Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[vjohn82]

Okey dokey... witness summons application ready to take to the court tomorrow..... another £35 quid to add to my costs... and a few more hours research etc...

 

Onwards and upwards...

 

Spam.

 

Good three hours LiP rate should do it ;-) hahaha

 

Great to see the tables turned for a change

[Spamalot]

Hi all...

 

Am trying to answer the witness statement received and my first question is....

 

Does anybody know if a default notice can be issued on behalf of a creditor??...

 

I know thay can't reissue on a terminated account but I'm wondering if I can get two bites of the cherry on this one...

 

Thanks

 

Spam.

[vjohn82]

Does anybody know if a default notice can be issued on behalf of a creditor??...

 

Section 87 answers this bit:

 

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

They cannot terminate the agreement without a Default Notice as per 87 (a).

 

They cannot defer, terminate or restrict their obligations without this default notice as per 87 (d).

[citizenB]

Hi all...

 

Am trying to answer the witness statement received and my first question is....

 

Does anybody know if a default notice can be issued on behalf of a creditor??...

 

I know thay can't reissue on a terminated account but I'm wondering if I can get two bites of the cherry on this one...

 

Thanks

 

Spam.

 

 

I'm not sure that it can. I think it has to be done BY the creditor. diddydicky and banker_rhymes_with should be able to answer that one for you. and of course vjohn

[vjohn82]

So how can they confer obligations onto another party without the default notice?

 

Simple answer is they cannot without meeting the requirements of s.87/88.

[Spamalot]

Hi, and thanks Vjohn...

 

the fact is, although they can't legally issue another default notice... (I mean the agreement has been terminated about 5 times already... )

the last attempt has been issued by Mort Clarke solicitors on behalf of Phoenix and I'm wondering if I can use that as another nail in the coffin... or is that being too greedy...

 

Spam.

[vjohn82]

I think they are trying it on to be honest. There has been a breach of contract by defaulting incorrectly. This does not mean that the contract is "terminated" as such; this can only be done with your express agreement.

 

The ridiculous situation that develops is that a creditor terminates an agreement and then reinstates it of their own accord; plainly absurd and treats the debtor like a commodity rather than an equal partner to a contract. An unfair relationship then develops and gives rise to damages.

 

Is your paperwork on this thread? I haven't got time to go through them all as I have a costs hearing I am preparing for tommorrow against HFO Services/Turnbull Rutherford - should be "fun".

[gh2008]

IMHO that's shaky ground - as long as the DN is in the prescribed format etc then I cannot see any reason why a solicitor acting directly for the creditor cannot issue a notice on their behalf.

 

But saying that is it in the correct prescribed format.

Have they sent all the notices required by the CCA2006 as they are trying to play make believe here that this is a live account.

 

If they do not send the required docs then they are not allowed to enforce whilst in default!!!

 

They can't have it both ways...

[vjohn82]

gh2008,

 

If the agreement has been terminated it cannot be reinstated.

[gh2008]

There is no provision in the Act for a creditor to re-open a terminated agreement (the debtor can though)

 

However a creditor can terminate at any time in anyway they like, however they will only ever be entitled to the arrears at the time of termination.

 

There is nothing unlawful about the termination - it's just they lose all their rights to become entitled under the Act - S87 for instance - they have to play by the rules in order to become entitled to it - they are NOT entitled to it by default

Edited February 21, 2010 by gh2008
changed the wording a bit

[gh2008]

gh2008,

 

If the agreement has been terminated it cannot be reinstated.

 

Yes, I know, I was just giving Spam a lead for a

 

"In respect of that which is denied " bit to get rid of the DN

[Spamalot]

Hi Vjohn...

 

The thing is I've had three default notices from HFC...

First... insufficient time to remedy

Second... incorrect amount stated... demanded full amount and not arrears... therefore agreement terminated..

Third... a copy of the above only with a different date on.

