Help with Final Defence Please

[Mydogsawestie]

 

I arrived at the court 30 mins early and noticed a name next to my court entry, so suspected they had a legal rep, and shortly after a young chap introduced himself saying that they had sent me the wrong termination notice and were going to submit another one! Also the differing amounts did not mean much as there was only a few hundred quid difference and as far as the agreement not being correct that did not matter as the judge can rule it as OK.

 

 

I thought from reading around about DN that.........(copied from another thread)

 

A DN once issued, and terminated, cannot be followed by a second DN, as the "agreement" has been terminated, so it follows you cannot default an account which does not exist! So the only DN that could be valid is the FIRST one

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

One good thing appears to be that they are admitting the 1st Default Notice is defective. It therefore follows that by starting Court Action, their client Terminated the Agreement unlawfully, because they had failed to secure a valid Default Notice before doing so. Thus, they are admitting they started Court/Terminated when they were in no position to do so lawfully, having lost all the benefits of s87.

 

That is unlawful rescission of Contract/repudiatory breach of Contract...for which you can ask them for compensation.

 

So basically...If terminated, by whatever method, the account can NEVER be DEFAULTED again, as it NO LONGER EXISTS!

[ekim777]

Hi Mydogwestie,

Thanks for the reply my understanding then is that the termination notice and DN go hand in hand, and have to be carried out correctly before court action is started, in a the new witness statement they state (against my argument about not being given 14 days etc) that the default notice is dated xx july 2009 and the termination notice is dated the xx july 2009 so I did have 14 days notice, but the dates they are using are last month not last year, I have responded in my witness statement " 1) The Defendant denies receiving any amended Default Notice and Termination dated the x July 2009 and the xx July 2009 respectively, the case cannot be resolved by reissuing a valid Default Notice and Termination Notice as I will elaborate on at Trial"

They have sent a copy of the original termination notice (to suposedly replace the one sent in error) but I was never served the "correct" one before court proceedings commenced, further the x 2 copies I now have of the "correct " termination notice are both different, IE different date formats and other points indicating they have been forged by them to cover the mistake.

I hope you can understand what I mean, and thank you most kinddly for your help so far.

Ekim777

[Mydogsawestie]

I also stated below in my WS similar to yours.....

 

The Default Notice that the claimant relies on and has submitted to the court is NOT a copy of the original and is an attempt to mislead and confuse both myself and the court. This shows that this document has been altered from the original Default Notice.

By the way, when I got served copies of my supposedly orig DN's I mentioned (which I forgot to post on my day in court come to think of it!!!) that if that was a true copy of the default notice (in my case incorrect acct no's on it) it breaches the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as it failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2.

 

My copy DN from Restons was missing the MBNA's bits on the top & reg no etc (like the original had) so this meant it had breached the companies act, as it did not bear the companies registered address and registration number on it so was not a representation then.

 

The judge asked the solicitor what he had to say in response to this to which his reply was along the lines of he thought it did have the details on it. The judge then corrected him by telling him it didn't as he had a copy of there DN from me in front of him

Hope this along with your dates & other misleading info you have been confused by may be something else to add to your defence for you to elaborate on at trial if your DN's are missing this information too.

 

Good luck

[supasnooper]

The original DN is the only valid Default Notice.......it matters not what copies or re-creations Arrows solicitors produce in court.

 

MDAW has pointed you in the right direction.

 

Make sure you push Woodchester v Swain.

 

Also, I would advise making 3 copies of anything you are taking to court including your Witness Statement..........we wouldn't want any of your documentation going missing or not being available

 

Have look at this link - http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

[ekim777]

Thank you for the info, my DN does have the wrong account number!

But it is the termination notice that is totally wrong, and they also admit to sending me the wrong one. Which would mean that I was not served a proper one.

 

I am having some dificulty trying to find out what the implications are.

 

Skim

[Mydogsawestie]

Termination notice and the implications??? Not sure either unfortunately. Had read on a thread one time this copied bit of information from a thread I kept to hand.

 

The Termination will either be via a letter to say the Agreement or Account has been Terminated or Cancelled or, Termination will be when they do something that is not in keeping with the Agreement still being live; for example, by asking you to repay the whole balance, when before that you only owed Arrears. That means they ask you for both the Arrears and the sums that were otherwise not yet due.

 

For example, say the Balance was 20k and the Arrears 2k. While the Agreement was live, you owed them 2k but 18k was not yet due as the Agreement allowed you to pay that balance off in little chunks stretching out into the future.

 

While the Agreement was live, a sign of this would be demands for just the 2k of Arrears.

 

When you don't pay that, they issue you with a DN asking for 2k or else.

 

You don't Pay but, at that point, the Agreement is still live. You still owe 2k, but you do not, yet, owe the 18k right now.

 

If they write to say it's Terminated/Cancelled, then that is Termination.

 

Or, if after the DN they write to you demanding the full 20k (2k+18k) then that is also Termination, as it means they regard the Agreement has ended.

 

Usually they will do both and will write to Terminate and ask for the 20k at the same time.

 

Or, if they take you to Court and demand 20k on the POC, that too is Termination even if they never sent a Termination letter or demanded 20k before Court.

 

Termination is when which ever of the above happens first. After that, they cannot issue a valid Default Notice to correct a defective one they issued before Termination

So to me its the DN they cannot re-issue - Terminations though seem to come in many a format then? Hopefully Docman / supasnooper /IGNM can throw some light on this? :-?

