Nationwide/Shoosmiths v me

[diddydicky]

have you not noticed that the default notice is in fact a Termination Notice?

it demands payment of the full outstanding balance to rectify the breach!!

 

or are my eyes getting tired this time of night!!

[diddydicky]

Stleonards, it looks as though the two CAGers above also received the same communication. As diddydicky points out, the issues in his case are different to those within the test case, so he rejected the offer of a stay. As already mentioned, I think you have other and stronger arguments regardind the Default notice.

 

The choice to object or not now rests with you. Having already had one stay imposed on you, this seems very unfair that they have now changed solicitors and are intending to impose another.

 

if you re read the letter it does NOT ask for a stay due to the other cases being on hold- it cleverly states that the reason for the stay is for them to study the files and seek settlement opportunities (or similar)

 

it THEN goes on to talk about awaiting other decisions-

 

crafty or what

[diddydicky]

although i see your letter is different from mine!!

[diddydicky]

well i would certainly go for a strike out on the grounds that the plaintiff does not have a cause of action (the DN and its unlawful rescission of the agreement/failing to follow the correct procedure to claim the benefits of s87.

 

the plaintiff clearly is not entitled to claim the while balance of the account until he serves an effective DN giving the debtor an opportunity to rectify the breach

 

As he has now rescinded the agreement- he can NEVER issue such an effective DN since there is no longer an agreement to issue it in respect of

 

the plaintiff unlawfully rescinded the agreement (if it ever existed) and the defendant excercised his legal right to accept the unlawful act of the plaintiff in terminating the (alleged) agreement therefore BOTH parties have agreed a new agreement- that agreement being an agreement to end the (alleged) original agreement!!

[diddydicky]

OK

 

Thanks all (and CB of course)

 

I will take the advice given happily!

 

I have to go to work now but shall endeavour to compile letters when I return tonight (any links to examples gratefully accepted).

 

what i suggest you do, when you read threads- is to copy and paste into your word processor text and legal arguments that you think you might need and label them

 

saves you doing repeated searches

 

click the search button and type in what you are looking for- you may have to type several different phrases to get onto the relevant threads

[diddydicky]

they certainly are you should write to the court and especially ask the claimant to inform the court of which cases being heard in the mercantile court is the court intending to rule on the item 5/ in their list (the inclusion of the PT's on the signature document and when parliament gave the courts permission to change the law rather than uphold it

 

as Docman says they are playing silly beggars,

 

my letter is totally different and states the reasons for the 2 month stay as in order to review the case and explore settlement possibilites, it THEN goes on to say the stay would also be useful etc etc

 

further if they have not complied with s78 and/or CPR31.14 in order that you can see the agreement yourself - they would i think find it hard to convince the judge that you should pay their costs if they suddenly produce in court what they did not poduce before

 

also this business of photo quality copies of agreements is totally bogus

 

nowhere in the act does it say they HAVE to provide a photocopy- but what they do provide must be virtually a verbatim reproducting of the original agreement and terms and conditions

 

of COURSE they cannot reproduce the signatures and signature boxes evne though common sense says a photocopier would.....

 

in my case they have sent the application form with both signatures on it so it MUST have been photocopied and their arguments that 5 weeks after starting proceedings they are still "searching for the original agreement" is going to drop them right in the doo doo

 

their fanciful claims that DN's with insufficient time and claiming the full balance of the account in order to rectify a breach are merely de minimus and have not prejudiced the debtor is a joke@

 

further if the intention of the DN is to get the debtor to remedy a default (usually arrears) and then the account returns to a status of the default never having occurred- how would that be possible if the debtor has just had to pay the full balance of the account in order to remedy the default

 

If there is no properly executed agreement- how can there be a default of an agreement that does not legally exist.?

 

hopefully i will have my application for strike out sorted by mon/tues

 

also the amount of charges they quote to defend is being used as a Threat- so i see no reason why fire cannot be fought with fire by telling them that this is fine- their costs if you lose can join the back of the queue!

 

 

I am also going to contact one or two CFA lawyers next week as i do feel that these cases (certainly mine anyway) is so strong that they hopefully will bite my hand off to have eversheds over on charges

IMO

Edited October 31, 2009 by diddydicky

[diddydicky]

you can apply to have the claim struck out as the POC show no cause of action

 

not sure if the application has to ask for the stay to be lifted at the same time or if in this application the stay is unimportant

 

I have just written to eversheds giving them one last opportunity to withdraw, outlining the failings of the agreement and DN , failing which i will make the strike out application and apply for costs as a LIP on an indemnity basis

 

i also enclosed a copy of the BOS v Robert Mitchell case for their client's assistance and asked them to note the judges remarks as to the conduct of BOS

[diddydicky]

you will leapfrog me then so ill stay tuned in what court will you be in (in am in kent )

[diddydicky]

Sorry dd but a bit busy with a very ill husband to reply but I am in East Sussex, just down the road from you

 

thats ok- hope he gets better soon

 

keep us updated/dont forget to post if you want any help