MandM vs Egg Loan ***Won with Strike Out***

[gh2008]

Boot definitely on your foot then

 

You've just got to decide quite where to place it now

[MandM]

Boot definitely on your foot then

 

You've just got to decide quite where to place it now

 

Yep, I think my opening line may well be 'bend over and brace yourself' :D:D

[diddydicky]

i have a brand new computer- i have noticed the last few days that the threads are taking an age to load

 

is it me or is it the site!!

[DonkeyB]

I think the site has recently been 'streamlined' somewhat, with removal and archiving of ancient or irrelevant threads. Not sure if anything else has happened, but I'm on a 12MB connection and CAG is slow today... bit like me

[gh2008]

the site - my guess is database issues under strain

[MandM]

i have a brand new computer- i have noticed the last few days that the threads are taking an age to load

 

is it me or is it the site!!

 

I think the site has recently been 'streamlined' somewhat, with removal and archiving of ancient or irrelevant threads. Not sure if anything else has happened, but I'm on a 12MB connection and CAG is slow today... bit like me

 

the site - my guess is database issues under strain

 

You should try working here - Etch-A-Sketch would be quicker!

[MandM]

OK all. Monday 15th and today was my day in court for the CMC hearing and i've just returned.

 

Hearing was at 11.30 so I arrived in good time at about 11. I was directed by the court clerk to take a seat and that the usher would be along to speak to me about 10 minutes before the case was heard.

 

I did spot the lady representing the other side (recognised the paperwork she was reading).

 

The usher appeared at 11.20, confirmed that I was a LiP and not represented and then stated that I would be given directions like go into court together, where to sit, call the Judge sir etc. He also said that due to other ongoing cases we would be doing the CMC in a main court with only us 3 present. The case would be heard by a Deputy DJ and he explained that the judge was in fact a solicitor with his own practice.

 

He then introduced himself to the legal lady for the other side.

 

After the usher moved off she came and introduced herself as the claimants representative and asked if I had anything to discuss before we went in. I said that I had invited the bank/solicitors to view my DN but had not had a response. She said not to worry as it wasn't necessary.

 

A little late, we were called in and directed to sit before the judge. The judge invited the other side to make their opening statement which she did, specifically answering the points in my application to strike out.

 

She started with the claimants figure used on the POC which I have always doubted and produced a page of mathematical calculations which now proved that their figure was correct and proceeded to slip a copy across to me and offered one to the judge. The judge asked "is this the first time that you have submitted this information?" to which she could only reply "Yes". Mmmmm, said the judge. "I'm a little disappointed as you have had months and many opportunities to produce these figures. Could you not even have agreed this before coming in?" to which there were a lot of apologies - but the figures were accepted although it was not expected for me to be able to digest them and comment one way or another.

 

Then she moved onto the DN! She was relying on Woodchester Lease Management Ltd v Swain & Co and pointed out a number of issues as to why the DN should be deemed as compliant and began taking quotes from the case that 'proved' that if the court regarded an issue as de minimus then the court could in fact deem the DN to be compliant and that I have no defence!

 

The judge and the other side then had a lengthy conversation on the regulations and the judge referred to the regulations quoted in my defence, namely the Consumer Credit (Enforcement, Default and Termination Notices) Regs 1983 and said he was looking particularly at the statement that said "shall contain - (a) a statement that the notice is a default notice served under section 87(i) of the Consumer Credit Act 1974". He said that he was making particular emphasis on the words "shall contain" as it did not say "may contain!"

 

She said that everything else in the DN was compliant and therefore I could have been left in no doubt of the seriousness of the situation or that it was indeed a DN and therefore I was not at any disadvantage by the omission of the wording so my defence had no prospect of success.

 

He asked her what the cost would be if he were to strike out the defence and she quoted her 'new' figure plus costs of about £3k.

 

Then it was my turn! I waffled on for a moment about the amount and he steered me away from that as the papers had only just been served. I also pointed out that the T&Cs were still incorrect but surely this is something that could be easily rectified - and he agreed, but again steered me away from that, so I moved onto the DN.

 

I stated that I was at a disadvantage in particular because of the wording that was absent from my DN as this would have been my first point of reference to the CCA. I also said that the form and content of a DN, as pointed out by the judge, was indeed laid down in the regulations and that the DN should be rendered as invalid as consequence of this. I pointed out that I had offered the DN for viewing and that the claimant had failed to respond to my offer.

