Court Case pending and help required reviewing position...

[Bigdebtor]

I think you'll find its the fact that the default notice is invalid which makes the subsequent termination invalid. The courts have ruled that you cannot terminate on the back of a faulty DN, to terminate they must have a valid proper DN, hence why the discontinuance and re-issue here.

 

Wasted costs could be a sum after 2 years in the system tho... plus interest @ 8% ???

 

S.

 

Shadow

 

Can you please give us info on any cases where courts ruled in this way?

 

Also - Can you explain what you mean in the last sentence re "wasted costs etc."? I really don't understand it and so am not sure if this is good or bad for the Defendent.

 

Thanks

 

BD

[Bigdebtor]

This is my first ever post on this site. I am in Court tomorrow against Shoosmiths. I appreciate it is no consolation for you but I really appreciate the effort you and others put into this site it has been invaluable. I hope you find someone that can help you.

 

BB

 

Good luck today! Please keep us posted as to outcome - and start your own thread with a link on here if you need specific help on your own case.

 

BD

[NewToTheFight]

Re post 45

If you contest without good reason I suggest it will be used against you.

Would it be fair to bring a cse based on incorrect facts - no it would not.

There must be a way to force them to either discontinue or continue without ammendment

it may only be a tactical ploy on their part

It may also be an oppurtunity for you to apply for a strike out

 

Maybe Andyorch or PT can advise?

[Drowning but not sunk...]

Edited

Edited March 23, 2011 by Drowning but not sunk...

[the_shadow]

PT Has advised at length regards this and getting costs is priority. I cant say to much but a little research around will show you what lies under this line of thought if you PM me I will explain more to you.

 

May I remind site members that advice by PM is frowned upon for good reason.

 

S.

[The Mould]

Well I have an update.

 

I have received an offer from them to discontinue the claim. Wow you think that’s great! No its not, basically they have told me the following; please I am not making this up its happening it’s a real case.

 

They have told me that they wish to discontinue my current case that has been in court now for TWO YEARS and re-issue a new DN they have told me that should I not pay the arrears on the new DN then they will take me to court again (obviously the arrears will now be significantly more.)

 

This should be a warning to a great number of people that the tactics of these companies is changing that they are now using the Link V Harrison case to support the re-issue and reclaim of debts. As I understand each case is different however in mine I see that a judge when presented with a new case with a new VALID DN will almost certainly allow new proceedings. The fact that CPR 38.7 says it cannot be based on the same facts I think is urinating in the wind to think that a judge will back the defendant over a bank. I'm not saying that I'm not going to fight this I am. However as I now see it any debt that is up to 6 years old could have a DN re-issued and the process begin again. The idea that termination is final even on the back of an invalid DN is obviously again part of this as they did infect terminate the agreement in two letters! Yet as the DN was invalid it seems so is the termination. Anyway lots of ramblings here so I will stop.

:-x:-x:-x:-x:-x:-x:-x:-x:-x

 

Good evening Drowning

 

I must admit to not having read your entire case history.

 

If the claimant in you case should discontinue and serve another DN upon you, then the arrears would amount to 2 years worth of monthly payments, did the claimant ever inform you in the last 2 years that you are now behind with your payments and that no payment has been received in the last 24 months? No he did not, is the answer, as far as you knew, he had terminated the contract and demanded that you pay the full balance, he commenced with proceedings against you to enforce the contract, again this action confirmed to you that the contract was terminated.

 

In the Harisson v Link case the Judge ruled that bad notices can often be made good, often meaning = sometimes but not always.

 

If the claimant serves a new DN upon you, how could you possibly be in arrears since he withdrew your right to repay the debt by way of monthly installments, did the claimant ever give notice to you indicating that you may continue to repay the debt during the last two years? (the likelihood of that is zero), so if he serves a new DN, what is his cause of action for commencing with proceedings on the foundation of a new DN?

