Finance U Ltd Car Repossession letter received **Round 1 WON... Ding, ding... Round 2 now on**

[car2403]

Shocking!

 

They can't bring another claim without the permission of the court. I don't expect they will get it.

[Spamalot]

As Promised NWJ..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

 

Also, I think you could set aside their discontinuance as I am doing with mine and insist they go ahead with this claim as it is flawed and get it struck out..

 

 

Spam.

Edited October 24, 2009 by Spamalot

[nowayjose]

Brilliant link Spam... lots of information.... thanks......I hope the guest watching this thread reads it too... can I ask a mod to take away the 'won' from my thread title because the battle isnt over yet!!!!!!

[Spamalot]

Don't be too hasty in changing the title NWJ... my instinct is that Mr Bully Boy who has a solicitor friend has decided to try and frighten you into paying up. They and he should know that he hasn't a leg to stand on... can't re-issue a DN on a terminated account... would need courts permission to reclaim anyway... plus you could set aside the discontinuance...

 

It'll be interestng to see whether anything does turn up in the post or whether this is a pathetic attempt at frightening you into submission in typical bully fashion

 

Grasping at straws springs to mind..

 

Spam.

Edited October 24, 2009 by Spamalot
Daughter is growig pineapples on facebook on good laptop.. this one keeps missing out letters when I type and nthing makes se

[nowayjose]

Its not the first time he has threatened me, he left a message on my answerphone a couple of weeks ago, saying that he has seen this forum and he will use what I say against me in court, and for me to get a solicitor and the costs will rise significantly.....

[spitfire650]

As you are entitled to your costs on the notice of discontinuance, you can make an application to stay any subsequent action he issues until these are paid.

[Spamalot]

I hope you still have a copy of that message!

 

The man has made some BIG mistakes and he is obviously not a good loser..

 

My genuine advice would be to see if anything arrives in the post within the next couple of weeks with regards to a default etc.

Also, you could of course write to his solicitors pointing out the flaws in his plan and tell him to 'Bring it on'. and see what their reply is.

 

Also keep an eye on the timescale with regads to setting aside the discontinuance as you only have 28 days from the date of service to do that if that's what you want to do to put an end to the matter once and for all.

 

Spam.

 

Oh and if you decide to go for the set aside you could always get yourself a Barrister and rack up Bully Boys costs.... I have details of an EXCELLENT one who is fully conversant in consumer law... and he's not far from you..

[postggj]

hi nowayjose

 

seems he Is a but peeved off

go for the costs and he can frack off.

he has no chance on a second claim.

as by court action the account was terminated.

he cant issue a second claim with out the permission of the court

 

NOT A CHANCE

[debt4get]

sorry to see this noway, I was not surprised to see this though, this guy is a bad loser pure and simple, as postggj says go for costs, wait and see what happens

[nowayjose]

I had a feeling it wouldnt be the last I heard of him....got to get myself organised, how do I set aside the discontinuation and I would be grateful for any help putting together a letter to send to his solicitor.... quoting the relevant case law regarding re-issue of the DN.... Spam can you pm the barristers details please, thanks very much...

 

NWJ x

[nowayjose]

Also the Sol letter basically admits that the old DN was crap and he didnt stand a chance in court...

[nowayjose]

Thanks to Spams thread I have found this brilliant piece of advice originally posted by Banker Rhymes...... If the guest is watching, this is the reason why you CANT re-issue a DN after an account has been terminated:mad:

 

 

Hello mberman!

 

 

Quote:

The problem is they discontinued but intend to issue fresh proceedings and new default notices. They have admitted that the reason they discontinued was that the Default Notice was technically inaccurate! So could the fact that they have admitted the Default Notice is invalid be enough to terminate any contract between both parties even though it has not gone through the Court.

I think the key issue is if they either told you the Agreement had been terminated, or they Demanded Full Payment.

 

A Termination Letter is perfect, as that is concrete.

 

However, if they have, at any stage, demanded Full Payment of a sum that was otherwise not due if the Agreement was still live then, by this action they have effectively declared the Agreement ended; because if it was still live, they would have no Right to demand Full Payment of a sum not otherwise due because the live Agreement allowed you to Pay the main Balance off in small Monthly Payments stretching out into the future.

 

If the Original Court Claim states that they want the lot, plus interest, then I think that is as good a confirmation as any that they regarded the Agreement as being Terminated before they tried to haul you into Court. The fact that it never made Court is not important, you have their Claim Form that Demanded Full Payment, and that is as good as a Termination Letter if ever there was one.

 

That is your evidence that the Agreement is Terminated, and on a date that preceded Court. That date could be the Date they first asked for Full Payment, or the Date of the Claim if that was the first time they asked.

 

Either way, the Agreement was clearly dead at that point.

 

To say they will now go back and issue a Fresh Default Notice is going to present them with a problem. How can they pick a date in the future by which time you have to Remedy the Default, if the Account is already closed?

 

As Surfaceagentx20 has said so well:

 

 

Quote:

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.

I'm sure they will think they can do this, but when the facts are pointed out to them in front of a Judge, I think they will look rather foolish.

 

I suspect they only said they would go back and issue a fresh Default Notice as a passing spiteful comment to try and undermine your confidence. However, if they do elect to try it on with a Brand New Default Notice applied to a closed Account, then I think you will now know how to respond to that.

 

A New Default Notice can only be issued if...

 

(1) The Agreement is still live and was not Terminated. That cannot be the case in view of their Demand for Full Payment.