 

The judge asked her if she would like to see the original to which she agreed and she read it. The judge then asked for the original to be given to him so that he could see it and she passed it up to him. He asked if she would like to comment and she declined.

 

The judge then asked if I thought my defence had any prospect of success without the DN issue to which I replied that the other 2 main issues in my defence could, with some effort by the other side, be corrected. So without the DN I would not have much of a defence. He asked about the issuing of a further 'compliant' DN and I pointed out that the Sols had terminated the agreement shortly before issuing proceedings - which he said of course was their right to do so - so they were now in fact unable to issue a further DN as there was no longer an agreement between us. So any DN would of course be pure fiction (thanks Diddydicky).

 

He then summed up everything that had been said and asked us to leave the court for 20 minutes while he considered the arguments, and when he returned he would make his decision on either striking out the claim, or striking out the defence.

 

Now, at this point I went for a quick ciggie and a chat on the phone to the wife. That really was the first point where it sunk in that today was not so much a CMC hearing, but this was it - win or lose!

 

We were soon ushered back into court and the judge gave his summing up. He said that he was making what he believed to be a huge decision for both of us based on the facts as his decision either way would halt proceedings at this stage. He accepted that I did indeed borrow the sum of £25k from Egg and that for whatever reason I was no longer in a position to maintain my part of the agreement. He also revisited the regulations regarding the form and content of DNs and as these were laid down in statute then they were there for a reason. That is to protect the interests of the consumer should a problem arise.

 

He decided that the claim should be struck out as it would fail on the strength of the DN. The young lady then piped up with "I have been instructed that if the case fails on the DN then we will appeal" to which the judge replied "as is your right to do so". She said "I am seeking your permission to do so Sir" and he replied "you don't need my permission - you have 28 days I believe" and smiled.

 

I did ask the judge for the DN back and he said that it was now submitted as evidence and will remain filed at court in case this comes up again in the future, which it may well do based on the other sides comments. He said that if this were resurrected then it would most likely be heard in a higher court and argued on a point of law.

 

On finishing his summing up the judge told me that I may here of this again, or I may not. It was best to just wait and see what the other side do.

 

But for this moment.................I WON!!!!! Tonight I will drink, relax and be merry (at last).

 

Drydens and Egg have gone home with a bloody nose and I can now say that I have experienced the power of a dodgy DN once you are in court, it's a pretty powerful weapon

 

No one should be scared of going to court if that's what it takes. I found the court staff very helpful, and provided that the judge is very clear that you are a LiP you should get a certain amount of help and support afforded to you as I did. But you must be prepared to present your arguments on the day!! Learn your files inside out and be clear on the facts upon which you rely.

 

It is a scary experience - I made a couple of appearances in the High Courts some years ago but was armed with a barrister (those were the days lol) but when you're going it alone it feels much harder and the feeling of anxiety whilst the judge is summing up is just awful. But if you're right, you're right! And that's that.

 

So, today I had my day. And all those on Cag arguing on the strength of iffy DNs will, I hope, take some joy out of my situation and continue the fight.

 

Now it's special thanks time. Please bear in mind that when I joined Cag proceedings had already started and I didn't even know the significance of a DN. Everything i've learned is thanks to this great site and the people that take part in it, and I really can't thank you enough.

 

But i'm going to try. So thank you soooooo much to steven4064, caro, 42man, Martin3030 and Scabhunter for starting me off in the right direction.

 

And a very big thanks to all those that contributed later on in so many ways. diddydicky, MAGDA, the_shadow, Tonks, angry cat, Sunshine54, seriously fed up and probably many others that I cannot remember (but will in time ).

 

Last but not least, special big thanks to gh2008 and andyorch who between them gave my case a winning edge. Biggest thanks of all goes to CAG for giving us all this platform to fight from.

 

THANK YOU ALL! - CLAIM STRUCK OUT!

Edited March 15, 2010 by MandM
Typo, fat fingers again

[mystery1]

Brilliant news.

 

M1

[MandM]

Brilliant news.

 

M1

 

Thank you M1. I'm over the moon.

 

M

[DonkeyB]

Fantastic! Well done, and congratulations to gh and dd for some fantastic input. Another round to CAG!

