'Claimants consent to Judgement set-aside...??'

[chez262]

Hi Cagers,

 

Ok I've asked these questions on another thread but was advised to raise my own and explain a little more so here goes.

I had a hire agreement and whilst out the country I missed a payment. Upon my return I had received a TN, no DN (and this is confirmed in an SAR). They couldn't even make up a DN if they wished as there is only a week between missing the payment and receiving the TN.

So I accepted the termination and paid my arrears of one months payment.

Three months later I received a DN for the same agreement so I wrote to them informed they I owed them nothing due to the agreed termination. They ignored this and sent out another TN. A month later I received another DN and a third TN followed.

They filed a court case as expected so I returned my defence that they had breached contract. I then received an allocation questionaire at which point I realised I was un qualified to go this alone so instructed a solicitor who said I had a case and agreed to defend me.

About 2 weeks after instructing the solicitor onto the case I received a Judgment for Collection of Goods with a demand for full payment.

I didn't understand this so sent it immediately to the solicitor and he informed me it had gone to court without us. I was shocked and asked if we could appeal he said yes we'll get it set aside but before we do I need some answers from the creditor regarding collection of goods and interest calculation and I'll ask them to produce the DN. The creditor ignored all contact.

A year has now passed and the creditors have since sold the debt to another company who have now demanded the payment, even filing a charging order which I have discovered in the last few days. The creditors have now provided my solicitor with the DN sent AFTER the first TN so he has now informed me my chances of successfully having the judgment set aside is unlikely due to the DN.

I've argued they (the solicitor) knew about this and have email proof of sending a copy so, as one would expect I do not understand the delay for a year when interest has now accrued so I'm now expected to pay that also.

I do have a suspicion that my solicitor is not acting in my best interest as he usually defends the creditor in these cases.

I was hoping someone could possibly shine some light on my chances on whether a corrective DN and TN after an unlawful TN is enough to have my application for this set aside unsuccessful?

Any help would be most appreciative!

Thanks.

[The Mould]

Hello Chez

 

Before a creditor can become entitled in law to Terminate an agreement/contract and enforce the said agreement to recover the amount outstanding on the account or the goods on hire, he must first serve a valid Default Notice upon the debtor.

 

If the breach relied upon is capable of remedy, then the creditor must allow at least 14 clear days for the debtor to remedy the breach.

 

If the debtor does not remedy the breach relied upon and within the stated time scale, then the creditor can terminate the agreement and enforce the agreement by way of filing his claim to the Courts and the claim being served upon the debtor (defendant).

 

Did you not receive a claim and the Particulars of Claim?

 

The claimant must have of obtained Judgment by default against you.

 

Are you paying that Solicitor or is he/she working on a conditional arrangement fee?

 

You should mathe application to the Court where Judgment was entered and your statement stating the reasons why the Judgment should be set aside with a view to hearing the claim from the start.

 

Woodchester case is one particular case that you can rely on in your evidence.

 

You will need to give valid reasons why you did not defend the claim and why you did not attend the hearing.

 

Any further details on your case would be helpful.

 

Kind Regards

 

The Mould

[gh2008]

Hi Chez

 

Putting aside the set-aside for a moment

 

as TM asks - how did you come to instruct the solicitor and what were teh details around that instruction. IMHO they have let you down very badly and if you have paid on account I would be thinking about getting that money back.

 

We need more info about the sols before advice about the set-aside as you will have to show that 'something went wrong' in order to get it.

 

If you can, post up copies of teh agreement, and the TNs and DNs etc (with all personal details removed) the more info we all have the easier it is for anyone to help

[chez262]

Thanks guys

 

Ok I have paid the solicitor on account, I have also emailed him and his boss asking them to explain their failures to which I am awaiting response!

 

I come on here about 18 months ago asking the cagers if I had a case as I believed I did, I put up my TN and DN and contract and it was in deed confirmed that I had a case.

 

I received a claim and POC, returning it with my defence.

 

I then received an allocation questionaire when I realised I was out of my depth to complete this so I instructed the solicitor. Showed him the TN, the DN, the contract and the submitted defence and asked if they could help me going forward. I.e. AQ and defend me in court when in came around. They said yes and instructed the court accordingly that they were now representing me.

Immediately after I received a judgement, I must stress there is more than one defendant yet only I received a judgment a year ago. I didn't know why I had received this when I was preparing to defend it so I forwarded it to the solicitor immediately. They contacted the court and it was confirmed that the case had taken place without us, he asked the court if they had sent notice of hearing and they said yes but we never received any paper with a hearing date on.