(2) The Agreement has been re-activated. That cannot happen unless both sides to the Agreement agree, that's why it's called an Agreement. You would not agree to that, so the Agreement can't be re-activated once Terminated, and certainly not by one party to the Agreement just so that they can fix their own mistakes.

 

If they do come back, then start getting your Counter-Claim and demand for Costs ready!

 

Cheers,

BRW

 

Just to make things clear to you.....

NWJx

Edited October 24, 2009 by nowayjose

[postggj]

go get em

 

your getting good at this

 

pay backs a bitch:D:D

[postggj]

part 38 discontinuence also

Edited October 24, 2009 by postggj

[nowayjose]

part 36 discontinuence also

 

Thanks Postie but that link takes me to Judge Patricia Pearls book:?

 

Well I knew we were right last time about the DN and it didnt stop him going ahead with the claim, lets hope his solicitor can see hes going nowhere with this one as well......

Edited October 24, 2009 by nowayjose
forgot a bit

[lilly white]

Noway.

 

As you have found out , there is no agreedment in place it has been terminated.

They can issue what they want however it does not count. As there is no agreedment in place

. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement.

 

 

regards lilly

[postggj]

Discontinuance and subsequent proceedings

38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and (b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

[car2403]

I'd complain to the SRA - these Solicitors know the rules and shouldn't be allowed to flaut them like this.

 

Of course, the SRA won't do anything

 

Can't wait to see if they continue and ask the Judge to allow them to pursue.

[car2403]

The issue to focus on is the termination, not the Default Notice.

 

If the Default Notice is faulty and the account is terminated, then they can't re-Default and re-terminate you without you consenting to it.

 

If the DN is faulty and they haven't terminated, then it's fair to say the Notice is ineffective and another effective one could be issued.

 

If the DN is faulty and the have terminated, then, this is where the problem (for them) lies.

 

Stay away from arguing faulty Default Notices without putting argument forward that the resulting termination was unlawful, as a result, therefore.

[heliosfa]

hi josie

you could be lucky and get one of these explaining why they think hey can do it

 

 

IDIOTS

 

cab

 

Erm, i'd say that letter is borderline on Fraud right there. I'd write back to them pointing out that it was changed in the Consumer Credit Act 2006 and came into force on the 1st October 2006.

 

Then, if they stick by 7 days, complaints away! inc. the Police for Fraud. Let them wriggle out of that one.

 

H

[postggj]

nowayjose

 

ime doing a letter as we speak to send the sols

 

ready in half hour

[nowayjose]

nowayjose

 

ime doing a letter as we speak to send the sols

 

ready in half hour

Thanks Postie;)

[postggj]

Nowayjose

barking up wrong tree

xxxx

xxxx

 

 

l g williams & prichard

solicitors

xxxxx

xxxx

xx

 

 

date

 

 

your reference xxxx

 

 

dear sir/madam

 

 

thank you for your letter dated 20/10/2009, for which the contents have been noted.

Your clients finance u ltd seem to think that a balance is owed to them by a regulated finance agreement to the total of £6,820.57.

 

 

you are totally aware that this matter has been put before the court for which your client discontinued the claim.

I am of the opinion that a complaint to the solicitors regulatory authority is in order, but before I contemplate this, I am giving your practice an opportunity to explain its actions in this matter.

 

 

DEFAULT NOTICE

 

 

as you are aware, in the original county court claim, the default notice was in fact flawed.

I draw your attention to,

 

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

A NEW DEFAULT NOTICE CAN ONLY BE ISSUED IF

 

 

1. the agreement is still live and was not terminated, this cannot be due to demand for full payment by a county court claim.
   

2. The agreement has been reactivated, this cannot happen unless both parties in the agreement agree.

   
   

 

The original claim was discontinued on xyz.

 

 

I now draw your attention to,

 

DISCONTINUANCE AND SUBSEQUENT PROCEEDINGS PART 38

 

 

1. A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if -
   

(a) he discontinued the claim after the defendant filed a defence, and

 

 

 

(b) the other claim arises out of facts which are the same or substantially the same as those

 

relating to the discontinued claim.

 

 

 

 

 

 

I consider your last letter to be vexatious in nature and with out merit.

 

I request a full explanation before I progress this complaint. I wish this letter to be actioned as to your complaints procedure.

 

 

 

 

 

 

I consider the actions of your practice puts you in breach of section 40 of the administration of justice act 1970, and the protection from harassment act 1997.

 

 

 

 

if your client decides to progress with this matter, I will reserve the right to include this letter in any defence and your actions will be reported to the court.

 

 

 

 

Yours

 

 

 

 

nowayjose.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1. 
    
    
    
   

 

 

 

 

 

 

REMEMBER PEOPLE

 

THIS IS A ROUGH DRAFT

COMMENT

ADD AND DELEATE THINGS

 

 

 

 

 

I FEEL AT THIS STAGE NO PUSSY FOOTING ABOUT

 

WE MEAN BUSINESS

 

 

 

 

 

THAT GOES FOR ANY GUESTS AS WELL

[lilly white]

Noway a message to these people

 

 

Ok I am sure you are reading this.

 

How many times do you want to default and terminate the agreement, maybe you like to rewrite the agreement maybe you are above the law.

 

The agreement is at an end you have cock up, now grow up.

 

Noway they are dead in the water and they know it.

[nowayjose]

Thats a cracking letter postie, thanks very much, will copy and paste and send off recorded delivery on Monday morning......

Your a star;)

NWJx