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

[Bill Shidding]

Hi Alphageek

 

What's the point of quoting something from a case that was subsequently appealed?

 

I reply as Someone Else. The point (as quoted) was not appealed. I believe that this was not a point of contention, and therefore wasn't a part of the appeal.

 

I would really like to read the original trial though.

 

Bill

[Alphageek]

Hi Alphageek

 

I reply as Someone Else. The point (as quoted) was not appealed. I believe that this was not a point of contention, and therefore wasn't a part of the appeal.

 

I would really like to read the original trial though.

 

Bill

 

It sounds like I need to read it too. Post a link if you track it down please.

[kel123]

Hi Bill

 

I may be fishing in the dark with no clue to what I am doing/saying but! From somewhere it was my understanding that once a case has been started 'time stood still' so to speak e.g. statute barred - the time spent during litigation cannot be included. Therefore the end of term cannot have been reached. And by not accepting your original DN which was before the end of the term (which ever way you look at it) seem unreal.

 

I know what its like coming up before a biased dj and it hurts. Just remember it is not you who has had to do the licking after!

 

Kel

PS it wasn't at Worcester was it?

[MAGDA]

I would be under that impression myself, that once a claim is issued, then anything that might occur during the course of proceedings is irrelevant, such as a loan reaching it's natural conclusion (and of course that isn't possible anyway, as it was defaulted some time before). After all, proceedings, such as in my own case, can drag on for two years,or perhaps even longer, so that would hardly be fair.

 

Magda

[kel123]

I can understand what bill is saying - because he belittled (for the want of a better way of saying it) their mock DN this invalidated the termination but I would have thought the original DN should have been accepted so the dj infact accepted the mock DN knowing that it was a fake and knowing that the original existed and that stinks. Another thing that stinks is the judge allowing the claim to be changed because by taking it to court i.e. by claiming the full amount it terminated the contract and therefore even if the dj did invalidate the DN, the claiment had no rights starting the case and therefore should have been throwed out. It would however have not stoped the claim because as soon as the term end rolled round then then the game would start again, BUT how many bites of the cherry do they want! this then would have been the third attempt so it would not have looked good!

[Bill Shidding]

Hi Kel/Magda,

 

BUT how many bites of the cherry do they want!

 

They want the cake and eat it, then come back for the crumbs!

 

I think that the court is obliged to deal with the whole claim, under the CPR.

Otherwise, if the claim was only for arrears due up to a certain date (issue of claim date) and the trial only considered arrears up to that date, then what would happen if I continued to fail to make instalments after that date? Could I then defend the second proceedings with a "further claim would constitute a split claim"?

 

I shouldn't try to second guess the reasoning behind their approach, as I may be seen to be agreeing to it!

The trouble is that unless these circumstances affect you personally, many would dis-believe it.

 

Bill

[Bill Shidding]

Kel,

 

once a case has been started 'time stood still' so to speak

 

I think you may have got that from the bank charges waiver. I don't think that is the usual scenario, as the FSA stipulated that it would be unfair to allow claims to be nullified whilst the case dragged on (probably for 2 to 3 years).

 

I also think that the courts are under some pressure to help the banks re-capitalise, but thats OT!

 

Kel

PS it wasn't at Worcester was it?

 

Not at Worcester Kel, though my town does begin with W, is fairly close to france and I have seen Marlin employees sunbathing topless.

 

Bill

Edited August 27, 2009 by Bill Shidding

[kel123]

But Bill if the court dealt with it has you say up to the DN and originally the claiment took you to court for the full amount, then surely there can be no arrears on a terminated contract, because by their actions and by the courts actions the court confirmed that the account is terminated. and therefore what evers left is unenforceable in a court of law at this present time

 

Hope that made sense. Hope I am not confussing the issues for you

 

Kel

[Bill Shidding]

Hi Kel,

 

But Bill if the court dealt with it has you say up to the DN and originally the claiment took you to court for the full amount

 

In summary-

 

The claim was for the full amount outstanding on a loan (arrears and future payments).

The claim was issued with 7 months of the original term to run.

The trial took place 5 months after the natural end of the term (all arrears at that point).

The claimant had made a balls up of the dates of the DN as relied upon, and made an application (during those 12 months) to enter their reconstructed DN as evidence.

I had kept the original DN and TN.

The claimant relied upon a reconstructed/fake DN. This DN was later found to be "not sent" by the DDJ.

At that point the DDJ could have struck out the claim but, I had to submit the original DN to dis-prove the fake one.

Therefore, there was an effective DN, just not the one the claimant was relying upon.

The TN had been issued before the end of the specified remedy period on the original DN.

I claimed the agreement was repudiated.

The court found that repudiation requires unequivocal acceptance by the injured party.

I could not prove that I had unequivocally accepted the repudiation.

The court found that in the absence of unequivocal acceptance of repudiation, that the agreement had endured.

All sums that were or, would be due under the agreement are repayable.

As a sort of recompense to me. the court dis-allowed any arrears accrued after the date that the claimant made the DN application. I had about £1200ish wiped off the debt.

 

The claimant had attempted (with the "help" of a friendly judge) to reclaim all sums as arrears. The claimant could not prove that they had complied with the need to send an arrears notice every six months. The judge had to adjourn the case until they had sent a vaild arrears notice.

During that adjournment, I sent a letter to the court claiming that arrears cannot be accrued on a terminated account. And that the account had been unlawfully rescinded due to the evidence listed above.

I got a different judge (!) for the second hearing. The arrears aspect was dropped also.

 

Cheers

Bill

Edited August 27, 2009 by Bill Shidding

[kel123]

So Bill is this a correct statement

 

You received a ccj for the arrears on the DN and the rest has been wiped off?

[Bill Shidding]

Hi Kel, not quite.

 

I received a CCJ for the arrears accrued UP TO the date that the claimant filed an application to rely upon the fake DN.

The remaining arrears accrued after the date of that application, are now unrecoverable by the claimant (Res Judicata).

 

Bill

[kel123]

so in some respects a partial victory with elements of bad luck.

 

Hope you get a more stable judge first time on your next encounter

 

Kel

[Bill Shidding]

Thanks Kel, the element of bad luck was going against a clever/knowledgeable counsel, and the wrong "lodge"

 

Bill

[wilko1]

Bill,

 

been reading with interest, would you say it would be a good idea if you had received a defective DN followed by a TN, to write to the creditor to accept the termination?

 

Thanks

[Bill Shidding]

Hi Wilko,

 

write to the creditor to accept the termination?

 

This is the $64,000 dollar question.

 

If I had written/accepted in another way, I would have been OK.

 

There is no requirement to actually write, but there should be some kind of unequivocal acceptance. Whether that be by word or deed. If I had done anything other than continue to fail to make repayments after receiving the TN, I may have had a defence of repudiation etc.

 

It could just boil down to the judge on the day.

 

Few believe that my predicament was the norm, and I hope they are correct.

 

I posted in the dodgy dn, further discussion thread and you could read the responses there. However, I understand that this has been construed as the meanderings of a troll, so you should use your own judgment.

 

Bill

Edited August 28, 2009 by Bill Shidding

[wilko1]

Bill, thanks for the reply.

 

I think a lot of people using this forum read about what they can do, and what the creditors can’t do, and believe it as gospel. They don’t want to believe they can run into problems. Personally I think what you have experienced and problems that others have ran into should be recorded and stored in one place so that the rest of us can read about and prepare for.