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    • I'm afraid that standing on principles almost always involves a bit of risk. I hadn't noticed the case that you have referred to – and our site team member @Andyorch has already commented on it that there is a lottery in so far as judges are concerned. I haven't seen the claim form and I don't know precisely how it was argued in court. I feel very strongly that the decision is wrong because it effectively allows contractual terms to overcome statutory rights – and this has to be in error. Whatever the case, it is most likely that Hermes will simply put their hands up and pay you out and if you had claimed 5 pounds more they would have done the same. Even if they had gone to court, your chances of winning on a claim for the £25 would be better than 95% and the worst you might have expected would have been for the court to refuse to award you the extra 4 pounds and simply to give you the £25. I think that Hermes and the other courier companies rely on the fact that their customers don't have sufficient confidence to refuse to pay for the extra insurance. Clearly this is something which needs to be tested at a reasonably within the court structure but of course this is most unlikely to happen given the value of claims. I was sorry to see that your original reason for not claiming the full value was that   I asked you to post up your claim form. I think it will be helpful if you did that.
    • I've inserted their poc re:your.. 1 ..they did send 2 paploc's  3. neither the agreement nor default is mentioned in their 2.        
    • Hi Guys, i read a fair few threads and saw a lot of similar templates being used. i liked this one below and although i could elaborate on certain things (they ignored my CCA and sent 2 PAPs etc etc) , am i right in that at this stage keep it short? If thats the case i cant see what i need to add/change about this one   1)   the defendant entered into a consumer credit act 1974 regulated agreements vanquis under account reference xxxxxxx 2)   The defendant failed to maintain the required payment, arrears began to accrue 3)   The agreement was later assigned to the claimant on 29 September 2017 and notice given to the defendant 4)   Despite repeated requests for payment, the sum of 2247.91 remains due outstanding And the claimant claims a)The said sum of £2247.91 b)The interest pursuant to S 69 county courts act 1984 at the rate of 8% per annum from the date of issue, accruing at a daily rate of £xxxx, but limited to one year,  being £xxxx c)Costs   Defence:   The Defendant contends that the particulars of claim vague and are generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.   1. The Claimant has not complied with paragraph 3 of the PAPDC ( Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.   2. The Claimant claims £2247.91 is owed under a regulated consumer credit account under reference xxxxxxx. I do not recall the precise details or agreement and have sought verification from the claimant and the claimants solicitor by way of a CPR 31.14 and section 78 request who are yet to fully comply.   3. Paragraph 2 is denied. I am unable to recall the precise details of the alleged agreement or any default notice served in breach of any defaulted payments. 4. Paragraph 3 is denied.The Defendant contends that no notice of assignment pursuant to s.136 of the Law of Property Act & s.82 A of the CCA1974 has ever been served by the Claimant as alleged or at all.   5. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:   (a) show how the Defendant has entered into an agreement; and (b) show and evidence any cause of action and service of a Default Notice or termination notice; and © show how the Defendant has reached the amount claimed for; and (d) show how the Claimant has the legal right, either under statute or equity to issue a claim;   6. After receiving this claim I requested by way of a CPR 31.14 request and a section 78 request for copies of any documents referred to within the Claimants' particulars to establish what the claim is for. To date they have failed to comply to my CPR 31.14 request and also my section 78 request and remain in default with regards to this request.   7. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.   8. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.   9. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.  
    • i understand. Just be aware I am prepared to take some risks 😉
    • Thanks Tnook,   Bear with us while we discuss this behind the scenes - we want you to win just as much as you do but we want to find the right balance between maximising your claim without risking too much in court fees, and in possible court costs awarded to the defendant bank.
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AfraidAnna

Advice on transfer of equity please

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This is my first post on the site and I am hoping that someone out there can offer me a bit of advice.

 

I have been married for 4 years and moved into my husband's house, selling mine and putting some equity into my husband's house. We then transferred the house and mortgage into both our names.

Since then my husband, who is self employed, has had very little work. I have no debts at all in my name and do not have a credit card, however, my husband has scary debts, which he has been paying off at a token payment of between £1 and £10. Some of his debtors are now threatening court action for money which we simply do not have. None of the debts are secured against the property.

Having been made redundant 3 times I am now a medical secretary, on a low wage and am afraid that we may lose the equity in our house via a charging order.

 

In order to protect our home we would like to put the property into my name. We have contacted our building society, who are very happy to offer me a mortgage in my name alone. The mortgage has been paid out of my bank account for some time now. I have a solicitor, who will act on my behalf with regards to the transfer of equity.

 

The property transfer documents that have arrived from the solicitor, however, state:

 

'Mr ******** hereby declares that he has never been bankrupt or insolvent or made any arrangement with or assignment for the benefit of his creditors or had a petition in bankruptcy served upon him or a receiving order made against him nor has any judgment ever been entered against him in the Court of Record and he is able to pay all of his debts without the aid of the Property.'

 

Bearing in mind the above paragraph, does anyone have any advice on how to proceed? Would it be wrong for him to sign the transfer documents or as the debts are not secured against the property, whether he can pay his debts without the aid of the property is neither here nor there.

 

Has anyone come across this before whilst transferring property and how did you approach it?

