Invalid Default Notices

[pedross]

We get blinkered by our own narrow objectives into not seeing the overall picture.

 

By and large i think the judges get things right- many of the cases i see on these forums being lost are either on spurious challenges or are improperly prepared or argued. I’m not blaming the individuals concerned since they often have no other choice, but i don’t believe that all that many judges are “bent” or “stupid”, as some try to make out when a case is lost - they can only make decisions based on what is put before them,

 

I am all for challenging creditors who get things wrong – they live by the sword therefore must expect to die by the sword, but we can’t SERIOUSLY expect to have the letter of the law applied to every last word, comma , full stop or hyphen in a document, and to my mind the absence of such things as underlining of words in a document or the fact that a set of words was in capital text rather than underlined or vice versa is indeed (unless taken in concert with other errors or omissions) clearly not to the detriment of the recipient and looking as i always try to do from both sides of the fence – clearly “loophole seeking”

 

To encourage others to run these “trite” defences is easy from the comfort of ones armchair- after all it is not we who then end up dry mouthed in front of the judge in the sudden realisation of just how stupid the argument sounds when spoken in the calm and quiet of his courtroom.

 

All i am saying is that often we are guilty of not stopping and looking at the arguments and issues from both sides of the fence .

 

Very well put DD.

 

A good argument and I would like to make it clear that I had no intention of encouraging anyone to argue a case on underlining alone. But I do believe it is an issue for consideration to add to other creditor errors to prove negligence. In fact the whole paragraph has been missing from some DN's and no one has picked it up.

 

However, you said it yourself, Judges can only make decisions based on what is put before them.

 

Its a bit like the 'Credit Limit' or 'Approved Limit' argument. Some argue that it means the same thing and some claim unenforceabilty as its not as stated in the regulations.

 

Thanks for the debate, I don't want to continue it though, as you are quite correct it is not a strong point and I would be in danger of misleading newcomers if I do.

 

Pedross

[MAGDA]

 

By and large i think the judges get things right- many of the cases i see on these forums being lost are either on spurious challenges or are improperly prepared or argued. I’m not blaming the individuals concerned since they often have no other choice, but i don’t believe that all that many judges are “bent” or “stupid”, as some try to make out when a case is lost - they can only make decisions based on what is put before them,

 

 

To encourage others to run these “trite” defences is easy from the comfort of ones armchair- after all it is not we who then end up dry mouthed in front of the judge in the sudden realisation of just how stupid the argument sounds when spoken in the calm and quiet of his courtroom.

 

 

 

I would have to say I disagree with you here DD. I don't think judges do get it right "by and large" - many of the judges I have encountered when in court have shown an unhealthy bias towards the creditor from the start. Many of the cases on here where people have lost when they have a very solid defence happens far too often. I think the best chance anyone has of winning their case is to attack at an early stage and hope that it is struck out or discontinued before reaching the actual trial stage. Having a barrister to represent you, which of course the claimant will, makes a huge difference - no matter how well the LIP is informed or how eloquently they put across their points, the judge will always afford more credibility to the barrister, who is his colleague, after all. This is just my opinion and from personal experience and reading the threads of others on this forum. I know from my local court that most of the cases the judges deal with are family law issues - and while they may have a great deal of knowledge in this area, their knowledge of consumer law is sadly lacking, again something many people on this forum have encountered first hand.

 

further, I don't think many (any) of us on this forum encourage anyone to run "trite" defences - you have to remember we are all adults and the decision/responsibility on whether to defend on any particular issue, or to negotiate settlement with the other side, or even to admit the claim, must lie with the person concerned. That's why I always say it is their decision, not mine, on whether to go one way or the other.

 

If I decide to defend a claim and I lose in court, I can't then blame anyone else - they have tried to help, but ultimately, it was my decision to go ahead. This applies to all of us.

 

Unfortunately, we are not solicitors/barristers, and often the defences/arguments used on this forum are going to be easily beaten by a barrister in court, especially when the judge is firmly on their side from the word go.

 

 

regards, Magda

Edited March 2, 2010 by MAGDA

[frettful38]

Very well put DD.

 

A good argument and I would like to make it clear that I had no intention of encouraging anyone to argue a case on underlining alone. But I do believe it is an issue for consideration to add to other creditor errors to prove negligence. In fact the whole paragraph has been missing from some DN's and no one has picked it up.

 

However, you said it yourself, Judges can only make decisions based on what is put before them.

 

Its a bit like the 'Credit Limit' or 'Approved Limit' argument. Some argue that it means the same thing and some claim unenforceabilty as its not as stated in the regulations.

 

Thanks for the debate, I don't want to continue it though, as you are quite correct it is not a strong point and I would be in danger of misleading newcomers if I do.

 

Pedross

 

Hi pedross, I don''t see any harm in raising the questions that you have mentioned about the last paragraph on my DN?

