Jump to content
costa12

Me v Tesco/Incasso - ALLOCATION

style="text-align:center;"> Please note that this topic has not had any new posts for the last 3604 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

Hi All,

 

My original thread is posted below:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

It has now been allocated to Multi-track, however, I need some guidance with the following situation. Cobbetts (the Claimant's 'legal' representatives!) have now applied to have my defence struck out and summary judgment entered. No surprises there!

 

I have received their N244 and WS is attached.

 

I will post as much detail as possible over the next 2 or 3 days. I imagine that a hearing will be approx 3 weeks away, so hopefully got tie to prepare.

 

All help is much appreciated.

 

Costa

Share this post


Link to post
Share on other sites

So, here we go. The game is a foot :D!

 

Received Application (Defendants Defence and Enter Summary Judgment) Hearing date from local CC today. 12th August. So plenty of time to get prepared.

 

Will scan and post as much information as possible over the next few days.

 

All assistance is much appreciated.

 

Costa

Share this post


Link to post
Share on other sites

Hi mate,

 

It almost sounds like your looking forward to it :p

 

I thought ours was all done but the idiots are sending letters and maybe thinking to try again, anoyying!

Share this post


Link to post
Share on other sites

Hi E,

 

Certainly not giving up without a fight! Will be posting more as it happens. Had seen your thread. Hang on in there ;)!

 

Costa

Share this post


Link to post
Share on other sites

Hi All,

 

Just received latest statement from Tesco in relation to outstanding loan. Noticed that solicitor fees have been added to the outstanding balance. The fees total nearly 1600.00. I know there is a clause in the loan that says they can add reasonable charges for taking court action, but is 1600.00 reasonable :-x!

 

What is meant by reasonable charges?

 

Costa

Share this post


Link to post
Share on other sites

Good Morning All,

 

When calculating 14 clear days for a DN I have seen the following quoted:

 

'Weekends and Bank holidays
link3.gif
are not included. Also a court would assume a DN is served 2nd class unless the original creditor can prove otherwise.'

 

I've no problem with the weekends and bank holiday
link3.gif
part, and can prove that via the Practice Direction Service of Documents, etc.

 

Could somebody please explain
'a court would assume a DN is served 2nd class unless the original creditor can prove otherwise'
.

 

Why would the court assume 2nd class?

 

Thanks.

 

Costa

Share this post


Link to post
Share on other sites

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 holidaylink3.gif.

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


Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

Share this post


Link to post
Share on other sites

Thanks Fluffystuff.

 

Costa

Share this post


Link to post
Share on other sites

I have copied this from somewhere (probably BRW). Sorry but I can't eliminate the extra information!

 

The postal regs you need are in the following defence provided for a dodgy default notice. I have highlighted in blue.

 

You may also be interested to know that UK Business Mail takes 3 days for delivery.. it says so on their web page. Although if you have kept envelopes you can probably see in some cases, it takes much longer.

 

UK Mail | Services | Mail | Services | UK Deliveries

 

The following HMCS link you need section 6.2 - Interpretation. Where it states what days are business days.

 

SATURDAY NOT A BUSINESS DAY

Quote:

 

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.

 

 

.

Share this post


Link to post
Share on other sites

You're welcome !


Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

Share this post


Link to post
Share on other sites

Thanks for that cymru. I have used some of that in my WS (picked it up on Worsteves thread!). The DN they sent me is similar in that it was issued on 25th September 2009 (Friday). Whether it was posted on that day and which class of mail was used is upto them to prove at the hearing!!!!

 

Cheers.

 

Costa

Share this post


Link to post
Share on other sites

have you also seen this from BRW?

 

The above s87(1) Default Notice, assuming they sent it via normal Post, is clearly defective because it has not allowed you the 14 clear days that Parliament demands must be the case.

 

01/09/2009 is a Monday, so if we assume they posted it via 1st Class Post, and did actually Post it on the Monday, then it works out like this (if they cannot prove they Posted via 1st Class, or you have the Envelope and that shows 2nd Class or worse, then 2nd Class will have to be assumed by the Court which makes it even worse for them, see the second table of dates below this one):

Quote:

s87(1) Default Notice if Posted via 1st Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 1st Class (if they can prove it).

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = Date of Service (+2 days from Posting).

