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Urgently need to know the difference between a CPR18, CPR 31.14 and CPR31.16


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Thanks Mould,

I will try to type it up in a bit. Have friend calling over to help me with a WS. Do you suggest I leave the ws and just do skeleton argument? Do I do both??

SB

 

Good evening Mrs SB

 

Does your friend happen to have a scanner/printer by any chance?

 

Very well, perhaps draft both a witness statement containing your counter-arguments on a para by para basis against said latest WS served by the claimant and draft your skeleton (based on everything you have already submitted) for the hearing and write in your arguments from your WS also.

 

When did you receive said latest WS? Are you saying that the claimant has served two new WS's since the said order made by the Judge?

 

Does your friend have any experience in these matters (hopefully you will say yes to that, but never mind if not as nothing to worry about, as you know)?

 

Kind regards

 

The Mould

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Is there any further information on this please?

 

Well have they terminated? That is the question!! According to them they have sent a termination for the OD account and another for the loan. These and the default notices were sent during negotiations between them and the CAB. However, tonight's WS states that the accounts are still active. To me this might be or is the case, but that doesn't mean to say that the ACCOUNTS haven't been terminated.

The rest of the information is on this thread.

Thank you,

SB

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Good evening Mrs SB

 

Does your friend happen to have a scanner/printer by any chance?

 

Very well, perhaps draft both a witness statement containing your counter-arguments on a para by para basis against said latest WS served by the claimant and draft your skeleton (based on everything you have already submitted) for the hearing and write in your arguments from your WS also.

 

When did you receive said latest WS? Are you saying that the claimant has served two new WS's since the said order made by the Judge?

 

Does your friend have any experience in these matters (hopefully you will say yes to that, but never mind if not as nothing to worry about, as you know)?

 

Kind regards

 

The Mould

 

No, my friend doesn't have a printer stapped to her back!! Lol.

Last WS received 3.30 today via email, The one prior to that was served a few weeks back in response to me finding the DN and to them producing Brandon in court at the last hearing.

Can a skeleton argument be handed over on the day? I only have tomorrow to get anything to court and tonight to get it all compiled!! Perhaps I will stay awake all night to get what I need to do done!!

My friend has a little experience, but nevertheless, two heads are better than one!! Lol.

Regards,

SB

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No, my friend doesn't have a printer stapped to her back!! Lol.

Last WS received 3.30 today via email, The one prior to that was served a few weeks back in response to me finding the DN and to them producing Brandon in court at the last hearing.

Can a skeleton argument be handed over on the day? I only have tomorrow to get anything to court and tonight to get it all compiled!! Perhaps I will stay awake all night to get what I need to do done!!

My friend has a little experience, but nevertheless, two heads are better than one!! Lol.

Regards,

SB

 

Well Mrs SB

 

Draft your witness statement then and file and serve on the morrow before 4pm.

 

Skeleton, spend the next 72 hours without sleep (not just one night) and hand it to Council on Monday morning, help him to swallow it:lol:.

The latest ws served today by way of email at 3:30 has been served out of time and not in accordance with said order made by the Judge, request it be struck out on grounds of non-compliance, inconsistent with previous ws and therefore abuse of process, puts you at disadvantage and therefore does not assist overriding objectives.

 

Next friend you acquaint yourself with, make sure he/she comes complete with built-in media center, accessed via his/her's back flap:lol:

 

Kind regards

 

The Mould

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Well Mrs SB

 

Draft your witness statement then and file and serve on the morrow before 4pm.

 

Skeleton, spend the next 72 hours without sleep (not just one night) and hand it to Council on Monday morning, help him to swallow it:lol:.

The latest ws served today by way of email at 3:30 has been served out of time and not in accordance with said order made by the Judge, request it be struck out on grounds of non-compliance, inconsistent with previous ws and therefore abuse of process, puts you at disadvantage and therefore does not assist overriding objectives.

 

Next friend you acquaint yourself with, make sure he/she comes complete with built-in media center, accessed via his/her's back flap:lol:

 

Kind regards

 

The Mould

 

Lol......me and my friend can't stop laughing at your last comment!! Sooooooooo funny!

 

Anyway, are you saying that I do produced another WS but say that theirs is an abuse of the process? That doesn't seem right to me!! Do skeleton arguments take 72 hours???? Gulp!!! I need to have a look on here for examples of skeleton arguments. Are you sure I need to do one as this case is presently stayed. There have never been any AQ's to be done as it never reached that stage. The application in this case is for the stay to be lifted and judgement made against me.

