Strike out on a default notice

[bebell]

Hi, I would really like to know or hear from anyone who has won a claim in court by a stike out due to defective default notice where they haven't allowed the full 14 clear days and the total amount includes unfair charges such as £30 for letters etc? and can a 2nd default notice be issued for the same claim if it is struck out?

 

Thanks

Bebell

[Pipster2797]

have a look in the won section

 

DCA Legal Successes - The Consumer Forums

[bebell]

Thanks Pipster2797 will do

[Gazza112]

Hi bebell

 

I think but don't hold me to this, but once the original Default Notice has been used as evidence at Court and has been struck out.

They can't issue another one, as you can use the original one if it ever goes to Court again.

 

 

Gaz

[cymruambyth]

Hi, I'm not sure, but unless they have terminated the account they can issue as many default notices as they want.....until they get it right.

[bebell]

Hi, Thanks for your answers. I am in court in a couple of weeks and I have asked for a strike out they have terminated the agreement so that means they cannot issue another DN do you know if there is anything else they could do or produce to stop it from being a srike out.

I have had a look in the WON forum and could not see that anyone had won on a defective default alone.

Thanks very much for your help.

[supasnooper]

As far as I'm aware I don't recall someone going down your path but I'm sure you've read plenty of threads where a defective DN was key to the winning of a case.

[bebell]

Hi, Supasnooper no I cannot find a thread where the case was with a defective DN if you know one could you send me the link please as I would be very interested to read it.

Many thanks

Bebell

[pedross]

How did you get on in court bebell?

[bebell]

I went to court and they sent a local stand in solicitor the judge was not pleased about that as they only notified the court on the morning of the hearing.

The court and I both received their documents the day before the hearing which the judge again was not happy with that he asked me if I had had enought ime to read them or would I prefer to postpone the hearing which I said no to.

The judge then went straight into the hearing by saying I needed to prove my payment was posted in time at that point I said to the judge I had applied for a stike out due to the DF not allowing me 14 days and included charges and interest, the judge said that the stike out was to late! I said I have a letter hear from the courts to say it would be heard at todays hearing he did not have a copy of that letter and wnet on to say I was changing my defence I said I am not as this is included in my defence he said he hadn't got a copy I said well I hand delivered it to the court so he went down staires and found a copy in another file ( there are 2 agreements which is why there would have been another file) he apologised and said to their solicitor did you know about the request for a strike out and what do you think about it, she said they didn't know about it and the defendant had no intention of paying as the DF date is June 08 the judge said that doesn't matter it is a legal document, so then the judge said he didn't like doing this but he adjourned it for 21 days so they could have a coy of the strike out application!

I have received a new hearing date of February 9th 2010 I have also received a copy of their statement which basically says they did not receive a copy of the strike out.

Am I right to say I did not have to send them a copy of my application to strike out also would like to hear of anyone winning a case on a defective DF please.

Bebell

[robcag]

 

............ also would like to hear of anyone winning a case on a defective DF please.

Bebell

 

Hi Bebell

 

There are many threads about winning due to defective DNs, not necessarily strike-outs, but discontinuation by the enemy.

 

Many of the MBNA and HFC '**WON**' cases in the 'DCA Legal Successes' forum (and possibly elsewhere) you were directed to were for that very reason, here is a link to my own which was won with the generous help of CAG team member pt2537;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

Although there were 2 angles to my defence, the matter of the unenforceable agreement was not discussed as the defective DN was enough to hole HFC below the waterline.

 

Cheers

Rob

[bebell]

Many thanks for this info Rob I have read your case and found it very interesting and informative.

I will keep the thread going until the case is over so would welcome any more comments or leads etc

[NGEddie]

Any more on this? Am considering SO myself so knowing the outcome of this would be very helpful!

[ncf355]

I would say you were wrong not to send them a copy of the strike out

 

(did you provide a copy for the court to send? - so in total 3 copies - 1)court 2) them 3) you)

 

However, now they have been given the extra 21 days they cant use not receiving as a get out of jail free and the judge will be well aware of this

 

Lack of properly acted default notice finishes them as they have founded legal action on a improperly constructed DN (and thus effectively terminated the agreement without a lawful right to do so)

 

If (more likely WHEN) their case is thrown out by the judge,thats IT

 

Agreement has been terminated (by them), therefore they have no agreement with you to claim you have defaulted so cannot restart the process

[ncf355]

BTW,

 

cant go into detail, but I speak from experience here

 

[bebell]

Hi, Thanks for this. I am in court on 9th February and will post the outcome asap.

