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

[Bill Shidding]

I had hoped to gain some solid facts on the "intention" of a termination notice, even when that TN is technically ineffective.

My other possible attack was going to be, if the OCs DN was deemed invalid by a court (eg No Default), damages etc.

These are possibilities, maybe.

 

Yes another hearing "soon"

[heliosfa]

I have researched extensively. There is no defence for "arrears" now, see CCA 2006 (as amended).

 

but there are only small arears (what was listed on the real DN, so one is def required in evidence) and you have a counter claim for unlawfull rescission of contract, khpoahr v woolwich (iirc), and damages for the default on your credit file.

 

The CCA 2006 does NOT mean that anything the OC lost entitlement to after improper termnation becomes arrears at the natural end of the agreement as the agreement ended at termination.

 

The CCA 2006 does not come into this and your defence is they have no entitlement due to improper termination...

 

H

[Bill Shidding]

At this time, the DJ has dismissed all docs. I cannot rely on docs the court/that DJ wont recognise.

I have tried to formulate an arrears defence, found this to be unescapeable due to the amendments.

 

I could;

complain about the DJ, get him replaced.

Appeal after judgment (POC, no defence allowed etc)

[Bill Shidding]

Please remember that the DJ dismissed all docs, because I "successfully" challenged their validity.

Edited April 1, 2009 by Bill Shidding

[Bill Shidding]

The difference here from the usual case format is;

Usually, when the OC wants payment in advance (earlier payment)

The OC RELIES ON the DN and TN/FD

 

But, with arrears

The OC does not rely on those docs, because its not earlier payment.

Therefore, in this case, the OC had a "backup" option.

Only upon the DJ dismissing the docs, did I know where this was going.

 

It took me a while to get my head around all this, I am not being "browbeaten" by my adversary or that DJ. As the law stands (now) there is no defence for an arrears action, bar a faulty statement. Even that can be remedied very quickly (which is why its called the CCA2006(as amended).

All the docs that are required is the CCA and a statement.

Edited April 1, 2009 by Bill Shidding

[creditcardmug]

subbing

[postggj]

been following this,

 

i think a pm to pt or john chriss is in order on this one

 

does not seem right

 

i myself have used a dodgy default notice myself in court and won

 

ill sit on the fence untill site team comments

 

we need to get this right, 100% accurate

[Bill Shidding]

Hi to all that have been following this thread.

 

Just a quick update;

Filed a report to the court yesterday as required by the DJ.

The DJ expected "us" to have come to an agreement, regarding the repayment of the "debt", before he gives judgment.

Well, I think he may get a surprise when he reads my report. As will the claimants:p.

 

Heliosfa touched on the subject above

 

The CCA 2006 does NOT mean that anything the OC lost entitlement to after improper termnation becomes arrears at the natural end of the agreement as the agreement ended at termination.

 

This is (as we all know) absolutely correct. I wont bore you with all the details, but I had to make the DJ aware of the following (shamelessly lifted from the dodgy DN thread and found/added to from BAILII)

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor"

 

But especially this extract, which was not quoted in that thread (I think).

 

"I would add that the onus of proof in this matter rests upon him, i.e., to prove that he acted carefully, and not upon the third party to prove the contrary"

 

Lord Wilberforce - Saunders v Anglia Building Soc (sub nom Gallie v Lee) [1970] UKHL 5 (09 November 1970)

 

 

As we know that my claimant HAD relied upon the TN, they have already admitted sending it. I dont have to prove it was sent by them;).

Once this and all the other case law I have quoted comes to the DJs attention, he will probably ignore it anyway - and make me appeal.

I do not say this lightly. but I think the DJ was overawed by the company my adversary keeps (ie QC this, Lord that etc).

 

I will update this thread when I have any news.

 

Thanks for all your comments to date.

 

I know CAG is a self help site, but I would appreciate a little input from the site team, if possible. (Where did I leave my credit cards?)

 

Regards

 

Bill.

Edited April 26, 2009 by Bill Shidding

[popeye1]

I think Helisofa has it right ,improper termination by the claiment ,what ever else is said they have terminated the account.

They took you to court on these grounds they cannot say if their docs are incorrect can we claim something else .The agreement was terminated albeit unlawfull before its end term.It does not now matter in terms of time.

[Josie8]

subbing

[Docman]

Hi Bill

 

Read your posts with interest as I have three cases all with questionable DNs.

 

I can see the point that the claimant has made, viz that after the agreement has come to its anticipated end (X months usually) any money still owed are 'arrears' and not a future payment, thus no DN is required.

 

I have an issue with this interpretation of the CCA 2006. On the one hand, the CCA 2006 specifically extended the period to be stated in a DN from 7 to 14 days. This was within the body of the Act and not a Statuory Instrument. I cannot see how it was the intention of Parliament to provide greater protection for debtors by extending the time whilst in the same statute, taking away one of the most important safeguards, the requirement to issue a default notice to rectify a breach. However, for the moment, I leave that to one side to concentrate on your predicament.