 

Mort clarke demanded full payment november 2008.... court claim issued Dec 2008.... CCJ issued Feb 2009... agreement well and truly deceased!!!

 

Mort Clarke have issued another default,( stating the ones from HFC as an admin error,) on behalf of Phoenix...

 

I just really want to stick the knife in on as many aspects as possible...

 

Spam.

[gh2008]

IMHO that's shaky ground - as long as the DN is in the prescribed format etc then I cannot see any reason why a solicitor acting directly for the creditor cannot issue a notice on their behalf.

 

But saying that is it in the correct prescribed format.

 

Just in case I was misunderstood here - I was not saying your DN is correct - I was just making a general comment and also saying that this argument against your DN was IMHO not a sound one.

[vjohn82]

I think we agree gh2008 looking at it again...

 

This creditor has had a number of bites at this cherry... time to apply the pesticide!

[gh2008]

I think we agree gh2008 looking at it again...

 

This creditor has had a number of bites at this cherry... time to apply the pesticide!

 

and what we mustn't lose sight of is that this bit of the claim is because Spam would not let them discontinue !!!

 

When most of us just breathe a sigh of relief and cry victory Spam's going to nail them properly .

 

You go get 'em

 

(and yes VJ fully in agreement - I just didn't see the point of a 'weak point' creeping in and weakening such a strong case - don't give them anything to play with - they have clearly terminated and the fact that they have not been keeping up with their duties under the CCA2006 S86A-F clearly demonstrates that they are carrying on as though it has been terminated)

[vjohn82]

I agree... I hope he nails them properly to be honest. This site is well overdue a really good DCA spanking.

[Spamalot]

Having had a scout around it seems that my reply to the witness statement should have been with the court and opposition 7 days prior to the hearing...

 

MC obviously didn't afford me the time to do this as I didn't get theirs til late last week...Also the court sent me back my witness summons cos they want the money up front and wouldn't issue it with just the offer of compensation

... this will leave less than a week for that too now as I'll have to re apply tomorrow....

 

Does this mean I'm going to have to wing it now on Friday or will it end up being adjourned... confused...

 

Any advice please knowledgeable peeps...

 

Spam.

[foolishgirl]

Having had a scout around it seems that my reply to the witness statement should have been with the court and opposition 7 days prior to the hearing...

 

MC obviously didn't afford me the time to do this as I didn't get theirs til late last week...Also the court sent me back my witness summons cos they want the money up front and wouldn't issue it with just the offer of compensation

... this will leave less than a week for that too now as I'll have to re apply tomorrow....

 

Does this mean I'm going to have to wing it now on Friday or will it end up being adjourned... confused...

 

 

Hi spam

I suggest you issue your WS to the court with an apology & explanation as to why it was late & it will prob. be allowed. However make sure the other side are served with it Spec. Del. or they may call foul & seek an adjournment just for devilment. If you can prove they have had reasonable time to assess its contents, any reasonable DJ should go ahead with the hearing.

[Spamalot]

Ok guys... I hope some of you are around as this has to be in the court and sent special delivery tomorrow...

 

Editing and comments please as I've never done one of these before...

 

• Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief, and have come to my attention whilst defending the above claim.
  
• In this statement I will refer to various documents, copies of which have been previously suplied to the court and are also exhibited as ‘CHM1’
  
• I make this statement in reply to the witness statement made by Charlie Hooker-Meehans’ witness statement received by me on 18th February 2010 in respect of my application to set aside the notice of Discontinuance filed by the claimant on 8.9.2009.
  

Background

 

• A copy of a credit card application has been exhibited by CHM 1. This document in itself does not constitute an ‘agreement ‘ as it does not contain the prescribed terms and conditions necessary within the four corners of the document as specified by the Consumer Credit Act 1974.
  

• The default notice issued by HFC Bank on 14.3.2008 requested the full monies due on the alleged account thereby indicating an immediate termination of the alleged agreement.
  