 

My thoughts are that they have proceeded to terminate your agreement on the back of an invalid misleading & confusing DN and this is going to be the basis of your defence esp if the differing amounts are wrong too therefore the claim for the balance stated will be flawed!

[ekim777]

Your a star! I am very confident in my presentation. I am hoping the caggers "big guns" can input before the court hearing next week

[Mydogsawestie]

Your a star! I am very confident in my presentation. I am hoping the caggers "big guns" can input before the court hearing next week

 

Good luck & hope it goes well (and your termination notice query will be answered for you)

[ekim777]

Hi, Went very badly, I lost! The judge simply dismissed all my defence points one by one, and seemed to be actively seeking, any point of argument, from their witness statement that would do, however slight.

 

He upheld the "Agreement" as being allowed Quote "as it did contain some of the points in the CCA 1974", he was not familiar with it the act and when I explained the implications and what was lawfully required by the Claimant, he asked me to show him the relevant part of the Act, IE sections 88 etc. I showed some presendents which he dismissed as not relevant.

 

He awarded them costs and I now owe the full amount again.

Edited September 10, 2009 by ekim777

[Mydogsawestie]

Sorry to hear your news ekim777 and the judge you had on the day yet you had such a duff default notice with incorrect acct no's not even relating to your acct either!! So gutted for you, I really am!

 

What happens now then do you get a CCJ & they get installments at a said amount the judge sets? (had you still been paying them anyway as part of your DMP?)

[42man]

Appeal.....

[42man]

You might find this useful too - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/120057-cabot-test-case.html

[dizzyblonde1966]

Its getting really disturbing hearing how many people are loosing cases due to uneducated judges turning a blind eye to the consumer law.

 

Surely these judges should be brought to task, how can they judge a case if they have no idea of the law within it?

 

DB

[Docman]

ekim

 

Yes you should appeal and in view of

 

Quote "as it did contain some of the points in the CCA 1974", he was not familiar with it the act and when I explained the implications and what was lawfully required by the Claimant, he asked me to show him the relevant part of the Act,

 

make a formal complaint about the District Judge.

 

Its one thing for a DJ to be dim or not to have knowledge of the area of the law on which he is adjudicating but to actually admit to such a lack of knowledge is disgraceful. If the DJ was aware his knowledge of the law was inadequate he should have adjourned the case until a suitably qualified judge was available.

[nicklea]

Hi, Went very badly, I lost! The judge simply dismissed all my defence points one by one, and seemed to be actively seeking, any point of argument, from their witness statement that would do, however slight.

 

He upheld the "Agreement" as being allowed Quote "as it did contain some of the points in the CCA 1974"

 

ekim,

 

What happened when you raised the issue of the notice of assignment - even someone like the judge you got shouldn't be able to overlook that?

[letitbeme]

Hi Ekim, Sorry to hear about the atrocious way in which this Judge has abused his position, he is employed by the Judiciary to uphold the letter of the LAW, not run roughshod through it ( The days of the Wild West are well and truly over) . Make an official complaint to the Judiciary and outline every legal point that he ran roughshod over. Talk about Cowboy Builders – I think there should be a TV program called “Cowboy Judges” .

[ekim777]

They admitted sending me the wrong one but submitted another copy with their second witness statement, which he accepted, despite me saying it should not be permitted to switch documents, that present a more favourable case for them. I did not stand an earthly chance and even when I summed up by saying the agreement was fataly flawed and did not conform to the CCA 1974, he asked if I could produce the relevant parts of the CCA 1974, and I only had a copy of section 88. I am seething, especially as they had a solicitors assistant as a rep and all they could say was that I admiited to the claim by paying via the CCCS! we even adjourned for 5 minutes, after a point was raised that I might gain some legal advantage at last, the time was used for them to phone for help.

[ekim777]

I've got to pop out for an hour or so but will be back this evening, is there any point in appealing or complaining, won't I get more of the same? And it is starting to really get me down ATM

[steven4064]

OUr considered view is that you have good grounds for appeal but you have to apply within 28 days.

[ekim777]

An important point I lost sight of in court, when he was totting up the costs, he allowed the full amount of the original claim, I am sure that I have read somewhere that when a agreement is allowed to stand then it is only the interest that can be awarded to them? I can't seem to find any threads that cover this.

 

My thinking was to have it set aside as the amount was wrong, what do you think?

[Mydogsawestie]

ekim777 are you going to appeal?

[ekim777]

Hi

 

I am unconvinced an appeal is viable, I think the judge saved me money in the end. Perhaps I was not clever enough to win

[Mydogsawestie]

You are clever ekim777 & must not think like that its just that you had a rotten judge at the end of the day who should not be in the position he was in in the first place! Docman made some true points above in posting 89, you were just unfortunate! so you must not put yourself down in any way at all!

 

If you dont appeal what happens now with it all? Is it a ccj and paying amounts now set by the judge?

[ekim777]

Well here is another poser. I have notification of them being awarded the summary judgement, but nothing else!

 

No timeline to pay, nothing regarding settlement at all, I am confused

[Mydogsawestie]

How bazaar I hope other caggers can throw some light on this for you after all its not something you will want to chase up !!! However if you only have 28days to appeal I wonder if it comes after then in case you did appeal?

 

If you are still in two minds to appeal then if you do, ensure that you argue that it is the law which falls under the court's jurisdiction and not issues of morality.