Fluffystuff's OH v HFC

[Fluffystuff]

I agree with Josie that you must seek an adjournment AND COSTS of the adjournment due to their attempts to ambush:)

 

Thanks so much for dropping in pt.

 

How do I go about seeking an adjournment and would you say that my proposed 'plan of action' above (#147) is correct? (I will fax to Restons as well as posting!)

 

Do you have any information about the case Restons mention?

[Fluffystuff]

 

How do I go about seeking an adjournment and would you say that my proposed 'plan of action' above (#147) is correct? (I will fax to Restons as well as posting!)

 

 

 

Polite bump!

 

Just seeking response to the above.

[LB145]

Good luck Fluffy for Wednesday - my thoughts will be with you, please dont knock too much stuffing out of them, leave some for me on Friday!!!:D:D

[wycombe]

Have today received this from Restons:

 

" In documentation submitted by you to the Court in this case, you have stated you hold documents which prove the default notice was served by 2nd class post. We note you have not provided this and invite you to do so now.

 

As a matter of evidence, we do not accept the default notice - after taking account of service, did not provide the 14 clear day period for you to repay the arrears.

 

In any event the bank will rely on the decision of His Honour Judge Roderick Denyer QC in the case of American Express Services Europe Ltd v Brandon - 25 May 2010. The court ruled the fact a default notice did not allow 14 clear days (after accounting for service) for repayment of the arrears did not render it invalid or defective and hence did not afford the recipient in that case a defence to a claim for recovery of the balance due on the credit facility.

 

Accordingly our Client will submit that any breach of the relevant Regulations was "de minimis" only and of no material effect."

 

 

Does anyone know about the above case?

 

All comments gratefully received - SJ hearing this Wednesday!

 

Thanks Fluffy for the link to your thread.

 

Interesting reading the above - I have searched a few data bases to try and get some information on this case and got absolutely nowhere. It is now, probably, too late to get information in time for your hearing. You could try ringing the Law Society to see if it exists on their data base. I have found them very helpful when I was trying to track down a Rankine case.

 

Unfortunately I do not have the expertise to advise with your query

- hitting the red triangle is probably well in order here as your hearing is so close!!

 

Anyway my thoughts will be with you on Wednesday and I wish you the very best on that day. It won't be long before I am in a similar situation!

[supasnooper]

Should Restons not play ball and then try to ambush you in the Court room then you simply ask the Judge for an Adjournment.

 

If Restons try to serve any documents to you on the morning of the SJ just before the hearing - refuse them and state that you will inform the Judge of such underhand tactics.

[Fluffystuff]

Hi all,

 

I am in need of URGENT help please.

 

Restons have fax'd copy of case which infact is an appeal against an earlier SJ.

It appears the Judge (sitting as a judge of the High Court at a County Court) dismissed the fact that 14 days from service was needed because Amex didn't actually enforce the debt during those 14 days from the date on the D/N.

There was a signed C/C agreement in this case.

 

I am unable to scan docs but will provide case no. etc if appropriate to anyone (pt?) that may be able to access this.

[Conniff]

The case they refer to is being appealed.

 

I haven't fully digested this thread, but if no one can find any details of that case Josie, how do you know that it is being appealed?

[Fluffystuff]

 

Restons have fax'd copy of case which infact is an appeal against an earlier SJ.

It appears the Judge (sitting as a judge of the High Court at a County Court) .

 

So is there an appeal against an appeal???????????????

[robcag]

Originally Posted by Fluffystuff

Restons have fax'd copy of case which infact is an appeal against an earlier SJ.

It appears the Judge (sitting as a judge of the High Court at a county court) .

 

So is there an appeal against an appeal???????????????

 

I'm wondering that because the 'original' appeal seems to have been heard at a county court, how much weight does it carry as it seems it won't actually have set a precedent (i.e. not binding on a court of the same level as it wasn't the Court of Appeal or higher).

 

Cheers

Rob

[Fluffystuff]

I'm wondering that because the 'original' appeal seems to have been heard at a county court, how much weight does it carry as it seems it won't actually have set a precedent (i.e. not binding on a court of the same level as it wasn't the Court of Appeal or higher).

 

This is my thinking Rob, do so hope we're right! :idea::idea:

[Fluffystuff]

I have re-read this judgement over and over and in my opinion, both judges concerned dwell on the fact that Brandon never denied he had the money and quote "American Express is a very large and respectable operation, almost all of whose business must be regulated by the Act. It would be absurd to suppose that it was not aware of the need to comply with a well known requirement........." !!!!

 

Thought they were to supposed to adhere to simple facts of law and not discuss their personal thoughts as to probabilities!

[wycombe]

I suspect that Reston's will attempt to trot this case out ad infinitum unless it can be adequately countered. Without actually seeing it it is difficult to see what arguments will put the Claimant's allegations to bed.

 

Anyway FluffyI hope your readings have given some points to argue and challenge.

[Docman]

I don't think it will carry a lot of weight but that won't stop Restons from milking it for as much as they can.

If the case was originally decided on summary judgment, it means the issues were never properly examined. An appeal against a decision of a District Judge for a claim under part 7 [CPR 7] is heard by the cicuit judge in the county court unless the case has been allocated to the multi-track. As this case appears to be a summary judgment, the ‘appeal’ would have been to the circuit judge who can be district judge who is exercising the jurisdiction of a circuit judge with the permission of the designated civil judge in respect of that case. In short, just another DJ sitting at the same court.