 

Make an application to set aside his notice of discontinuance on the grounds that a new claim will be based on the same set of facts as the present proceedings, a new/different cause of action cannot exist.

 

Kind Regards

 

The Mould

[Drowning but not sunk...]

Hello Shadow (Site Team)

 

Again as per previous posts I accept your points regardss PM's however I have not given or received advice via PM its just that sometimes its not possible to state on this open forum what you are doing or going to do and whilst I want to help others through my experiance its not always possible to do it openly I want to help others that may be at the same or similar point to me. As per the above any advice from PT has been off forum and is available as I said in lots of different threads its not exclusive to me its not new its out there you just have to find it. I cant see anything wrong in PM's between members I dont think I have done anything wrong I would have thought that the whole point of a Private message is just that it's private so you can talk about things that a you might be unsure of and not want to look stupid and b that you want to keep private but just want to bounce it off someone else. Frowning upon PM's make me think why have the facility? Or restrict it to senior members only I for one will never use it again or mention it or contact anyone via it PM's will be turned off for me.

[Drowning but not sunk...]

Hello I have been looking into court fees and costs. I found this document so have posted a link it may help someone.

 

http://www.legislation.gov.uk/uksi/2011/586/made/data.pdf

[the_shadow]

The two main reasons PM advice is frowned upon is a) If someone is instructed wrongly or wrongly instructs someone nobody can see it to advise and this could be serious in the case of a court claim in progress, b) If advice is given to one it should be given to all, this is a free site that is for the benefit of all members not just a select few.

 

Far better if things need to be done off forum to state clearly that at the end of proceedings an update will be given on thread to show what happened and what actions were taken place if its a necessity to keep things off forum.

 

Please dont let this distract you from what must be your main purpose at present which is to ensure you prepare for the battle ahead.

 

S.

[the_shadow]

Just as an extra point to what The Mould has posted above... if you have not received an annual statement of account from the owner of the debt then they are not entitled to add interest for that period, this is written into the CCA2006.

 

This is from the explanation notes of the CCA2006 amendments:-

Section 11 inserts a new section 86D after the new section 86C (inserted into the 1974 Act by section 10). Section 86D sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C. If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement. In addition, the debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure, nor is the debtor or hirer liable to pay any default sum (see the notes in respect of section 18 below) which becomes payable during that period.

 

This is section 86C from the 2006 CCA

sums in arrears under running-account credit agreements

 

 

 

“86CNotice of sums in arrears under running-account credit agreements

 

(1)This section applies where at any time the following conditions are satisfied—

 

(a)that the debtor under an applicable agreement is required to have made at least two payments under the agreement before that time;

 

(b)that the last two payments which he is required to have made before that time have not been made;

 

©that the creditor has not already been required to give a notice under this section in relation to either of those payments; and

 

(d)if a judgment has been given in relation to the agreement before that time, that there is no sum still to be paid under the judgment by the debtor.

 

(2)The creditor shall, no later than the end of the period within which he is next required to give a statement under section 78(4) in relation to the agreement, give the debtor a notice under this section.

 

(3)The notice shall include a copy of the current arrears information sheet under section 86A.

 

(4)The notice may be incorporated in a statement or other notice which the creditor gives the debtor in relation to the agreement by virtue of another provision of this Act.

 

(5)The debtor shall have no liability to pay any sum in connection with the preparation or the giving to him of the notice.

 

(6)Regulations may make provision about the form and content of notices under this section.

 

(7)In this section ‘applicable agreement’ means an agreement which—

 

(a)is a regulated agreement for running-account credit; and

 

(b)is neither a non-commercial agreement nor a small agreement.”

 

S.

[the_shadow]

cca2006 s86D

 

“86DFailure to give notice of sums in arrears

 

(1)This section applies where the creditor or owner under an agreement is under a duty to give the debtor or hirer notices under section 86B but fails to give him such a notice—

 

(a)within the period mentioned in subsection (2)(a) of that section; or

 

(b)within the period of six months beginning with the day after the day on which such a notice was last given to him.