I asked if he could appeal this, he said he would get it set aside on these grounds and he also said the court should not have just dismissed the defence without representation nor should they have requested full payment without offering the option to arrange payment (or something to this effect, I have it all in an email). He continued by saying before he could proceed he needed answers from the claimants in regard to the collection of the equipment and interest calculations. He got no response and said he would not be chasing them for action either. His thoughts were they would walk away from this now. Clearly they didn't, they sold the debt on and they have now actioned a charging order!

The claimants solicitor has recently sent the DN that I received after the TN to which my solicitor has said I would fail an application to have this set aside now with this coming to light (it was never new information).

Before this he has continued to inform me I would succeed in an application because I can prove I can win in court and that is all that is required. He now thinks I can't prove it with this DN.

So the charging order was applied for a few months ago when the courts realised only defendant 1 had received a judgment so the other defendants judgments were sent out last month and the charging order application was in turn accepted. No option what so ever to rectify even if they wanted to. I think this further supports my case that I never received a court hearing date, I had no reason not to turn up!

The court has instructed me to write in and explain this fact but I don't know what to do now

[Peterbard]

Hi Cagers,

 

Ok I've asked these questions on another thread but was advised to raise my own and explain a little more so here goes.

I had a hire agreement and whilst out the country I missed a payment. Upon my return I had received a TN, no DN (and this is confirmed in an SAR). They couldn't even make up a DN if they wished as there is only a week between missing the payment and receiving the TN.

So I accepted the termination and paid my arrears of one months payment.

Three months later I received a DN for the same agreement so I wrote to them informed they I owed them nothing due to the agreed termination. They ignored this and sent out another TN. A month later I received another DN and a third TN followed.

They filed a court case as expected so I returned my defence that they had breached contract. I then received an allocation questionaire at which point I realised I was un qualified to go this alone so instructed a solicitor who said I had a case and agreed to defend me.

About 2 weeks after instructing the solicitor onto the case I received a Judgment for Collection of Goods with a demand for full payment.

I didn't understand this so sent it immediately to the solicitor and he informed me it had gone to court without us. I was shocked and asked if we could appeal he said yes we'll get it set aside but before we do I need some answers from the creditor regarding collection of goods and interest calculation and I'll ask them to produce the DN. The creditor ignored all contact.

A year has now passed and the creditors have since sold the debt to another company who have now demanded the payment, even filing a charging order which I have discovered in the last few days. The creditors have now provided my solicitor with the DN sent AFTER the first TN so he has now informed me my chances of successfully having the judgment set aside is unlikely due to the DN.

I've argued they (the solicitor) knew about this and have email proof of sending a copy so, as one would expect I do not understand the delay for a year when interest has now accrued so I'm now expected to pay that also.

I do have a suspicion that my solicitor is not acting in my best interest as he usually defends the creditor in these cases.

I was hoping someone could possibly shine some light on my chances on whether a corrective DN and TN after an unlawful TN is enough to have my application for this set aside unsuccessful?

Any help would be most appreciative!

Thanks.

 

 

 

Hi

Did you make repayments between the first termination and the first default/

If not the first termination may have been made under section98 and the default and termination(section87) following the subsequent none payment.

Peter

[chez262]

Thanks PB,

 

They sent the TN, I paid my arrears, they sent a DN so I sent a letter acknowledging no debt owed to them due to them terminating and me accepting and clearing the arrears. They ignored the letter, sent a TN, sent another DN and another TN before court action.

 

Regards,

C

[gh2008]

This is a really interesting one, as effectively what has happened is that you received a TN, accepted that as being what it said it was and then paid off all sums due to that point.

 

At that point in time, all sums due had been paid, and the account was terminated - which you accepted.

 

At no time have you ever agreed to the account being reopened, nor have you made any other payments than the one being the outstanding arrears at termination.

 

hmmmm .....

[Peterbard]

Thanks PB,

 

They sent the TN, I paid my arrears, they sent a DN so I sent a letter acknowledging no debt owed to them due to them terminating and me accepting and clearing the arrears. They ignored the letter, sent a TN, sent another DN and another TN before court action.

 

Regards,

C

 

HI

 

Yes i see.

THe point is if i get this right the first termination could have been under section 98 for this they do not need to supply a default notice, you would have to check your agreement to see if they can do this.

