RBS credit card claim won now new claim after sale by OC

[hammyhound]

Now the panic is setting in, thought give a good statement about discontinuance but do not give the judge the impression I am telling him/her what to do now I have an application to strike out their claim and their application is being heard at the same time so only have one crack at this.

 

HH

[hammyhound]

I know they are incompetent they are saying it relates to the loan account but in the same letter have given me a DN in relation to the overdraft, where does it all end.

[hammyhound]

And don't forget I have the original DN which was perfectly compliant and another thing they issued the new DN a week before the official court order discontinuing the previous proceedings - now is that confusing or what.

 

HH

[hammyhound]

So basically what I am saying is a week before the consent order is formally issued at court they send a new DN. Pointless in my eyes as the original proceedings are still live - any comments gratefully received. I think what has happened is solicitor tells OC we haven't got a hope in hell's chance with these proceedings - you forgot to keep a copy of the DN - OC says oh we will send another one then - solicitor draws up a consent order hoping it will be finalised at court before the new DN is sent but OC is in such a rush didn't hold back on the DN and sent it before the consent order is finalised.

 

HH

[DonkeyB]

They can't just send a new DN to fill the gap left by the bad one or the one they don't have. They have to serve it, wait for you to fail to remedy and then terminate.

[hammyhound]

Yes Donkey that's what I think, but they have made an error in serving the DN too early in my opinion as the account was already terminated before the consent order was stamped by the court.

 

HH

[hammyhound]

Something else has sprung to mind I received the second DN before I received the Order from the court. They issued the second DN before we had the consent order agreed by the court. Surely now they have served a DN on a terminated account. It is dated before I signed the consent order.

 

HH

[hammyhound]

Well then correspondence arrives today to tell me that:-

 

As they withdrew from the previous proceedings by consent is not discontinuance

 

Formal Demand is not termination

 

And finally, if a DN is not served properly then there is no reason why a claimant cannot withdraw from proceedings and then reissuing a new DN and then reissuing court proceedings.

 

Well if a Barrister says that it must be right!!!

 

HH

[DonkeyB]

Well then correspondence arrives today to tell me that:-

 

As they withdrew from the previous proceedings by consent is not discontinuance

 

Formal Demand is not termination

 

And finally, if a DN is not served properly then there is no reason why a claimant cannot withdraw from proceedings and then reissuing a new DN and then reissuing court proceedings.

 

Well if a Barrister says that it must be right!!!

 

HH

 

This point is, technically, correct.

 

But if they reserve a DN, it must be compliant and must give you the opportunity to rectify the breach if the account has not been terminated (which by their own admission it had not).

[hammyhound]

Thanks for replying Donkey, I thought no-one loved me anymore!!

 

But, the second DN they served was sent to me before they withdrew the proceedings. The DN in January was £1000 in arrears, the new one is £9000 in arrears wow!!

 

Anyway I have built up my case for the hearing basing it on withdrawing and reissuing.

 

There is one point in the proceedings I need help on though, I mentioned in my original defence it was not denied or admitted I received a DN and mentioned their screenshot. They took it that I did not receive it and obviously then withdrew, I do have the original DN - it was compliant, the second DN only gave me 13 days - I have the envelope. Can I produce the original DN at the hearing or is this saying "I pretended I didn't have it but I do" - am I opening a can of worms here!!

 

My hearing is very very soon!!!

 

HH

[DonkeyB]

Sorry, I didn’t quite hear you say you received the first DN.... (ouch, careful here...)

 

If the second DN was not compliant, then that is an absolute defence, in that they cannot take enforcement action on the back of a faulty DN as the account has STILL not been properly terminated (see Koteccha v Link, pt2537’s excellent work).

 

However, they can simply go away again and reissue.

 

I think your defence has to rest on using CPR 38.7 in the long term, but you can plead no valid DN in the meantime. They would soon get a right b*llocking from the court if they keep going away to produce DNs and reissuing – they should not be allowed multiple bites at the cherry.

 

My worry is that the consent order makes reissuing possible – alas, I don’t know enough about procedure to comment on this. You need to gen up on the relevant bits of CPR and case law.

 

Are there charges etc on the account? While it’s not at court, you should be pushing them on other fronts.

[hammyhound]

Thanks Donkey,

 

If I would have known now what I knew then I wouldn't have signed the consent order and proceeded to trial and they would have lost but at the time thought hey they have decided to discontinue.

 

I asked on my thread here about the Consent Order and if it is classed as discontinuance and was told yes and as long as I had filed a defence they could not re-issue seems things have changed.

 

My credit report shows the default date being early last year and the default balance is nearly the actual balance owed so quite incorrect.

 

Oh well will build up my case and not mention the DN

 

Thanks for your time

 

HH

[DonkeyB]

If the arrears amount is wrong, that is also a reason the DN may be faulty. They appear to have decided that as they thought they had previously terminated the account that the whole amount would become arrears. Based on monthly repayments, what do you estimate the arrears should be?

[hammyhound]

Its my application to strike out their claim and their application to strike out my defence both listed at the same time.

 

Could you kindly give me a link to PT2537's thread.

 

HH

[DonkeyB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

 

I think you need to query the recorded date of default too. I’m not sure that issuing a faulty DN means they can change the default date with the CRAs – the date registered with a CRA is not actually related to the date of issue of a default notice. It is simply the date the account entered default, ie. a due payment was missed. It is not dependent on the issue of a DN. You have cause for complaint.

