Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED

[Undercover-Elsa]

Aww thanks Angel,

I can't take any credit for the content though, I'll just be the ghost writer, LOL.

Your help would be most appreciated,

Happy New Year to you hon,

 

Elsa xxx

[Undercover-Elsa]

Here's the seperate thread for collecting info for the legal blog, so we don't clutter this thread up

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?288755-New-Legal-Action-Blog-suggestions-for-posts-for-inclusion&p=3242897#post3242897:

 

Elsa x

[GuitarHero]

I really cannot stress enough to follow the excellent advice given in this thread (read it all get the full picture).

 

I'd just like to add - that if done correctly, not only are you taking control of the situation but you can put the other party to boot over Costs.

 

Particularly where the debt had been sold on for peanuts (every N244 mean an appearance at courts costs them what £500?). It all adds up and can force the other side into considerable concessions rather than trawling up to court (or paying for someone to do so on their behalf).

[sequest]

Recently received a Court Claim from DCA. The POC states

1. Credit Card Reference (which is their own).

2. NOA sent.

3, £xxxx remains due.

4. Interest claimed under s.69.

 

Would this be considered an inadequately pleaded POC and, if so, should I ask them to re-plead.

There is no mentiion of an Agreement (they have only sent a reconstituted one to date).

 

I am a bit confused as to sequence here. Should I send a 31.14 asking for more information for items mentioned in POC and another Pt18 request for information on Agreement, statements etc. Or should I just request they re-plead.

Another query is the time factor as my defense needs to be in by Easter and it will mean I do not get the full 28 days, so should I ask for extension in one of the letters, whichever one I am advised to send.

Any help appreciated. Thanks.

[basa48]

That's a completely lame PoC.

 

I assume you have acknowledged stating you are defending all the claim?

 

Too soon to bother with 31 disclosure or Part 18 requests.

 

I would defend on the grounds of inadequate PoC on which to base a defence. To do anything more would be tantamount to admitting there is something to defend!

 

Hopefully someone can find a suitably worded defence, but I'll take a look around in my notes.

 

EDIT: OK Ignore what I just said and read what PT suggests here >

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them

Edited April 6, 2011 by basa48

[sequest]

Thanks basa48 - will take a look.

[ZENTRIX9]

I recently asked for copies of the original contract and a copy of the default notice. I was not sent a copy of the default notice because they said that my letter dated XXXX confirms that I am already in receipt of their clients default notice.

Do you think they are blagging it as they cant supply me with a copy? If they send me a copy of the one I sent them earlier in the year I will know as I have written on it.

Where do I go from here, any help please? Am I right in thinking that they havent complied fully with CPR 31.14 and I cant file a proper defense as I dont have all the documents I have asked them to supply?

[basa48]

I recently asked for copies of the original contract and a copy of the default notice. I was not sent a copy of the default notice because they said that my letter dated XXXX confirms that I am already in receipt of their clients default notice.

Do you think they are blagging it as they cant supply me with a copy? If they send me a copy of the one I sent them earlier in the year I will know as I have written on it.

Where do I go from here, any help please? Am I right in thinking that they havent complied fully with CPR 31.14 and I cant file a proper defense as I dont have all the documents I have asked them to supply?

 

Creditors rarely keep copies of Default Notices. Why would they need to provide a copy when it is clear you did receive one (you have sent a copy of it to them).

 

The DN would need to have been mentioned in the PoC for them to have to provide it under 31.14. Even then they could simply send the copy you have provided them with.

[ZENTRIX9]

Firstly I want to know if they have a copy. If they have then I want to see if its the same as mine or if they have "fabricated" another which may be different to the one issued to me. The one I have is invalid due to not giving a specific date to rectify the breach by.

 

The default notice is also mentioned in the POC so simply saying I have already got it I dont think is good enough.

[DonkeyB]

I don’t see what you’re trying to achieve. Are you now trying to deny receiving the DN? That would be very dangerous.

[ZENTRIX9]

No I am not trying to say I havent had it. I have never said that I dont owe the money either, Santander have been very unhelpful from the start and made it very difficult so I am playing them at their own game.

They are using the consumer credit act against me so if it goes to court I will do the same, they havent issued a valid default notice and then they terminated the agreement. Unlawful repudiation, they havent followed the prescribed path of the C.C.A. so I intend to use that against them.