 

It really was tough luck to find a barrister/solictor who came up with this one - and a judge who allowed it at such a late stage. Was the adjournment to allow the claimant to submit an Amended Particulars of Claim? Have you been ordered to submit an Amended Defence and is that what you mean by 'report'? If so, you will have to address the new Amended POC.

 

IMHO, the strongest ground is to argue that the termination was an unlawful IF it occurred prior to the natural end of the contract. Can you post up an indication of what your 'report' contains?

[The GodMother]

i always thought, from what i have read that PT has said, that the 2006 rukes did not superseed the 1974 rules.

[Bill Shidding]

Hi Docman, The adjournement was to allow the claimant to file and serve a current arrears notice (to comply with section 86 cca74 as amended).

In the meantime I managed to find a copy of an "impact assessment" of the new regs (thanks to Viscount Stair). Within that assessment, they claimed that differentiating between "pre commencement" and "post commencement" arrears would only confuse us poor peasants. Commencement was 31st October 2008. Therefore, creditors could include arrears from before that date, without having to identify that sum as pre commencement arrears. We would not know when the arrears became due, unless the creditor specified a date on the arrears notice.

Interestingly, as you have already stated, this amendment "should" be to strengthen consumer rights. You would be hard pressed to find many strengthening points in that legislation, with the exception of;

Notice period up from 7 to 14 days.

Arrears notices now compulsory, but easily changed if mistakes are made with its construction.

Loss of the entitlement to charge interest, if the notice is incorrect or ineffective. But no loss of the arrears sum.

I think;

The greatest loss was section 127 (3 to 5). This greatly diminishes the courts power to dismiss a claim if there is sufficient cause (no agreement).

 

Regarding my report, the court ordered that the parties attempt to settle the claim. The court did not give me any time to defend or allow me to do anything other than negotiate with the claimant. The claimant did not need to file an amended POC.

 

The DJ has made a fairly large cuck op, if he allows the claimant to claim "post termination arrears" on a arrears notice, he will be making a (dangerous) ill founded precedent.

I think - the DJ thinks that by making the termination notice irrelevant, he also makes the TERMINATION irrelevant.

As I have quoted above

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor"

 

But especially this extract, which was not quoted in that thread (I think).

 

"I would add that the onus of proof in this matter rests upon him, i.e., to prove that he acted carefully, and not upon the third party to prove the contrary"

 

Lord Wilberforce - Saunders v Anglia Building Soc (sub nom Gallie v Lee) [1970] UKHL 5 (09 November 1970)

 

All I can say is, I will only know when I have a judgment to my case.

 

By the way, if your DJ said " I am loathe to have this case come back to court". Would you think the DJ was biased?

 

 

Bill

[Von Greenbach]

Hi Bill

Would you think the DJ was biased?

A DJ being biased, whatever gave you that idea?

[Bill Shidding]

Hi VG

 

Just a stab in the dark!

[postggj]

i always thought, from what i have read that PT has said, that the 2006 rukes did not superseed the 1974 rules.

 

 

says it all that

 

totally agree

 

needs pt to comment on this one

[Bill Shidding]

I assume that the new rules are an update, and would therefore be a compliment to the old ones.

In the same sense that the legislators can remove old rules, they may also include new ones?

 

The only reason I managed to get my case adjourned at all was due to a missing arrears notice, so I'm not complaining about that!

 

Bill

[citizenB]

Incidentally, is it common knowledge that Section 127 (3 to 5) of the CCA1974 has been repealed?

 

Yes, but the repeal is NOT retrospective to those agreements entered into prior to the new regs being made.

 

I think your Judge might have got himself a bit muddled with the Notice of Arrears. My reading of the document linked below is that they are a new level of protection for alleged debtors.

 

Consumer Credit Act 2006

 

If you scroll down to the section headed

 

STATEMENTS TO BE PROVIDED IN RELATION TO REGULATED AGREEMENTS

 

read everything below it.

 

HTH

[WelshMam2009]

Schedule 3, s11 of the Consumer Credit Act 2006 prevents section 15 repealing s127(3) of the 1974 Act for agreements made before section 15 came into effect.

 

 

11 The repeal by this Act of—

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of

section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the

commencement of section 15 of this Act

[Bill Shidding]

Hi CB+WM

 

Thanks for your comments.

 

This case has now been to trial (after 18 months), and I got a CCJ. Surprisingly though, the claimant "dropped" the argument that arrears can be claimed after termination (I wonder why?). I have known for a while that the repeal of S127(3 to 5) only affects agreements entered into after 6th or 7th April 2007.

IMHO, I still maintain that idea of arrears notices are to replace TNs, when/if the creds figure it out. "Termination" will no longer be used to end agreements and arrears notices will be sent periodically, to maintain pressure on the debtor to pay.

 

I do not wish to post why the CCJ was granted on this thread, I have already commented (at length) on the "dodgy DN, further discussion" thread. If you read my comments on there, you will understand my reluctance to elaborate here;).

 

All the best,

Bill.

[MAGDA]

Hi CB+WM

 

Thanks for your comments.

