New Pending Court Action With Restons

[BelstarBomb]

Hi Guys,

 

I need some urgent advice as to how to play the next steps properly.

 

Firstly, I had posted the bulk of the update here

 

http://www.consumeractiongroup.co.uk/forum/general/255228-query-ppi-new-post.html

 

In short, last year a judge awarded me costs in my favour as Restons had instigated court action without the original agreement. He agreed in my favour and had given them 40 days to produce it. At 90 days, I wrote to them to produce it otherwise I would go back to the court to ask them to declare unenforcable. 120 days later, the agreement as attached at the above link turns up. Restons have now given me 7 days to make arrangements for settlement.

 

At the same time as writing to Restons, I had also written to the OC asking them to refund my PPI as I had reaslised that they had been debiting monthly premiums but had not supplied any information to show that I had asked for it, that I needed it or that they had advised me of options etc. Indeed, when I applied for the card, I knew I was going to be made redundant so PPi would have been a waste of time. So far the OC has not responded.

 

In my original court defence, I had missed the PPI so didn't include it however at the directions stage, I had included the fact that PPI had been missold however when we went to court, the Judge understandably concentrated on the agreement first of all.

 

My questions are as follows

 

 

1. You will see from the agreement attched to the above link that it makes reference to two pages which are now clearly shown yet the agreement does not show my acceptance or request to PPI. The default notice served includes premiums + interest for PPI as does the court action. As it isn't included on the agreement, how does this affect things?
   
2. What is the best way to play this with the court? As I missed out including the PPI point in my initial defence, how do I go about changing it? Do I wait for Restons to apply to the court and for the wheels to be set in motion again?
   
3. My initial thoughts with regards to Restons is to write to them saying please prove the PPI was asked for etc as I believe the balances etc are defective. However, I don't want to let them off the hook by not knowing what eactly my rights/the law is etc
   
4. What other suggestions can you make?
   

Many thanks,

 

Bel

Edited April 12, 2010 by BelstarBomb
as suggested by DX100uk

[BelstarBomb]

Siteteam,

 

Any suggestions please?

 

Cheers,

 

Bel

[BelstarBomb]

Hi again,

 

A bit bleary eyed from doing lots of reading of threads which has formed a plan.

 

I believe the DN served is faulty due to the following reasons

 

1. Length/date of service to remedy

2. It includes PPI that was not asked for

3. The wording of the DN in that it is all the same case and underlined so the warning does not stand out

 

Also garnered from reading other posts is that Restons have applied £2000 in collection charges as well as asking for a daily rate of interest on the POC which apparantly they are not allowed to do.

 

I'm about to write to the OC one more time about refunding the PPI but in the meantime, as my defence has/will be changing quite significantly due to the agreement being made available what is the best thing for me to do as Restons have given me until Friday to respond?

 

Do I throw the above back at them or do I write the court advising them of my wish to amend my defence or both?

 

Cheers,

 

Bel

[citizenB]

Do you have your statements from the inception of the account ? If so, I would suggest you do a spread sheet detailing the PPI payments. The spreadsheet will calculate the 8% interest for you.

 

As the agreement doesnt show anywhere that you asked for this product and at no time were you given any informatin on it. Then this has obviously just been "added" and that is wrong.

 

You must ask for it back.

 

If you are going to have to amend your defence in the light of new information turning up then I would say you could also include this new information. IMHO, if the agreement doesnt show that you asked for PPI or even mention it then the agreement is questionable.

 

I will flag your post for the attention of those with more knowledge on this.

[citizenB]

I have brought these three posts over from your other thread in order to save people going back and forth between two threads.

 

 

Hi DX,

 

I have just tried to upload the agreements etc but they have been saved to my computer as pdf's and photobucket doesn't like that!

 

I won't have access to a computer until Monday to redo them as gif's/jpegs I'm afraid.

 

However in short, the card was taken out in 2005. I queried the agreement in 2008 and played letter tennis with HFC until I got a letter from Restons around this time last year.

 

They ignored me saying that the account was in dispute as John Lewis had not supplied me with a properly executed CCA and started legal action.

 

I defended all charges based on the following

 

1. The alleged agreement is improperly executed under the CCA 1974 sec61 (1) and that further this court is excluded from making an enforcement order under the CCA 1974 sec 127(3).

2. That the Claimant has failed to comply with the Defendants request for information under the CCA sec 78(1) and that the Claimant is in default of that request.

3. That the Claimant has failed to comply in full with a Subject Access Request made pursuant to section 7(1) of the Data Protection Act 1998.

