SB100 v HFC - is this default compliant? Court/Restons ***WON***

[diddydicky]

In theory could they proceed with what they've already used, ie the application / agreement and DN that were displayed with the previous SO/SJ hearing without needing to 'disclose' again to comply with the court order.

 

Sorry to ask so many daft questions- I'm in court later this week, and don't want the DJ to say he's going to proceed because I'm already aware of what I am facing so should have been prepared- and ignore their failure to comply with the court order / disclosure / inspection / exchange of WS.

 

well it doesn't matter what your case is- you are not expected to have to deal with reams of evidence that are only presented to you on the day

 

end of

 

if the judge ignores your protestations and proceeds and you lose and any regard has been given to the newly introduced evidence

 

you will have grounds for an appeal that otherwise you might not have had

[SB100]

What I'm trying to get at is should the N265 for anything new that they wish to use- ie as the application / CCA and DN etc are already both well known to both parties would there be any need for the other side to use an N265 if that's all they intend to rely upon? Same for their witness statements?

[diddydicky]

not sure i understand the question

 

anything used in court as evidence or cases that the other side intend to refer to must be provided to you at least 7 days (i think) prior to the trial

 

if they wish to introduce new material on the day of the trial you would have to agree to that otherwise it cant (shouldnt ) be used as you have not had time to examine it and come up with counter arguments to it.

[SB100]

I know, I didn't make the point very clear.

 

If they were to turn up armed with exactly the same stuff as they did for the SO/SJ hearing, then could they proceed even though they haven't complied with the court order for disclosure / inspection / exchange.

 

Restons letter from December insisted that I itemised everything on the N265. They said they'd comply by 11th December and offered a revised timetable, so they must have thought they needed to do it?

 

I'm wondering if they've not bothered doing an N265 as they don't feel they have anything to add over and above what they've already sent (under CPR etc) so they're in the clear where the court order is concerned.

 

They haven't as yet made any reference to case law etc on which they intend to rely, but, as you say, that would give me grounds to object as it would take me ages to get my feeble mind around....

[sir fussalot]

SB,

 

FIRST Calm Down. I am in the same boat!.. as its getting nearer all that I have come across and will be using is SLOWLY going out of my head,,,,,

 

So I am writing everything down on bits of paper. I will then arrange into my case...

 

Cabot sent the "Application" form as the agreement, so I have asked for the "ORIGINAL" documents to be disclosed.

 

NOW, in the order it says,"Each party must DELIVER to each other, and the court.. ANY documents that it will rely on at the hearing," etc..

 

so check if your order does. They cannot turn up and just give you copies of what they are going to argue with.... BUT, should they TRY... then you will have a GOOD case for them NOT to be used due to you not being able to have seen them etc.. or an adjournment, Not only at THEIR expense but it will look goood for you later on. AND if the order did say that, point out that they have NOT complied with a court order..

 

Sir Fuss

[cymruambyth]

Hi it often seems to be 'a game of chicken' with some of these companies.

My best advice is to ensure you have complied with everything, write a time list with everything you have done, include court orders and your own posting details.

You will have to stand your ground if they suddenly produce new evidence and state that as a LIP you need an adjournment to review things. Take a second pack so that you can give the DJ paperwork as well. Have post its to mark pages so you don't get flustered.

I'm not sure but I think Donkeyb has battling Restons

If you speak to Restons before court, listen, do not give anything away so that they can get advice.

If you are worried an the CAG home page there is a court buddy system wher people will go with you for support.

[pedross]

I think you just need to be well prepared with what you knew already SB

 

Keep cool and stay positive. If they do try and produce something last minute you could always ask for a short break to read through the documents and if you have any doubts ask for an adjournment.

 

Best of luck and do not let these underhand tactics un-nerve you.

 

Pedross

[SB100]

Did I miss a trick here? Even if it was sent First Class, as they claim and I can disprove, it still wouldn't give sufficient time to remedy [2nd May was the date stated on the DN] would it?

 

Couple of things...

Default Notice

 

I see mentioned in an earlier post about 14 working days for the Default notice, please not its 14 calendar days, not working days. That said if its not been sent by royal mail first class its deemed to be 2nd class and 4 working days for service.

 

Sent Thursday 15th means deemed served on Tues 21st. 14 days starts from the day after service according to regs so remedy date should have been Weds 6th May to give 14 clear days.

[SB100]

Restons tried to use the Rankine case when we were in court last- what's the correct response if they try again? Can't find it..

[the_shadow]

Restons tried to use the Rankine case when we were in court last- what's the correct response if they try again? Can't find it..

 

Which part of Rankine? their are several bits to that judgment.

 

S.

[SB100]

I'm not sure. They tried to counter my SO application, back in October, with their own SJ application (4 days notice) but the DJ blocked them.

 

Their Barrister handed me a copy of Rankine five minutes before we were about to go in- and a skeleton argument.

