Help with Final Defence Please

[Mydogsawestie]

Hi Ekim777 how did you go today, I had my day in court yesterday & I was a nervous wreck although had a v nice judge who did dismiss the summary judgement application . Will dread the next stage but have just posted up now how my day went http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html hope you had success aswell as IGNM helped me too.

[Mydogsawestie]

Hi ekim777

 

this thread might help you that I came across http://www.consumeractiongroup.co.uk/forum/mbna/195498-mbna-restons.html #209 #210 postings etc ready for my round 2 (when I hear) it might have some useful advice to help you next week. Good luck and I will have my fingers & toes crossed for you.

[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!

[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

[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!

[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)

[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?)

[Mydogsawestie]

ekim777 are you going to appeal?

[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?

[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.

[Mydogsawestie]

Docman - doesnt the judge set a payment on the CCJ what is affordable though for Ekim777?

 

Also should they secure a Charging Order & sit back until the prop is sold what happens then to the monthly payments that are being made, does that all stop till the day the house is sold, or does the monthly continual payments eventually come off the charging order amount obtained?

[Mydogsawestie]

Unbelievably I have found the original DN, it is dated the 3 July 2008 with settlement required by the 17 July 2008, surely this is enough to get it thrown out? I need to be certain as I will have to borrow the cash for the appeal

 

And they doctored one with the 20July on - unbelievable!!! Good luck Ekim777 looks like you now have all hands on board with this one!!!

[Mydogsawestie]

The 3 July 2008 is a Thursday, so allowing 2 days for first class post, that makes it Monday for receipt if weekends don't count? I make that 12 days left to respond am I correct?

 

And can they put it to strict proof it did go 1st class? If not second class would make it less to rectify matters

[Mydogsawestie]

Many thanks Andy I look forward to hearing from you soon,

 

I totally agree with your comments, lets hope they get what they deserve!

 

Deserve they do indeedy good to read your progress with Andy who so knows his stuff eh!!!

[Mydogsawestie]

Hust incase Andy isnt online today (fingers crossed he is for you tho) this was a thread I had to hand one day should any of the info help in your application for going on with . Please Check - Need to submit Set Aside Application in the morning

[Mydogsawestie]

I could really do with Andy as he gets the point across very well, and the stakes are

high!

 

I agree the caggers like Andy are a godsend & I'm sure he'll be along shortly

[Mydogsawestie]

Hi Ekim777 just dropping on by as I havent been on for awhile to say how pleased I was to see your result having had the excellent guidance off andy , I take it the ccj resulted in this massive reduction in the end so proved a great result to you when trying to get it set aside?...really pleased...I am still waiting to hear from my judge in July....never realised it could take so long having orig been told 14days, thought they would have told the other side to disclose or do something like that by now....how miffed the claimants must be not getting any pennies either for awhile now Have a nice Xmas & well done again

[Mydogsawestie]

Ekim777 just to let you know I got my DJ decision today JUDGEMENT in restons favour from my SJ hearing last July. Have to appear at a Notice of handing down of Judgement hearing??? 28th Jan....9 days away. Been waiting on directions all this time so gutted to say the least as in court the DJ told me he was dismissing there summary judgement until the next hearing so dont know whats gone wrong now to receive this instead from the courts in the post today:idea:

 

I am browsing now on as many threads as possible but wanted to gain some positivity from the success you recently had on your judgement in the meantime.

MDAW:cry:

[Mydogsawestie]

Looks like Andys not been on for a few days IGNM who assisted me last summer also has not posted in a long long time....no doubt some guidance will be along soon I have hit the red triangle in desperation