 

I am hoping that someone can help and would be really grateful for any advice.

Edited by AfraidAnna
To correct some of the information

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I've had a search through the site and cannot find a previous answer to your question.

 

However, someone may come along with the answer you seek.

 

Or, perhaps you may wish to contact your solicitor and ask him/her to explain the phrase in "plain English" to see if that will elicit the answer you need....after all, that's why you pay a solicitor.;)


 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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'Mr ******** hereby declares that he has never been bankrupt or insolvent or made any arrangement with or assignment for the benefit of his creditors or had a petition in bankruptcy served upon him or a receiving order made against him nor has any judgment ever been entered against him in the Court of Record and he is able to pay all of his debts without the aid of the Property.'
I think the highlighted text could be a problem in the future. If a creditor does a Land search in the future & discovers that the property has been transferred they might be able to show a court that this was an attempt of debt avoidance.

 

This is only my opinion & I think you really need more specialist advice.


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Thanks for the advice. I was worried about the "able to pay all of his debts" bit too. I'll give the solicitor a call and post the reply up in case it helps anyone else.

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sorry to dampen your spirits but what you are attempting to do will not work. Even if you transfer the house into your name a court has the power to charge against it because you would have do it solely to avoid the creditors. You are not going to pay him his half of the equity and he is still going to live there. So they may charge against his half of the equity which he has given to you to the detriment of his creditors - does that make sense?

 

A far better approach would be to sort out the debts head on, just like many of us on here have/are doing. what types of debt does he have? and has he sent of cca requests to begin the process of seeing if they have the right to be asking for money / threatening things.

 

You are legally several steps away from a charging order so stay calm and begin to deal with the creditors on your terms

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Thanks hungrybear. My husband is in the process of dealing with each of the companies he owes money to and some of them are being very reasonable and are accepting a nominal payment while others are threatening legal action. None of the debts are secured against the house, but I am scared that we will end up homeless! A questionnaire has gone into court for one of the companies pursuing money, but we are now waiting to hear what will happen next.

 

I will update the board when I have spoken to the solicitor......

 

Thanks again - this site helps to keep the panic at bay!

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Thanks hungrybear. My husband is in the process of dealing with each of the companies he owes money to and some of them are being very reasonable and are accepting a nominal payment while others are threatening legal action -usual,is he using a debt management company or doing it himself?. None of the debts are secured against the house, but I am scared that we will end up homeless! Very unlikely, at the worst a court would issue a payment order provided you stick to that them you're OK. A questionnaire has gone into court for one of the companies pursuing money, but we are now waiting to hear what will happen next I do not understand, have they submitted a court claim?.

 

I will update the board when I have spoken to the solicitor......Be careful here your average 'Joe Bloggs' solictor is very good a conveyencing, personal injury etc, very few know much about consumer law. If you take this route then my advise would be go for a local/regional bigger (unfortunately more expensive) sols with a number of partners who specialise in different things

 

Thanks again - this site helps to keep the panic at bay!

 

If you post his the creditors (whether original / sold to a DCA/being handled by a DCA and approx amounts and what they have said recently / what they have done / what paperwork you have got one of us will advise you him on your options.

 

At the very least I would strongly suggest a call to someone like the National Debtline asap.

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Hi hungrybear

 

Thanks for your reply. My husband does have a thread on here and has received some fantastic advice from several caggers. We thought we should keep this thread separate in case anyone from the opposition was reading the thread and managed to match it to a claim - he is at the AQ stage at the moment.

 

Thanks again for your help!

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Hi hungrybear

 

Thanks for your reply. My husband does have a thread on here and has received some fantastic advice from several caggers. We thought we should keep this thread separate in case anyone from the opposition was reading the thread and managed to match it to a claim - he is at the AQ stage at the moment.

 

Thanks again for your help!

no probs. you know where I am. PM me the link to the other thread or any questions if I can help. My specialisms are defending claims on overdrafts and making solicitors look silly in court:-D.

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Cheers hungry - I'll have a word with my other half and get him to pm you.

 

I spoke to the solicitor today and they are looking into the legality of removing the "offending" clause before we sign the transfer papers. I'll let you know how we get on.

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Cheers hungry - I'll have a word with my other half and get him to pm you.

 

I spoke to the solicitor today and they are looking into the legality of removing the "offending" clause before we sign the transfer papers. I'll let you know how we get on.

 

 

even if they can remove the clause - which I believe is related to the Insolvency Act (he is signing to say he isnt selling up and doing a runner whilst technically insolvent) so I think it has to stay - I do not think the transfer would offer the protection you seek, although the case may need to get 'bumped upstairs' to the high court for a ruling.

 

but yes let me know if I can help.. If I cannot I'll say so (not guess or waffle) then point you in the direction of a cagger that can help

 

BTW only PM me the link I dont give advice by PM as this is against cag rules and I always like snoops and 42man and john and donkey and docman and dicky and pinky and rmw and .... about 20 others who know lots of good stuff to add their 2p worth!

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Hi

 

Having explained the situation to the solicitor they have reissued the contracts with the scary clause removed.

 

I'll update with any new information that becomes available.

 

Many thanks again

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