Court Claim for O/draft from Nthmtn (CCBC)

[r&b]

cases for reference regarding SJ courtesy of shakespeare62 :

 

Royal Brompton Hospital National Health Service Trust v Hammond & Ors [2001] EWCA Civ 550 (11 April 2001)

 

Three Rivers District Council v. Governor and Company of The Bank of England [2001] UKHL 16; [2001] 2 All ER 513 (22nd March, 2001)

 

added: from shakey:

In the case of 3 rivers District Council v Governor and Company of the Bank of England [2001] UKHL 16, check out Lord Hobhouse of WoodBorough, section 158, last para (4 lines before section 159) :-

 

"The criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality."

 

shakeys on fire today...lol:

 

Overdraft Termination (for a current account), will usually be a notice served under s76(1) and 98(1) of the CCA 1974.

 

Significantly s76(3) states that "A notice under subsection (1) is ineffective if not in the prescribed form".

 

Para 2(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states :

 

" Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain action t o enforce a term of an agreement) shall contain--

 

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

 

© statements in the form specified in paragraphs 6 to 8 of that Schedule."

 

Basically, if the overdraft contained a signficant amount of unfair default charges, then there could be a strong case to argue that it is not in the prescribed form as the sum demanded is innacurate and therefore the notice is ineffective by virtue of s76(3) of the CCA 1974.

 

I suggest parallels could be drawn with Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 199:cool: of Appeal Judgment, in that both involve the payment of sums to prevent further action, both are in relation to a debtor at a disadvantage under the CCA 1974 (i.e. whom the Act is intended to protect), and that the Creditor is expected to get it right.

Edited July 13, 2009 by r&b
added

[Spamalot]

Hi R&B,

 

Re post 150.. personally I find it impressive and to the point. I would be tempted to alert the media with regards to their behaviour... but not until you've wiped the floor with them.

 

Re your senior moment yesterday and the errant posting ... I thought it strange that more than one barrister broke down on the way to court to one of your cases, and it led me to believe that perhaps they'd heard about your planned 'dressing up' sessions and they were just too frightened to attend!

 

Spam.

[r&b]

Hi R&B,

 

Re post 150.. personally I find it impressive and to the point. I would be tempted to alert the media with regards to their behaviour... but not until you've wiped the floor with them.

 

i think citB is on that case actually.

 

Re your senior moment yesterday and the errant posting ... I thought it strange that more than one barrister broke down on the way to court to one of your cases, and it led me to believe that perhaps they'd heard about your planned 'dressing up' sessions and they were just too frightened to attend!

 

Spam.

 

lol...that made me laugh out loud spam.....perhaps if my legs were better or less hirsute, id have more than one in attendance....alas that wont be the case...

[citizenB]

Yes, I like your letter r&b.

[citizenB]

r&b, did you see the statement included in a letter to Viano..

 

Originally Posted by viano

just thought I would add my half pennyworth

From SC&M:-

 

'We feel it important to let you know that we have Instructed the County Court to enter Judgement against you on behalf of our Client.

 

You should now send a payment for the full balance as stated above to ourselves, unless otherwise directed by the County Court.

 

If you send this payment within ten days you may be confident that further action will be prevented.'

 

Did you get that - they have INSTRUCTED the Court.

 

Viano

 

[r&b]

thanks CB i have now...ive amended the letter to try n get the DJs back up a bit ...

[empowered]

Hi r&b

Have been following your claim closely as we've just ours discontinued by ****. However, we had the same scenario of supposedly instructing the court for judgement and sending little white books. Your letter was brilliant - we too will be writing a letter of complaint soon (mum has just died so I need to get her funeral over with first:() but please post up any response you get. Good luck

[r&b]

Hi r&b

Have been following your claim closely as we've just ours discontinued by ****. However, we had the same scenario of supposedly instructing the court for judgement and sending little white books. Your letter was brilliant - we too will be writing a letter of complaint soon (mum has just died so I need to get her funeral over with first:() but please post up any response you get. Good luck

 

hi empowered,

sorry abt mum, hope all goes well.

will of course post up anth of relevance. have u seen the thread CitizenB has started regarding these letters? link is in her signature i believe

[AndyOrch]

Hi r&b

Have been following your claim closely as we've just ours discontinued by ****. However, we had the same scenario of supposedly instructing the court for judgement and sending little white books. Your letter was brilliant - we too will be writing a letter of complaint soon (mum has just died so I need to get her funeral over with first:() but please post up any response you get. Good luck

 

Sorry to hear that Debs

 

sincerest regards

 

Andy

[citizenB]

Sorry to hear about your mum, empowered.