[DonkeyB]

I can see what you’re trying to do, but if they don’t take the bait, it’s not a line I would pursue further.

 

As far as I am aware, it’s not unlawful repudiation, I’m afraid. If the DN was dodgy, the account remains unterminated. Therefore they cannot enforce on the back of a dodgy DN (Link v Harrison). However, if you have furnished them with a copy of said dodgy DN, and they continue with court, apply for strike out.

 

I’m surprised they haven’t simply reissued a compliant DN. Have you a thread on this?

[ZENTRIX9]

I have read lots of threads on CAG about dodgy DN's and unlawful repudiation and the way I read it is they have to do it by the book, if they dont and close the account off the back of a dodgy DN once you accept their unlawful repudiation then all they can chase you for is the arrears. There is a very good thread which explains it all, I will try to find it and post the link. The account can be reinstated if both parties agree, which I wont.

[DonkeyB]

I’m afraid it’s wrong!

[ZENTRIX9]

Can you elaborate a bit? Why is it wrong?

[DonkeyB]

Because it is not rescission. Harrison v Link made clear that an account could not be terminated under the CCA if the DN was faulty, but that a new compliant DN could be issued. There’s a few threads at the moment which have gone over this.

[means2anend]

Zentrix

 

Shortciruit the whole thing and simply ask them if they can confirm/deny that they have a copy under CPUTR 2008/1277.

 

This way you dont commit yourself as Donkey has suggested

 

m2ae

[the_shadow]

Can you elaborate a bit? Why is it wrong?

 

Zentrix9, its been shown on this site that this line of defence is very dangerous cost wise and has little chance of success I'm afraid... I believe there is one case already decided against and 3 in the pipeline with this kind of defence..........as DB has stated they should have stopped proceedings and then re-issued a new DN.

 

S.

[DonkeyB]

Zentrix9, its been shown on this site that this line of defence is very dangerous cost wise and has little chance of success I'm afraid... I believe there is one case already decided against and 3 in the pipeline with this kind of defence..........as DB has stated they should have stopped proceedings and then re-issued a new DN.

 

S.

 

But if they continue on the back of a dodgy DN, you have an absolute defence.

 

The jury still appears to be out on whether they can then come back, as this has not really been tested in court yet, but in theory they can seek permission.

[ZENTRIX9]

Zentrix

 

Shortciruit the whole thing and simply ask them if they can confirm/deny that they have a copy under CPUTR 2008/1277.

 

This way you dont commit yourself as Donkey has suggested

 

m2ae

 

Ok and if they cant supply a copy whats the outcome / next step likely to be?

[ZENTRIX9]

But if they continue on the back of a dodgy DN, you have an absolute defence.

 

The jury still appears to be out on whether they can then come back, as this has not really been tested in court yet, but in theory they can seek permission.

 

Ok if they continue of the back of a dodgy DN what would be the likely outcome, would the judge throw it out?

[DonkeyB]

Google the case law, Harrison v Link. Here’s a thread:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?296622-Harrison-vs-Link-Financial-Limited-High-Court-judgment

[ZENTRIX9]

The other thing is that I cant find out if my agreement is valid or not. I have posted on here a few times but had no reply. It was taken out 25/07/2005 and looks like there was a tearoff piece on the top. I cant figur out if its an application form or not. It does say credit card agreement at the top left. The back doesnt have any terms and conditions on it and on the front the terms go up to 3b which refers to section 4 and its not there. Nowhere on the form does it refer to a seperate document containing terms and conditions, only under the heading IMPORTANT - DATA PROTECTION, where it states that you must read sections 13 and 14 on the terms and conditions provided. Heres a link to the thread and photos if anyone would like to look and advise. Its hard to read not the best photocopy they provided. I signed it but never dated it.

http://www.consumeractiongroup.co.uk/forum/showthread.php?273135-MNBA-CCA-enforcable&p=3094765&highlight=#post3094765

Edited April 11, 2011 by ZENTRIX9

[ZENTRIX9]

Thanks Donkeyb, will look at it now

[pt2537]

i have recently been passed an opinion of a barrister whom i have not debated my view on this whole rescission arguments, but i can say that his view mirrors mine in that you cannot terminate a regulated agreement unless the statutory requirements are met.

 

if they arent met then no termination can occur, this accords with Chambers view, and the view of many County Court judges and many many other counsel whom i have canvassed.