Fiddlesticks, I didn't know that.....did you?.loan

[Bill Shidding]

Hi All,

Please read on - carefully!

Had my hearing today.

I did have an enforeceable agreement, so I could only rely on the following facts.

I successfully challenged my learned adversary on the legality of;

1) The institutions (relied upon) reconstructed and unenforeceable DN.

2) The genuine DN I kept to prove that (1) was of questionable parentage.

3) The termination notice that was dated before the end of the prescribed period on the genuine DN2, and was therefore an unlawful rescission of contract.

 

 

Now, I know most of you are thinking - Fantastic, another victory for a cagger!!!!!

 

But alas, my efforts were in vain:(

 

My learned friend had the prowess of a leopard, and went straight for the jugular.

I quote;

"We no longer need to rely on the evidence ie; default notice etc. We will now be claiming all sums due as arrears":shock:

 

The Judge nodded in a "ah, good lad" manner, along with a raised brow.

 

I asked if that meant that any paperwork/evidence submitted was now irrelevant?

 

The Judge replied "as the claimant is now claiming the sum as arrears, there is no need for a default notice or termination notice as the term of the loan has ended, and any default notice or termination notice served, is now irrelevant"

The Judge wasn't even interested in seeing them.

 

(I think you've probably guessed where this is going)

 

Ultimately, it seems that under the new CCA2006, which came into effect on the 1st October 2008, as long as your creditor sends you a little reminder of your arrears every six months or so (and the term of your loan has passed its natural end date) they can enforce your agreement without having to rely on DNs or TNs. So long as they have your original agreement.

 

This is thanks to the wording of Section 87 of the CCA1974;

87---(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----

(B) to demand earlier payment of any sum

 

Of course, as my original loan term had ended, technically they are not demanding earlier payment. So a default/termination notice is not necessary.

 

However, this claim has been pending for a good 9 months, so when it was issued, the CCA2006 rule didn't apply. Had this claim been in court 6 months ago, I probably would have been successful.

 

 

If you think this is a bit stiff, you are welcome to comment.

 

If you can help figure it out - even better!

 

I hope this wont become a problem for others, but fore-warned is fore-armed.

 

Please forgive the spelling/formatting, I don't post very often!

 

Kind Regards To All

Bill.

Slowly but surely getting plastered.xx.

 

 

(PS, Respect to Mr S at 3peebee, I know you trawl here!)

[PGH7447]

cant help sorry but will bump it up in case someone can

[andrew0101]

This now makes sense as Cabot / Morgans solicitors are stating that my Citi card is arrears only, even though it is for the full outstanding balance and keep saying they dont need a default notice

[goonerhenry]

so this basicly means that they can do as they please, just out of interest had they sent you regular updates of your arrears?? also was this a loan or a credit card?

[Bill Shidding]

Hi,

I think the good people on this site are yet to realise the implications of this. Imagine you're satisfied the DN an TN you've received are unenforceable, but once your loan term is up your creditors then chase you for the arrears, your defence automatically goes out the window!.

 

Cheers, Bill.

[andrew0101]

Mine is a credit card and they are saying it is the arrears they are after, which strangely amounts to the full balance plus £800 interest!

[goonerhenry]

if its a credit card then what legally is your loan term?? surely thats not like a loan where you have a term, so can they enforce this for a credit card debt or is it just loans that this affects??

[Bill Shidding]

Mine was for a loan, I can't say for a credit card.

[Von Greenbach]

Bill when you submitted your defence did you quote this

 

"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 an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119"

[andrew0101]

Interestingly the letter I had today tells me that because it is a credit card they can claim it as arrears, however, if a loan they cannot! I think they make it up to suit themselves

[Bill Shidding]

Hi, The claimants relied upon DN was ineffective (Judge said so). My original DN and TN was ignored because the Judge didn't want to acknowledge/believe that the claimant had acted Fr*ud*lently (Judges words, not mine). He didn't even look at them. He said it is now "irrelevant" because the claimant does not need to send a DN or TN under the CCA if the loan term has ended, and "they are just claiming arrears"

They are not claiming "earlier repayment" because the term has ended!

 

Bill

[Von Greenbach]

This is case law and cannot be ignored

 

"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 an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119"

[JonCris]

Von is correct. IMHO the judge was wrong otherwise his ruling means that any creditor can circumvent the statute by simply terminating the agreement at any time during a dispute thereby negating the debtors defence

[Bill Shidding]

Yes, That case law states

"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 an unlawful rescission of contract"

But, if the default notice is invalid, and the claimant waits until your loan agreement ends, they can say "the default notice was invalid, and therefore technically, we didn't default you"

And because the loan has ended;

"We are claiming the arrears, not earlier payment of sums"

 

Bill

[postggj]

Ime With You Von Greenbach

 

I Take It Agreements Under Cca 1974 Are Not Affected By This

[Von Greenbach]

Bill, something for you to consider but you need to appeal, you're appeal will be based on a point of law that being "Court of appeal" ruling this

 

"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 an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future, but would give me a right to Counter-Claim for damages, see Kpohraror v Woolwich Building Society [1996] 4 All ER 119"

 

It's for you to decide whether to continue or not, but the above ruling is there to protect US.

[Bill Shidding]

My agreement was under the CCA 74. Its just they have to send you "statements" now. If they don't send you a statement, they can't enforce the agreement until they do.

 

Bill

[Von Greenbach]

But, if the default notice is invalid, and the claimant waits until your loan agreement ends, they can say "the default notice was invalid, and therefore technically, we didn't default you"

They tripped up in issuing / terminating your agreement, no matter how much they try and hide from it.

[Bill Shidding]

The Judge said " any notice sent is now irrelevant, because your agreement has ended, and the claimant is claiming arrears"

 

Bill

[Von Greenbach]

The Judge said " any notice sent is now irrelevant, because your agreement has ended, and the claimant is claiming arrears"

 

Bill

The judge is a knob full stop

 

He's no idea of consumer law, and therefore you need to appeal against his decision becase he got it wrong.

 

Don't fall for the trick "He's a judge and must be right" he may well be, but not on this occassion.

[Bill Shidding]

The case law you refer to states;

is an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future

The sums they are claiming are payable from the past (arrears)

 

Bill

[goonerhenry]

to be hinest you must be well and trely p****d off, as von says appeal as the judge has surely got this wrong, otherwise these muppets can do as they please

[Von Greenbach]

The case law you refer to states;

is an unlawful rescission of contract which would not only prevent the Court from enforcing any alleged debt that was otherwise only payable in the future

 

The sums they are claiming are payable from the past (arrears)

 

Bill

Go back to the beginning Bill, what does it state on the POC (points of claim?)

[Bill Shidding]

I dont think I'll be last, in fact Im more than a bit f****** **~#*!!!?

[JonCris]

Bill you keep reiterating what the judge said. What we are saying is the judge was wrong & to prove it Von has provided the case law to support our argument. In otherwords their or your termination of the contract does NOT invalidate their duty to comply with the statute as if the agreement was still in force