Update to my previous threads..

[Drowning but not sunk...]

Previous link of letter from solicitors...

http://i52.tinypic.com/ixbnm8.jpgReply to solicitor. Please Please can someone have a read and tell me if they think I have missed the point?

 

 

 

Dear Sir/Madam,

 

In response to your letter dated XXXX.

 

I am of the opinion that your letter makes a number of flawed assumptions in the case of Amex v Brandon [2010]. Firstly you should not and cannot second guess an appeal which is due to be reviewed in early December 10. Secondly His Honour Judge Roderick Denyer QC stated the following in his judgement I quote;

 

“Mr Brandon makes the point that it is dated 19July.The demand is that within 14 days of that date he was to pay £275, He makes the point this probably contravenes section 88(2) because the date would then have been less than 14 days after the date of service of the default notice and he points me to authority, and I think he is right, if I send a letter by first class post the assumption made by the civil court is that it will be delivered within two days of sending. So technically there is something in what he says in that by the time the letter was received on the face of things he would no longer have 14 days within which to remedy the breach. I take the point made by counsel on behalf of American Express that as a matter of fact there is no evidence from him as to when in fact he received the notice but simply working on standard assumptions it does seem to me that if posted on the 19th I would be entitled to assume it would arrive on the 21st.”

 

 

Therefore as your letter confirms the Default Notice is in fact invalid. To follow on from the Honourable Judge’s comments it is indeed the case that allowing for post your clients default notice would be dated as follows.

Taken from my defence;

“5. The Default notice supplied by the Claimant is dated Wednesday 04th February 2009, 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 Monday 09th February 2009, namely Monday 23rd February 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been Wednesday 18th February 2009.”

 

 

As the above quite clearly fits with the Honourable Judges conclusion the date for remedy would be Monday 23rd February 2009.

 

The Honourable Judge then follows his judgement by concluding the following I quote;

 

Cont….

“had American Express taken enforcement action within 14 days of 19June, it may well be that the validity of that enforcement Action would have been open to challenge I express no final view on the matter but I do understand the argument because, to go back to section87, it must specify the nature of the breach and if the breach is capable of remedy what action is required to remedy it. The whole idea is that a debtor should have 14days within which to redeem the position, in this case pay £275.80. So I understand the argument. As I say, I do not dismiss it as being unreal.”

 

My previous letter & defence;

 

“Since your client has failed to adhere to statutory procedure it is averred that your client doe’s not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully, termination letter dated 20th February 2009.”

 

It is my contention that by not only failing to allow sufficient time for me to raise the required funds 14 days plus service your client has also terminated the agreement within the prescribed 14 days further compounding the prejudice that I have suffered by not allowing me to raise the required funds.

 

I shall not withdraw my defence. Furthermore I will again point out to you that it is still the case that your client has committed unlawful rescission of contract Kphohraror V Woolwich Building Society [1996] 4 All ER 119. The case in which unlawful rescission of contract would give rise to a counter claim. Should your client decide to take this matter further I shall seek a claim in relation to costs. I will also quote the Honourable Judges comments in relation to taking action within the prescribed 14 days.

 

Again from my previous letter;

 

“As I see it the case for your client to seek and enjoy the benefits of section 87 are now lost as such your client is now only entitled to the arrears as stated on the default notice itself namely XXX. I would therefore see a payment of this amount as a full and final settlement of this matter providing that the relevant credit reference agencies were notified of the status of the account as being settled in full. This offer is made without any admission of liability.”

 

This offer is now only open until 16:00 hours on xxxxx (9 days 7+2) after which I will seek a judgement from the court that this case is struck out.

 

Yours faithfully

Edited November 14, 2010 by Drowning but not sunk...

[dx100uk]

can you please go through all the threads you have started for each 'new' event in each 'case' you have running here on cag and produce a list of the threads that need merging together - so you have only ONE thread for each 'case'.

 

you can view all the threads you have started by clicking on your username

 

once you have done this i will merge all the threads for each 'case' to a single thread for each one.

