Summons received from Halifax

[MandM]

Hi P.

 

Stick to the court dates as HB says.

So it will be an embarressed defence as they've failed to produce the info. Drag it out of them using CPR. Look at the latter part of the following thread = CPR31.14 and CPR18 - gives them no room to manouvre (unless someone thinks otherwise and i'm being too harsh on them )

M

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/236115-pumpytums-goes-northampton-help.html

 

PS Credit to Hungrybear for that one - not my tactics:D

 

M

[middenmess]

They say that the D/N was issued on 17th March-they are careful not to say when it was posted.

 

Issuing and posting are two different things.

 

[diddydicky]

they also know full well that the act of posting it does not count as service- they are just trying to unsettle you

[panty54]

Thanks all for your responses and in summary I am not unsettled by their actions - only to be expected but enjoying the battle! I was just being very sarcastic when I referred to their graciousness:rolleyes: and of course it is the court which directs now as far as I am concerned.

 

Hungrybear, in response to your enquiry do they know if I have the DN - yes in the sense in that I have told them it is defective in my letter of 9 November when I suggested they withdraw their action. Can you tell me where in the act it says second class post without contrary proof.

 

MandM thanks for that link and I will explore it further over the weekend but in the meantime still not sure what to do? Do I ignore or acknowledge in some form or another?

 

Thanks everyone for your help

 

Panty

[hungrybear]

 

Hungrybear, in response to your enquiry do they know if I have the DN - yes in the sense in that I have told them it is defective in my letter of 9 November when I suggested they withdraw their action. Can you tell me where in the act it says second class post without contrary proof.

 

 

 

oh god now you're asking, its a supplementary schedule. I'll have a dig I have it somewhere!

 

anyone got this to hand?

 

btw - it's 100% definitely right. Normal post = 2nd class

[diddydicky]

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.

[diddydicky]

personally i always let the other side know that i have the envelope that the DN was sent(i would do so even if i hadn't kept it) in- that way- they will be VERY wary of swearing an affidavit stating that it was posted first class

[hungrybear]

thanks dicky you saved me a search round I can never find that damn practice direction when I need to - dont know why. Think it hides on my computer

[panty54]

thanks both for your help and I have today received notification from Northampton that they have received my defence which has been served on the claimant. They now have 28 days to indicate if they wish to proceed if the dispute cannot be resolved informally. Shall I draft a response to their letter along the lines of thanks for their response but my defence has already been submitted to court of which they will have received a copy by now and I await their decision within the time frame allowed by the court? I don't want to ignore thier letter altogether particularly if we do go to court as they may argue that they have attempted to settle out of court and I have just ignored their offer. What do people think?

 

Panty

[hungrybear]

thanks both for your help and I have today received notification from Northampton that they have received my defence which has been served on the claimant. They now have 28 days to indicate if they wish to proceed if the dispute cannot be resolved informally. Shall I draft a response to their letter along the lines of thanks for their response but my defence has already been submitted to court of which they will have received a copy by now and I await their decision within the time frame allowed by the court? I don't want to ignore thier letter altogether particularly if we do go to court as they may argue that they have attempted to settle out of court and I have just ignored their offer. What do people think?

 

Panty

 

 

I would write and say that you have filed an defence in line with the court imposed timeframe. Whilst you thank them for the suggested 14 days you wish to remind them that you consider it rather disingenuous and an abuse of process to have begun court action without documentation to hand to determine whether or not it is enforceable or has a realistic chance of success.

 

Maybe point out that they should have your defense by now and given the unlawful rescission which is very clear from the default notice they wish to withdraw now and save costs and prevent a wasted costs claim when the court find sin you favour.

 

DEpends how 'ballsy' you want to be. If the foot was on the other shoe, their solicitor would send such to you 100% guaranteed

 

After all with that DN you have the upper hand

[diddydicky]

spot on

[panty54]

thanks and I think I'll be ballsy! Like you say if the boot waas on the other foot they wouldn't hesitate.

 

Panty

[panty54]

Hi everyone

 

I replied to Halifax along the lines suggested by Hungrybear and pointed out to them that my defence had already been submitted to the court and reminded them that their offer and actions were somewhat disingenuous given the defective default notice and subsequent unlawful recission. I have now today received a statement from Halifax after many months of not receiving any, having not made any payments to the account since I placed it in dispute in December of last year. What are they playing at??? Hmmm:(

[MandM]

Hi everyone

 

I replied to Halifax along the lines suggested by Hungrybear and pointed out to them that my defence had already been submitted to the court and reminded them that their offer and actions were somewhat disingenuous given the defective default notice and subsequent unlawful recission. I have now today received a statement from Halifax after many months of not receiving any, having not made any payments to the account since I placed it in dispute in December of last year. What are they playing at??? Hmmm:(

 

Hi P,

 

They have to send them out every 6 months now. I still get them off Egg for my loan and just about to go to court

 

M

[middenmess]

What are they playing at???

