Storecard Claim served - what now? ** SUCCESS**

[gh2008]

I know but they seem to think that it's a valid argument in Court and more scarily some judges, without a robust argument to the contrary from the defendant, have agreed.

[Pumpkinhead]

Thanks for the advice everyone especially GH. I've been reading lots of related threads to help build and strengthen my "case". Will keep you updated.

 

Have just finished reading about M&M's great result which I see GH you've also been involved in. There are some good points in there that I think I'll be able to use, such as once agreement terminated there is no longer an agreement in existence upon which a DN can be issued.

Edited March 16, 2010 by Pumpkinhead
Additional comment

[Pumpkinhead]

Received Court Date today of 30 Mar. We've both received notifications. Sorry for my ignorance but do we both have to turn up, or can I just go on my own and represent my OH?

[gh2008]

Haven't got a clue you could ring the court and ask?

 

I would think a letter from your OH would suffice - after all you are joint defendants aren't you/

[gh2008]

Oh, while I think of it - search for info about costs and the different basis for them. I think you could well get indemnity basis due to their behaviour.

 

Oh, and you need to sort a 'schedule of costs' and file & serve it 2 days before.

I think you have to file & serve - better check.

Edited March 17, 2010 by gh2008
added the schedule bit

[MandM]

 

Have just finished reading about M&M's great result which I see GH you've also been involved in.

 

Yes, you're getting some sound advice from gh.

 

On the costs thing (which I missed on mine) I believe gh is right and it must be served (on court and claimant) 2 clear days before, particularly if it's a hearing for disposal of the case.

 

M

[Pumpkinhead]

Just rung the court and spoke to very helpful lady who said my OH doesn't need to attend but that it would be polite to send a letter informing the judge of this beforehand. I am also going to go along for a familiarisation visit. I notice they are allowing 45 mins for the hearing.

 

I will work on the schedule of costs and basis for these as well as preparing the case. Feel rather scared now!!!

[MandM]

Just rung the court and spoke to very helpful lady who said my OH doesn't need to attend but that it would be polite to send a letter informing the judge of this beforehand. I am also going to go along for a familiarisation visit. I notice they are allowing 45 mins for the hearing.

 

I will work on the schedule of costs and basis for these as well as preparing the case. Feel rather scared now!!!

 

Do you have an idea of their costs? Yours should come to about two thirds of theirs.

[MandM]

And really, there's nothing to feel scared of. The familiarisation visit will help no end.

[Pumpkinhead]

All I can see about their costs are on the original POC which amount to £135 not including the main amount claimed. A lot of too-ing and fro-ing has gone on since then (January) so their costs must have increased.

 

Is there any way I can find out what their current claim for costs might be?

 

I must also look up to see if there are any Court Buddies in my area.

[gh2008]

I would think they've got to be knocking on the £2k mark by now - they normally quote £3k for the first hearing don't they.

 

Even without Counsel it'll be £1.5k

 

and ph you've probably got one of the strongest arguments i have ever seen !!

 

You may be able to get some moral support at the hearing if you want it roughly where is your 'Southern England'

 

Not many people go to Court with a letter from the claimant saying ok we give in (actually there is another one I know of as well and they're submitting an SJ app as well)

 

I am struggling to see how you can lose, stand your ground, know your case, know why they cannot issue another DN there are a couple of threads about with brilliant wording - I'll try and find them for you.

 

Get your paperwork organised and know your file by heart - take 3 copies of everything (especially their letters, just in case you could even highlight the best bits .

[gh2008]

All I can see about their costs are on the original POC which amount to £135 not including the main amount claimed. A lot of too-ing and fro-ing has gone on since then (January) so their costs must have increased.

 

Is there any way I can find out what their current claim for costs might be?

 

Strictly speaking costs are *very* limited in small claims - BUT if one side has behaved 'unreasonably' the Court has lots of power to express its displeasure by awarding 'proper' costs against them.

 

IMHO 100 hours would not be unreasonable - break it down into the various 'jobs' you have had to do, with each one 'blaming' the claimant. If you get anything more than £100 you've got a result.

 

As an absolute minimum you'll get 'lost pay' but limited to something like £60 + 'out-of-pocket expenses' travel stationery, copying etc etc.

 

There's also a couple of other good quotes one of us will find about if the creditors mess up the paperwork it is as though they have 'gifted' the money.

[MandM]

Sorry, my oversight. Forgot this was small claims. As gh says though you should still get something

[diddydicky]

All I can see about their costs are on the original POC which amount to £135 not including the main amount claimed. A lot of too-ing and fro-ing has gone on since then (January) so their costs must have increased.

 

Is there any way I can find out what their current claim for costs might be?

 

I must also look up to see if there are any Court Buddies in my area.

 

IMO this matter can be brought to a conclusion by a carefully worded letter to the other side.

 

where are you? (pm it if you don't want to publish it!)

[gh2008]

IMO this matter can be brought to a conclusion by a carefully worded letter to the other side.