Regards,

SB

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Lol......me and my friend can't stop laughing at your last comment!! Sooooooooo funny!

 

Anyway, are you saying that I do produced another WS but say that theirs is an abuse of the process? That doesn't seem right to me!! Do skeleton arguments take 72 hours???? Gulp!!! I need to have a look on here for examples of skeleton arguments. Are you sure I need to do one as this case is presently stayed. There have never been any AQ's to be done as it never reached that stage. The application in this case is for the stay to be lifted and judgement made against me.

Regards,

SB

 

Hellooooooo Mrs SB

 

I am going into the midnight club shortly, and if you think the claimant can howl, then I must forwarn you, the midbight hour approaches and if you should stray of the path out there on those moors, well, the claimant is nothing but a mere pussy cat, a kitten, compared to the beasts on the midhnight moors, don't worry though, I happen to be very good friends with the Dogheads:lol:

 

If his witness statement stands, then yours must also stand, otherwise, not on equal ground and therefore overriding objectives not met, serving another ws two (2) days before hearing to lift stay seeking Summary Judgment on an account that the claimant states has not ben terminated, moreover, payments are still being paid into the account, it is an abuse of due process, claimant does not need to ask the court to enforce.

 

72 hours? Of course not, but you might not find any time to do your nails (no offence Mrs SB):lol:

 

You must present your argument to resist/oppose and undermine the claimant's action, goodness me, you have plenty to argue with, so pour it all down his throat, respectfully and legally pour that is. Take a napkin with you incase the claimant spills it on his best white shirt, and some cillit bang, BANG! and the dirt is gone:lol:

 

Kind regards

 

The Mould

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Well, you sounds like you are about to have fun in the midnight club and I sure hope you do!

 

I think there is a difference to terminating an AGREEMENT/S and closing an account. When someone receives a termination notice, that is to say the agreement no longer exists and they are suing that person for the whole amount left payable. They have to terminate in order to start legal proceedings. Is that right? The accounts may be left active in order for the debtor to be able to make token payments. So their latest WS states the claimant has confirmed that none of the defendants accounts would have been closed while an outstanding balance remains thereon and whilst the accounts can receive credits..........

So, they are not actually saying they haven't terminated the agreement, but rather the accounts are still active? Is there a difference?

Regards,

SB

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Just PM'd you. Termination is a formal process that cannot be undone without your consent post termination. It is final and opens up various avenues for the creditor dependent on the nature of that termination.

 

In the alternative, simply changing an account status to closed is a bit like a traffic light turning red. You must stop for example but there is every expectation that at some point it will become amber and then green. As such the difference is great, a closed account typically means facilities and benefits are withdrawn but at no time are you prevented, as with termination, from making payments to the creditor.

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Just PM'd you. Termination is a formal process that cannot be undone without your consent post termination. It is final and opens up various avenues for the creditor dependent on the nature of that termination.

 

In the alternative, simply changing an account status to closed is a bit like a traffic light turning red. You must stop for example but there is every expectation that at some point it will become amber and then green. As such the difference is great, a closed account typically means facilities and benefits are withdrawn but at no time are you prevented, as with termination, from making payments to the creditor.

 

Thank you emandcole for the pm and your words of wisdom. They are very much appreciated. You are a star. Thank you.....SB

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Good morning Mrs SB

 

What amount is the claimant suing you for, full account balance or arrears? I was under the impression he was taking enforcement action for the full balance.

 

As said before, payments are being made (not the normal minimum monthly amount, granted), so why commence with proceedings, proceedings in this area of law are only normally commenced by the creditor to sue for the full account balance where there has been no payments (minimum or not) and no contact from the debtor, or the creditor will issue a claim for arrears owing.

 

Kind regards

 

The Mould

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Hi Mould and Stripper,

Yes he is suing me for the whole amount!

They wanted court regardless.......so be it Mould, so be it!!!!

Have a good day.......SB

 

Good morning again Mrs SB

It appears that the claimant is suing you for the full account balance on the grounds that you have caused a financial loss to him as a result of you defaulting under an agreement/contract entered into by you to parties to these proceedings. That, it seems, is his central argument that his cause of action has arisen from.

Yes of course you are in default; however, you are in default of a particular expressed provision of a condition/term of the contract he relies upon, that being your obligation to pay the minimum amount required per month pursuant to the expressed condition as stated in the contract and instead of performance of your said obligation, you are giving partial performance thereto, such a breach is minor, further, discussions were held between the first party to the contract (the creditor) and a third party (CAB) (who acted on your behalf) in an attempt to resolve the dispute that arose as a result of your said minor breach of the contract.