04/09/2009 Thur = 1st Clear Day

05/09/2009 Fri = 2nd Clear Day

06/09/2009 Sat = 3rd Clear Day

07/09/2009 Sun = 4th Clear Day

08/09/2009 Mon = 5th Clear Day

09/09/2009 Tue = 6th Clear Day

10/09/2009 Wed = 7th Clear Day

11/09/2009 Thur = 8th Clear Day

12/09/2009 Fri = 9th Clear Day

13/09/2009 Sat = 10th Clear Day

14/09/2009 Sun = 11th Clear Day

15/09/2009 Mon = 12th Clear Day

16/09/2009 Tue = 13th Clear Day

17/09/2009 Wed = 14th Clear Day

18/09/2009 Thur = The earliest day they can demand payment.

 

Thus, 18/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can prove it was Posted via 1st Class. If not, then move on to the 2nd Class schedule below:

Quote:

s87(1) Default Notice if Posted via 2nd Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 2nd Class.

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = DN in transit +2 days.

04/09/2009 Thur = DN in transit +3 days.

05/09/2009 Fri = Date of Service (+4 days from Posting).

06/09/2009 Sat = 1st Clear Day

07/09/2009 Sun = 2nd Clear Day

08/09/2009 Mon = 3rd Clear Day

09/09/2009 Tue = 4th Clear Day

10/09/2009 Wed = 5th Clear Day

11/09/2009 Thur = 6th Clear Day

12/09/2009 Fri = 7th Clear Day

13/09/2009 Sat = 8th Clear Day

14/09/2009 Sun = 9th Clear Day

15/09/2009 Mon = 10th Clear Day

16/09/2009 Tue = 11th Clear Day

17/09/2009 Wed = 12th Clear Day

18/09/2009 Thur = 13th Clear Day

19/09/2009 Fri = 14th Clear Day

20/09/2009 Sat = The earliest day they can demand payment.

Thus, 20/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can't prove it was Posted via 1st Class, or you have the original Envelope that proves 2nd Class Post was used, or you have some other evidence that the Envelope was not Posted on the same day as it was issued (such as a Franking Date Mark that says 2nd September 2009 or later, in which case, the clock starts ticking later).

 

The reason I have typed the above, is so that you can see there is no way you have been allowed the 14 clear days if this Notice was sent to you via Post.

Share this post


Link to post
Share on other sites

Thanks cymru. Had seen that from BRW and I have used the format to calculate the days for the defective DN sent to me. It equates to 2 days short (if 1st Class) and 4 days short (if 2nd Class). So upto 'them' to prove class of postage, etc. !

 

Cheers

 

Costa

Share this post


Link to post
Share on other sites

These people dont give up do they! Had amother letter ourselves!

 

Keep at it mate !

Share this post


Link to post
Share on other sites

15/09/2009 Mon = 12th Clear Day

16/09/2009 Tue = 13th Clear Day

17/09/2009 Wed = 14th Clear Day

18/09/2009 Thur = The earliest day they can demand payment.

 

Can you post the Default Notice up (or provide a link if you have already done so). Only if the wording asks for remedy BEFORE the deadline date you have a great argument for defective because the last banking day BEFORE the 15th would have been Friday 12th which is only 9 clear days from date of service I have just successfully used this argument to bounce a Summary Judgement out of court. The SJ hearing went on for longer than was scheduled as the claimants barrister kept referring to case law which was mostly irrelevant and the judge knew it. I just kept reminding the judge I was a litigant in person and was untrained in law but felt that referencing case law at this stage put me at a disadvantage but the fact was that the date of service was not as they were claiming but even if it was the DN was defective. I was always very polite and calm referred to the judge as sir, let the barrister speak without interrupting him but kept going back to the same point.

 

Remember SJ is not about proving the case, it is about the claimant proving you have no possible chance of defending the claim all you need to do is keep reminding them the defective DN gives you reason to argue the enforcement action is unlawful

Share this post


Link to post
Share on other sites

Ok just found your DN at http://i968.photobucket.com/albums/ae163/neverist_photos/DN1.jpg it clearly says 'IF YOU DO NOT TAKE THE ACTION BEFORE THE DATE SHOWN ABOVE ..." so you needed to act before Monday the 12th which would have been on Friday 9th as 10th and 11th are not bank business days.

Share this post


Link to post
Share on other sites
Ok just found your DN at http://i968.photobucket.com/albums/ae163/neverist_photos/DN1.jpg it clearly says 'IF YOU DO NOT TAKE THE ACTION BEFORE THE DATE SHOWN ABOVE ..." so you needed to act before Monday the 12th which would have been on Friday 9th as 10th and 11th are not bank business days.

