Help-Won case for set-aside judgment,but have to pay costs!

[42man]

You may find these useful, do have a read - http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf and a few threads from the CAG - http://www.consumeractiongroup.co.uk/forum/showthread.php?49571- http://www.consumeractiongroup.co.uk/forum/showthread.php?200771 - http://www.consumeractiongroup.co.uk/forum/showthread.php?204306

[pabrmu]

Hi all,

Have now got a court date in February for the set-aside case.

I have Cabots witness statement.

Should I now do my own witness statement refuting all their points and adding my own observations as this will make it easier for the DJ.

Should I send a copy of this to Cabot?

[nicklea]

Yes in answer to your questions.

 

You may also wish to put up what they have said in their witness statement if you would like any help in drafting your own

[pabrmu]

Hi Nicklea,

Thanks for your help.

I am hoping that I will be able to manage a defence thanks to the wonderful help on this site.

I will come back if necessary.

[Rhia]

The below may be of use to you - it's from the Consumer Direct website with regard to agreements:

Statements

You can request a statement at any time, showing the amounts owing under the agreement. For credit cards and other running-account credit, the lender must also send you regular statements – usually monthly. From 1 October 2008 you will be entitled to an annual statement on all credit agreements. This must contain certain minimum information – Click link for information. http://www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/Postcontractinfo

 

Default notices

If the lender wants to enforce the agreement against you – for example because you have broken the terms of the agreement – he must send you a default notice. From 1 October 2008 this must include an OFT information sheet ["]http://www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/CCA2006/information/]] highlighting your key rights and responsibilities and where to go for help or advice.

 

Arrears notices

If you fall behind with payments by more than a certain amount, the lender will be required to send you an arrears notice from 1 October 2008. This must include an OFT information sheet ["]http://www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/CCA2006/information/]. A notice will also be required if the lender imposes a default sum – for example, because you are late with a payment.

 

If information is not provided

If the lender fails to provide information when he is required to under the law, he is not entitled to enforce the agreement, or to charge interest or default sums, until the correct notice has been sent. If in doubt, speak to a Consumer Direct adviser.

[pabrmu]

Hi Y'all,

This may seem a stupid question, but before a DCA or Creditor can put a default on your credit file, should they have issued a default notice?

This is especially for Crabpot/Morgans who now say that they are only suing for arrears, so they do not have to issue default notices.

[liquidauctions]

The have to issue a default notice for everything excluding an overdraft where they would have to issue a termination / recall notice. If they dont issue these then they cant take you to court. Either way I would get moving and make sure you dont get a default as in this current climate they are as bad as ccjs's. If you cant afford to pay the full amount I would work on a full and final.

[pabrmu]

Hi all,

Had my set aside hearing against Cabot yesterday and won.

Will post more details later as some interesting points were raised.

Even though the "agreement" was almost illegible, I actually asked their solicitor to read through some of it, which she obviously couldn't, the DJ didn't seem to think this was not a problem.

Why he found for me was that they had not sent, or I denied receiving, the NOA.

He actually said that this is easily remedied by them as they could send one now.

I understood that they should have served this prior to proceedings.

The DJ and the solicitor said I was wrong when I stated that as per the Law of Property Act, the notice had to be served by recorded/registered post. The DJ said it did not matter how they served it.

It has to be said that the DJ was very fair and warned me that Cabot usually do bring all required evidence and that I could eventually be looking at legal costs of £11.000 for this £6000 debt. he further advised to try and settle with them.

Any thoughts.

Edited February 18, 2011 by pabrmu

[nicklea]

judges don't always get things right - that's why there is the court of appeal. What is important is how your case is presented on the day in front of the judge.

 

I don't know all the details of your situation, but as long as you had not written to the other side before the case then they did have to give you notice before proceedings were commenced and again, as long as you did not communicate with them before hand then if the notice of assignment wa not sent recorded then it is, I would suggest, plausibly deniable.

 

I was involved in a case that went to the court of appeal last month as the judge in the original case ignored the law and ignored the authorities. When it got the court of appeal - actually the Royal Courts of Justice are a very imposing place - it was a really straightforward case and we were in and out in 20 minutes with the result in our favour.