 

This case has now been to trial (after 18 months), and I got a CCJ. Surprisingly though, the claimant "dropped" the argument that arrears can be claimed after termination (I wonder why?). I have known for a while that the repeal of S127(3 to 5) only affects agreements entered into after 6th or 7th April 2007.

IMHO, I still maintain that idea of arrears notices are to replace TNs, when/if the creds figure it out. "Termination" will no longer be used to end agreements and arrears notices will be sent periodically, to maintain pressure on the debtor to pay.

 

I do not wish to post why the CCJ was granted on this thread, I have already commented (at length) on the "dodgy DN, further discussion" thread. If you read my comments on there, you will understand my reluctance to elaborate here;).

 

All the best,

Bill.

 

If the so called total arrears can be claimed without the need for a DN/TN, then I wonder why the claimant "dropped" this argument, given that it was such a certainty. If the 'agreement' is defaulted/terminated, then in effect, the date on which the agreement would have ended (at some point in the future) becomes irrelevant. The agreement ended at that earlier point. Magda

[Bill Shidding]

Hi Magda,

 

If the so called total arrears can be claimed without the need for a DN/TN, then I wonder why the claimant "dropped" this argument, given that it was such a certainty

 

I think (in hindsight) that the argument was dropped because the POCs were relying on the DN/TN etc. To stop that argument, and continue on the "all sums due are now arrears" would have needed the claim to be struck out/discontinued or the whole POCs being changed. I don't know if the courts would've allowed them to change the POCs at that late stage. Mainly due to them previously making a specific application to rely upon a "reconstructed and never sent" DN, (which also cooked their goose).

 

The case law quoted in those proceedings was Woodchester vs Swayne (the original pre-appeal trial) which quoted-

 

"A default notice is not required where the creditor simply demands payment of arrears without seeking one of the specified remedies, and the creditor will be entitled to such an order even if the agreement is not terminated"

 

Another possible reason this avenue was "dropped" is that there was a different Judge presiding at the last trial. He was nowhere near as accomodating to the claimants counsel as the first Judge.

 

If the 'agreement' is defaulted/terminated, then in effect, the date on which the agreement would have ended (at some point in the future) becomes irrelevant

 

The agreement ended at that earlier point

 

Don't forget that I ended up claiming repudiation. The Judge adjudged that the agreement endured because there was no unequivocal acceptance from me.

 

(We can discuss the "ins and outs" of that, until the cows come home:), and I'm not a troll, even if my experience differs from what people like to hear/believe).

 

Magda, you may recall that I posted a request to obtain a copy of Woodchester v Swayne (pre-appeal trial) in the thread "acceptance of repudiation-confused etc". However, I haven't yet found a cagger with that particular judgment.

Maybe I would need to visit a library to find it?

 

I have one final court case to defend, hopefully, I will get a lowly paralegal/solicitor to defend against:cool:, instead of QC material.

 

Cheers

Bill

[MAGDA]

Hi Magda,

 

 

 

I think (in hindsight) that the argument was dropped because the POCs were relying on the DN/TN etc. To stop that argument, and continue on the "all sums due are now arrears" would have needed the claim to be struck out/discontinued or the whole POCs being changed. I don't know if the courts would've allowed them to change the POCs at that late stage. Mainly due to them previously making a specific application to rely upon a "reconstructed and never sent" DN, (which also cooked their goose).

 

The case law quoted in those proceedings was Woodchester vs Swayne (the original pre-appeal trial) which quoted-

 

"A default notice is not required where the creditor simply demands payment of arrears without seeking one of the specified remedies, and the creditor will be entitled to such an order even if the agreement is not terminated"

 

Another possible reason this avenue was "dropped" is that there was a different Judge presiding at the last trial. He was nowhere near as accomodating to the claimants counsel as the first Judge.

 

 

 

 

 

Don't forget that I ended up claiming repudiation. The Judge adjudged that the agreement endured because there was no unequivocal acceptance from me.

 

(We can discuss the "ins and outs" of that, until the cows come home:), and I'm not a troll, even if my experience differs from what people like to hear/believe).

 

Magda, you may recall that I posted a request to obtain a copy of Woodchester v Swayne (pre-appeal trial) in the thread "acceptance of repudiation-confused etc". However, I haven't yet found a cagger with that particular judgment.

Maybe I would need to visit a library to find it?

 

I have one final court case to defend, hopefully, I will get a lowly paralegal/solicitor to defend against:cool:, instead of QC material.

 

Cheers

Bill

 

Thanks for the clarification. You might try sending a pm to PT, he normally seems to have most of the trial transcripts, or can get them, worth a try. Good luck with the final case hope it goes well for you, Magda

[Alphageek]

The case law quoted in those proceedings was Woodchester vs Swayne (the original pre-appeal trial) which quoted-

 

"A default notice is not required where the creditor simply demands payment of arrears without seeking one of the specified remedies, and the creditor will be entitled to such an order even if the agreement is not terminated"

 

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

[someone_else]

The appeal only considered whether the arrears on the default notice had to be exact or not. (and whether contract law overruled the Consumer Credit Act).