Dissecting the Manchester Test Case....

[Old Cogger]

So I have a default notice issued on: - 19th August 2008 - rectify 2nd September 2008, letter arrives days later, not 14 days giving me chance to correct?

[Laura Cooke]

CitizenB

 

You quoted surfaceagentx20 as follows:

 

I have an upcoming hearing to oppose a creditors set-aside application. (I obtained a default judgement by reason of the defendants non-acknowledgement of claim). The judge has already (in a previous adjourned hearing) shown he was prepared to overlook the defendants very late acknowledgement (in fact the court records do not show ANY acknowledgement!) let alone the fact it took them another 4 weeks to follow up the acknowledgement and that was with the set-aside not a defence!!

 

Would it be in order if the same ignoring of these material facts seem to be coming up for me to challenge (politely) the judges reasoning??

 

 

 

Filed a N1 on 12th February for defendents to be made to comply with a data request they had till 3rd March to respond I was unsure as to what to do after the 3rd March been waiting for advice off CAG, so I have not filed a default yet

 

Received a letter today from defendants solicitors stating they only just received the N1 due to I have been addressing things to wrong address, yet this is the address I have sent 2 Subject Access Requests to and a Letter before Action which have all been signed for and they have never wrote or acknowledged that this was not the correct address

 

Apparently the solicitor faxed a letter to the Court on 4th March saying they expect a order being made and to bare this in mind that they only got the N1 on the 4th March. Could I still file the Judgement on Monday 8th March? any ideas I`m totally in dark

 

I filed the N1 hoping I would be supported off CAG but I`ve barely had any response it`s been so hard to know what I should do next as I only wanted to let the Court know that the data would never be complied with as it has been lost yet in the Subject Access Requests they have never responded and admitted to the "loss" of data to save time. I want compensating for the loss of it.

 

I have a letter sent to the adjuducator investigating my complaint in which the defendents have admitted to having "lost" 2 pieces of data which were crucial in a compensation claim in another unrelated matter the "loss" or destruction of this data effected the overall compensation and I want compensating for that by the Courts for the distress and damage the "loss" as caused

[diddydicky]

So I have a default notice issued on: - 19th August 2008 - rectify 2nd September 2008, letter arrives days later, not 14 days giving me chance to correct?

 

even if posted first class it was 2 days short

[citizenB]

CitizenB

 

You quoted surfaceagentx20 as follows:

 

 

Wherever a DJ is leaning towards declaring a DN effective where it plainly is not, let him know (as politely and deferentially as humanly possible) that if he carries on leaning that way, you will require him to set out his reasoning as part of his judgment and that you want him to spell out his reasoning so that it forms part of the record for appeal purposes. That should sharpen him up a bit.

 

x20

 

 

I have an upcoming hearing to oppose a creditors set-aside application. (I obtained a default judgement by reason of the defendants non-acknowledgement of claim). The judge has already (in a previous adjourned hearing) shown he was prepared to overlook the defendants very late acknowledgement (in fact the court records do not show ANY acknowledgement!) let alone the fact it took them another 4 weeks to follow up the acknowledgement and that was with the set-aside not a defence!!

 

Would it be in order if the same ignoring of these material facts seem to be coming up for me to challenge (politely) the judges reasoning??

 

IMHO, the above would only be useful if the Judge's decision would be basis for an appeal. Others may like to comment ?

 

So I have a default notice issued on: - 19th August 2008 - rectify 2nd September 2008, letter arrives days later, not 14 days giving me chance to correct?

 

Yes, there is only 14 days from date of issue to remedy date. As dd says, there has been no allowance for service. Did you keep the envelope ?

[Old Cogger]

even if posted first class it was 2 days short

 

 

Thanks Diddydicky, as I thought.

[diddydicky]

IMHO, the above would only be useful if the Judge's decision would be basis for an appeal. Others may like to comment ?

 

 

 

Yes, there is only 14 days from date of issue to remedy date. As dd says, there has been no allowance for service. Did you keep the envelope ?

 

the way to put it- if you are not sure which way the judge is leaning is to say, whilst giving your argument for the DN being defective , something along the lines of

 

if sir you are minded, following my submission to the view that the DN should be effective, i would be grateful if you would make a full record etc etc

[diddydicky]

I am no lawyer but i am 100% sure that no matter what argument a judge uses to excuse a lack of 14 clear days- it will not stand up at appeal

it cant- because if the argument it put to the appeal court that once it is ruled that 13 days is de minimus then it would open the door for another creditor to claim that 12 days was also de minimus and so on- it would have to rule accordingly

[Old Cogger]

IMHO, the above would only be useful if the Judge's decision would be basis for an appeal. Others may like to comment ?

 

 

 

Yes, there is only 14 days from date of issue to remedy date. As dd says, there has been no allowance for service. Did you keep the envelope ?

