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    • She's an only child and he as a brother and sister. He has no will and we have done a check on this to find out if he had left one and nothing has come up. He has savings of around 28k His sister and brother are well off so 28k is nothing to them and aren't interested in his money. This just leaves my wife/his daughter. Would this still need to go to probate there is no estate e.g house or business to sell and the amount left in his bank is just small? When his wife died they just closed her bank account and moved her money across to his account and we just assumed that once my wife has handed in the death certificate and shown evidence of who she is the same would apply to her? We don't know yet the council have only just written to us today with a guide of what to do next.  
    • Did your FiL leave a Will and if so who is the Executor? Strictly speaking banks could refuse to take instructions until Probate is granted but In practice I would expect the bank to take instructions to cancel the DD if the Executor presents the death certificate and a certified copy of the Will
    • Hi   Sorry I probably wasn't clear enough. He had lived in the flat until December 2022 with Dementia by this time it was unsafe for him to have capacity to live on his own and he had to move into a nursing home. We had left it too late to apply for power of attorney so approached a solicitor in March last year for Deputyship. We were still in the process of dealing with it by May 2024. He passed away a few weeks ago and the solicitor was contacted to halt the application and we will just pay the fees of what work he has done up until now. My wife was the named person on her dads bank account but we didn't have the ability to alter any direct debits hence the reasons for applying for Deputyship as we were having problems trying to stop some payments coming out of his account Eon being another difficult company. We kept his flat on from December 2022 - August 2023. it was at this point I contacted Sancutary housing to inform them he was no longer living in the flat, it had been cleared out and was ready for a new tenant and that he had Dementia and had moved into a nursing home December 2022 and explained the reasons why we kept it on. As the named person to speak on his behalf I asked them what proof they needed in order to give notice on the flat e.g proof of dementia and proof that he was living in a nursing home and anything else they wanted. The lady in the upstairs flat and some of the other residence in the street had asked about him and we had told them he had moved into a nursing home. The lady in the upstairs flat wanted his flat for medical reasons so asked us once we had given notice could be let her know and she'll ask them if she can have it. We explained the difficulties and it was left at that but I did tell her I would let her know once notice was given. I contacted the company by email a number of times and also telephone conversations and nobody followed it up and it wasn't till the end of February this year that the housing manager for the area wrote to our home address to ask about him that he had been to the flat a couple of times and nobody answered and he had asked some of the residence in the street and they hadn't seen him for sometime. There was an email address on the letter so I contacted him and copied in the last 2 emails I sent Sanctuary regarding me wanting to give notice on the flat for at least 9 months explaining that it went ignored as well as telephone calls. I also stated I wanted to have his rent payments returned from the date I wanted to give notice which was from August 2023 as the bank wouldn't let us stop the DD without POT or deputyship explaining we were in the process of Deputyship. He gave some excuse about not having POT to cancel on his behalf and spoke to someone in HR and said he would contact the nursing home to confirm he was there with Dementia and if it all checks out we can give notice on the flat which came to an end on the 22 March 2024. There was not mention of back payments for the rent already paid or the fact I had asked to give notice in August 2023. Despite someone living in the flat from 1st April they continue to take DD payments for the flat and have taken another 2 payments of £501. another concerning thing despite Eon not allowing us to cancel the DD to his account the lady upstairs informed Eon that she was moving into the flat February 2024 and Eon refunding the account to his bank and said in an email sorry you are leaving us and canceled his account. Something they wouldn't let us do but a stranger. She also changed her bank account to his address despite the fact notice hadn't been given on the flat yet. So we need to find out how much information Sanctuary actually had for her to tell her power company she was moving into the flat in February despite the housing manager only just getting in contact to find out where he was. So a complaint is going into Eon and Sanctuary and we are going to take advice and ask the bank to charge back the rent. My wife hasn't taken the death certificate to the bank yet to inform them of his passing.  
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    • hi lolerz many thanks for your reply and help. My 2 months has passed i was waiting until the court proceedings started. As i went through this process not that long ago, i shall look back at my old thread for how to respond. Ill get the docs scanned soon thanks.    
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Capital (one) Justice


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Hi Diddy and all.