 

starting a new thread for each 'issue ' within a 'case' makes things very disjointed for everyone trying to help you

 

dx

siteteam

[Drowning but not sunk...]

bump, Please can someone have a look...Thanks very much if poss....

[Drowning but not sunk...]

Bump Please can someone take a look I appreciate any comments good or bad I have to send it today so any pointers would be good..

[Drowning but not sunk...]

Anyone.. Anyone outthere..... Im here ....... Anyone.... (Joke)

 

Please if anyone has five mins please can they take a look...Thanks if you have the time....

[manchesteruni]

Kind of need to know what the letter is in response to I guess.

[Drowning but not sunk...]

Please see the link at the top in the first post http://i52.tinypic.com/ixbnm8.jpgReply in blue click and a letter should appear. many thanks

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Please can someone advise. I have contacted the court and they have informed me that the claim has been stayed therefore as I understand they must apply to the court to get that lifted? Is that just a formality or can I use it to my advantage? I need to send the letter today so any help would be great..Thanks

[caro]

It's hard to look at a letter out of context which is why dx has asked you to link all the relevant threads. Please give me a few minutes and I'll take a look.

[caro]

Okay, I've looked and you have so many threads I really can't work out which apply to this case, and there are also seem to be duplications of the same information, so I'll do my best with what's in this thread, although I suspect you may not like what I have to say.

 

It has become clear from reading people's stories on CAG, including the Brandon case, that the courts are not interested in the technicalities and if a DN has not been properly served or in the right format etc, they are very often not overly bothered. Now this might not be legally right, but it's what seems to be happening. Before I say more, how much are they claiming from you?

[Drowning but not sunk...]

circa £10k

[caro]

Well outside small claims then.

 

My advice would be to try and negotiate a full and final settlement with them. These are the options.

 

1. Send the letter and carry on to court.

 

Possibilities.

 

a. You win on your own, don't have to pay, get your credit record cleaned up and get costs. Is this likely to happen? I very much doubt it looking at cases like Brandon.

 

b. You find good legal representation and win with costs covered by your win. This is possible, but if it doesn't work out, even if no win no fee, you would still have the other sides costs to cover, which could be high, and possibly even disbursements from your own case unless there is solid insurance in place. You could end up much worse off.

 

If you lose, Shoosmiths will demonstrate that you refused to discontinue and are almost sure to get substantial costs awarded/

 

2. Enter into negotiations and try and make a full and final settlement that you can manage.

 

Was there PPI, charges that you could ask to be removed. If you can, offer a one-off payment and an assurance in writing that no-one will ever come after you for the balance. If not, you could send them a budget sheet showing what you can afford to pay weekly or monthly amount.

 

Either they will co-operate and you can find a way to settle the debt, and if they don't and you go on to court, you can show the judge that you did your bit to try and resolve this without wasting more court time, but they were unreasonable.

[Drowning but not sunk...]

Thank you for the reply I just find it so difficult to take in that they (OC & Judge) are allowed to ignore the law and cherry pick the bits to suit them it just seems wrong. However thats life I guess. I have had a number of "guests" so I suspect that they are fully aware of who I am and are rubbing there hands together. I honestly dont know what to do I just dont have the money to offer a full and final as much as I would love to.

 

Im now thinking that if I lose costs would be huge, is it always the case that they are awarded costs? I just dont know where to turn.. Do you know if terminating is deemed as "Enforcement"?

 

Can you point me to some threads where this has happened and been lost or won? Once again thanks for taking the time to respond although its not what I want to hear I need to listen as only a fool would listen to what they want to hear and ignore the negatives! I have a great deal riding on this if I lose then possibly chargiung order - forced sale - bankruptcy!

 

No PPI..

[Drowning but not sunk...]

Caro by "Full and Final" what sort of figure do you think would swing it? Can it be in say three installments or does it have to be one?

[caro]

So you can't afford to lose. You have to think of your family and your home I think it's almost a foregone conclusion that they would get costs IF you lose. You never know, you may get lucky but are you ready to take the risks?