 

The link re phantom default judgements and CCJs is

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/206823-have-you-received-phantom.html

 

thanks CB i have now...ive amended the letter to try n get the DJs back up a bit ...

 

[r&b]

well ive recvd an answer to my complaint and it seems andys ire was quite correct. the court did not serve anything at all (is this correct procedure?), which is presumably why i recvd the same. it was all down to ****, luckily i can include all this in my SRA complaint and letter to the DJ.

 

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[citizenB]

Well now, they couldnt be more aptly named could they.. ****

[AndyOrch]

well ive recvd an answer to my complaint and it seems andys ire was quite correct. the court did not serve anything at all (is this correct procedure?), which is presumably why i recvd the same. it was all down to ****, luckily i can include all this in my SRA complaint and letter to the DJ.

 

src="http://i615.photobucket.com/albums/tt231/robntanya/LLOYDScourtcomplaintreply.jpg" border="0" alt="Photobucket">

 

 

Hi R&B

 

Nice to see the acknowlegement.Its the duty of the Court to serve you the documents not send them to another to serve you, hence file and serve.More importantly " The Claimants have not filed an AQ":eek:

and applying for SJ, beggers belief:rolleyes:

 

Hope you have your thinking cap on r&b!!!!!!!! A Judicial decision on how the case and filing docs proceeds

 

Regards

 

Andy8)

[r&b]

Hi R&B

 

Nice to see the acknowlegement.Its the duty of the Court to serve you the documents not send them to another to serve you, hence file and serve.More importantly " The Claimants have not filed an AQ":eek:

and applying for SJ, beggers belief:rolleyes:

 

Hope you have your thinking cap on r&b!!!!!!!! A Judicial decision on how the case and filing docs proceeds

 

Regards

 

Andy8)

 

Hi Andy

thanks for the advice in the first instance, as it seems to have unveiled a chink in the armour of our black bedecked foe!!!!

i am however not au fait with these matters of protocol regarding what shud and 'may' not be served. from your input and generally, it seems that of course the court should have informed me of the impending case (nice letter to get themselves off the hook then!!), however the AQ and SJ issue is not something i am familiar with. you have said before that a SJ should be brought at the AQ stage. from this i take it, that as indeed i have asked for dislocure, they should similarly have asked for a SJ within/attached to their AQ?

could you point me in the direction of anything within the CPR or otherwise where i may attempt to entice the DJ to "a Judicial decision" which may be more to my liking than ****?

thanks r&b

[AndyOrch]

Hi R&B

 

It would serve you well to familiarise yourself with the CPR and in particular the following sections:-

 

The overriding objective

 

1.1

 

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

 

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

 

(b) saving expense;

 

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

 

(ii) to the importance of the case;

 

(iii) to the complexity of the issues; and

 

(iv) to the financial position of each party;

 

 

(d) ensuring that it is dealt with expeditiously and fairly; and

 

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

 

Application by the court of the overriding objective

 

1.2

 

The court must seek to give effect to the overriding objective when it –

(a) exercises any power given to it by the Rules; or

 

(b) interprets any rule subject to rules 76.2 and 79.2.

 

 

 

Duty of the parties

 

1.3

 

The parties are required to help the court to further the overriding objective.

 

 

Court’s duty to manage cases

 

1.4

 

(1) The court must further the overriding objective by actively managing cases.

 

(2) Active case management includes –

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

 

(b) identifying the issues at an early stage;

 

© deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

 

(d) deciding the order in which issues are to be resolved;

 

(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;

 

(f) helping the parties to settle the whole or part of the case;

 

(g) fixing timetables or otherwise controlling the progress of the case;

 

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

 

(i) dealing with as many aspects of the case as it can on the same occasion;

 

(j) dealing with the case without the parties needing to attend at court;

 

(k) making use of technology; and

 

(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

 

 

and also this part in paricular:-

 

Time

 

2.8

 

(1) This rule shows how to calculate any period of time for doing any act which is specified –

(a) by these Rules;

 

(b) by a practice direction; or

 

© by a judgment or order of the court.

 

 

(2) A period of time expressed as a number of days shall be computed as clear days.

 

(3) In this rule ‘clear days’ means that in computing the number of days –

(a) the day on which the period begins; and

 

(b) if the end of the period is defined by reference to an event, the day on which that event occurs

 

are not included.

Examples

(i) Notice of an application must be served at least 3 days before the hearing.

An application is to be heard on Friday 20 October.

The last date for service is Monday 16 October.

 

(ii) The court is to fix a date for a hearing.

The hearing must be at least 28 days after the date of notice.