 

Thanks Echodale for the 'heads up' on the 'take action before'. Added it to my notes for tomorrow.

 

Costa

Share this post


Link to post
Share on other sites

Hi Costa

Just something that was very helpful for a Cagger. Print up a calendar with a box for each day of the month of your DN and mark the days on it

such as date of DN

1st day of service

2nd day of service etc etc

then 1st statutory day

2nd statutory day etc etc

right up to the 14th day

Note on it the date specified for remedy on your DN and the date you should have had for remedy

That makes it much clearer to see and saves the counting of days on the fingers [ if you see what I mean ]

 

and Good Luck !!

Share this post


Link to post
Share on other sites

The printed calendar page was the method I used, I did not have access to a colour printer but if you do then you could colour code it and do it on one page, I had it on three pages, one for "alleged date of service", one for "actual date of service" and one for "practice direction date of service". I was able to defend against summary judgement as all were defective. Make sure you take 3 copies of your calendar print, one for the judge one for the opposition and one for you.

 

If your calendar does not seem to be convincing them, and you know the actual date of service was later than they claim, and they have not included evidence proving when it was served then the date of service is only hearsay the only person who could possibly know when it was served is you. I won that argument in my Summary Judgement hearing because I had hand written the date of receipt and the method posted on the Default Notice. I think the Judge did for a moment wonder if this was fabricated as he asked if I do that with all my mail. I told him that I had learned to do this from an internet self help with debt group but I only done it with mail where service date was significant.

 

At one point in the hearing the judge said that he thought my exhibits and statements were very well presented, he thought that clearly I had done my homework and he said he could see I had used the internet but that was my choice and I had done it well, so well done caggers (mind you that did not stop him then going on to strike out most of my evidence and give direction that the hearing would be specifically around the Default Notice).

 

What time is your SJ hearing today?

 

Good luck.

Share this post


Link to post
Share on other sites

Thanks Echo! Got a schedule printed out (similar to the one cymru posted). Hearing is at 3.30pm. Wish it was earlier!

 

Costa

Share this post


Link to post
Share on other sites

Hi All,

Back from hearing. Here’s what happened:

Arrived at the Local CC in plenty of time. Their barrister from ‘down south’ arrived shortly afterwards and introduced themselves. Very polite and gently spoken person, in no way threatening or overbearing.

They asked if I had received their Skeleton Argument. I did at 2.00pm via the post (good job I went home first). They then handed me copies of the CCA etc they would be relying on in support of their argument. Included was copies of CCA 1974 sections 176 (Service of Documents) and 189 (Definitions).

Taken aback by ss176 and 189. Why has this never been picked up on the forum? Or has it?

I handed them copies of what I was going to rely on.

Finally entered Court 45 mins late.

The DJ had just read the case file and had decided that ‘the opposition’ had not allocated enough time on their application. It should be more like 2 hours not 30 mins. He said both arguments were well constructed and covered many points of law and that he alone needed more time to study them in greater detail before giving a judgment.

At this point the DJ asked our opinions. Their barrister wanted to go ahead and said he only needed 15 mins.

The DJ was not happy with that and then asked how long I needed to which I replied at least 30 mins. Thought to myself ‘I’m not going to be pressured into anything’.

He commented on my WS etc. and said that I had obviously taken a great amount of time, effort and thought in preparing and if the hearing went ahead it would prejudice me due to the lack of time allocated.

So hearing adjourned until at least mid-September.

Costa

PS A little worried about this CCA 1974 ss176/189 so going to start a new legal issues thread to get comments.

Share this post


Link to post
Share on other sites

Phew, September for the SJ hearing then. Let's hope the judge does not award them costs as that means you will have to pay the barrister costs today and the September hearing.

Share this post


Link to post
Share on other sites

Costs were reserved until next hearing!

Share this post


Link to post
Share on other sites
Hi All,

 

They then handed me copies of the CCA etc they would be relying on in support of their argument. Included was copies of CCA 1974 sections 176 (Service of Documents) and 189 (Definitions).

 

Taken aback by ss176 and 189. Why has this never been picked up on the forum? Or has it?

 

PS A little worried about this CCA 1974 ss176/189 so going to start a new legal issues thread to get comments.

 

Can't remember the details from your threads but I recall the loan was from 2008 and I guess them relying on those acts mean it was an online agreement/account, is that right?. Or are they claiming to have served the Default Notice electronically?

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...