 

Ok so you don't have the money now, but work out what you do have. Even if it's only a pound a month. They can't have what you haven't got.

[caro]

Caro by "Full and Final" what sort of figure do you think would swing it? Can it be in say three installments or does it have to be one?

 

Our posts crossed.

 

Only you know what you can manage, but whatever it is it has to be realistic and achievable because if you default on it you are back to square one. If you work out what is right for you, you will be taking control of the situation, and can settle on YOUR terms. I'll see if I can find some threads for you.

 

Is this a loan, credit card, overdraft....?

[Drowning but not sunk...]

Hi it's a loan and I have talked to my partner we could only manage to raise in the region of £2000.00 So not likely that they will accept that as full and final! Just feel lost it has bigger implications for me as we owe considerably more than this and Bankruptcy would just be the end however I just dont know which way to turn now..

[caro]

I think it's worth offering £2k if you really can manage that without it affecting things too badly. If there are charges on the loan you could point out that these are not covered by the bank charges case, so would be valid to demonstrate that the sum of £10K is debateable.

 

Don't offer it if it's at the expense of other priority debts like your mortgage.

[Drowning but not sunk...]

How would you advise making the offer obviously in writing however should I point out that I would use the above defence where they to take it to court or should I be submisive and offer the amount in hope?

[caro]

Take a look at this.

 

http://www.consumeractiongroup.co.uk/forum/entry.php?163-10-Steps-to-a-Debt-Free-future-Part-8-Debt-Repayment-Options-(Part-2)

 

Tell them that you would prefer the need to go to court but that you believe that you do have a valid defence according to the law. However, you would prefer to avoid the need to do so, and not incur more costs for either them or you. Whilst you would dispute the amount that they are claiming, or that their client has complied entirely with the law in this matter, you are prepared to settle the matter by offering xxx.

 

Something along those lines. Do not be submissive. Be firm and take control of the situation.

[Drowning but not sunk...]

|Ok I had a quick read and will base my offer around the sample settlement letter. I will include my defence as above albeit slightly less abbrassive. I hope that they will see that I am trying to resolve this. Should I include a budget/income and expenditure with my letter also should I include a list of other debts?

[caro]

It is vital that you include your other debts. You need to demonstrate why you can't pay more and should be paying them pro rata if you can't afford full payments. By settling this you may be offering more than their share. I just re-read Shoosmiths letter and they do acknowledge that their client has made mistakes.

 

BTW, I just want to say, that you must do what is right for you. I'm sure others would disagree with me, but it's what I would do, but only you can decide what is right for you.

[Drowning but not sunk...]

I think that its right to say that as a moral person I want to pay them back I just cant and I wont be able to as the ONLY reason I have found myself in this situation is that I had a disabled child and had to take almost a year off work! I now only have one income coming into the house and things are VERY difficult with hospital visits almost twice a week every week! The pressure is just huge. I love my child and would not change things for the world but I would like to just wake up and not have all this hanging over me until the Brandon case I felt that I could work myself out of this situation however now it seems even more un likely that I will be able to move forward..I think like I said previously its ok fighting the fight but you have to listen and balance what you hear I have no doubt that under the law I o have a case but how the law is interpreted is another matter and can I afford to lose I may not lose as the points in my letter are valid however if I did could I look my children in the eye knowing I just cost them another £5K in cost and another few years of misery!

[Drowning but not sunk...]

Caro, Can I PM you the draft letter that I will be sending not sure about putting it up with so many guests if I have made an error..

[caro]

Unfortunately the claims management companies and the likes of the Rankines have made it difficult for genuine people in court.

 

There's more than one way to crack a nut, so let's see if we can sort this out, and then deal with the rest of it in a way that means you can move on and keep doing the best you can for your family.

 

If offering £2k is too much don't do it. Tell Shoosmiths that you are considering what they have to say and would like to reach a solution which would be acceptable to both parties, but your finances are limited. Include your budget sheet so they can see the problem, and see what they come up with.