A+L/Shoosmiths Claimform going for CCJ/CO - Unsecured loan **SETTLED BY TOMLIN**

[bach]

Hi, Your case seems to be following the sdame pattern as my own.

I did go all the way 5 times to court. Going again in April next year.

On the last occasion Judge said due to the whole lenght of time the case had taken because Shoosmiths were not complying with Court directions properly and on time, he would review the costs, and not just in favour of the Soliciors.

 

Regard bach

 

PS don't worry yet andy said you have plent of time

[bozalt]

Thanks Bach, that sounds like a nightmare scenario for you. I can never understand why they do not try to negotiate rather than intimidate!

 

Shoo's sound like a shambles, I wish you the best of luck with your next court appearance,

 

Best regards

 

B

[bozalt]

Hi All

 

I hope you are all well.

 

I received the Allocation Questionaire today(Form N150) and have been reading up on what I need to do next. The form is to be returned by 2 November, could I ask for any advice as to how to complete this, as far as I can understand I should complete the form as follows;

 

A Settlement

1. Should I tick no as I have submitted a defence and am not looking to settle?

 

4. Not sure what to complete in this part if my answer to 1 is No.

 

B Location of trial.

Should be held at my local court, not quite sure what answer is acceptable as a reason to be given to the court though!

 

C Pre-Action Protocols

I am sure I have complied so should tick Yes??

 

D Case management Info

Amount in dispute - All of it??

 

Applications - Yes/No?

 

Witnesses - Should I just list myself?

 

Experts - I have none so just tick No?

 

Track - Fast track as value is around £15k?

 

E Trial or Final Hearing

I have no idea how long this takes, any advice on how I should complete this please??

 

F Proposed directions

I have no clue again!

 

G Costs

None

 

H Fee

This is to be paid by the issuer isnt it and not the defendant?

 

I Other Information

This bit really stumps me,

 

Blimey, sorry its a bit long and rambling but I thought I was starting to understand how to complete the form, as I was going through and typing this in I realised I was a more confused that I thought.

 

As always advice, guidance or support is very much appreciated.

 

Best regards

 

B

Edited October 19, 2009 by bozalt

[bozalt]

Hi All

 

I hope you are all well.

 

I received the Allocation Questionaire today(Form N150) and have been reading up on what I need to do next. The form is to be returned by 2 November, could I ask for any advice as to how to complete this, as far as I can understand I should complete the form as follows;

 

A Settlement

1. Should I tick no as I have submitted a defence and am not looking to settle?

 

4. Not sure what to complete in this part if my answer to 1 is No.

 

B Location of trial.

Should be held at my local court, not quite sure what answer is acceptable as a reason to be given to the court though!

 

C Pre-Action Protocols

I am sure I have complied so should tick Yes??

 

D Case management Info

Amount in dispute - All of it??

 

Applications - Yes/No?

 

Witnesses - Should I just list myself?

 

Experts - I have none so just tick No?

 

Track - Fast track as value is around £15k?

 

E Trial or Final Hearing

I have no idea how long this takes, any advice on how I should complete this please??

 

F Proposed directions

I have no clue again!

 

G Costs

None

 

H Fee

This is to be paid by the issuer isnt it and not the defendant?

 

I Other Information

This bit really stumps me,

 

Blimey, sorry its a bit long and rambling but I thought I was starting to understand how to complete the form, as I was going through and typing this in I realised I was a more confused that I thought.

 

As always advice, guidance or support is very much appreciated.

 

Best regards

 

B

 

Hi

 

I realised the above post wasnt very clear and thought it might be useful to upload a copy of the AQ I have received.

 

This is my first defence and AQ and I would be grateful for any advice to help with the completion of this, I dont want to make any mistakes. Its all a bit daunting!

 

Many thanks

 

B

n150.pdf

Edited October 21, 2009 by bozalt

[AndyOrch]

Hi All

 

I hope you are all well.

