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    • Thanks for your help. I've redacted the PNC number and I've re-uploaded here. I'll see if I can get out there to photograph the signs, but this may be tricky due as its not that close baby schedules don't afford me alot of free time. UKCPS NTK udated.pdf
    • hi ya can you pop the NTD up as a PDF please Read upload Carefully. you'd left the barcodes showing which can be read remove those and pop it up as a PDF   dx  
    • can you please answer my question?   dx
    • Hi all. I've attached what was my first letter from Smart, didn't get an NTK in the first place. Emailed in from this asking for more details, no admission of driver etc. Didn't get a satisfactory response so ignored everything up to the recent shoddy LBC   See below:   1 The date of infringement? 29th October 2019   2 Have you yet appealed to the parking company yet? [Y/N?] Only asked for more details via website as NTK wasn't received and informed Smart that multiple drivers have access to car and 2 drivers use same carpark.   if you have then please post up whatever you sent and how you sent it and the date you sent it, suitably redacted. [as a PDF- follow the upload guide]   has there been a response? Short letter saying that as 'per the BPA code of practice appeals must be submitted before 28 days' however it wasn't an appeal, just a request for more information   please post it up as well, suitably redacted. [as a PDF- follow the upload guide]   If you haven't appealed yet - ,.........DONT ! seek advice on your topic first.   have you received a Notice To Keeper? (NTK) [must be received by you between 29-56 days] NO   what date is on it NA   Did the NTK provide photographic evidence? Probably, but don't know   [scan up BOTHSIDES to ONE PDF of the PCN and your NTK - follow the upload guide]   3 Did the NTK mention Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) [Y/N?] NA   4 If you appealed after receiving the NTK, did the parking company give you any information regarding the further appeals process? [it is well known that parking companies will reject any appeal whatever the circumstances] NA   5 Who is the parking company? Smart   6. where exactly [Carpark name and town] did you park? Goose Green, Altrincham  
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Just back from a hearing to set aside a CCJ on no prescribed terms and defective default notice grounds. But that's not the interesting bit.

 

Firstly, the DJ said he had no papers - so I had to show him a copy of the original N244, and CL Finance's solicitor a copy of the 'agreement'. He then asked if it was denied that the money had been spent and if we had heard of the recent Carey case. I said I had, CL Finance's solicitor said he hadn't.

 

This is one of the good bits to this tale... the DJ said (and this quote is to the best of my memory) "didn't Wacksman say that if you have had the money, you've got to pay?"!!

 

In the end he adjourned the case with directions that I resubmit the defence. I asked him if he could instruct CL Finance to provide us with a copy of the original GE Money default and termination notices (I pointed out that they had failed to provide these in response to a Subject Access Request - CL Finance sent their own DF!). The DJ Then said he wouldn't because he "questioned the relevance of the default notice to this case." I didn't bother replying by this stage.

 

He gave me 2 weeks to resubmit my case - and asked the CL Finance solicitor if 3 weeks to respond would be adequate for them!

 

I don't think this judge is the sharpest tool in the box.

 

Now to my question: am I right in saying that if the original creditor assigned the debt without first issuing a default and termination notice the agreement has been unlawfully rescinded? If so, I would be grateful for advice on a paragraph or so to included in the resubmitted defence.

 

BTW the 'default notice' issued by CL FInance is not in the prescribed form anyway (no emphasis given to the various terms etc)!!

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Yes, if they assigned without DN or TN being sent then they have unlawfully rescinded. But there is a large body of opinion that says you should have accepted such recission either formally in writing or at least by demonstrating your acceptance though a change in your pattern of behaviour e.g. stopping payments. Otherwise they could argue that you did not elect to accept the unlawful rescission.

 

In fact you may have already accepted in writing but just forgot until just now that you had previously sent them a letter. ;)

 

But be careful that they did not send a DN and/or TN that you either lost track of or that they can produce even though they failed to send as this could sway the judge.

 

Although from the sound of the clown you have trying your case, unfortunately it sounds like it may need to go to appeal to get a fair hearing! (I hope not though, if you present your case well then maybe this judge will see the light!)

 

Another thought - is CL Finance an in-house company that sends DN for GE Money, similar to Mercers for Barclaycard? If that is the case then possibly they have send an invalid DN and then GE Money taking you to court will count as unlawful rescission so you can now accept this and only owe arrears vs damages from them for your loss of reputation.

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Thanks for your reply. I don't recall getting a default notice from GE Money. And I had stopped paying (lost my job) long before the debt was assigned to CL Finance. It seems to me that CL Finance received the SAR letter, realised there was no default notice from GE so sent their own (which as I've said, is not even in the prescribed format)!

 

Feeling much more confident about this now!

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This is one of the good bits to this tale... the DJ said (and this quote is to the best of my memory) "didn't Wacksman say that if you have had the money, you've got to pay?"!!

 

Easiest answer in the world: no!