[bebell]

Hi,

Just thought I would let you know I lost in court. Basically the judge said I hadn't posted the cheque in time to Creation, he refused a strike out because he said a default notice was allowed to include charges he agreed the default letter only gave me 13 days however, he said I had no intention of paying so refused a strike out.

 

I was in court for 2 hours 50 minutes I feel as I did everything I could to get over to the judge that this company is doing this to hundreds of people everyday.

 

I now have to pay 3500 plus 1498 interst and 550 fees!

 

|I have received the judgment letter from the court advising me of the amount and saying the other party will be in contact with me which they have and want me to pay the full amount by 23rd Febuary saying as the judge didn't give a time for me to pay it by it is standard 14 days from date of judgment. I obviously haven't got the money and have wrote and told them so today.

 

 

Doe's anyone know what the time scale is any advice would be welcome.

 

Can I claim the PPI back and who would I claim it from Land of Leather ( can this till be done now they have gone in to liquidation) or Creation Consumer Finance.

Thanks

A very dissapointed Bebell

[summerbreeze]

from a very helpful post by Shakespeare62

 

1. You can apply to the Court under CPR 14.13 to redetermine the amount you must pay - i.e. to a monthly rate you can afford. The application is free providing it is made within 14 days of judgment.

 

2. If you apply outside of 14 days then you must apply using Form N245 and pay a fee (circa £40 or £70).

 

3. Advantages of arranging a payment sheme with the Court are that it prevents the creditor from enforcing the judgment further e.g. prevents them from applying for a charging order, providing you maintain the payments to the Court. So obviously the repayments must be set at a rate you can afford.

 

Template for CPR 14.13 Application to redetermine costs.

 

Court Summons from Brachers Solictors.. help

 

in more detail :-

 

[begin]

 

Date,,,,,,,,

 

 

The Court Manager

 

CLAIM NUMBER: ******

 

To the Court Manager:

 

REDETERMINATION UNDER RULE 14.13CPR

 

I apply for this matter to be reconsidered (redetermination under Rule 14.13 of of the Civil Procedures Rules) Under rule 14.13 there is no court fee to make this application.

 

I am unable to pay the full Judgment forthwith/instalment as ordered on (insert date) and submit that this has been set an unrealistic amount (to pay in one instalment).

 

I request the Court reconsiders the Judgment. To assist I enclose an up to date financial statement and list of other unsecured debts.

 

As you can see my budget shows I have £..... surplus / £.... deficit after essetial living costs and also have (insert number of creditors in total). Given my circumstances and considering my finances as a whole I am able to offer £.... monthly instalments and request the Court set the Judgment

at this amount.

 

Under rule 14.13 of the CPR I am entitled to have this redetermination and if necessary transferred to my local county court My application is also compliant with the time limit as it falls within the 14 days from the original order.

 

 

I look forward to hearing from you.

 

 

 

Yours faithfully,

[robcag]

Hi Bebell

 

Sorry to hear that you lost in court

 

I don't know what you said in your defence regarding the defective DN only giving you 13 days to rectify, but IMHO it seems the Judge has made an error of judgment - the Judge lottery strikes again - on a point of law.

 

Section 87 clearly prevents a Creditor from taking 'the next step' if he fails to serve a proper DN in accordance with section 88.

 

Other CAGgers will probably comment, but I would have thought this was a case which could be successfully appealed.

 

Cheers

Rob

[banker_rhymes_with]

Other CAGgers will probably comment, but I would have thought this was a case which could be successfully appealed.

 

I agree.

 

This should be Appealed.

 

Cheers,

BRW

[NGEddie]

Bump

[bebell]

Hi, thanks for your feed back and suggestions.

 

I have a few questions if anyone can help me with some answers please.

 

If I were to appeal is the strike out the strongest point as the judge didn't given a decision on it seperately but allowed it to be used in my defence.

 

As the small claims court is up to £5,000 and judgment was passed at £5,498 is this allowed.

 

The first claim form I received from the court was 17th September 2008 yet it took until 13th October for the first hearing which was then adjourned until 9th February due to me applying for a strike out. This length of time obviously increased the interest considerably.

 

I am thinking about asking for a copy of the tape and appealing although the judge said he would have to agree to allow any appeal.

 

I would appeal on the judge not looking at the strike out seperatley and him saying the default notice was correct yet went on to say I had no intention of paying as the next letter I received from their solicitors was dated 13th September saying they had terminated the agrements and I had made no attempt to pay.

 

May be I am just clutching at straws but it is getting to me know.

 

Any advise would be greatly appreciated.

 

thank you

A very disgruntled Bebell

 

 

I guess there isn't any time limit for the courts to set a date.

Has anyone successfully appealed against a judges decision.

 

I have

[banker_rhymes_with]

Hello bebell!

 

Has anyone successfully appealed against a judges decision.