[the_shadow]

Did I miss a trick here? Even if it was sent First Class, as they claim and I can disprove, it still wouldn't give sufficient time to remedy [2nd May was the date stated on the DN] would it?

 

It would appear the judge is counting Sat as the 2nd day... if it was sent 2nd class tho and you can prove it then even including sat means you should have had to Weds 4th to comply with 14 clear days allowed, 2 days short I make it.

 

S.

[SB100]

Ooops the 15th was a Wednesday, not a Thursday, sorry.

[the_shadow]

Ooops the 15th was a Wednesday, not a Thursday, sorry.

 

Ok 15th April 2008, sent 2nd class deemed unless proven otherwise (what have you stated as to receiving it?) Monday 20th April 2008, 14 calander days from then takes you to Tuesday 5th May 2008.

 

[look better?]

 

S.

[pedross]

It would appear the judge is counting Sat as the 2nd day... if it was sent 2nd class tho and you can prove it then even including sat means you should have had to Weds 4th to comply with 14 clear days allowed, 2 days short I make it.

 

S.

 

I have tried to quickly look at the dates again and one of us is confused - hopefully me.

 

I make 15 April 2009 a Wednesday so 2 working days for 1st class would be Friday 17 April so 14 days from then would be 1 May.

 

However 2nd class would mean delivery was 4 working days = 21 April and 14 days is 5 May. So 2 May is defective DN.

 

You need to have copies of the Interpretation Act which is all over these threads to counter the argument from Restons if they try and suggest that CPR 6.26 applies to the DN which it does not as stated by CPR 6.1.

 

They will push the issue on 1st class which they are doing with me and although mine was UK mail I cannot find the envelope or I could back you up on that.

 

Pedross

[SB100]

Yep- I did actually receive it on the 20th. Thanks muchly

 

The Interpretation Act only states working days for counting though, so thurs (1) Fri (2) Mon(3) Tues (4) then count 14 calendar days from the day after service takes us to Wednesday 6th if I understand it correctly?

[SB100]

Pedross, I have the UK Mail envelope it came in- and they know I do.

 

I also have a WS from HFC stating that it was sent First Class, which it wasn't...

[the_shadow]

I was counting saturday as a postal date as some judges have done recently due to CPR rules rather than interpretation act.

 

As to Rankine the skeleton argument should state which bits they are referring to but here is a braindump from various sources re: Rankine.

 

S.

 

 

JUDGE ERRORS

Some more "ammo" regarding the reliance on Rankines anyway (you can use it cast doubt on the value of the DCA using it) . I wouldn't miss the opportunity to refer to ithe flaws in it as part of your appeal. Don't forget tho' emphasis is on it not being a precedent - and your judge compounded the mistakes by not knowing her case law.

 

With thanks to DaveFirewalker who's post I've quoted at :-

http://www.consumeractiongroup.c o.uk/forum/legal-issues/147432-high-court-judgement-rankines-4.html#post1648272

 

At para 28 of the Rankine judgment the judge states "When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

Well it appears that this paragraph of the judgment is just plain wrong!

It seems that Judge Brown may have been a bit confused. "The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983" doesn't have a section 3(1) or 3(2). The judge may have meant "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

 

I would guess, precision is everything if para 28 is to be used as any kind of precedent in other cases.

 

This also goes to show how complex the legislation is, even for a professional.

 

If your lender sites the Rankine judgment in relation to "true copies" I am fairly sure that it is easy to show the judgment is wrong simply based upon the legislation.

TRANSCRIPT OF PROCEEDINGS

A trascript of the Rankines judgement is currently available at :-

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

I suggest you copy and paste it for your records. Alternatively try a Google search for :-

 

Basil Rankine vs American Express Services Europe Limited

APPEAL DETAILS

 

 

Quote:

Originally Posted by I've got no money

Just checked Rankine is May 2008

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

BUT is only High Court not Court of Appeal

Quite so - I believe the Rankines Court of Appeal case was on a different issue concerning cancellable agreements. It was also against MBNA NOT American Express see :-

 

Rankine

Rankine v MBNA Europe Bank Ltd

Court of Appeal 26/10/07 [2007]EWCA Civ 1273

 

A copy of the Rankins Court of Appeal refusal is also viewable in html at :-

http://www.penaltyactiongroup.co.uk/...&t=2263#p45153

 

Enforcement

 

Quote:

Originally Posted by I've got no money

I've just been re-reading Wilson in the House of Lords - Para 31 blows Rankine - the enforcement point out of the water - as the Lords state that Judgment is enforcement - Rankine is therefore per incuriam (a decision made without consideration of relevant authorities) and shouldn't be followed

 

I wish that they'd appealed...

I agree - Well spotted !! In section 31 of the above above case # Lord Nichols of Birkenhead gives an example of enforcement. He states “section 173(3) expressly permits consensual enforcement against a borrower”. He then qualifies consensual enforcement by stating that “A borrower may consent to the sale of a security or to judgement”.