 

(2)This section also applies where the creditor under an agreement is under a duty to give the debtor a notice under section 86C but fails to do so before the end of the period mentioned in subsection (2) of that section.

 

(3)The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

(4)The debtor or hirer shall have no liability to pay—

 

(a)any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; or

 

(b)any default sum which (apart from this paragraph)—

 

(i)would have become payable during the period of non-compliance; or

 

(ii)would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

(5)In this section ‘the period of non-compliance’ means, in relation to a failure to give a notice under section 86B or 86C to the debtor or hirer, the period which—

 

(a)begins immediately after the end of the period mentioned in (as the case may be) subsection (1)(a) or (b) or (2); and

 

(b)ends at the end of the day mentioned in subsection (6).

 

(6)That day is—

 

(a)in the case of a failure to give a notice under section 86B as mentioned in subsection (1)(a) of this section, the day on which the notice is given to the debtor or hirer;

 

(b)in the case of a failure to give a notice under that section as mentioned in subsection (1)(b) of this section, the earlier of the following—

 

(i)the day on which the notice is given to the debtor or hirer;

 

(ii)the day on which the condition mentioned in subsection (4)(a) of that section is satisfied;

 

©in the case of a failure to give a notice under section 86C, the day on which the notice is given to the debtor.”

 

HTH

 

S.

[Drowning but not sunk...]

Thanks S I am still trying to understand all that the Mould said and also trying to use some of the data from yours and Docmans posts. Lots to get my head around..Thanks for all your help.

[the_shadow]

Thanks S I am still trying to understand all that the Mould said and also trying to use some of the data from yours and Docmans posts. Lots to get my head around..Thanks for all your help.

 

Have a read and come back with questions its the best way imvho

 

S.

[Bigdebtor]

Shadow

 

Can you please give us info on any cases where courts ruled in this way?

 

Also - Can you explain what you mean in the last sentence re "wasted costs etc."? I really don't understand it and so am not sure if this is good or bad for the Defendent.

 

Thanks

 

BD

 

Shadow

 

Can you please answer the questions I asked regarding your post 46?

 

Thanks

 

BD

[the_shadow]

Shadow

 

Can you please give us info on any cases where courts ruled in this way?

 

Also - Can you explain what you mean in the last sentence re "wasted costs etc."? I really don't understand it and so am not sure if this is good or bad for the Defendent.

 

Thanks

 

BD

 

I'm afraid I cant give you the cases, one of PT2537's recent rulings I believe and during post judgment conversations on thread both himself and PeterBard agreed this point backed up by comments during the trial by the judge. I dont think a full transcript was given of the case tho.

 

As to the costs bit what I meant is after two years of court battle the costs should be quite high and thus the defendant could put in a claim for these costs to offset the forthcoming battle when they re-issue.... however the costs listed by the opposing solicitors seem very low and thus it'll not make much difference offsetting according to the OP.

 

S.

[Bigdebtor]

I'm afraid I cant give you the cases, one of PT2537's recent rulings I believe and during post judgment conversations on thread both himself and PeterBard agreed this point backed up by comments during the trial by the judge. I dont think a full transcript was given of the case tho.

 

IF PT, PB or anyone else can point me to this (or any other relevant cases) then I would really appreciate it. BD

As to the costs bit what I meant is after two years of court battle the costs should be quite high and thus the defendant could put in a claim for these costs to offset the forthcoming battle when they re-issue.... however the costs listed by the opposing solicitors seem very low and thus it'll not make much difference offsetting according to the OP.

 

OK thanks - understood.

S.

 

Shadow

 

Thanks - see responses in bold above. I have asked Peter on anothe rthread for any cases showing that it is OK (or not OK) to re-issue a DN after termination, but nothing concrete has been provided so far. Hopefully this may prompt his or someone else mempry?