4. That the Default Notice issued on this date in 2008 was not issued in compliance with the CCA sec 88 (1)(b) in that the amount stated to remedy any breach of contract by the Defendant was incorrectly stated.

5. That the Claimant commenced legal action, contrary to the overriding objectives of the Civil Procedure Rules, having failed to acknowledge or respond to a request made on two separate occasions under CPR 31.14. The Defendant further avers that this claim was commenced while the account was clearly in dispute, contrary to debt collection guidelines issued by the Office of Fair Trading.

6. That the Claimant knowingly processed and passed personal information regarding the Defendant to a third party, without any implied or explicit consent to process data about the Defendant.

7. In the event that the Court does make the order requested in 17(1) above, that the court also make an order that any and all personal data held by the Claimant in respect of the Defendant be destroyed by both the Claimant and any third party that the Claimant may have passed that data to, and that the Claimant confirms to the Court and the Defendant when the destruction process has been completed. The Defendant makes this request on the basis that any express or implied consent given by the Defendant in the alleged agreement is also irredeemably unenforceable

 

At the time, I had missed the PPI and did add it into a further document but it was not inlcuded in my original POC/defence as you can see.

 

I have double checked all the paperwork that has been supplied as part of my SAR request and there is no refence to PPI being asked for, agreed to or them avising me about it etc but they had been applying a monthly premium from the moment a balance was applied to the agreement.

 

I can email or attach the agreements in a PM which I think I will do anyway so let me know what you think

 

Cheers,

 

Bel

 

Hi,

 

Managed to get this sorted.

 

Please see the links below

 

http://i47.photobucket.com/albums/f181/BelstarBomb/Restons/RestonsDefence0001_page001-1-1.jpg

 

http://i47.photobucket.com/albums/f181/BelstarBomb/Restons94100001_page001-1.jpg

 

http://i47.photobucket.com/albums/f181/BelstarBomb/Restons94100001_page002-1.jpg

 

as advised how to do

i've merged your images to a pdf.

 

Attached Filesbb.pdf (883.1 KB, 5 views)

 

i can see no mention of we charge PPI or you have signed up to PPI

 

the only bit i can see is the bit where it mentions PPI on payment allocation.

 

dx

[citizenB]

If the POC is asking for s69 interest, then you will need to put this in your defence.

 

 

The Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

[BelstarBomb]

Thanks citizenB,

 

I had already written to Restons and the OC requesting the PPI info as well as the DN details as per many CPR31.14 requests whilst I was waiting for your advice.

 

So far, no response. I have also put in another formal request to the OC to refund the PPI. Again, no response.

 

I would really appreciate any advice here because as it has been before the judge once before and they hav ein part fulfilled part of my request, I do not want to waste the courts time further by not being able to nail them down because I didn't cover all of my bases.

 

I'll post up the links to the other relevant documents that I had originally sent to SB.

 

Thanks again,

 

Bel

[citizenB]

The following is a complete defence for a dodgy Default Notice. You should amend it to suit your situation.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 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.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[citizenB]

When do you need to have your amended defence in by ?

[BelstarBomb]

Hi cb,

 

This is what I had sent to SB which kind of explains my thought process.

 

Hope it helps,

 

Bel

 

I received two DN's from the OC - one dated 20th August 2008 and the other 10th March 2009 - and like you have the envelopes to both which clearly show they were posted by UKMail so not 1st RM.

 

In addition, both state that my agreement date was 4th September 2005 but now that we have the signed agreement, we can clearly see that it was 25th July 2005.

 

The amounts quoted on both DN's include PPI which I dispute as I knew that I was about to be made redundant therefore making the PPI null and void.

 

On the rear of each DN, it states that if I don't do as the DN states that John Lewis WILL not may, but will terminate the agreement and issue proceedings if I don't pay the full amount owing.

 

I have received a final notice dated 23rd February 2009 but no termination notice as such.

 

I have sent by special delivery 3 CPR31.14 requests to the OC and 2 to Restons all of which have been ignored and included within that CPR request were original copies of the default notices and terminatation notices and how they were sent.

 

So where I am coming from is this

 

 

1. The DN's where not sent by 1st class mail therefore the dates to remedy the default were wrong
   
2. The dates of the agreement were wrong
   
3. The amounts are wrong as they include PPI that was not asked for and compound interest charges
   
4. If the agreement was terminated on 6th September 2008 as per their DN to me, how can they continue to add charges and interest for a further 7 months until they issue another DN in March 2009?
   
5. How can Restons justify collection charges of £1880?
   
6. Should PPI not have been included on the agreement that I signed as there is nothing there at all for it - no tick box, no statement to say that I have asked for it etc
   

So how is the best way to play it with Restons? I want to give them enough rope and feel that I have the right ammunition but need to make sure I lob these at them in the right way - and that's what I am scared of mucking up.