 

Long time ago 2008, I will take a look in file to see if envelope there, maybe not as not aware in those days of proceedures. Mike

[cashins]

I am no lawyer but i am 100% sure that no matter what argument a judge uses to excuse a lack of 14 clear days- it will not stand up at appeal

it cant- because if the argument it put to the appeal court that once it is ruled that 13 days is de minimus then it would open the door for another creditor to claim that 12 days was also de minimus and so on- it would have to rule accordingly

 

I would agree, especially as the 14 days is relatively new, (2006), was previously 7 days.

 

If parliament had wanted it to be 13 days, they would have said so then!!!

 

David

[C2K]

Since we are in discussion on a subject of dodgy DN, please can some knowledgeable people confirm that the following statement (it's normally a final paragraph of a DN) now a mandatory requirement following a CCA 2006 amendments. Would this factor alone make the DN ineffective if that paragraph is omitted. Any actual links for reference? Cheers.

 

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one."

Edited March 7, 2010 by C2K

[diddydicky]

theres a clue to the answer in the question!

 

the text is prescribed (by parliament)

 

Parliament decided that it was IMPORTANT information- and said so within the prescribed text

 

If the text is not there- and the document is also not included with the DN - then the debtor would be non the wiser-and would not have been given IMPORTANT information that parliament decided he should have when served with the DN

 

It goes to the very heart of how a debtor is to deal with the DN

 

I would have thought that a judge might have a very hard time ruling IMPORTANT as de minimus!!

[C2K]

Thanks DD

 

I note many DNs now contain this wordings, but I can't find any update on the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Could you direct me to any link please? Thanks again.

 

C2K

[paulwlton]

Going back to Carey.

 

If the prescribed terms are included on the back of an application form

this will suffice for enforcement as the document complies with section 60.

 

However, we know this isn't the case pre 2005 (in many cases)

 

In response to our section 78 requests the lenders have merely implied that the prescribed terms were on the reverse - by creative means.

 

Lenders would be foolish to try this tactic in court (they have already been found out). Post Wacksman the lender must prove their case - nothings changed.

 

A claimant may provide a WS stating amongst other things: the requisite was on the reverse....oh, and, the default notice was valid cos Barbara in the office makes sure there always compliant and furthermore, the notice of assignment was valid because we make sure they are.........come on

[diddydicky]

Thanks DD

 

I note many DNs now contain this wordings, but I can't find any update on the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Could you direct me to any link please? Thanks again.

 

C2K

 

10(a)

[diddydicky]

Going back to Carey.

 

If the prescribed terms are included on the back of an application form

this will suffice for enforcement as the document complies with section 60.

 

However, we know this isn't the case pre 2005 (in many cases)

 

In response to our section 78 requests the lenders have merely implied that the prescribed terms were on the reverse - by creative means.

 

Lenders would be foolish to try this tactic in court (they have already been found out). Post Wacksman the lender must prove their case - nothings changed.

 

A claimant may provide a WS stating amongst other things: the requisite was on the reverse....oh, and, the default notice was valid cos Barbara in the office makes sure there always compliant and furthermore, the notice of assignment was valid because we make sure they are.........come on

 

why not pre 2005?

[basa48]

A claimant may provide a WS stating amongst other things: the requisite was on the reverse....oh, and, the default notice was valid cos Barbara in the office makes sure there always compliant and furthermore, the notice of assignment was valid because we make sure they are.........come on

 

I wonder how many of these 'witnesses' were actually working in the relevant bank let alone a relevant position to be able to say "the T&Cs were on the reverse/attached" "to be true to the best of their knowledge, information and belief."??

[diddydicky]

quite- but i was interested in what paul said in case there is something i haev misssed about pre 2005 agreements

[C2K]

10(a)

 

Thanks DD, it has been overlooked.

[angry cat]

quite- but i was interested in what paul said in case there is something i haev misssed about pre 2005 agreements

 

You should be...

[diddydicky]

be what?

[angry cat]

be what?

 

You should: Know!

[pedross]

Since we are in discussion on a subject of dodgy DN, please can some knowledgeable people confirm that the following statement (it's normally a final paragraph of a DN) now a mandatory requirement following a CCA 2006 amendments. Would this factor alone make the DN ineffective if that paragraph is omitted. Any actual links for reference? Cheers.

 

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one."

 

I agree with DD it is 10A and it does make it defective in my opinon.

 

However, I believe that this paragraph had to be included from 1/10/2008 so do not get confused with 2006.

 

Pedross

[the_shadow]

You should: Know!

 

Sometimes this forum can be like pulling teeth:(

 

 

S.

[diddydicky]

must be age related- havent a clue what she's talking about!

[diddydicky]

I agree with DD it is 10A and it does make it defective in my opinon.

 

However, I believe that this paragraph had to be included from 1/10/2008 so do not get confused with 2006.

 

Pedross

 

in default notices from 1/10/2008 not agreements from 2006!!