[hammyhound]

Thanks for your help donkey much appreciated will let you know how it goes

 

The second DN was dated 29th April (dont forget dated before I received any Consent Order to sign and nearly 1 week before it was sealed by the court) which was a Thursday I have the envelope with a big S on it so assume sent 2nd class, I received it on 4th May as Monday was the bank holiday, they gave me a date of BEFORE 17th May to rectify, the termination letter is 18th May. So they only gave me 12/13 days to rectify whichever way you look at it.

 

HH

[DonkeyB]

I’m not sure what the relevance of the date of issue of their new DN is, in that it was before the consent order was sealed. Clearly they had decided on their strategy by this time. DOn’t think it’s any kind of defence.

 

What you need is some clarification on whether the consent order prevents them relitigating. Worth a PM to someone like pt2537, as this is a procedural issue.

 

However, I’m sure they will claim the material facts are different. I’m not so sure, as they never amended their PoC in the first case – any new PoC would surely be practically the same, ie. DN, termination, sue? The process is exactly the same, only it didn’t actually happen the first time!

[hammyhound]

Hi feeling quite deflated, my application was struck out and the Claimant's application was successful. The Judge said they were quite right to reissue as they had not served a default notice. The barrister said that the Henderson case did not apply nor did issue estoppel as they had not served a notice of discontinuance. The Judge agreed although he had no papers and so all the papers had to be reconstructed from ourselves - not a good start. Mentioned the fact that the present DN was invalid - this was mentioned in my second defence but judge said that as I had not gone into detail regarding the time issue this could not be taken in consideration. I did not elaborate on the DN as my concentration was more of res judicata. The barrister harped on for 30 minutes and I was beginning to feel that at that point I knew I was losing.

 

The bank know they have done wrong and tried to rectify by getting me to sign a consent order - As far as I was aware they were withdrawing - not so they could reissue proceedings. The Judge elaborated on this and said "you must have known they would withdraw and reissue as you mentioned in your original defence that the DN might have been invalid!!!

 

The good thing about it I suppose was that fixed costs were awarded - they were claiming over £3000 they got less than £500!!

 

I think they are expecting me to pay up in full - this is big money.

 

Haven't been able to sleep since it happened!!

 

HH

[underdog13]

I'm so sorry to hear this, HH.

 

Can you apply for redetermination to set affordable monthly repayments?

[hammyhound]

Already put it in court Underdog, if they don't accept don't know what happens then. It will take probably 68 years to pay off!!!!

[underdog13]

Really gutted for you, HH. Wish I knew of something to help; hopefully someone else will.

[DonkeyB]

Don't understand why he allowed the second defective DN to stand?

[pt2537]

any notice of sums in arrears served? any OFT information sheet?

 

If the noticei s bad you should have referred to para 75 of Harrison vs Link that would have put that to bed

[hammyhound]

Thanks for your replies, feel I have been well and truly shafted on this one. The second DN was invalid as it did not give enough time ie 13 days received it on 4th May and it gave me until 16th May (ie before 17th May as it says on the DN), barrister said this was diminus (?) Judge agreed. I mentioned in my statement the Link -v- Harrison, Judge did not pick up on this and said I had been reading too many consumer websites!!!!

 

As I said the barrister harped on regarding res judicata for 30 minutes, came to my submission regarding the both DNs, both formal demands which I explained said terminate banking facilities so was a termination letter therefore they couldnt reissue a default notice (barrister said the demand relates to the overdraft part) I asked what the claimants were actually suing for and he said a loan and that a formal demand would not be required.

 

No application for permission to reissue is required the judge said as the claimants had got it wrong in the first place and have now correctly issued!!!!

 

Judge said when I signed the consent order I knew the first DN was incorrect so I was opening a can of worms by signing the same. He said this was mentioned in my "consumer website typical defence" My original defence did not say this it mentioned that it cannot accept or deny receiving the DN not that it was invalid. The first DN was quite valid it was my defence saying a screenshot does not prove a DN was sent. The claimants picked up on this and decided to withdraw.

 

The judge did not have any time for me and kept saying it has been a long day and that he had not seen the file before.

 

Gutted to say the least but as I said they only got costs of less than £500 so that would not have even paid for the barrister.

 

Regarding sums in arrears the only time I received one was before the first claim showing all the interest slapped on the account and a second one before the second claim. Since the first and second claim albeit 4 months nearly £9000 in interest has been slapped on.

 

Thanks for looking guys I know I cant do anything now but it keeps my spirits up

 

HH

[DonkeyB]

It seems odd that the judge will allow them to reissue because their DN process failed the first time, but will not look at evidence of a failed DN the second time. There is something inherently wrong here, and the judge's comments re the style of your defence possibly indicate a bias against LiPs.

 

As PT points out, the faulty DN is not a de minimis issue – the Henderson case makes clear you cannot enforce on the back of a dodgy DN. Why should you be compelled to respond to an invalid document? So I think you may have grounds for an appeal.

 

Because judgment has now been given, if an appeal succeeds I think res judicata would indeed kick in. I don't think they would get another bite of the cherry.

 

But you do need the opinion of someone with proper knowledge, such as PT. My knowledge is deficient in this area.