I could just write to Littlewoods and raise this and see what they come back with, I mean what have I got to lose? I am not starting any court proceedings, but would be very interesting to see what their response is. Maybe many could learn a few more things?

[cab1ne]

then maybe these judges need reminding of there duty.

 

Section 8.2 of the Civil Bench Book (2006) gives the court guidance on Article 6 of the European Convention on Human Rights and its applicability in cases such as the hearing before the District Judge.

 

The last paragraph of Section 8.2 states:

Article 6 gives a party to a hearing the right to put his case forward under conditions that do not put him at a disadvantage in relation to his opponent. This may require the judge to afford some assistance to creditors or debtors appearing in person. The court is under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties.”

The case law of the ECHR makes plain the courts duty in respect of undertaking a proper examination of the submissions, arguments, and evidence.

 

cab

[emandcole]

I know from my local court that most of the cases the judges deal with are family law issues - and while they may have a great deal of knowledge in this area, their knowledge of consumer law is sadly lacking, again something many people on this forum have encountered first hand.

 

 

Magda picks up on a point here that makes me pretty livid. If a judge has insufficient knowledge on a type of law why and how are they entitled to be considered as a competent person for the job? Can you imagine if some bloke who wasted too many hours on flight simulator software in his bedroom was employed by BA to captain an aircraft based on the fact 'he probably knows pretty much what he's doing'? No PPL, no flight time at all.

 

Extreme example sure but when you're considering facts, which have the potential to cause huge harm to an individual just where is the level of capability drawn? A barrister is not able to accept work he/she is incapable of dealing with but the judge...it's just fine? Since when should a barrister be controlling the direction of a hearing? Seems to me too many judges are essentially out of their depth and are too pompous to admit as much, instead getting by on a wing and a prayer at the expense of the LIP who may well have a perfectly valid defence.

 

I'll get my dad, you get your dad seems a bit useless and entirely inappropriate for a court system. Barrister one side, LIP the other, what's the point of even starting the trial? I get two barristers and I'll win, unless you get three then I'll let you win? Madness.

[LarissaJ]

Good point, well made Emandcole!

 

One random question, I've been reading through this thread and still haven't managed to 'work out' what exactly 'Lip' stands for?

[the_shadow]

Good point, well made Emandcole!

 

One random question, I've been reading through this thread and still haven't managed to 'work out' what exactly 'Lip' stands for?

 

Litigant in Person

 

S.

[beachcomber60]

Are there any 'regulation's' relevent to DN's on unregulated agreements, i.e. days to remedy etc.

 

ta muchly

[LarissaJ]

Thank you Shadow

[humbleman]

then maybe these judges need reminding of there duty.

 

Section 8.2 of the Civil Bench Book (2006) gives the court guidance on Article 6 of the European Convention on Human Rights and its applicability in cases such as the hearing before the District Judge.

 

The last paragraph of Section 8.2 states:

Article 6 gives a party to a hearing the right to put his case forward under conditions that do not put him at a disadvantage in relation to his opponent. This may require the judge to afford some assistance to creditors or debtors appearing in person. The court is under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties.”

The case law of the ECHR makes plain the courts duty in respect of undertaking a proper examination of the submissions, arguments, and evidence.

 

cab

 

Bearing in mind that it has taken the credit industry almost 30 years to put a DN together or even a credit agreement. I think may be in the next 20 years the judges will are conversant with the Civil Bench Book and hopefully the CCA.

[middenmess]

I have never had to fight my corner in a court and can only admire those who have done so and presented a credible,well researched and well reasoned argument and had the understanding of the relevant legislation to back up their defence to a claim.

 

I can also sympathise with those who thought they had a credible defence but found their knowledge,argument and presentation sadly inadequate when the chips were down.

 

If during the trial one knew that the Judge had made a serious error in his understanding of the relevant legislation,such as the one day short on a default notice that was mentioned a few posts back,is it permissible to point this out to the Judge at the time assuming that you had a copy of the correct legislation to back up your submission?

[MAGDA]

I have never had to fight my corner in a court and can only admire those who have done so and presented a credible,well researched and well reasoned argument and had the understanding of the relevant legislation to back up their defence to a claim.

 

I can also sympathise with those who thought they had a credible defence but found their knowledge,argument and presentation sadly inadequate when the chips were down.

 

If during the trial one knew that the Judge had made a serious error in his understanding of the relevant legislation,such as the one day short on a default notice that was mentioned a few posts back,is it permissible to point this out to the Judge at the time assuming that you had a copy of the correct legislation to back up your submission?

 

You could point it out to the judge, whether he would take any notice, is another thing entirely.

 

We were at an allocation hearing recently and the judge asked the claimant's solicitor to explain our defence - she turned to us and actually started to explain our own defence to us! She didn't have a very good grasp of it anyway, but the judge nodded and was more than happy. He should have read the documents submitted and had this information to hand anyway. This is the sort of thing we are up against.