 

 

Excellent question but impossible to answer!

[hungrybear]

Hi everyone

 

I replied to Halifax along the lines suggested by Hungrybear and pointed out to them that my defence had already been submitted to the court and reminded them that their offer and actions were somewhat disingenuous given the defective default notice and subsequent unlawful recission. I have now today received a statement from Halifax after many months of not receiving any, having not made any payments to the account since I placed it in dispute in December of last year. What are they playing at??? Hmmm:(

 

 

As m said, this was a new rule brought in by the 2006 act. they have to send regular statements on any account which is basically on their debt book. The statement has no effect on the status of the debt or anything else.

[diddydicky]

there argument is that the contract endures

 

until a court decides otherwise or they give in - they have to carry on the pretence

[panty54]

Just to update I submitted my defence on 30 November and had a reply from Northampton CC dated 1 December to acknowledge, indicating that a copy had been served to the claimant and if claimant wished to proceed they had to contact the court within 28 days of receipt of my defence. Beyond that time limit the claim would be stayed and the only action the claimant could then take was to apply for an order lifting the stay.

 

I also wrote to Halifax 7 December along the lines Hungrybear outlined suggesting they withdraw as the DN was defective resulting in unlawful recission.

 

Apart from receiving a further statement from Halifax in the interim which has been explained by hungrybear I have not heard a dicky either from the court or Halifax. Any advice as to what I should do next. Do I contact Northampton CC to see what is happening?

 

Panty

[MandM]

The banks Sols always take the time allowances to the limit and beyond (and usually get away with it ). you could ring the court first and see if they,ve heard anything as you've said.

 

On one of mine the court wrote to the Sols telling them their time was up - but then gave them a further 7 days .

 

M

[diddydicky]

Just to update I submitted my defence on 30 November and had a reply from Northampton CC dated 1 December to acknowledge, indicating that a copy had been served to the claimant and if claimant wished to proceed they had to contact the court within 28 days of receipt of my defence. Beyond that time limit the claim would be stayed and the only action the claimant could then take was to apply for an order lifting the stay.

 

I also wrote to Halifax 7 December along the lines Hungrybear outlined suggesting they withdraw as the DN was defective resulting in unlawful recission.

 

Apart from receiving a further statement from Halifax in the interim which has been explained by hungrybear I have not heard a dicky either from the court or Halifax. Any advice as to what I should do next. Do I contact Northampton CC to see what is happening?

 

Panty

 

i would prepare an application to strike out their claim on the basis that they can show no cause of action due to the faulty DN

 

then fax the other side and give them a skeletal argument of what you will use to submit an application to strike out the claim and offer them the opportunity to discontinue without costs,

 

if they do not respond within 7 days you will make the application (40 quid i think) and claim your costs

[diddydicky]

can i just backtrack in the post

 

when you say you tippexed the date out and wrote it back in- you didnt do this on the original copy did you?

 

if so you might have a problem since yours will be the only copy of the DN in existence and the judge would be none too impressed if it had been tampered with ESPECIALLy since you are claiming that the time for remedy is faulty!!

[diddydicky]

ignore last post- just realised you already answered that question - Doh!

[panty54]

i would prepare an application to strike out their claim on the basis that they can show no cause of action due to the faulty DN

 

then fax the other side and give them a skeletal argument of what you will use to submit an application to strike out the claim and offer them the opportunity to discontinue without costs,

 

if they do not respond within 7 days you will make the application (40 quid i think) and claim your costs

Hi DD

 

When you say skeletal argument of what to send to the other side do you mean the full WS that I would submit to the court for a SO or more of a brief summary outlining my intentions? Also, should I be so gracious of giving them the opportunity or should I just go straight with the N244 and submit to the court for SO without a hearing? Things have drifted on now since the end of November.

 

thanks Panty

[diddydicky]

i assume that what you want is an easy resolution

 

also in the event that this is not possible and they continued then you want to be able to say to the judge "well i told them so" (especially in respect of any costs applications).

 

if you have previously pointed out points of law to the other side - they take a risk if they continue to pursue that line and lose

 

thus IMO it is wise to outline to them why you beleive their continuation is bound to fail and invite them to withdraw without costs.

 

if they don't then they only have themselves to blame .

[panty54]

i assume that what you want is an easy resolution

 

also in the event that this is not possible and they continued then you want to be able to say to the judge "well i told them so" (especially in respect of any costs applications).

 

if you have previously pointed out points of law to the other side - they take a risk if they continue to pursue that line and lose

 

thus IMO it is wise to outline to them why you beleive their continuation is bound to fail and invite them to withdraw without costs.

 

if they don't then they only have themselves to blame .

 

OK DD get your drift so I will alert them to my intentions but does this go to the full extent of sharing the WS that I intend to submit with N244 or a just a brief outline?

 

Panty