 

I received the Allocation Questionaire today(Form N150) and have been reading up on what I need to do next. The form is to be returned by 2 November, could I ask for any advice as to how to complete this, as far as I can understand I should complete the form as follows;

 

A Settlement

1. Should I tick no as I have submitted a defence and am not looking to settle? No always appear to be amicapable goes in your favour

 

4. Not sure what to complete in this part if my answer to 1 is No.See above

 

B Location of trial.

Should be held at my local court, not quite sure what answer is acceptable as a reason to be given to the court though! Tick No

 

C Pre-Action Protocols

I am sure I have complied so should tick Yes?? No pre-action protocal applies

 

D Case management Info

Amount in dispute - All of it?? less sol/court fees

 

Applications - Yes/No? Not made any then no

 

Witnesses - Should I just list myself? Yourself

 

Experts - I have none so just tick No? Yup

 

Track - Fast track as value is around £15k? Yes

 

E Trial or Final Hearing

I have no idea how long this takes, any advice on how I should complete this please?? 3 hours

 

F Proposed directions You make Directions if you require the Claimant to to disclose any document/s still required

I have no clue again!

 

G Costs

None

 

H Fee

This is to be paid by the issuer isnt it and not the defendant? Yes

 

I Other Information

This bit really stumps me, Anything extra, relevent to you defence that you wish the DJ to consider

 

Blimey, sorry its a bit long and rambling but I thought I was starting to understand how to complete the form, as I was going through and typing this in I realised I was a more confused that I thought.

 

As always advice, guidance or support is very much appreciated.

 

Best regards

 

B

 

Andy;)

[bozalt]

Thanks Andy thats a great help

 

Cheers

 

B

[AndyOrch]

Get the Courts off straight away in time, leave theirs till the death unsigned.

 

Andy

[bozalt]

Get the Courts off straight away in time, leave theirs till the death unsigned.

 

Andy

 

Hi Andy

 

Thanks for your help again, I am dropping the AQ paperwork off at the court today.

 

Fingers crossed.

 

Cheers

 

B

[ifoughtthelaw]

Hi Bozalt,

 

Just looking in on your thread, good luck with it all. OH is at the same stage as you now. Andyorch - if you don't mind me asking, how long can you leave their copy - what would be the latest stage as these solicitors all seem to play games with us re dates and submissions.

 

IFTL x

[AndyOrch]

HI IFTL

 

You dont even have to send them a copy this is by way of courtesy and hopefully them to reciprocate.It does however say in the AQ have you served a copy on the Claimant/Defendant.

 

However the Court has the power to strike out any case where it is not submitted to the court on time

I advise leave theirs to the death unless they have sent you theirs well in advance.Its important for the Defendant to see the Claimants AQ and gives guidance and important insight to how they are going to proceed in retrospect its not that important for them to see the Defendants as any Directions proposed within the Defendants AQ will be forwarded to the Claimants once the DJ as agreed to them.

 

I trust the above is of help

 

Regards

 

Andy

[bozalt]

Hi Bozalt,

 

Just looking in on your thread, good luck with it all. OH is at the same stage as you now. Andyorch - if you don't mind me asking, how long can you leave their copy - what would be the latest stage as these solicitors all seem to play games with us re dates and submissions.

 

IFTL x

 

Thanks for the good wishes IFTL!!

[bozalt]

Hi Andy

 

I received a letter with a consent order today from Shoo's stating that they are in possession of the credit agreement and attaching a further copy of said agreement.

 

They want me to retunr the consent order admitting the claim in full + costs of £400+. Is this standard procedure in these types of case?

 

As far as I am concerned they still have to provide the original in court and then prove that it was compliant, properly executed and that they have defaulted the account correctly.

 

Am I correct in thinking the above and do you think I should send any response??

 

 

Cheers

 

B

Edited October 29, 2009 by bozalt

[vint1954]

Hi Andy

 

I received a letter with a consent order today from Shoo's stating that they are in possession of the credit agreement and attaching a further copy of said agreement.

 

They want me to retunr the consent order admitting the claim in full + costs of £400+. Is this standard procedure in these types of case?

 

As far as I am concerned they still have to provide the original in court and then prove that it was compliant, properly executed and that they have defaulted the account correctly.