 

BD

[Bigdebtor]

Hello Shadow (Site Team)

 

Again as per previous posts I accept your points regardss PM's however I have not given or received advice via PM its just that sometimes its not possible to state on this open forum what you are doing or going to do and whilst I want to help others through my experiance its not always possible to do it openly I want to help others that may be at the same or similar point to me. As per the above any advice from PT has been off forum and is available as I said in lots of different threads its not exclusive to me its not new its out there you just have to find it. I cant see anything wrong in PM's between members I dont think I have done anything wrong I would have thought that the whole point of a Private message is just that it's private so you can talk about things that a you might be unsure of and not want to look stupid and b that you want to keep private but just want to bounce it off someone else. Frowning upon PM's make me think why have the facility? Or restrict it to senior members only I for one will never use it again or mention it or contact anyone via it PM's will be turned off for me.

 

DBNS

 

Hopefully Shadow's subsequent post will have clarified things and put your mind at rest?

 

I totally agree with not advising by PM and think practically everything can be safely discussed on forum if posters were just careful to omit ANYTHING which could identify them - including dates of hearings, names of solicitors (E.g. Shoosmiths, Bryan Carter etc.) and exact amounts in arrears or claimed for etc. etc.

 

I have an account (over £10k) about to reach SB - but I have NEVER mentioned anything about it on my sig - but will be pleased to add it to my "saved" list once the SB date is safely passed. I have also never put exact amounts or dates of any settlements - but I think the name of the OC and DCA is important so others can see that deals CAN be done with these "people".

 

Hope this helps?

 

BD

[buffalobill]

Thanks BB - The Judge denied their claim for a summary judgment and I wll start a seperate thread on this as you suggest.

[Bigdebtor]

BB

 

That looks like a good result! Remember to post a link to your own thread on this thread too - so we can get over to it and help where we can.

 

Good luck!

 

BD

[Peterbard]

http://www.consumeractiongroup.co.uk/forum/showthread.php?173284-Nationwide-eversheds-taking-court-action

 

Now I even more confused. I'm happy this person has done well but how can the judge do this does it prove the like of Peterbard wrong? (No offence Peter)

 

See post number 100

 

No on the contry

[Peterbard]

Shadow

 

Thanks - see responses in bold above. I have asked Peter on anothe rthread for any cases showing that it is OK (or not OK) to re-issue a DN after termination, but nothing concrete has been provided so far. Hopefully this may prompt his or someone else mempry?

 

BD

 

HI

Hope you saw the re presnted DN documetation and court order i dug up before they shut the thread if not i wil re post somewhere else or find another. There are lots.

 

Peter

[Peterbard]

hi

As above re-posted here

http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission&p=3349617#post3349617

Peter

[Drowning but not sunk...]

Hello,

 

If anyone has time just want to bounce this idea off someone else.

 

The other side have had all of there Draft Order Accepted by the judge in CC. Item one is to have an amended POC into the court by last week. They did not do it they have not sent a copy to me either.

 

The judge has already given them a month extra to file the first AQ he then sent them an unless order! They did get it in.

 

I'm thinking that as this has been ongoing since 2009 I may have a case to fax the judge today and state the above ie two years (best part) that they have again not complied with the court. They should not be allowed to amend POC and they are abusing the process. Apply to have the claim struck out. I might be talking rubbish as the judge may not strike something out on a missed deadline and by striking it out they would be allowed to re-issue DN and bring new case. I guess Im just thinking of a way to use this to my advantage ie if the judge said the deadline had passed to file amended POC then they would have to run with the original that refers to invalid DN. Which would make brining new claim more difficult.

 

Any help would be great time is important on this if I'm going to gain any advantage from this.

[Drowning but not sunk...]

Bump..

[pt2537]

Shadow

 

Thanks - see responses in bold above. I have asked Peter on anothe rthread for any cases showing that it is OK (or not OK) to re-issue a DN after termination, but nothing concrete has been provided so far. Hopefully this may prompt his or someone else mempry?

 

BD

The case Shadow refers to is Harrison vs Link Financial Limited