 

My initial reaction is to write to them again saying that I will not be making any offer of any payment on the agreement, demanding for the 5th time that they comply with my CPR31.14 request to see what they cough up with the DN and TN. Also reminding them that I have written to both them and the OC requesting site of proof that I requested PPI or that they advised me adequately etc regarding it.

 

The links to the relevant documents are here

 

http://i47.photobucket.com/albums/f1...9b0001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...95090002-2.jpg

 

http://i47.photobucket.com/albums/f1...95090001-2.jpg

 

http://i47.photobucket.com/albums/f1...age001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...age001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...age001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...no1part2-1.jpg

 

http://i47.photobucket.com/albums/f1...no1part1-1.jpg

[BelstarBomb]

I should refresh before I press send!

 

I haven't heard back from the court yet, just the letter from Restons with the agreement attached and saying contact us within 7 days to arrange payment.

 

Because they had not provided the agreement originally, I based my argument primarily on that, which with hindsight, was not too clever as if I had gone through everything like I am doing now, we probably could have put this to bed a long time ago.

 

I had intended to apply to the court to have the agreement ruled as unenforcable but am waiting to see what Restons do next.

 

Seeing the hand that I have at the moment, what would you suggest I do next? Sit and wait or go for it?

 

Cheers,

 

bel

[citizenB]

Hi cb,

 

This is what I had sent to SB which kind of explains my thought process.

 

Hope it helps,

 

Bel

 

I received two DN's from the OC - one dated 20th August 2008 and the other 10th March 2009 - and like you have the envelopes to both which clearly show they were posted by UKMail so not 1st RM.

 

In addition, both state that my agreement date was 4th September 2005 but now that we have the signed agreement, we can clearly see that it was 25th July 2005.

 

The amounts quoted on both DN's include PPI which I dispute as I knew that I was about to be made redundant therefore making the PPI null and void.

 

On the rear of each DN, it states that if I don't do as the DN states that John Lewis WILL not may, but will terminate the agreement and issue proceedings if I don't pay the full amount owing.

 

I have received a final notice dated 23rd February 2009 but no termination notice as such.

 

I have sent by special delivery 3 CPR31.14 requests to the OC and 2 to Restons all of which have been ignored and included within that CPR request were original copies of the default notices and terminatation notices and how they were sent.

 

So where I am coming from is this

 

 

1. The DN's where not sent by 1st class mail therefore the dates to remedy the default were wrong
   
2. The dates of the agreement were wrong
   
3. The amounts are wrong as they include PPI that was not asked for and compound interest charges
   
4. If the agreement was terminated on 6th September 2008 as per their DN to me, how can they continue to add charges and interest for a further 7 months until they issue another DN in March 2009?
   
5. How can Restons justify collection charges of £1880?
   
6. Should PPI not have been included on the agreement that I signed as there is nothing there at all for it - no tick box, no statement to say that I have asked for it etc
   

So how is the best way to play it with Restons? I want to give them enough rope and feel that I have the right ammunition but need to make sure I lob these at them in the right way - and that's what I am scared of mucking up.

 

My initial reaction is to write to them again saying that I will not be making any offer of any payment on the agreement, demanding for the 5th time that they comply with my CPR31.14 request to see what they cough up with the DN and TN. Also reminding them that I have written to both them and the OC requesting site of proof that I requested PPI or that they advised me adequately etc regarding it.

 

The links to the relevant documents are here

 

http://i47.photobucket.com/albums/f1...9b0001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...95090002-2.jpg

 

http://i47.photobucket.com/albums/f1...95090001-2.jpg

 

http://i47.photobucket.com/albums/f1...age001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...age001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...age001-1-1.jpg

 

http://i47.photobucket.com/albums/f1...no1part2-1.jpg

 

Image hosting, free photo sharing & video sharing at Photobucket

 

Restons have added collection charges as well ? I dont think they can do that. Oh hell, I really dont know what would be the best way to approach this.

 

You say they issued you with TWO DNs, after the first one, did you make any payment to them ? If not, then I cannot see why they issued another one. This is really strange.

 

As for the PPI, I can see nowhere on that document where it even mentions PPI. So how could you have asked for it ?

 

I will send out a couple of S.O.S's for you.

[BelstarBomb]

Sorry to confuse CB!

 

I have got all the statements from the start and had made no payments on the account since well before the first DN and nothing since then.

 

They were still adding the PPI premiums right up to the second DN was issued too.

 

Thanks for the SOS's. I'll sit tight and see what advice comes my way.