 

Magda

[vint1954]

Magda picks up on a point here that makes me pretty livid. If a judge has insufficient knowledge on a type of law why and how are they entitled to be considered as a competent person for the job? Can you imagine if some bloke who wasted too many hours on flight simulator software in his bedroom was employed by BA to captain an aircraft based on the fact 'he probably knows pretty much what he's doing'? No PPL, no flight time at all.

 

Extreme example sure but when you're considering facts, which have the potential to cause huge harm to an individual just where is the level of capability drawn? A barrister is not able to accept work he/she is incapable of dealing with but the judge...it's just fine? Since when should a barrister be controlling the direction of a hearing? Seems to me too many judges are essentially out of their depth and are too pompous to admit as much, instead getting by on a wing and a prayer at the expense of the LIP who may well have a perfectly valid defence.

 

I'll get my dad, you get your dad seems a bit useless and entirely inappropriate for a court system. Barrister one side, LIP the other, what's the point of even starting the trial? I get two barristers and I'll win, unless you get three then I'll let you win? Madness.

Maybe, the right School tie or club membership is enough.

 

I have to add, that I thought Judges had Clerks for points of law?

[vint1954]

Litigant in Person

 

S.

[emandcole]

Are there any 'regulation's' relevent to DN's on unregulated agreements, i.e. days to remedy etc.

 

ta muchly

 

Hi, unregulated agreements? Really not sure

[tedney]

Say No more:D

[vint1954]

Unregulated agreements come outside of the act, so I would imagine that ordinary contract law would prevail.

[vint1954]

Are there any 'regulation's' relevent to DN's on unregulated agreements, i.e. days to remedy etc.

 

ta muchly

Actually beachcomber, when was the agreement taken out and how much for?

[emandcole]

You could point it out to the judge, whether he would take any notice, is another thing entirely.

 

 

I simply can't get my head round all of this! Any other profession and you make an arse of things you'll have a professional body call you in for a chat about your conduct with the view to removing your ability to practice/do your chosen profession.

 

If I simply couldn't be bothered to stay up to date with building regulations and designed and had built a custom staircase that was too steep for example or had insufficient height above it, or any other number of things, I'd not only be in trouble with the client (if they found out...and why shouldn't they) for wasting money, the practice would kick my booty, the project manager would be on the phone asking why his schedule has gone to pot and anyone on site who found out about such an error would make you feel like a complete *** if you ever visited.

 

Refer this everyday and oh so simple scenario to a supposedly noble and learned profession and what do you get. Can't be bothered to read up on anything, prejudice and presumption against the defendant before they even hear litigation has commenced, wide spread disregard of basic legal premise and a level of plain incompetence, arrogance and contempt beyond belief for the 'little man' they presumably swore an oath to help protect at some point in their life.

 

The more I learn about the legal 'profession', and I use that word with increasing discomfort, the more I realise just what an out dated, cantankerous and corrupt 'service' we have. Question is why should we put up with it? I don't understand why we can't demand a change, we pay for it, we have to live by it, it's not a big ask for it to be correct.

 

Sorry for the rant but this back hander type prejudice and plain ignorance really fires me up. I'd like to see Judge John Deed clones delivered across the country to ensure fair is fair and all is above board, even if that means I suffer because of it.

 

I can face losing in a fair fight every time, there is honour in that despite any defeat. What I cannot stomach is the sly under handed tactician cowering in the shadows of a court room whispering everything and anything into the ears of some dullard who purports to be 'in charge'.

 

So angry

[Danthevan]

Sorry to butt in on this thread but I had an email from the OFT today that said that under the CCA 1974 anyone or business involved in debt collection or debt management needed to have a CCLicense. The OFT told me that the Process Server that served me a Statutory Demand had no such license and Trading standards are going to investigate. Would that invalidate the SD?

[beachcomber60]

Actually beachcomber, when was the agreement taken out and how much for?

 

Thanks Vint,

 

March 08 (a couple of weeks before they up'd the limit )

 

Car finance £25,155 after deposit paid (was £24,500 but added negative equity from px into agreement)

 

First DN gave me 2 days to remedy, after complaining they issued another giving 7 days from date of letter.

[angel_1]

hiya all

 

i thought id seen it before on this thread that the 7 days to remedy default had been changed to 14 days i thought was amended a couple of years ago?

 

anyone if has the info and dates only quickly to hand would appreciate it, if not pls dont worry i will continue searching

 

wishing you all a fun eve angel x

[nks22]

i thought id seen it before on this thread that the 7 days to remedy default had been changed to 14 days

 

I don't have the details to hand but it definitely has been changed to 14 days (from date of service, which is two or four working days for First and Second Class respectively).

[angel_1]

thank you nks22 - thats exactly what i was thinking cheers for your quick update

 

laters angel x

[nks22]

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, Page 8:

NOTES

 

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

 

Para 6: words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.