 

This confirms from the HOUSE OF LORDS that judgement is part of enforcement.

# Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

Enforcement Pt II

 

On the definition of Enforcement may I also quote from the immortal words of X20 on the following link :-

 

Stop standing order payments after 12 +2 days?

 

[beqin quote]

 

dog,

You could show the judge the default notice itself. The DN is a prescribed form containing prescribed language to include the following words:

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

If Parliament intended that the action which will be taken where the DN is not complied shall constitute 'Further Enforcement Action', then Parliament also intended that when the DN was served there had been 'Enforcement Action'. If that were not so, then the subsequent action would not constitute 'Further Enforcement Action'. There must have been some original enforcement action for the later action to constitute 'Further' Enforcement Action. If no enforcement action can be identified and which originated earlier than the DN, the DN must constitute the original enforcement action.

 

[end quote]

 

 

UNFAIR CHARGES INCLUDED ON DEFAULT NOTICE

 

The argument is that the DN should be accurate - if it contains account charges imposed under an unfair contract term or a penalty clause then its' not accurate HOWEVER - don't forget that Rankine says that account charges don't invalidate a DN as the creditor can't be expected to second guess that a court might declare them invalid. In my view ankine is wrong in principle AND where the DN was served after April 2006 (Rankine was a 2005 DN) the creditor knew that the account charges were unlawful - that was when the OFT issued its' report saying - therefore in my view the creditor was acting in bad faith and should not be able to rely on Rankine - it also allows the court to distinguish the case from Rankine

 

 

From BRW: Paragraph 16 of Rankine

 

Professor Sir Roy Goode QC's view on that Judgment:

 

Comment

 

The court's strident and blunt approach is to be welcomed. This includes the statement at paragraph 9 that the Consumer Credit Act was introduced to protect the individual unsophisticated in financial affairs in contracts with unscrupulous and sophisticated financial institutions. It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities. In the latter regard, the court did not hesitate to dismiss the Rankines' various arguments in a commensurate tone.

 

However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:

 

'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor 'under an agreement'. The agreement was at an end. Therefore there is no reason why there cannot be enforcement.

 

Secondly, the [2008] GCCR 7701 at 7713 word 'enforce' is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.'

 

The grounds for questioning the statement are the following:

 

(i) In section 189(1) 'creditor' is defined as 'the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor'; 'debtor' is defined as 'the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor'.

 

(ii) The Agreements Regulations identify 'creditor' and 'debtor' with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.

 

(iii) The expression 'enforce an agreement' is utilised in the Act to mean to take steps to assert one's rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression 'enforceable' when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: 'Enforcement of certain regulated agreements and securities'.

[pedross]

Pedross, I have the UK Mail envelope it came in- and they know I do.

 

I also have a WS from HFC stating that it was sent First Class, which it wasn't...

 

Yes I know SB

 

They may tell the court that it was sent 1st class UK mail - just a guess, so you need to download some info on UK mail delivery times to prove the statement misleading. Plus you need to understand that CPR 6.26 applies after proceedings commence. See the thread by mydogsawestie if you have not already been on it (I can't remember if you have).

 

You need to ask why the witness is not there for you to cross examine about the error in the statement, (if they are not there). If they are show them the envelope and ask if that is the normal 1st class envelopes that they use. Back to the UK mail info you will have printed off (3 copies).

[SB100]

Thanks Shadow, I will peruse it this afternoon.

 

Pedross, I've already printed all the guff off from the website I need to read up on the CPR stuff as I'm not familiar enough with it ATM.

 

I didn't call the witness, unfortunately, so very much doubt she'll be there.

[pedross]

Pedross, I've already printed all the guff off from the website I need to read up on the CPR stuff as I'm not familiar enough with it ATM.

 

Don't worry too much. The main point is that it applies once legal action has commenced. The DN was issued before legal action had commenced but the Judge may be more familier with CPR so you just need to know why it does not apply in this case which I believe is in CPR 6.1. which explains when another Act can overide it.

[SB100]

Right, I'm with you now. The CPR is over-ridden by the Interpretation Act in this case

[SB100]

Any ideas what might happen at my SO hearing, immediately before on the morning of the trial?

 

Is it likely the DJ will adjourn with an Unless order?

[the_shadow]

Don't worry too much. The main point is that it applies once legal action has commenced. The DN was issued before legal action had commenced but the Judge may be more familier with CPR so you just need to know why it does not apply in this case which I believe is in CPR 6.1. which explains when another Act can overide it.

 

But... as a fallback remember that even with the CPR it still falls foul of giving you 14 clear days as it was sent second class and not first as stated.

 

Win Win in my books

 

S.

[diddydicky]

Pedross, I have the UK Mail envelope it came in- and they know I do.

 

I also have a WS from HFC stating that it was sent First Class, which it wasn't...

 

could write and ask them if theyd like to buy an envelope!!