Now, question - if your mate messed up, do you overrule him or do you find a way of saying the mess was OK, especially if you are sitting pretty in some Welsh valley ? Answers on a small postcard please.

“Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary [s87(1)].”

“The default notice must be in the prescribed form and specify—

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed. [s88 (1)

Put simply, if the DN doesn’t provide 14 clear days, it isn’t a DN and therefore no action can be taken. A DN is not a form of ‘holding’ document which merely stays the action for 14 days.

[diddydicky]

spot on docman

 

it seems to me that caggers are at a serious disadvantage in that the creditors and their minions can drag up any old judgement- even persuasive ones- against which the cagger often has nothing

 

it is all very well putting "successes" in a nice little folder on teh forum for other people to applaud- but unless caggers are prepared to truly help each other and actually start a list on the forum in which the cases can actually be identified and quoted in defences then i suspect most caggers will be divided and ruled by most creditors

[Fluffystuff]

 

Restons have fax'd copy of case which infact is an appeal against an earlier SJ.

It appears the Judge (sitting as a judge of the High Court at a County Court)

 

I am unable to scan docs but will provide case no. etc if appropriate to anyone (pt?) that may be able to access this.

 

 

Could do with someone far more 'saavi' than me to take a look at this judgement and advise the implications - PLEASE

 

Happy to post case no. on live forum if allowed!

[wycombe]

spot on docman

 

it seems to me that caggers are at a serious disadvantage in that the creditors and their minions can drag up any old judgement- even persuasive ones- against which the cagger often has nothing

 

it is all very well putting "successes" in a nice little folder on teh forum for other people to applaud- but unless caggers are prepared to truly help each other and actually start a list on the forum in which the cases can actually be identified and quoted in defences then i suspect most caggers will be divided and ruled by most creditors

 

Agree DD,

 

Surely there must be a way of having a folder with the successes identified. If the defendant is then identifiable and has other actions running on CAG is there not a way of changing the user name to make a new identity?

[Fluffystuff]

A DN is not a form of ‘holding’ document which merely stays the action for 14 days.

 

 

Any volunteers to tell that to the Judge!

[supasnooper]

I'd certainly point out that the Houses Of Parliament passed the Consumer Credit Act NOT a High Court Judge sitting in a County Court.

 

I'd also advise you re-read this post - http://www.consumeractiongroup.co.uk/forum/show-post/post-3026072.html

 

 

 

Please could you also type up exactly what Restons have stated and their proposed arguments in this latest fax.

[Fluffystuff]

 

As a matter of evidence, we do not accept the default notice - after taking account of service, did not provide the 14 clear day period for you to repay the arrears.

 

In any event the bank will rely on the decision of His Honour Judge Roderick Denyer QC in the case of American Express Services Europe Ltd v Brandon - 25 May 2010. The court ruled the fact a default notice did not allow 14 clear days (after accounting for service) for repayment of the arrears did not render it invalid or defective and hence did not afford the recipient in that case a defence to a claim for recovery of the balance due on the credit facility.

 

Accordingly our Client will submit that any breach of the relevant Regulations was "de minimis" only and of no material effect."

 

 

 

Hi Supa,

 

The above was received from Restons on Saturday in response to WS declaring that I had proof D/N was not sent 1st class as they have sworn. (They have been alerted to this fact months ago!)

 

The fax this morning was a transcript of the case referred to.

Apologies for not being able to post a copy - as it's a fax it's not easily legible.

 

Thanks for the link - I could very nearly almost recite that verbatim!

Edited July 12, 2010 by Fluffystuff

[Josie8]

Hi all,

 

I am in need of URGENT help please.

 

Restons have fax'd copy of case which infact is an appeal against an earlier SJ.

It appears the Judge (sitting as a judge of the High Court at a County Court) dismissed the fact that 14 days from service was needed because Amex didn't actually enforce the debt during those 14 days from the date on the D/N.

There was a signed C/C agreement in this case.

 

I am unable to scan docs but will provide case no. etc if appropriate to anyone (pt?) that may be able to access this.

 

 

 

The case is currently subject to an application to the court of Appeal and as such you should ask the court for the hearing to be adjourned pending the decision of the court of Appeal.

[Josie8]

I'm wondering that because the 'original' appeal seems to have been heard at a county court, how much weight does it carry as it seems it won't actually have set a precedent (i.e. not binding on a court of the same level as it wasn't the Court of Appeal or higher).

 

Cheers

Rob

 

 

HHJ was sitting as a Judge of High Court so binding on lower courts but it is curently being appealed to the Court of Appeal and as such anyone affected should be requesting stays pending determination of appeal.

[wycombe]

HHJ was sitting as a Judge of High Court so binding on lower courts but it is curently being appealed to the Court of Appeal and as such anyone affected should be requesting stays pending determination of appeal.

 

Well that should stop Reston's throwing this at all and sundry:).

 

Maybe a well earned break for Fluffystuff as well:)

Edited July 12, 2010 by wycombe
typo

[Fluffystuff]

Thankyou for that information Josie.

 

Assume we can request a stay actually at the SJ hearing on Wednesday?

[Fluffystuff]

Well that should stop Reston's throwing this at all and sundry:).

 

Maybe a well earned break for Fluffystuff as well:)

 

Agree Wycombe but does the possibility of this decision being upheld in the Appeal Court even bear thinking about?

[wycombe]

Agree Wycombe but does the possibility of this decision being upheld in the Appeal Court even bear thinking about?

 

My God - if that happens we might as well all lie down and give up.

 

But before that happens lets get the outcome done and dusted and picked over with a fine toothcombe:)