 

 

In the end he adjourned the case with directions that I resubmit the defence. I asked him if he could instruct CL Finance to provide us with a copy of the original GE Money default and termination notices (I pointed out that they had failed to provide these in response to a Subject Access Request - CL Finance sent their own DF!). The DJ Then said he wouldn't because he "questioned the relevance of the default notice to this case." I didn't bother replying by this stage.

 

Interesting behaviour... but irrelevant if you can devote a section to it in your defence. It sounds like a hostile Judge to me... so make sure you have plenty of case law in your locker for it!

 

I don't think this judge is the sharpest tool in the box.

 

You don't say :p

 

Now to my question: am I right in saying that if the original creditor assigned the debt without first issuing a default and termination notice the agreement has been unlawfully rescinded? If so, I would be grateful for advice on a paragraph or so to included in the resubmitted defence.

 

BTW the 'default notice' issued by CL FInance is not in the prescribed form anyway (no emphasis given to the various terms etc)!!

 

Here's a portion of my Witness Statement in a claim I am bringing against HFO Services...

 

Questionable right of any contractual assignment by the original creditor

 

20. The right of the original creditor to terminate and assign the debt in the first place is perhaps the most pertinent issue in this claim and directly affects the right of the Defendant to process my personal information and record it with third party credit reference agencies.

 

21. In order to enact a sale of an account the assignment of the account should take the course as stated in the paragraphs above. However, for the original creditor to have taken the step of terminating the account by selling it, there are strict requirements that must be followed as set out in the Consumer Credit Act 1974; the relevant section states:

 

87 Need for default notice

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

22. In order for the original creditor to have been able to take any of the steps referred to in s.87 the Default Notice needs to meet the requirements set out in s.88:

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form

 

23. The “prescribed form” is set out in schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (exhibit DN2) and it is clear that exhibit DN1 does not meet the requirements of the Act as it misses a number of prescribed terms, the default figure is laden with penalty charges and does not appear to have been created by Barclaycard (the wording infers that is has been written by Mercers). A defective Default Notice is considered an unlawful rescission of the contract as ruled in the case of Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255).

 

24. The court was influenced by the fact that the 1974 Act was enacted to protect consumers who, when contracting with financial organisations, are likely to be at a disadvantage when faced with complex standard form contracts. The onus is therefore on the creditor to inform the consumer what he has done wrong and what he is required to do to correct the situation. The court held that the wording of section 88(1) of the 1974 Act was designed with the consumer in mind in that whilst a de minimus error may be overlooked, substantial inaccuracies, as in the case in question, rendered the default notice ineffective.

 

25. Therefore the contractual documents between Barclaycard and any other party would be largely irrelevant as the right of the original creditor to terminate the account was conducted unlawfully as per the defective Default Notice.

 

But there is a large body of opinion that says you should have accepted such recission either formally in writing or at least by demonstrating your acceptance though a change in your pattern of behaviour e.g. stopping payments. Otherwise they could argue that you did not elect to accept the unlawful rescission.

 

There is a large body of opinion but opinion also held once that the earth was flat :D

 

The fact is that termination occurs (without any admissions required) once the step of legal action is taken (unless preceded by a termination notice in the written form). If the lender, or any assignee, takes the step of legal action the contract is automatically rescinded by virtue of s.87.

 

In fact you may have already accepted in writing but just forgot until just now that you had previously sent them a letter. ;)

 

:eek::eek::eek::eek:

 

Surely we would not stoop to the level of a DCA :D:D:D:D

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VJohn, this is just what I need. Thanks, it is very much appreciated.

 

The more you study and experience this whole area of debt collection, harassment by collectors, judges etc etc the more you realise just how loaded the system is against the average, non-leaglly qualified person (mind you, the legally qualified solicitor and Judge I encountered on Firday only demonstrated that an expensive education doesn't always work). Perhaps it's too much to expect politicians to regulate the finance and collection industry better, but I don't hold out much hope on that one.

 

Incidentally (I know this is becoming a bit of a rant), but if you recall a year or so ago when there was a petition on here about the Tribunals and Enforcements Act. I decided to email all three of the main parties leader's office to object about how this would make it easier for lenders to obtain charges for unsecured debt. The Labour Party took three months to reply (via my MP), and the reply was the sort of non-committal "this is a compex area of law and it is imprrtant to strike a balance between the rights of all parties..." The Liberals didn't reply. David Cameron's office replied the next day. Not only did the respondent know all about the Act, but said that his party would repeal it and said that "we do not feel it is justified that people could potentially lose their homes for previously unsecured debts of less than £25,000." Not what I expected at all. Despite this, I could never bring myself to actually vote for them. End of rant.

 

PS The earth isn't flat?

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Quote:

Originally Posted by mightneverhappen viewpost.gif

This is one of the good bits to this tale... the DJ said (and this quote is to the best of my memory) "didn't Wacksman say that if you have had the money, you've got to pay?"!!

 

Easiest answer in the world: no!

 

Be careful here. There might be someone called Wacksman who did say it.

I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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