[gh2008]

Good Man - I'll go and PM cB and get the thread title changed

[MandM]

And thank you too DB. Won't be needing your place in the Outer Hebrides to hide the DN afterall as it's now safely tucked away in court .

 

My thoughts are that if they do appeal it will have to be on the basis that the regs are incorrect and that the wording and format are not necessary. Can't see that happening tbh.

 

M

[gh2008]

Did you have the balls to ask for costs as well :D

[MandM]

Good Man - I'll go and PM cB and get the thread title changed

 

And big thanks to you old boy. Starting to see that light at the end of the tunnel 8-)

 

Have been pretty preoccupied with this for weeks, glad it's done at last.

 

M

[MandM]

Did you have the balls to ask for costs as well :D

 

Nope. Got me by surprise there. Even the usher said "it's just a CMC so nothing will be decided today". Will think of that tomorrow lol but probably too late.

 

tbh it's not something i'm too bothered about under the circumstances and i've probably missed a trick there but the other side were determined to push the DN issue and get it kicked out today so in hindsight I should have prepared something

[AndyOrch]

Delighted for you MandM

 

Excellent detail in your synopsis of events today also,good detail for fellow caggers.Glad you got a decent DJ does tend to put the icing on the cake.

Very well done!!!!

 

 

Regards

 

Andy:D

[MAGDA]

:)I'm so pleased for you m&m - if anyone deserved to win, it's you!

 

Congratulations:) - what will you do to occupy your time from now

on...

 

 

Magda

[banker_rhymes_with]

Hello MandM!

 

My thoughts are that if they do appeal it will have to be on the basis that the regs are incorrect and that the wording and format are not necessary. Can't see that happening tbh.

 

It's not an Appeal they would want to lose.

 

I suspect they will leave this one well alone, having failed at the first hurdle. The banks don't like having to Appeal, especially when the Judge was bang on the money first time out!

 

Cheers,

BRW

[MandM]

Delighted for you MandM

 

Excellent detail in your synopsis of events today also,good detail for fellow caggers.Glad you got a decent DJ does tend to put the icing on the cake.

Very well done!!!!

 

 

Regards

 

Andy:D

 

And thank you too Andy. Your help is greatly appreciated. And yes, the judge was a real bonus and was very willing to help me.

 

thank you,

 

M

[MandM]

:)I'm so pleased for you m&m - if anyone deserved to win, it's you!

 

Congratulations:) - what will you do to occupy your time from now

on...

 

 

Magda

 

Thank you Magda

 

Carry on with the others lol. This was the biggest and most damaging by far due to the sheer amount involved and it's a huge relief.

 

But pretty sure I have a few more fights in me yet

 

M

[MandM]

Hello MandM!

 

 

 

It's not an Appeal they would want to lose.

 

I suspect they will leave this one well alone, having failed at the first hurdle. The banks don't like having to Appeal, especially when the Judge was bang on the money first time out!

 

Cheers,

BRW

 

I too think they would be taking an enormous risk. Fingers crossed for that one BRW.

 

M

[AA99]

Wow! Congratulations MandM! What an inspiration:) This does put new light & encouragement to us on dodgy DN's !!!!!!!!!!!

[mandyjayne]

MandM...

 

Congratulations...what a great result...:D:D

 

funnily enough my strike out came at my CMC also, and i wasnt prepared for costs same as you:)...as i was told "its just a meeting"

 

Fantastic news and i am over the moon for you...relax now and carry on helping everyone else!

 

MJ:)

[MandM]

Wow! Congratulations MandM! What an inspiration:) This does put new light & encouragement to us on dodgy DN's !!!!!!!!!!!

 

It's a door they can't just close as it's a Stat document and must be correct. the DN threads (amongst others) on this forum are invaluable and a fantastic source of info. Learning the ins and outs of DNs is a long read but well worth it if you have one

[MandM]

MandM...

 

Congratulations...what a great result...:D:D

 

funnily enough my strike out came at my CMC also, and i wasnt prepared for costs same as you:)...as i was told "its just a meeting"

 

Fantastic news and i am over the moon for you...relax now and carry on helping everyone else!

 

MJ:)

 

that's the plan. But first I need a drink . And thank you too

 

M