 

Thanks again,

 

Bel

[supasnooper]

i think you should write back to Restons stating "Res judicata".

 

They had their chance to get it right and they cocked up !

 

A Judge gave them 40 days to supply the Original Agreement......they didn't !

 

You would also want to point out they would need to go back to the Court where the original hearing was heard and apply to restart legal proceedings.................would the Judge give them a second chance after ignoring his order ?

 

 

Have a look at this thread which may offer some bits of advice - http://www.consumeractiongroup.co.uk/forum/legal-issues/210585-claim-struck-out-can.html

[BelstarBomb]

Hi Supasnooper,

 

Wow - I don't know that!

 

I've just read the thread you linked to with great interest.

 

So in short, even though they have supplied the agreement, because it was out of the time limit that the judge set for them to produce, their claim has more or less been thrown out and they would need to start again from scratch?

 

I will draft a letter to send to Restons, but think I will also reference the other issues regarding the DN and PPI in the letter too.

 

Would you suggest that I write to the court or sit and wait to see what comes in the post?

 

Cheers,

 

Bel

[citizenB]

Hi Supasnooper,

 

Wow - I don't know that!

 

I've just read the thread you linked to with great interest.

 

So in short, even though they have supplied the agreement, because it was out of the time limit that the judge set for them to produce, their claim has more or less been thrown out and they would need to start again from scratch?

 

I will draft a letter to send to Restons, but think I will also reference the other issues regarding the DN and PPI in the letter too.

 

Would you suggest that I write to the court or sit and wait to see what comes in the post?

 

Cheers,

 

Bel

 

 

You can always copy the court in on any letter you send to Restons

[supasnooper]

Hi Supasnooper,

 

Wow - I don't know that!

 

I've just read the thread you linked to with great interest.

 

So in short, even though they have supplied the agreement, because it was out of the time limit that the judge set for them to produce, their claim has more or less been thrown out and they would need to start again from scratch?

 

Correct - and they MUST apply to the Court to do so !

I doubt any Judge would take too kindly to having his\her authority undermined.

I would also report Restons to the Solicitors Regulatory Authority for their behaviour - they really should know better.

I will draft a letter to send to Restons, but think I will also reference the other issues regarding the DN and PPI in the letter too.

 

Would you suggest that I write to the court or sit and wait to see what comes in the post?

 

CitizenB has given the relevant advice

 

Cheers,

 

Bel

 

 

Hope my comments help.

[vint1954]

Sorry for dropping in a bit late. Just back online since yesterday.

 

As supersnooper advises, you need to let them know that they are too late with their info, as ordered by the judge. Keep it simple at this stage and copy in the court.

 

At some point, you may want to let restons know, that you don't beleive that the documents supplied are the originals signed, then make a CPR 31.15 request to view the original.

 

Just take one step at a time, while preparing in the background for the next move. The first move being as supersnooper has advised.

[vint1954]

With regard tp the DN issued in 2008, the dates are fine if the notice was posted first class. I assume that you no longer have the envelope for this. If posted second class or ukmail etc, then the dates are out and the DN defective.

 

As with the 2008 DN, the 2009 version also complies if sent first class.

 

If these were sent second class, then both fail the minty breath test, but you will need to be sure on the method of postage.

 

They should not issue a second DN, unless the fist one from 2008 was satisfied or partially satisfied.

[vint1954]

Just another couple of thoughts, Your original DN issued in 2008, states that they will terminate the agreement on the date shown. As a layman, you can expect that they did in fact terminate your agreement as they said they would. Termination can also be acheived, by demanding such monies that are not yot due under the agreement, so demanding the ballance in full would be termination. They also go on to issue a demand in Feb 09.

 

Notwithstanding the fact that they cannot issue 2 DN's the second DN in March 2009 was issued after the agreement was terminated.

[diddydicky]

as far as the ppi is concerned i beleive (IMO) that you need to actively assert that you informed them of your impending redundancy and not just passively rely on the fact that there is nowhere on the agreement that indicates your acceptance

 

the way you have it worded would lead the judge to think you are looking for a loophole

 

by asserting the facts you are then able to put them to proof of the fact (IMO)

[BelstarBomb]

Hi Guys,

 

I'm sorry that I had not responded to the lats few posts - I didn't know that they were there as I hadn't got a 'reply to thread' message.

 

Finally some movement!

 

No response to my 'Res Judicata' letter however the following arrived in the post yesterday!