 

A lady called Mrs Wilson did, amongst thousands of others!

 

In your case, the main point seems to be that the Judge misdirected himself over the Default Notice issue, but it also sounds like there are other issues too.

 

An Appeal needs to be on points of Law or failures in procedure, so you need to work out exactly where the Judge made a mess of things, and outline them clearly.

 

To stand any chance, you may need to start again on here, and outline exactly how things went as they did. Then people here can examine every last piece, and see if we can pull together a case.

 

There are quite a few Appeal Threads on CAG at the moment, the Shakespeare62 Thread above would be a good place to start.

 

What Interest did they add?

 

Unless your Agreement specifically allowed post Termination interest, then where did they arrive at a figure of £1,498.00?

 

For example, did they ask for, and get, s69 County Courts Act 1984 Interest? If so, that could be a problem for them, because yours sounds like it was a Regulated Agreement, so s69 is not allowed.

 

If you see my point, I'm guessing a bit, so we need to know a lot more to help you back on track and able to win an Appeal.

 

You have just 21 days, and the clock is ticking, so it's VIP that you get cracking on this ASAP.

 

Cheers,

BRW

[bebell]

Hi BRW, Thank you for your reply.

The agreement says under the key information: If you fail to make any payment under this agreement by it's due date, then in addition to our other rights we may charge default interest from the due date until the actual date of payment at the rate of interest specified above 29.8%. Any reasonable costs, including arrears letters, legal, collection and enquiry costs incurred by us in endeavouring to locate you or collect any under paid and overdue instalments or collect any default interest shall be paid by you on demand.

 

Their POC there were 2 POC as there were two agreements, both said the same execept the amounts.

Brief details of claim: Claim for money due and owing.

Value: 1469.32

POC

1. By an agreement dated 08/01/06 (the agreement) the claimant lent the defendant the sum of £2,029.32 to be paid by 1 instalment of £56.37 followed by 34 monthly instalments of £56.37 and a final payment of £56.37.

2. On the 23rd June 08 there were arrears of £281.66. the claimant sent the defendant a default notice pursuant to the Consumer credit act 1974 dated 23 June 08 requiring the arrears to be paid within 14 days.

3. the defendant failed to comply with the notice and the claimant terminated the agreement by written notice dated 10/09/08.

Total amount due £2,029.32 £2,706.84

Less total payment s received 838.00 £1,108.00

Claimant's pre-issue legal cost's 200.00 200.00

Claimant's admin charges 105.00 230.00

Total due £1,496.32 £2,028.84

 

 

4. The claimant also claims default interest pursuant to the agreement at the rate of 29.80% p.a (being £1.06 per day) from the date of termination until the date of payment.

5. The claimant also claims its legal costs pursuant to the agreement.

 

The judgment form the court says: It is ordered that judgment for the combined sums on the consolidated claims of £3525.16 plus contractual interest of 1468.80 plus court fees and fixed costs of 505.00 the total being 5498.96.

The claimants letter to me says: The district judge did not specify any other time for payment and therefore the rule is that each sums must be paid within 14 days of the date of the judgment.

Please ensure these monies are paid on time in order to avoid the need for any enforcement measures.

 

I will write more detailed events later to day.

 

If I pay this can I still appeal or claim back? not that I have got the money but a very good friend has offered to lend me the money for a few months until i sort something out ie appeal or apply for a loan.

 

Thank you very much for your help i do appreciate it.

Bebell

[banker_rhymes_with]

Hello Bebell!

 

2. On the 23rd June 08 there were arrears of £281.66. the claimant sent the defendant a default notice pursuant to the Consumer credit act 1974 dated 23 June 08 requiring the arrears to be paid within 14 days.

 

We need to see that s87(1) Default Notice.

 

But from what they say, and from your own comments, it's already looking highly likely that the Notice is defective. They appear to have almost confirmed this in their own POC.

 

If you can Post a copy of the Notice, with your name removed, but with the dates and key text still visible, then people here can give you some better and more accurate advice.

 

They also confirm the Agreement was Terminated...

 

3. the defendant failed to comply with the notice and the claimant terminated the agreement by written notice dated 10/09/08.

 

So, we know when the Agreement ended, and when any valid Arrears came to an end, assuming they had not done something else before that to Terminate by their actions earlier than 10/09/2008.

 

Sadly, they do appear to be claiming valid post-Termination interest that the Agreement (if a properly executed one exists that is) allows. However, if they have messed up the Default Notice, then none of that should be payable, ever.

 

I think it would also be useful to see a copy of the Agreement itself, to see if we can spot anything wrong with that.

 

Did you send them a CCA Request at any time?

 

Cheers,

BRW