An agreement was reached between you two parties by way of the correspondence held between the creditor and CAB, a rate of payment was negotiated and the creditor accepted, clear instructions were given in said correspondence informing the creditor that the monthly sum agreed was to be divided between the accounts that you held with the creditor, the overdraft and the loan/credit card.

Although you did default on the contract, the creditor agreed to accept a lesser monthly payment from you and therefore both he and you affirmed the contract and under this new agreement (variation of terms in respect of your performance obligation) you have not defaulted and therefore the claimant has no cause of action to complain of to the court, in these circumstances his claim should be dismissed.

Argue the above against his application to lift the stay and seeking Summary Judgment against you, his claim is without merit.

Kind regards

The Mould

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Hi again Mould............I am soooo tired you will have to speak in very plain English and leave out the lawyer words.....just straight to the point !

I am failing.............really working slow and fear I will not make the 4 pm deadline! My eyes need match sticks to keep them open and the eyes themselves are fighting to actually see/read (and that's with my specs on too!!)

Oh I must have been wicked in my past lives.......this is torture beyond belief!!

Anyway...........no, there has been no agreement to accept a lesser amount.They isist I have never instructed them to use any of the payment towards the loan (NO Credit cards; dont use them!) I usually say debt and to me the whole thing means debt! I wouldn't expect them to pay just of the OD! That would be pathetic!!!

Their last but one WS states "paragraph xx denied. save that the DN in ther woodche3ster case was invalid. The claimant dent that the failure to stipulate the correct date has unduly prejudiced the Defendant and seeks to rely on the case of Amex and Brandon and the judjements of his honour...... at para 34 which states that the defendant has not suffered any prejudice at all by virtue of the technical breach etc etc. The Defendant stated by virtue of para x and x dated x dec to being unable to remedy the breach and repay the sums owing under such a loan within 14 days and as such the technical breach in the correct date being entered has not prejudiced the defendant.

 

ok.....those paragraphs the first one has absolutelt nowt to do with what the claimant is saying! The second of my paras quotes the interpretation Act 1974 sec 7. So don't know where thats been pulled from!!!

 

Help needed re this bit.......it is denied that OD agreements bust be defaulted under sec 87'88 . Due to their very nature there can be no default, as such, sec 76 is incorrect.

This was something I had looked up and found which said if the DN for an OD has been served under sec 76(1) and 98(1) then it is covered by the 1974 act and CAN BE DEEMED AS BEING A DN. The DN for the OD is exactly as the other....except of coures for the figures!!!

 

SB

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make sure you have copies of the e-mails from CAB about monies being applied to BOTH accounts, they are on dodgy ground here,

Maybe suggest to them to withdraw

 

Yes I am going to include those Bazaaar. Thank you! :-)

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Hi again Mould............I am soooo tired you will have to speak in very plain English and leave out the lawyer words.....just straight to the point !

I am failing.............really working slow and fear I will not make the 4 pm deadline! My eyes need match sticks to keep them open and the eyes themselves are fighting to actually see/read (and that's with my specs on too!!)

Oh I must have been wicked in my past lives.......this is torture beyond belief!!

Anyway...........no, there has been no agreement to accept a lesser amount.They isist I have never instructed them to use any of the payment towards the loan (NO Credit cards; dont use them!) I usually say debt and to me the whole thing means debt! I wouldn't expect them to pay just of the OD! That would be pathetic!!!

Their last but one WS states "paragraph xx denied. save that the DN in ther woodche3ster case was invalid. The claimant dent that the failure to stipulate the correct date has unduly prejudiced the Defendant and seeks to rely on the case of Amex and Brandon and the judjements of his honour...... at para 34 which states that the defendant has not suffered any prejudice at all by virtue of the technical breach etc etc. The Defendant stated by virtue of para x and x dated x dec to being unable to remedy the breach and repay the sums owing under such a loan within 14 days and as such the technical breach in the correct date being entered has not prejudiced the defendant.

 

ok.....those paragraphs the first one has absolutelt nowt to do with what the claimant is saying! The second of my paras quotes the interpretation Act 1974 sec 7. So don't know where thats been pulled from!!!

 

Help needed re this bit.......it is denied that OD agreements bust be defaulted under sec 87'88 . Due to their very nature there can be no default, as such, sec 76 is incorrect.

This was something I had looked up and found which said if the DN for an OD has been served under sec 76(1) and 98(1) then it is covered by the 1974 act and CAN BE DEEMED AS BEING A DN. The DN for the OD is exactly as the other....except of coures for the figures!!!