 

Yes, I agree, certainly a letter offering to drop the SJ application in return for

 

1. discontinuing the claim

2. undertaking not to seek enforcement of the Credit Agreement subject of this claim

3. removing any and all adverse credit report

4. payment of £### towards costs

 

Something like this has already been proposed to them earlier, but they rejected it and responded with a laughable order

 

discontinue application

give them permission to issue a new DN

give them permission to claim again

 

...... hmmm ph had to think hard about that one

 

They have admitted that ph did rectify the default and within the timescale - they have also admitted that they cannot enforce the agreement and cannot obtain judgement on this claim!!!

Yet they refuse to capitulate

 

I see a discontinuance approaching (which IMHO you should reject)

[diddydicky]

of course i don't know what the poster wants= personally i think it is important to spell out CLEARLY the points of law that they are EXPECTED to be aware of prior to the hearing (and also quoting BOS V Robert Mitchell re costs) and i personally would advise giving them the opportunity to withdraw without costs.

 

"crusades" can go spectularly wrong (ask King Richard )

[Pumpkinhead]

Just a quick point - I sent my letter offering to drop the SJ claim AFTER receiving their laughable letter asking for my permission to issue a new DN. This was sent about a fortnight ago, but I have not received any reply to it.

 

In terms of what I'm looking to achieve - I just want them to drop the claim permanently, not damage my credit rating etc. I'm not that bothered about costs although it would be good to get the £75 quid back I paid to make the SJ application.

Edited March 17, 2010 by Pumpkinhead

[gh2008]

well, IMHO you have tried to settle without the hearing.

 

At the end of the day you are trying to reduce costs by applying for SJ - that is the correct procedure and without a 'reasonable offer' from the other side costs cannot go against you.

 

They have admitted that they cannot carry on with the claim yet have not discontinued!!!

 

They have also misled the Court by making a 'statement of truth' saying you did not rectify the default, but then in a without prejudice letter admit you did !!!

 

They have therefore left you with no option but to either allow it to go to trial or apply for SJ

 

At the end of the day, you are not asking them to wipe the debt - it will still remain (they just can't make you repay it) It would also be against OFT guidelines to try and collect on it.

 

BTW have you though about making a complaint about them to their local Trading Standards .....

 

IMHO it is very poor show for them to continue with the claim as it stands.

[diddydicky]

(you might need to check the dates)

 

Dear Sirs,

 

per Fax to XXXXXXXXXXxx and Post

 

Re Claim No XXXXXXXXXXXXXXXX

 

I have taken some advice on this matter and write to you as follows.

 

You served a default notice demanding that an alleged default (arrears) was remedied by 27 October 2009, and that if the default was not remedied you would terminate the agreement.

 

It is therefore clear that you understand the requirements of the consumer credit act in relation to terminating a regulated agreement.

 

Having complied with that default notice before 27 October 2009, You nevertheless then terminated the agreement and did so on the last day (27 October 2009) on which i would have been permitted to remedy according to your default notice.

I accept that you appear to have made a “mistake” and terminated the agreement in the belief that the alleged default had not been remedied.

 

Your error does not excuse or relieve you of the fact that you unlawfully terminated the agreement on 27 October 2009. You could not have done so lawfully under s87/8 nor under any other term of the agreement with regard to an agreement not in default since no prior notice was given

 

It seems to me on the basis of the passages below, the courts will be ready to hold a creditor to his words and actions.

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in Gallie v Lee (1971)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)]

I note that you have confirmed in evidence that you did terminate the agreement

The fiction of the Second DN and the Enduring Obligation

 

I note that you state an intention to now serve a second default notice.

 

The service of any second default notice, at a time when the contract is terminated, owing to the wording of the DN in its prescribed form, would perpetuate the fiction that the contract endured. The same can be said owing to the provisions of section 89 of the Act.

 

The form of words in the DN incorporate text in order to meet the intention of section 89 of the Act which provides:

 

'If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.'

 

In other words, in serving the second DN, the creditor would be suggesting:

 

[a] an obligation had persisted post termination by which the debtor was bound to make instalment payments (ie post-termination 'arrears'), and

that if payment of those 'arrears' was made, an obligation to make future instalment payments would endure.

 

The obligations at [a] and are obligations enduring during the currency of the agreement. Besides maintaining the fiction of the enduring agremeent as I say, it seems to me any second DN would be bound to be defective for over-stating the sums due. The creditor can not state as an amount due for 'arrears' of instalments that which he said in consequence of his termination was no longer due and payable by instalments. If the creditor sought to use a form of DN which made sense by getting round the fact the agreement had been terminated, the DN would not be in prescribed form.

 

The only way in which a second DN would be of value to the creditor would be where the contract had been re-instated. If the debtor has accepted the termination, re-instatement requires the consent of the debtor.

 

The net result of [1] to [4] is the agreement is terminated for all time. The creditor's remedy is now limited by section 87(1). All that is left for the creditor to recover is the sum truly in arrear at the date of the default notice.