This would not remove you liability to pay, but is the usual form of notice on a fixed sum or hire agreement.

 

If the agreement ws placed again in arrears then the creditor would be within his rights to issue a default and termination under section 87.

 

So it really depends o wether the agreement repayments where continued in the period between the first termination and the first default.

 

Accepting the termination would have made no difference to this process

 

Peter

[chez262]

Im sorry PB, please excuse my ignorance but I don't quite understand section 98?

 

Under what terms does section 98 prevent the need for a DN?

 

Thanks again.

[wannabedebtfreesoon]

Section 98 is used for termination when there hasn't been a breach of the agreement by the debtor.

 

Subbing

[chez262]

Just to throw another spanner in the works... When I showed the DN's on here about 18 months ago, I was also told they are not in the correct format either!

 

Would this help my case?

[chez262]

I did breach... I missed my payment because I was out the country on the date I was supposed to pay. They sent the TN 5 days after the date the payment was due!

[chez262]

The reason for termination is as follows;

'We have terminated the hiring under your Agreement in accordance with Clause 8 due to your failure to pay

rentals on time.'

Cheers wannabe!

[gh2008]

Well that is certainly not a S98 termination.

 

It is a termination following a breach and therefore they *should* have sent a DN in order to be able to demand 'sums not yet due' at termination.

 

It may be worth looking for a new solicitor/direct access Counsel who will take the case on on a CFA (Conditional Fee Arrangement)

 

IMHO you have a good case, however it will need a very well put argument to beat off the opposition.

 

If the DN is also defective that that would be an 'in the alternative which is denied' argument.

 

First up you need to kick the solicitor into touch - get your money back and get the original Judgement set-aside

[Peterbard]

Im sorry PB, please excuse my ignorance but I don't quite understand section 98?

 

Under what terms does section 98 prevent the need for a DN?

 

Thanks again.

 

Hi

 

Section 98 enables the creditor to terminate the agreement even if there is no default. In open ended agreements the creditor can terminate without notice as long as there is a clause in the contract that says he can.

It is common practice to send a section 76/98 notice on a missed payment on hire accounts , this notice does not include an acceleration element so does not entitle the creditor to early repayment, but may in certain circumstances be enough to cover the creditor and enable him to recover the vehicle.

Peter

[Peterbard]

Well that is certainly not a S98 termination.

 

It is a termination following a breach and therefore they *should* have sent a DN in order to be able to demand 'sums not yet due' at termination.

 

It may be worth looking for a new solicitor/direct access Counsel who will take the case on on a CFA (Conditional Fee Arrangement)

 

IMHO you have a good case, however it will need a very well put argument to beat off the opposition.

 

If the DN is also defective that that would be an 'in the alternative which is denied' argument.

 

First up you need to kick the solicitor into touch - get your money back and get the original Judgement set-aside

 

 

Hi sorry no

 

That is precisly what it is.

 

This is anotice after a breach, not a default notice.

 

 

The two are not the same.

 

peter

 

Peter

[gh2008]

Hi sorry no - No to what?

 

That is precisly what it is. ????

 

This is anotice after a breach, not a default notice. Yep, it is a 'Notice of Termination' - which would lead a 'reasonable man' would accept as saying that the account has been terminated.

 

 

The two are not the same. Yes, I do appreciate that - however there have also been further DNs & TNs issued which they are now relying on - pretending that the initial TN never happened

 

peter

 

Peter

 

This is certainly not straightforward but - IMHO chez has a very good argument but it will need a convincing advocate.

[chez262]

Hi

 

Section 98 enables the creditor to terminate the agreement even if there is no default. In open ended agreements the creditor can terminate without notice as long as there is a clause in the contract that says he can.

It is common practice to send a section 76/98 notice on a missed payment on hire accounts , this notice does not include an acceleration element so does not entitle the creditor to early repayment, but may in certain circumstances be enough to cover the creditor and enable him to recover the vehicle.

Peter

 

PB,

The TN and the resulting DN's that followed, do all state they want or will want full payment of sums owed immediately.

None of the 3 TN's state under what section it has been served however the 2 DN's state 'Served under section 87(1) of the CCA 1974'

Thanks,

C

[chez262]

Well that is certainly not a S98 termination.

 

It is a termination following a breach and therefore they *should* have sent a DN in order to be able to demand 'sums not yet due' at termination.