 

I have received a cheque from Cap 1. Full payment £95. What a let down.

I should not have sent them the copy of the Court order.

Never Mind, onward and upward.

 

I have also had an e-mail from that nice mr. Berman telling me that wendy starr is dealing personaly with my requests (demands?). She has been out of the office but will e-mail me on the 24th. I wonder if mentioning the national press had anything to do with the unexpectedly cordial e-mail?

 

Cit B I am about to PM you.

 

what cheque? (smirk)

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Hello all.

Is there anything on this site similar to "why you should not use section 77/78 etc" but with regard to S142. I realy do need some pointers.

 

erm, dont know.. I am sure someone will be able to help.. meanwhile I will have a look and see if I can find something.

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Thank you both for trying. I have looked at the suggested material and please believe I've really looked, but nothing so far.

 

Am I right in thinking that I need the following:

1. Application Form (n244).

2. Witness statement.

3. POC.

 

Is this format the same in all types of cases?

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Can I use Part 8 Special procedure for this? Or perhaps summary judgement?

 

Hello..... Hello... is anybody out there? I'm getting very lonely.

 

Trouble is you are asking for really specific legal info, most people on here's experience in courts will be defending rather than taking a bank/dca to court.

 

I believe PT2537 has stated in his "why you shouldnt use s77/78....." thread that you'll need to apply to the court for a declaration under s142 using N244 app form and witness statement and evidence bundle to support this.

 

S.

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Trouble is you are asking for really specific legal info, most people on here's experience in courts will be defending rather than taking a bank/dca to court.

 

I believe PT2537 has stated in his "why you shouldnt use s77/78....." thread that you'll need to apply to the court for a declaration under s142 using N244 app form and witness statement and evidence bundle to support this.

 

S.

 

I would have used an N1.

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Trouble is you are asking for really specific legal info, most people on here's experience in courts will be defending rather than taking a bank/dca to court.

 

I believe PT2537 has stated in his "why you shouldnt use s77/78....." thread that you'll need to apply to the court for a declaration under s142 using N244 app form and witness statement and evidence bundle to support this.

 

S.

Hello Shadow thank's for your input.

Problem.. Cap One have admitted in writing they have no agreement. In, I think, the Rankine case the judge said that as there was no agreement it could not be challenged under s142. Now, we all know that was an appalling decision but has it been appealed or have other people in my position used s142 succesfully.

From the research I have made it appears that "if a case is unlikely to involve a major dispute of fact then it may be better to use Part 8 Special procedure". Well its a fact they have no agreement.

Or; perhaps I could ask for Summary Judgement now that Cap One have admitted they have have no agreement. Why should they be allowed to break Data Regulations.

The Rankine decision left the matter open ended which to my mind is a vacuum that needs to be filled. The company could not be challenged but could do as they wished without any legal control with regards to data sharing. This cannot be right.

 

Comments Please.

 

Pawnbroker thank you.

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Hello Shadow thank's for your input.

Problem.. Cap One have admitted in writing they have no agreement. In, I think, the Rankine case the judge said that as there was no agreement it could not be challenged under s142. Now, we all know that was an appalling decision but has it been appealed or have other people in my position used s142 succesfully.

From the research I have made it appears that "if a case is unlikely to involve a major dispute of fact then it may be better to use Part 8 Special procedure". Well its a fact they have no agreement.

Or; perhaps I could ask for Summary Judgement now that Cap One have admitted they have have no agreement. Why should they be allowed to break Data Regulations.

The Rankine decision left the matter open ended which to my mind is a vacuum that needs to be filled. The company could not be challenged but could do as they wished without any legal control with regards to data sharing. This cannot be right.

 

Comments Please.

 

Pawnbroker thank you.

 

Ok, another route is an "injunction against enforcement" order, I'm afraid I know nothing more than the name, but if you look at the smt37 vs MSDW thread (the cpr31.16 one) the judge suggested it was the way forward if barclays couldnt find the agreement and this was backed up with PT stating the same.

 

S.

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Ok, another route is an "injunction against enforcement" order, I'm afraid I know nothing more than the name, but if you look at the smt37 vs MSDW thread (the cpr31.16 one) the judge suggested it was the way forward if barclays couldnt find the agreement and this was backed up with PT stating the same.