• With regards to the references to a deed of assignment by Clydesdale Bank Plc trading as Yorkshire bank Plc to Phoenix recoveries on 20.5 .2008. I have never received such notice of assignment.
  

• Point 7 I have no comment to make at this stage
  

• On 28.11.2008 as a result of County Court proceedings a partial admission was made to the debt which was subsequently withdrawn on application to the court on 25th July 2009
  

The Defendants Application

 

11. On 24.9.2009, As a result of several efforts to settle the matter out of court being ignored by the claimants’ solicitors, I applied to have the Discontinuance set aside in order to exercise my rights to a fair trial and defend the claim that was made against me.

13. To date I have not received a copy of an agreement containing the prescribed terms as set out in the Consumer Credit Act 1974 signed by me. I have also not received a copy of the Deed of assignment from HFC Bank to Phoenix Recoveries.

14. I have never challenged the ‘substituting of claimant’, as throughout the proceedings the claimant has been Phoenix Recoveries. I am challenging the legality of the assignment from HFC Bank to Phoenix Recoveries as I have never seen the deed of assignment and therefore am unable to satisfy myself that Phoenix Recoveries are in fact legally entitled to any monies due on the alleged agreement.

15. The Claimant agreed to the setting aside of the judgement due to the defective default notice to avoid unnecessary time and costs for both parties I would point out that a re-issue of a valid default notice at this stage would not be possible due to the alleged agreement no longer being ‘live’ and having been terminated in 2008 by the default notice dated 14th March and the subsequent court proceedings on 28.11.2009.

16. I refer to point 15.

17. I refer again to point 15.Regardless of an administrative error; my belief is that a creditor cannot issue a valid default notice on a terminated agreement.

!8. As the Claimant is intending to continue this matter to fresh proceedings I believe further unnecessary time and costs would be incurred and therefore it would be far more prudent to continue this claim to trial and its subsequent conclusion.

19. I respectfully ask the court to let my application to set aside the Discontinuance stand.

STATEMENT OF TRUTH

I believe that the facts of this response to the witness statement of Charlie Hooker-Meehan are true.

Signed…………………… Dated……………………..

Thanks,

Spam.

[Bigdebtor]

Spam

 

I have just one point to mak e- but I am not sure where you would use it - whether in this POC or just in the Court Hearing itself. That is that the Notice of Assignment should be sent Recorded Delivery - so presumably the other side can produce proof of it being sent by them and received by you?

 

Don't know if it helps - but hope so?

 

Good Luck!

 

BD

[humbleman]

Hi all...

 

Am trying to answer the witness statement received and my first question is....

 

Does anybody know if a default notice can be issued on behalf of a creditor??...

 

I know thay can't reissue on a terminated account but I'm wondering if I can get two bites of the cherry on this one...

 

Thanks

 

Spam.

 

Spam don't forget that the DN they have issued is onbehalf of Phoenix, but the debt was assigned to Carval. So the DN is invalid. And in any event they can't issue a DN on a terminated agreement.

[humbleman]

And they should have never brought this action against you in the first place. Since the account was assigned to CArval

[Spamalot]

And they should have never brought this action against you in the first place. Since the account was assigned to CArval

 

Yeah i know but I don't want to give too much away until they are knee deep in the do do at trial...

 

Just want to say enough to get the claim reinstated at this stage....

 

Spam.

[foolishgirl]

Spam

That is that the Notice of Assignment should be sent Recorded Delivery - so presumably the other side can produce proof of it being sent by them and received by you?

 

 

AFAIK there is no statutory requirement that the NOA is sent by Rec. Del but they would find it hard to argue that they had sent it or you had received it if they couldn't provide pop or proof of receipt.