 

It may be worth looking for a new solicitor/direct access Counsel who will take the case on on a CFA (Conditional Fee Arrangement)

IMHO you have a good case, however it will need a very well put argument to beat off the opposition.

 

If the DN is also defective that that would be an 'in the alternative which is denied' argument.

 

First up you need to kick the solicitor into touch - get your money back and get the original Judgement set-aside

 

Mant thank gh... how do I find a direct access council??

 

Cheers,

C

[chez262]

Hi

 

Section 98 enables the creditor to terminate the agreement even if there is no default. In open ended agreements the creditor can terminate without notice as long as there is a clause in the contract that says he can.

It is common practice to send a section 76/98 notice on a missed payment on hire accounts , this notice does not include an acceleration element so does not entitle the creditor to early repayment, but may in certain circumstances be enough to cover the creditor and enable him to recover the vehicle.

Peter

 

PB,

 

In the event that they can terminate without a DN under sectino 98, can they use this section without stating they are in the TN whilst also using the reason for terminatiion as being due to a default on the account?

If they do use this to terminate, can they then un-terminate without a new agreement in place?

The contact states 'The owner will be entitled to terminate the hiring under the agreement after giving any notice required by law'. It then goes on to list reasons as to why they can terminate, i.e. if the hirer fails to pay on the date for payment any rentals or other payments sue under the agreement, etc.

 

Thanks,

C

[Peterbard]

This is certainly not straightforward but - IMHO chez has a very good argument but it will need a convincing advocate.

 

HI

Sorry if I was not clear. What I meant to say is that a termination under section 98 s not necessarily the same as a default termination.

If you look at section 87 you see it illustrated in subsections a and d.

The termination by the creditor may just be to restrict certain rights under the agreement for instance in a credit card to restrict drawing down further funds, unfortunately the act does not require the lender to specify exactly what he means.

Peter

[Peterbard]

PB,

The TN and the resulting DN's that followed, do all state they want or will want full payment of sums owed immediately.

None of the 3 TN's state under what section it has been served however the 2 DN's state 'Served under section 87(1) of the CCA 1974'

Thanks,

C

 

Hi

 

the first termination should not have asked for immediate repayment for that they would have had to issued a default notice first under section 87.

 

Sometimes they say all monies due on this are now payable, which is not the sme thing even though i think they would like to kid you in to thinking it is.

 

Peter

[Peterbard]

PB,

 

In the event that they can terminate without a DN under sectino 98, can they use this section without stating they are in the TN whilst also using the reason for terminatiion as being due to a default on the account?

If they do use this to terminate, can they then un-terminate without a new agreement in place?

The contact states 'The owner will be entitled to terminate the hiring under the agreement after giving any notice required by law'. It then goes on to list reasons as to why they can terminate, i.e. if the hirer fails to pay on the date for payment any rentals or other payments sue under the agreement, etc.

 

Thanks,

C

HI

The facility to terminate or under section 98 without a default is enabled by the provision of section 88(3), the breach if mentioned in the agreement as a trigger for the section can be applied without as notice as section 87(1) does not apply

However this only applies to the termination in whatever form, it does not entitle them to any other of the enforcement options of section 87

I notice the section says terminate the hiring not the agreement

Peter

[chez262]

Thanks PB,

I must admit, when reading s88(3) I am left totally bamboozled

C

[chez262]

Hi

 

the first termination should not have asked for immediate repayment for that they would have had to issued a default notice first under section 87.

 

Sometimes they say all monies due on this are now payable, which is not the sme thing even though i think they would like to kid you in to thinking it is.

 

Peter

 

The first TN without the DN is exactly the same as the other 2 TNs with DNs. They state;

 

Under Clause #, we are now also entitled to claim:-

(1) All rentals and any other sums already due to us, plus all of our legal costs and costs of collecting,

storing and insuring the Products

(2) All rentals(excluding the Maintenance Charges) you would have paid had the hiring continued, less

a discount of 5% per annum on each rental from the date it would have fallen due to the date the

hiring ended.

You are liable to pay interest at 2% per month on all overdue amounts until paid and any costs we incur in

recovering money owed to us. Interest to date has been included in the total amount now due as shown below

and continues to accrue on that figure until paid.

The total amount now due is £*****.** Onc. VAT)

Failing payment of £*****.**, we will arrange to have legal proceedings issued against you. You should

note that the equipment remains our property and that you will remain liable to return it to us even

after you have paid the sum which we demand.

Regards,

C