 

SB

 

In accordance with the correspondence between the claimant and CAB whereby the claimant agreed to the acceptance of reduced payments, there absolutely [has] been an agreement made under the contract to vary the requirement of your performance obligation. ACCEPTANCE BY CONDUCT, the claimant has been accepting the payments to the account(s) that are lesser than that stipulated in the contract. You have the CAB correspondence in your possession and this [is] evidence of the claimant's acceptance by conduct to those said lesser monthly payments, which, of course, you have not defaulted on.

 

If the claimant has not administered said agreed lesser payments in accordance with the clear and unequivocal instructions of terms of how the claimant is to divide that lesser agreed sum between the two accounts held, then that error is the responsibility of the claimant.

 

Send a communication to the claimant's Solicitors today containing these arguments I have posted for you and attach the CAB correspondence that supports your defence against their client's actions and state, in the circumstances your client has no cause of action to bring his claim and therefore the evidence attached and my arguments will be referred to at the hearing on Monday 13 June 2011, I respectfully request that you ask your client to consider his position in this matter, clearly he has accepted lesser payments to the accounts, he is at fault for his admistration error in not dividing the said agreed lesser monthly payments between the two accounts held by me with, further, his acceptance by conduct to said agreed lesser monthly payments has him bound to that variation of my original obligation in respect of the required monthly payment under the terms/conditions of the contract, clearly I have not defaulted on the agreed variation to my performance obligation under the contract and therefore your client has no argument against me, he agreed by conduct to accept said lesser monthly payments and in doing so, both he and I agreed to the [same] thing and we did then both affirm the contract with the said new variation to my performance requirements.

 

Kind regards

 

The Mould

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Hiya Mould,

Well, I knew I would be able to finish the WS in time and have decided to just take it with me on the day and see if the DJ will accept it. If not then it would be unjust to accept the Claimant's and not mine. It is nearly done, but I have had little sleep and would rather be happy with the end result, rather than making a pigs ear of it lol!!!!! It was good for me in a sense as working on it just clears points and it's also like revision before the exam! So the time used hasnt been wasted! It also allowed me to see what idiots they are, as there are a few contradictions in there!

It was a bit of a trick thrown in by them to email me that late Thursday afternoon, but will see what the DJ has to say about it now. I still think it's Thursday!!! I can always do the skeleton argument from it too. Most of the donkey work has been done now. Going to pack up for the day to go and prepare my evening meal..........mmmmmmm, food! I have forgotten about that stuff today!! Lol!

regards,

SB

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Question.............anyone who can answer can have a brownie point!!!!

 

"The Consumer Credit Act 1974 provides no sanction to a creditor who fails to serve, or serves a defective default notice."

 

True or false? Also explain your answer....... :o) :wink:

 

Good evening Mrs SB

 

True. see s.170(1) CCA 1974 (as amended).

 

However, having said that, the courts have held that the purpose s.170(1) was to clarify the position in relation to the application of the common law to breaches of the Act.

 

There is no need therefore, for any sanctions civil or criminal to be laid down in the said Act, since the principles and doctrines established at common law over the last few hundred years can be pleaded by a debtor in the case of any breach of statutory requirements imposed upon the creditor under the Act, such as his failure to serve a statutory valid notice (a default notice). Common Law co-exist with Statute for a reason, that reason is a matter of common justice. (regardless of what anyone else has to say, common law will apply and can be argued against the creditor who breaches the Act (in the manner as stated throughout this case (and others of similar circumstance)) and the courts will look to the most fair and reasonable remedy available to the innocent party, in your case (and others) that is you Mrs SB (the debtor).

 

Kind regards

 

I hope that helps you somewhat.

 

Good night.

 

The Mould

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. ..........Common Law co-exist with Statute for a reason, that reason is a matter of common justice. (regardless of what anyone else has to say, common law will apply and can be argued against the creditor who breaches the Act..... and the courts will look to the most fair and reasonable remedy available to the innocent party......

 

The Mould

 

yes, in general, common law/equity is applicable. but, where there is a conflict between statute and common law/equity then statute will prevail. this is well established, and is incontrovertible. and, where there is a conflict between equity and common law (if they can be distinguished :)), equity will prevail.

imo :)

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There is no conflict of laws (common, statute, equity) in this reported case.