 

 

 

Sorry, more blue spam ;)

A witness statement should be written in the first person & doesn't have to answer their pont by point as long as you get your 2p in. So I would suggest amendments as follows:

Witness Statement of Spam

xx February 2010

In the XXXXXX County Court

Claim Number: XXXXXXX

 

 

Between:

xxxxxx (Claimant)

and

Spam(Defendant)

WITNESS STATEMENT

 

 

1. I, spam, am the Defendant in this action & a litigant in person in this case.

2. I make the following statement as my witness statement in support of my defence to the claim made by xxxxx & in response to the witness statement made by Charlie Hooker-Meehans received by me on 18th February 2010 in respect of my application to set aside the notice of Discontinuance filed by the claimant on 8.9.2009. It is made from information and facts within my own knowledge and which I believe to be true.

3.In preparation for my application for set aside & in order to defend the claim brought by the claimant, I requested that the Claimant provide me with a copy of the credit agreement to which this claim refers on xxxxx. The Claimant has supplied a document marked Exhibit xxx.

4. In response to this document dated xxx supplied by the claimant, Exhibit xx, it is denied that this is a credit agreement as referred to in the Particulars of Claim nor is it a properly executed credit agreement within the definition contained within the Consumer Credit Act 1974 as laid out below & is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

5. The default notice issued by HFC Bank on 14.3.2008 requested the full monies due on the alleged account thereby indicating an immediate termination of the alleged agreement. (Exhibit xxxx)

6. However in order to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. That figure should represent only the arrears on the account, not the balance. I therefore aver that this default notice was not issued in accordance with the provisions of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

7. I have never received a notice of assignment in respect of this account that refers to a deed of assignment having taken place by Clydesdale Bank Plc trading as Yorkshire bank Plc to Phoenix recoveries on 20.5 .2008.

 

8. To date I have not received a copy of an agreement containing the prescribed terms as set out in the Consumer Credit Act 1974 signed by me. I have also not received a copy of the Deed of assignment from HFC Bank to Phoenix Recoveries.

 

9. I have never challenged the ‘substituting of claimant’, as throughout the proceedings the claimant has been Phoenix Recoveries. However I do challenge the legality of the assignment from HFC Bank to Phoenix Recoveries as I have never seen the deed of assignment and therefore am unable to satisfy myself that Phoenix Recoveries are in fact legally entitled to make this clam.

 

10. The Claimant agreed to the setting aside of the judgement due to the defective default notice to avoid unnecessary time and costs for both parties I would point out that a re-issue of a valid default notice at this stage would not be possible due to the alleged agreement having been terminated in 2008 by the default notice dated 14th March and the subsequent court proceedings on 28.11.2009.

 

11. This is not a de minimis matter that can be overlooked by the court as an adminstrative error. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

12. This agreement has been terminated. It is would therefore not be possible for the claimant to issue a further default notice on this account & proceed to take further enforcement action in respect of this alleged debt. The Claimant's avowed intention to do so would, I believe, incur further costs & a waste of the court's resources. It would therefore be prudent to continue this claim to trial and its subsequent conclusion.

 

13. I respectfully ask the court to let my application to set aside the Discontinuance stand.

 

 

STATEMENT OF TRUTH

 

I xxxxxxxxxxx, believe the above statement to be true and factual

Signed…………………… Dated……………………..

 

 

 

You also have to submit each exhibit with a covering sheet like this

 

 

On behalf of: Defendant

Witness: [Initials and surname]

Number: [1st] [2nd]

Exhibits: [“DEF1”]

Date:

IN THE XXX COUNTY COURT Claim No:

 

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

EXHIBIT “DEF1”

 

This is the exhibit marked “DEF1” referred to in the [1st] witness statement of [D E Fern] dated the day of xxxx 2010

[gh2008]

AFAIK there is no statutory requirement that the NOA is sent by Rec. Del but they would find it hard to argue that they had sent it or you had received it if they couldn't provide pop or proof of receipt.

 

It's in the original Law of Property Act that it has to be sent 'Registered Post'. Nowdays Recorded is accepted as the equivalent

Case Law Update - Rosling King Blog Archive Lender Update: August 2009