 

As I say, how you present your case is, I feel, absolutely vital. This case was nothing to do with consumer credit so I won't bother about all the details here. But I honestly feel that the reason we did not get the correct result in the county court was that the solicitor we were using was a real muppet that didn't really understand things and hadn't taken the time to do the necessary research.

 

When we went to the Court of Appeal I made sure that we got an experienced barrister who was actually involved in one of the reported cases that we were relying on and that made a lot of difference.

 

EDIT

 

ps the judges in the Court of Appeal are of a totally different calibre than those in the county court. It was really interesting listening to them debating points of law with the barristers and picking the barristers up on things and correcting them when they got it wrong.

Edited February 18, 2011 by nicklea

[pabrmu]

Hi all,

I attended my set aside hearing on 17 February and my application was granted.

It was ordered that the claimant has permission to file and serve amended Particulars of Claim by 3 March 2011. I have heard nothing from the claimant. I know matters could be delayed at the court, but if they were supposed to SERVE by the due date, should I have heard by now and what should I do.

[42man]

Have you rung the court to check nothing has been added to the court files ? I'm not sure exactly but it could either be a letter to the court manager or apply for a strikeout due to non compliance, I believe there are usually a few days grace allowed.....

[42man]

You might find this useful - http://www.consumeractiongroup.co.uk/forum/showthread.php?134001

[pabrmu]

Hi all,

Called at the court today and they confirmed that the creditor has not filed amended Particulars of Claim, even though they were supposed to do so by 3 March and I had until 24 March to serve my defence.

They recommended that I contact their solicitor, which i have no intention of doing.

My query is: If they try and restart the claim again, could I apply to the court to state that this is an abuse of process.

Could or should I also apply for a strike out of their original claim, after 24 March or should I leave well alone and hope that they go away!

[diddydicky]

personally i would seek an order of the court- without a hearing - to strike out the claimants claim as they have failed to comply with the court directions/or in the alternative an unless order

 

my guess is that the court will not do so- but instead issue an unless order giving them one last opportunity to file an ammended defence or be struck out

[pabrmu]

Hi DD,

Thanks for the advice.

My thoughts are to leave well enough alone, but I suppose the problem with that is that they could come back at any time.

However, the longer they leave it, surely the longer the abuse of process is.

Any other thoughts?

[42man]

You should go for the strikeout.....

[diddydicky]

Hi DD,

Thanks for the advice.

My thoughts are to leave well enough alone, but I suppose the problem with that is that they could come back at any time.

However, the longer they leave it, surely the longer the abuse of process is.

Any other thoughts?

 

no- it doesn't work like that

 

abuse is abuse is abuse

 

leaving it in abeyance- there may well in future be a COA ruling which might open up a previously closed door for them

 

get it out of the way, one way or the other is my advice

[pabrmu]

Hi 42 Man and DD,

Thanks for the advice.

What form do we use to apply for a strike-out?

[diddydicky]

i think it is n244 but check

[pabrmu]

Hi all,

The amended POC were received this morning, 2 weeks after the DJ ordered that they should be issued.

I guess that I am going to have to accept this. They have "kindly" willing to allow me an extension to file my defence due to their late service.

Part of my defence in the set aside case was lack of default notice. Morgans/Cabot were using their standard only claiming the arrears (even though it is the full amount)argument.

Out of the blue, I received a default notice 2 days ago, 8 months after the original claim.

In their amended POC, they are still claiming the full amount, but they are also now saying that if the court should decide that a DN was appropriate, they are claiming what they now say is arrears, which is half the amount.

I am attaching the relevant pages.

http://i343.photobucket.com/albums/o473/pabrmu/Morganspoc1.jpg

 

http://i343.photobucket.com/albums/o473/pabrmu/Morganspoc2.jpg

 

Are they allowed to have this 2 bites of the cherry?

Also, if I was defending on the lesser amount, I would ask for small claims track rather than the larger amount under fast track which the costs could prove prohibitive.

Any advice appreciated.

[pabrmu]

Any help appreciated.

[pabrmu]

Help please.

[pabrmu]

Hi pt,

In a recent thread, you mentioned what MUST be done in answer to Morgans lack of DN argument.

Any chance of throwing some light on this.