 

Am I correct in thinking the above and do you think I should send any response??

 

 

Cheers

 

B

No, I don't think that you should admit the claim in full. Wait until Andy posts again. Don't do anything until then.

[bach]

Hi,

NO NO NO don,t sign anything untill somebody can advise you otherwise.

 

I have no legal training, but please don,t sign, I only have my own experiance to go on, wait untill we can get the correct advise for you.

 

Lynn

[AndyOrch]

Hi Bozalt

 

As advised, not on your life, bit more mindgames from our friends at Shoos

Put it all back in the envelope after taking a copy unsigned,and post it back with a copy of your request for the executed original duly signed by yourself and write Return to Sender:D

 

Regards

 

Andy

[bozalt]

Thanks all!

 

I guessed it was an attempt to try and save them the trouble of proving their case and was wondering if this was their usual way of doing things.

 

The contract they have appears to be correct and my defence is mainly the dodgy DN but their is no point in gving it all up at this stage. They do still have to turn up to court with the documents in order and then win over the judge to agree that they had followed procedures correctly which in the case of the DN they have not.

 

Cheers

 

B

[vint1954]

Hi Bozalt,

 

Looks like Andy has things in hand for you. Good luck with your case.

 

Just a little extra reading for you previously posted, not sure who this was from, probably BRW of surleybonds.

 

 

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

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....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that 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. The prescribed format for such document is laid down in 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[bozalt]

Hi Vint

 

Andy has certainly been extremely helpful, he is a star!

 

Thanks for the information, that will be useful to quote in court, not sure if thats how it works but I guess thats the kind of information the judge should be aware of and I should highlight?

 

Once again thanks for your posts, help and support.

 

Cheers

 

B:)

[bozalt]

Hi Bozalt,

 

Looks like Andy has things in hand for you. Good luck with your case.

 

Just a little extra reading for you previously posted, not sure who this was from, probably BRW of surleybonds.

 

 

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

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....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that 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. The prescribed format for such document is laid down in 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

I was just thinking abount Vint's informative post and wondering should i Have quoted any of the above in my AQ?

 

[AndyOrch]

I was just thinking abount Vint's informative post and wondering should i Have quoted any of the above in my AQ?

 

 

Nope you dont use an AQ as a second defence this is purely to allocate

track. Stop thinking too hard Bozalt!!!

 

 

Andy;)

[bozalt]

Ha ha will do Andy!

[bozalt]

Hi Andy

 

Its been quite for a few days, I hope things are good with you.

 

I returned the consent order as suggested but I do not think Shoos received it as today they sent me a letter giving me until 13/11 to return it or a response.

 

I also received from the local court a letter advising that as Shoo's havent returned the AQ they have been given until the 17/11 to do so. I guess Shoo's will apply for summary judgement on 16/11.

 

Should I write back to Shoo's and confirm I will not be returning the consent order and intend to defend in court?

 

Look forward to your your advice.

 

many thanks

 

B

[AndyOrch]

Hi Andy

 

Its been quite for a few days, I hope things are good with you.

 

I returned the consent order as suggested but I do not think Shoos received it as today they sent me a letter giving me until 13/11 to return it or a response.

 

I also received from the local court a letter advising that as Shoo's havent returned the AQ they have been given until the 17/11 to do so. I guess Shoo's will apply for summary judgement on 16/11.Cant if they have failed to submit their AQ, check with the Court on th 17th, if still not, request a strike out for failure to submit and pay the fee on time

 

Should I write back to Shoo's and confirm I will not be returning the consent order and intend to defend in court? No

 

Look forward to your your advice.

 

many thanks

 

B

 

 

Regards

 

Andy;)

[bozalt]

Thanks for you advice Andy, fingers crossed they will fail to meet the extended deadline for the AQ and I can apply for the strike out.

 

I will call the court on 17th and with a bit of luck they will not have responded.

 

All the best

 

B

[bozalt]

Hi Andy

 

I called the court today and they have confirmed Shoos have returned the AQ today.

 

Its a bit disappointing that they were automatically given an extra two weeks to return it.

 

What next??

 

Cheers

 

B