 

Without prejudice save as to costs

 

We refer to youe letter dated XXXXXX

 

The question of PPI is not pleaded in your defence and on that basis there is no requirement for the claimant to refer to it when dealing with your CPR31.14 request

 

With regard to your query regarding the default notice, a recreated copy of this enclosed. We are instructed that this was posted to ou on the date of issue. A termination notice was not isuused, such a notice is not required. Further it is sufficient for the claimant to show that a default notice was issued, it doe not have to prove service.

 

Accordingly, we are instructed to consider Summary Judgment proceedings

 

Notwithstanding theh above our client does not wish this matter to be prolonged further and accordingly we invite you to contact this office with your proposals for settlement.

 

The recreated DN is very interesting to say the least!

 

It is dated for eg 13th February 2008 yet the date to comply by is July 2009!

 

One point at a time.

 

1. Yes I missed the PPI of my original defence but there is no law to state that it cannot be added at a later date especially if it has such an importablnt bearing on the ovearll case? As the Judge had been lenient with Restons, it would be unfair of her to be that unreasonable to me as to not allow it?

 

2. Having issued a CPR31.14 request for the information whether I mentioned it in my defence or not, they should still supply that information right?

 

3. Considering the dates of the recreated one are so messeed up, do I ignore it or not or just laugh my head off! I have the envelopes for every piece of mail that they have sent to me and it is all UKMail. They continued to add PPI and interest welll after the first DN until just after the second DN almost 8 months later.

 

Can I have your thoughts?

 

Thank you,

 

Bel

[citizenB]

I am sure diddydicky will be able to offer more advice on this issued, but as far as I am aware you are entitled to ask for :

 

Any document mentioned in the POC and if that document mentions other stuff ie PPI then you can ask for any information relating to that as well.

 

You are entitled to know HOW the amount they are claiming on the POC is made up and if those statements contain PPI then you are entitled to ask for any documents relating to .. PPI.. and why they have added it when you didnt ask for it.

[vint1954]

Hi Guys,

 

I'm sorry that I had not responded to the lats few posts - I didn't know that they were there as I hadn't got a 'reply to thread' message.

 

Finally some movement!

 

No response to my 'Res Judicata' letter however the following arrived in the post yesterday!

 

Without prejudice save as to costs

 

We refer to youe letter dated XXXXXX

 

The question of PPI is not pleaded in your defence and on that basis there is no requirement for the claimant to refer to it when dealing with your CPR31.14 request

The agreement and any document mentioned in it. If your agreement mentions PPI, then you are entitled. Or try CPR 18.

 

With regard to your query regarding the default notice, a recreated copy of this enclosed. We are instructed that this was posted to ou on the date of issue. A termination notice was not isuused, such a notice is not required. Further it is sufficient for the claimant to show that a default notice was issued, it doe not have to prove service.

Not so in court, you could say that it was sufficient for you to show that a cheque was posted to clear the ballance. If the recreation is all they have to go on, they are stumped. The recreation will probably not be in the same form or content as the original. This is a legal notice. If you have the original you can check against that.

You can insist that they swear an affidavit for the court hearing on the question of posting.

 

Accordingly, we are instructed to consider Summary Judgment proceedings

 

Notwithstanding theh above our client does not wish this matter to be prolonged further and accordingly we invite you to contact this office with your proposals for settlement.

 

The recreated DN is very interesting to say the least!

 

It is dated for eg 13th February 2008 yet the date to comply by is July 2009!

 

Then this shows that the reconstruction is not worth the paper it is written on. Tell them so.

 

One point at a time.

 

1. Yes I missed the PPI of my original defence but there is no law to state that it cannot be added at a later date especially if it has such an importablnt bearing on the ovearll case? As the Judge had been lenient with Restons, it would be unfair of her to be that unreasonable to me as to not allow it?

 

2. Having issued a CPR31.14 request for the information whether I mentioned it in my defence or not, they should still supply that information right?

 

Only if it is mentioned in their POC, but PPI is relevent by association to the agreement.

 

3. Considering the dates of the recreated one are so messeed up, do I ignore it or not or just laugh my head off! I have the envelopes for every piece of mail that they have sent to me and it is all UKMail. They continued to add PPI and interest welll after the first DN until just after the second DN almost 8 months later.

 

If you have the original you might want to ask them if their client wishes to reconsider their possition in the light of your recent discovery of the original

 

Can I have your thoughts?

 

Thank you,

 

Bel

Vint

[BelstarBomb]

Hi Guys,

 

Just got a letter from Restons advising me that they are 'taking instruction' and will get back to me asap in response to my res judicata letter. I had sent a copy with a covering letter to the judge as well.

 

The OC has finally responded to my PPI claim and advised that they will respond to me within 10 working days.

 

Not too sure what it all means but lets see what comes out in the wash.

 

Will keep you posted.

 

Bel