In respect of established common law principles and doctrines that apply to contracts regarding the remedy or remedies that is/are available to the innocent party, a credit agreement regulated under the CCA 174 (as amended) (the Act) [is] a contract, if one of the two parties to such contract, namely the creditor, undertakes an action that he knows or ought to know he is not entitled to take, such as demanding payment of full balance and or terminating the contract without having served a valid statutory notice and in circumstances whereby any breach by the debtor simply amounts to a minor and non-repudiatory breach of the contract, then the said action of the creditor will constitute a repudiatory breach in itself, therefore in such circumstances, the court no longer needs to look at the said statute (in strict terms) since the contract would now be subject to common law and any defects therein can be remedied by equity, hence my reference (in my last post here) to the courts looking to find the most fair and reasonable remedy for the innocent party.

It is my understanding that Mrs SB is not seeking for sanctions against the creditor for any breach of the Act, since not only are civil or criminal sanctions not available, an individual has no standing before court to complain of any breach of the Act by the creditor as the OFT is the Regulator of such, however, Mrs SB certainly has the cause to challenge the claim on the grounds of the claimant’s fundamental breach of his agreement to a core variation of the repayment terms to the contract, even as the hearing takes place on the morrow (Monday 13 June 2011), the claimant continues to accept the agreed reduced monthly payments, he has continued to affirm his agreement to the said variation of the contract.

What are the creditors’ execuse(s) for not being able to comply with statutory requirements imposed upon him under legislation that has applied to his trade/business for the last 37 years?

 

From having read this case reported here, thoroughly (methodically/meticulously) at page 1 onwards to this this point, I find that the claimant alleges he holds entitlement and standing to seek enforcement of the contract, however, there has clearly been a variation to the said contract, both parties agreed to the same thing, the defendant has not defaulted under the agreed variation to the new payment terms, the defendant has performed pursuant to the same, the claimant accepted by conduct the defendant’s offer to pay the debt at a rate different to that expressed under the contract terms at the time of it being concluded, the claimant’s said qualified acceptance, affirmed the contract with the inclusion of the said repayment variation, the claimant was provided with clear instructions to divide the new monthly payments between the two accounts held with him by the defendant, the claimant failed in applying said clear instructions during his administration of the two accounts, at no point did the claimant ever provide a qualified rejection to the defendant’s said offer to pay the debt at a lesser rate than that expressed under the original contract terms.

To this very day, the claimant continues to accept the said lesser payments sent directly to him under the clear instructions given as to the two accounts to which said payment was intended for. The contract the claimant seeks to enforce has been varied and the defendant has not defaulted on the varied contract terms nor has the defendant abandoned the varied contract.

The claimant has affirmed the varied contract, he continues to affirm the varied contract, and it appears that while he affirms, he does at the same time protest. One cannot affirm a contract under an agreed variation to accept lesser payments (where no time limit applies to such variations in contracts) and then accept those lesser payments (and continue to do so) under protest whereby he insists on his strict legal rights, for while performance obligations of the payee (defendant/debtor) are without fault, the claimant’s strict rights remain in suspension, if the variation is clearly stated as being a temporary one then the creditor (claimant) must serve reasonable notice (7 days) (not a default notice) upon the debtor informing him that he (the creditor) is ending the temporary variation early and therefore the account will revert to the normal/original terms (at the end of the 7 day notice period), if the creditor seeks to insist on his strict legal rights.

Good luck for today Mrs SB.

Kind regards

 

The Mould

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Good morning Mrs SB

 

I do hope it al goes well for you today.

 

Ensure that you put your main/central argument into court, that is, there was an agreed variation to the payment terms in the contract and you have not defaulted on that agreed variation.

Among other things, see my post# 472 (above).

 

If the DJ does not accept your defence (based upon the facts, as stated #472 and elsewhere in your thread), politely request leave to appeal.

 

As always, only you can decide what to do and what to say, if however, I was facing the precise claim as you were and the circumstances thereof were as you have stated herein, I would be counter-arguing with the argument that I posted in #472 and relying upon the emails sent by CAB.

 

Kind regards

 

The Mould

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Thank you Mould, for your support, kind words and GSH.

 

I'll be on my way soon and hope to God it doesn't get adjourned again! I am hopeful of a favourable outcome, but to be honest, putting the whole thing to bed one way or the other will be good too!

 

I got the lengthy WS finished and it has been emailed to the solicitors. The court office said I could arrive early and pass the stuff in. There are a selection of email showing how reasonable I have tried to be and how unreasonable they have tried to be. I have even caught them out on a few issues......but as I keep on reading on here, it is a judges lottery. I found out I haven't got Mrs Nasty, so that was a relief!!!

Anyway, I will try to report back later, although I have family coming over this evening, so might not be a lengthy report.

 

Thank you again...........and off I go.....Tally Ho!!!!!!

 

SB

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