlarks and will be directing one or two peeps to this post to comment.

 

However, I am pleased that you have settled this on your own terms and will amend your thread title accordingly.

[GhostDebt]

Hi CitizenB,

My thought also, but not really worth the extra hassle and time it would take to argue. Plus we got a result we are happy with and on our terms.

So all good in the end. Cheers.

[hammyhound]

So pleased for you well done.

 

Ghostdebt this business regarding the NoA has popped up in one of our cases in the claimant's reply to defence - they also say "registered letter" means that the letter has come from the Claimant's registered office. As you say b******cks. They even got that wrong as the NoA came from their solicitors.

 

As Citizen says Section 196 will have to be looked at as has been pointed out there is no registered post and that is what all the Claimants are now pointing out.

 

I will be drafting a suitable amended defence to explain that a NoA has to be served by recorded delivery and not by first class post.

 

HH

Edited February 23, 2010 by hammyhound

[GhostDebt]

Hi Hammyhound,

You will probably need to take 3 x copies of the relevant legislation with you as they will probably not provide it in the Claimants bundle, including the Law of Property Act and Recorded Delivery Service Act 1962 plus whatever else you need to refer to (CCA etc) as a proper bundle and a good skeleton arguement.

The Judge was impressed with our bundle and even their barrister kept a copy...

 

Hope it goes well, but make sure you can argue your side and back it up.

 

Regards

Edited February 23, 2010 by GhostDebt
wording

[hunni2006]

well done ghost debt, glad you're happy with the outcome & glad for the heads up on s196! was just about to put that in mine!

[hammyhound]

Thanks GD

 

I am subbing as I thought your skeleton argument was excellent and really easily to understand which is what I need.

 

Congrats again

 

HH

[GhostDebt]

No probs, just make sure you edit it to suit.

Please don't just copy and paste. Take the time to read things through and make sure you can understand and argue the relevant points.

I know it sounds patronizing, but its easy to do and have done it before myself.

 

Regards

[GhostDebt]

Just found this on google which may help.

www1.landregistry.gov.uk/assets/library/documents/SEV.doc

Basically says

Section 36(2) of the Law of Property Act 1925 allows one joint owner to serve a written notice on the other joint owners, severing their joint tenancy in equity. Section 196 of that Act, as modified by section 1 of the Recorded Delivery Service Act 1962, says how such a notice must be served.

Edited February 23, 2010 by GhostDebt

[hammyhound]

GD I think you have been having too many shandies after the court case.

 

HH

[GhostDebt]

I wish

But you understand why I said that in post #260.

Edited February 23, 2010 by GhostDebt
edited

[hammyhound]

Now I am lost already and I still am reading your SA.

 

HH

[GhostDebt]

Hi HH

Which bit are you struggling with?

[Gazza112]

Brilliant result you had there Ghostdept, Congratulations.

 

Gaz

[GhostDebt]

To summarise,

 

We went to the trial and before entering the court room had a chat with the Claimants barrister who outlined that they were going to try to get a ruling on the DN before proceeding further. We said that there are two issues which need to be discussed, the Assignment and the DN.

 

In the Court room, the Claimants barrister outlined what they were looking for after being told by the Judge to pass a comment back to the Claimants solicitors about the quality of the bundle they had provided. After informing the court we had brought our own bundle of the relevant legislation and cases, we were asked to present our arguements first to allow all parties time to consider the bundle contents. We presented our arguements on the assignment and DN making reference to both the Claimants bundle and the Defendants bundle allowing time for reading and discussion around the points.

 

The Judge was not happy with the Claimants lack of response to the issues over the last 12 months, but acknowledged this was not the barristers problem as had only been instructed the day before.

 

The Judge agreed with our interpretation of s.196 and the Claimants barrister conceeded on the DN being ineffective, but having had no time

to read the contents of the Defendants bundle, it was agreed that a break be taken for these points to be considered further.

It was during this break that the Claimants barrister offered a drop all hands settlement. i.e we agree to dismiss counterclaim and they agree to dismiss claim, if not they would defend the counterclaim by reissuing the DN in the correct format and get proof of service of the NoA.

 

Now, whilst I suspect neither of these can be done, at the time we opted to settle just to put an end to it and on our terms. Plus we had a favourable Judge which we may not have had next time round.

 

Hope this info helps.

 

Regards

[citizenB]

To summarise,

 

We went to the trial and before entering the court room had a chat with the Claimants barrister who outlined that they were going to try to get a ruling on the DN before proceeding further. We said that there are two issues which need to be discussed, the Assignment and the DN.

 

In the Court room, the Claimants barrister outlined what they were looking for after being told by the Judge to pass a comment back to the Claimants solicitors about the quality of the bundle they had provided. After informing the court we had brought our own bundle of the relevant legislation and cases, we were asked to present our arguements first to allow all parties time to consider the bundle contents. We presented our arguements on the assignment and DN making reference to both the Claimants bundle and the Defendants bundle allowing time for reading and discussion around the points.

 

The Judge was not happy with the Claimants lack of response to the issues over the last 12 months, but acknowledged this was not the barristers problem as had only been instructed the day before.

 

The Judge agreed with our interpretation of s.196 and the Claimants barrister conceeded on the DN being ineffective, but having had no time

to read the contents of the Defendants bundle, it was agreed that a break be taken for these points to be considered further.

It was during this break that the Claimants barrister offered a drop all hands settlement. i.e we agree to dismiss counterclaim and they agree to dismiss claim, if not they would defend the counterclaim by reissuing the DN in the correct format and get proof of service of the NoA.

 

Now, whilst I suspect neither of these can be done, at the time we opted to settle just to put an end to it and on our terms. Plus we had a favourable Judge which we may not have had next time round.

 

Hope this info helps.

 

Regards

 

 

As you say, you struck lucky with your Judge and you may not next time. As long as you are happy with the outcome that is all that matters..

 

However for the record, if they had proof of your receiving the NOA then they would have already provided it by now and they CANNOT reissue a Default notice after termination. End of story.

[creditcardmug]

Nice one well done!

[Mightyacorn]

Well done GD, we seem to be having a few successes against CL Finance of late, I hope this continues.

[RobinWayRobinme]

I rather suspect that this is a load of bowlarks and will be directing one or two peeps to this post to comment.

 

However, I am pleased that you have settled this on your own terms and will amend your thread title accordingly.

 

Spotted an interesting link on another thread that think is relevant to you.

Case Law Update - Rosling King Blog Archive Lender Update: August 2009

If you have a read of it, IMO it sets out the service of NOA quite well. My view from this is unless the agreement states service by other means, then registered/recorded argument remains.

 

Of course, as is the case for many Caggers, if there is no agreement proving otherwise, then there is no term in CCA agreement allowing service by other means.

 

Hope this is of some help.

R

[RobinWayRobinme]

oops, seem to have missed some more recent posts . Well done GD, good result. Think link may be relevant to others though.

[hammyhound]

Hi HH

Which bit are you struggling with?

 

I understand now I thought you were saying that I had to apply to sever our joint tenancy. Thought I was going mad. The link you posted relates to an application for a joint tenancy , didn't see the bit about services of notice.

 

Thanks for that

 

HH

[littlebert8]

Congrats on your result GD

 

I'm due to go to trial with Cohens in just over two weeks. They have failed to reply to my amended defence and have just made me an offer to settle by consent for just over £2K. This smacks of desperation to me, but I'm willing to offer them the same outcome the offered you.

 

Could you let me know how the offer was made and who drafted the order. If you could post up the de-personalised text of the order that would be great.

 

Once again, congratulations on a great result.