If the court gives notice of the date of the hearing on 1 October, the earliest date for the hearing is 30 October.

 

(iii) Particulars of claim must be served within 14 days of service of the claim form.

The claim form is served on 2 October.

The last day for service of the particulars of claim is 16 October.

 

 

 

(4) Where the specified period –

(a) is 5 days or less; and

 

(b) includes –

(i) a Saturday or Sunday; or

 

(ii) a Bank Holiday, Christmas Day or Good Friday,

 

 

that day does not count.

Example

Notice of an application must be served at least 3 days before the hearing.

 

An application is to be heard on Monday 20 October.

 

The last date for service is Tuesday 14 October.

 

 

(5) When the period specified –

(a) by these Rules or a practice direction; or

 

(b) by any judgment or court order,

 

for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open.

 

Regards

 

Andy

[AndyOrch]

The AQ is usually served on the Defendent and visa versa purely as courtasy and in line with the CPR procedures.Within the AQ you will have noticed a section Other information.Within that section there is a further section which asks the Claimant/Defendent "Do you intend to make any applications in the immediate future? tick box Y/N

If yes what for? They may write they may wish to make an application for SJ pending the outcome of negotiations subject to allocated track for example.So in other words you have submitted your defence they respond within 28days and notify to proceed.AQs are released completed and exchanged.Case is allocated to your CC with the appropiate track.

This is were the AQ helps guide not only yourself and the Claimants but also the DJ dealing with the claim.

 

With yours r&b we havent even got a track as yet nor have they completed their AQ.Lets just ignore protocal and steam roller the SJ through even though the Defendent as submitted a Defence.

Hence the need to file and serve and adhere to the CPR in particular the Overiding Objectives.

Im a bit tired now r&b, long day i will expand further over the weekend

 

I trust the above helps

 

 

Regards

 

Andy;)

[r&b]

andy many thanks, it certainly does sir. i too shall tackle this in the morning...its been a long week and a very cold chardonnay is glaring at me!!!!!

[AndyOrch]

Great minds think a like R&B enjoy, relax, we will resume.

 

 

 

Andy;)

[questioning]

well ive recvd an answer to my complaint and it seems andys ire was quite correct. (Yes. as it would be 8)) the court did not serve anything at all (is this correct procedure?), which is presumably why i recvd the same. it was all down to ****, luckily i can include all this in my SRA complaint and letter to the DJ.

 

src="http://i615.photobucket.com/albums/tt231/robntanya/LLOYDScourtcomplaintreply.jpg" border="0" alt="Photobucket">

 

Hi r&b,

Going by the impression you've given of the DJ it looks like he won't find ****'s action very favourable.

 

 

Hi Andy,

Great guidance here, this case was becoming quite daunting until you came on board and cleared the way.

[AndyOrch]

Thanks Q

 

One tries one best.Nice to know I still have fans on here;)

How are your cases progressing BTW.

 

Regards

 

Andy

Edited July 11, 2009 by Andyorch

[Spamalot]

Nice to know I still have fans on here:wink:

Hi Andy..

Not wishing to Hijack R&Bs thread (Sorry R&B)

 

But I'd be your biggest fan if you could take a look at my thread and gives some advice on a draft defence for a set aside...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt-11.html

 

Thanks... hijack over you can put the guns down now..

 

Spam.

[AndyOrch]

Hi Spam

 

Will take a peek shortly dont panic;)

 

Andy

[questioning]

Thanks Q

 

One trys one best.Nice to know I still have fans on here;)

How are your cases progressing BTW.

 

Regards

 

Andy

 

Hi ya Andy, Your fan club grows by the day.

Thanks for enquiring, Seems as though we've managed to chase cred's away due to lack of CCA.

The hsbc/DG sols. threat of SJ to commence in feb.09 never materialised, and have not heard a peep out of them since the SJ threat.

A CCJ that I'm paying off monthly will become interesting as they divided the claim. so paying a very small amount, that'll be a good one when they try and claim the remainder.

[r&b]

Hi ya Andy, Your fan club grows by the day.

 

sure does:)

nice to hear from u Q i trust all is well.

 

as for my issues here, im thinking that a reformed letter to the DJ specifically regarding the conduct of **** and the Court Office may be the way forward. that letter above from the Court was in reply to my formal complaint, so its not much of an excuse really in my opinion!!

have u guys got any other thoughts perhaps?

thanks

 

BTW spam dont apologise for using anything my friend.

[r&b]

ok im going to formulate a new letter outlining whatever i can fit in thats seems productive. may take a bit as im busy for next couple days but will get it sorted by end of week and sent to all and sundry.

then its back to my set asides on 23rd lol.....