 

S.

 

Interesting. In my case against SDFC where it too is admitted there is no agreement, the judge before he adjourned the set side hearing (it is the creditor applying to set aside my default judgement against them) suggested that I should have used part 8?

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Interesting. In my case against SDFC where it too is admitted there is no agreement, the judge before he adjourned the set side hearing (it is the creditor applying to set aside my default judgement against them) suggested that I should have used part 8?

 

Sorry for the delay in reply I've been off line for a couple of days.

 

Basa I find this very interesting!!! It does make sense, how much do you know about it?

I wonder if an injunction against sharing my data could be included.

 

Can we debate please.

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Sorry for the delay in reply I've been off line for a couple of days.

 

Basa I find this very interesting!!! It does make sense, how much do you know about it?

I wonder if an injunction against sharing my data could be included.

 

Can we debate please.

 

I don't really know a great deal, all I know is the judge looked at my PoC and the judgement and said it should have been on a part 8 basis.

 

My claim was for a declaration (s.142), removal of DN and cash. The judgement was for the cash only.

 

As the judge did look at the whole claim and the defendant (creditor) did reply to the whole claim, I am hoping it might all be looked at in January.

 

TBH I still think part 7 is the correct usage.

 

I did look into injunctive relief but I read injunctions always go multi-track. Have you seen the cost of multi-track? :eek:

 

As far as I can see, with no agreement, they are in default of s.78(6) and cannot enforce; with an unenforceable agreement you can apply for s.142 declaration.

 

I'm still a little nervous the High Court might allow creditors to supply 'reconstituted' agreements.

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Hello Basa

Do you think the judge was commenting on the whole case or part of it?

 

On the injunction to stop passing info front I think we have a case via the Info Commission. But that could take months although I believe we can claim damages.

 

I am still wary on the Rankine front. The Judge(?) stated that as there was no agreement there could be no s142 thats why the part 8 interest me so much. Although Rankine is a bad case I think they may try to use it as a last gasp.

 

They cannot reconsitute a signature!! they have to bring the original document to court. check out 31.14 How to get them to reveal. It well worth the trouble, sorry can't remember who posted it but its excellent.

 

Can you please clarify part 7? Have you posted your POC?

 

John

P.S any comments welcome

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Hello Basa

Do you think the judge was commenting on the whole case or part of it?

 

On the injunction to stop passing info front I think we have a case via the Info Commission. But that could take months although I believe we can claim damages.

 

I am still wary on the Rankine front. The Judge(?) stated that as there was no agreement there could be no s142 thats why the part 8 interest me so much. Although Rankine is a bad case I think they may try to use it as a last gasp.

 

They cannot reconsitute a signature!! they have to bring the original document to court. check out 31.14 How to get them to reveal. It well worth the trouble, sorry can't remember who posted it but its excellent.

 

Can you please clarify part 7? Have you posted your POC?

 

John

P.S any comments welcome

 

I think he was commenting on the whole case, cash, declaration and default removal.

 

The ICO are no help at all in default removal. They think ANY transactional history implies consent and a business right to process. I still intend to argue my case under the DPA though.

 

Using Part 8 instead of Part 7 makes no difference to the basis of your arguments.

 

Rankine is a bad case as is McGuffick (similar premis of no agreement). In Rankine the judge argued no agreement means no 142 declaration. In McGuffick no agreement means no enforcement.

 

However no creditor can enforce without an agreement.

 

No they can't reconstitute a signature, but I fear the High Court might rule that a reconstituted agreement WITHOUT a signature can prove an enforceable agreement, but I don't know how that might work in practice.

 

I've read that thread several times ("why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement" - PT2537). It is an excellent WIP.

 

But IMO it is useful only where a creditor cannot or will not disclose an agreement prior to action.

 

I haven't posted PoC, but my thread is here: http://www.consumeractiongroup.co.uk/forum/legal-issues/222131-opposing-set-aside.html

 

I'm not 100% clear on Part 7/8. Part 7 is the usual for money and/or legal argument. Part 8 is for cases where "A claimant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact".

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