 

At the time of your unlawful termination there were no arrears due.

 

We are aware that in this case there are strong grounds for a counter claim for damages for unlawful rescission but are prepared to offer your client the “way out” by inviting them to discontinue their proceedings without costs on either side and to confirm that no further action will be taken against either of us in this matter.

 

This is a genuine offer to resolve this matter and therefore is not made without prejudice and this letter will be made available to the court.

 

In the event of your client not taking advantage of this offer , It is my opinion that the court will have due regard to the fact that you should have been fully aware of the hoplessness of your clients case and the unarguable points of law that have been brought to it’s attention and therefore it would be my intention to invite the court to award costs on an indemnity basis.

 

I sincerely hope that your client will respond positively to this offer and I look forward to your clients response within 7 days of the date of this letter

 

Y F

Edited March 17, 2010 by diddydicky

[diddydicky]

never a good idea, when it is not necessary to point out the deficiencies in a default notice if you do not need to- since it alerts them to getting any future attempt right

 

in this case it is better to stay silent on the defects in the DN as the case revolves around the fact that it was complied with and they terminated anyway

 

therefore they did not issue a valid DN to do so under s87/8 nor did they give any prior notice (usually 7 days) under any other term of the agreement relating to terminating agreements that are not in default

[gh2008]

DD's letter is the wording I was referring to - perfect letter - although I must admit I would still go for costs in the matter of £100 just to cover your out of pocket expenses - you had to pay £75 for the application even when you'd told them their case was hopeless.

 

The DN was actually a 'bought in' one. I don't think anything's been said - AFAIK it was accepted as a DN complied with and then the termination accepted.

 

DD - why are you so against asking for out of pocket costs?? Genuinely interested

 

BTW IMHO there would not be a case for compo in light of the unlawful rescission as there has been no damage. They don't report to the CRAs (although they do have a term in their agreement saying they can share info)

[diddydicky]

i don't have any big issue with costs- i just think that sometimes you have to make the carrot big enough - remember that generally speaking lawyers don't give a toss about costs- they get paid by their client win or lose!

 

i had actually forgotten about the application but then again 75 quid to get rid of 1000 quid? and the hassle of being in court if you are not 100% comfortable with that!!

 

the letter is a very generous offer in the circumstances and deliberately so- so that if they proceed and lose the judge may well give them a financial spanking for wasting the court's time (IMO)

[Pumpkinhead]

Thanks for the letter DD. I have sent it off by fax and will post hard copy today recorded delivery. Let's see what happens next!

 

In the meantime, I will continue getting myself prepared for the hearing.

[gh2008]

ok, had a pm from ph and, as agreed I'm publishing my response

 

Basically within 24 hrs of ph sending the letter the other side have replied.

 

Not accepting ph's offer, but putting forward their own. The tone of the letter was IMHO quite aggressive and not conciliatory at all

 

Summing up they want the case stayed with an agreement from them not to proceed or to bring new action.

 

But they also want in exchange, a confidentiality clause for the whole case which IMHO has already been broken because of this thread.

Personally there is no way I would accept it as, by your thread being here you are in breach of it anyway and the terms of your offer were far more than generous enough.

 

IMHO you will annihilate them in Court - remember they *still* haven't informed the Court that their sworn POC are make believe .... that in itself is enough to get SJ or SO with costs. Remember they are assessed on the claim as it is.

 

You now have the ammo to fire back at them re the rescission there is also caselaw Woodchester -v- Swain for a faulty DN and a counterclaim for damages for the unlawful rescission (although IMHO as I have said before on your thread I don't think that applies in your case)

 

Main complaints against their idea are the stay rather than discontinuance and the confidentiality clause.

 

thoughts??

[diddydicky]

my my , they are sh*tting themselves aren't they?

 

even offered to leave you with a clean CRA record

 

for them to go that far is indicative of their desire NOT to have that argument used against them elsewhere

 

they know full well that they would not win the day in court- nor would they take it to the point of that decision being made- hence their haste to gag you

 

on the other hand if you refuse their offer (and i would personally never sign that tomlin order in a million years) they will probably not repeat the offer to expunge your credit record

 

however,upon winning in court you can then show their without prejudice correspondence and invite the judge to make an order for the credit record to be cleaned and which the other side had clearly offered to do in any event

 

i cant make the decision for you but if you choose the option i suggest then i would write as follows

 

 

Dear Sirs

 

I refer to your letter of XXXXXXXX

 

I have already disclosed, and will continue to do so, in order to gain valuable advice for myself and to assist others in a similar situation, that which your client is so keen to prevent me from disclosing

 

I therefore have no interest in signing the proposed Tomlin Order and consider that what you "offer" as being a settlement- is no more than an attempt by your client to "gag" me

 

I will unusually allow your client a further 7 days to discontinue without costs and without strings attached

 

Yours Sincerely

 

 

xxx