Honours/Drydens claimform - old SLC Loans stayed - now n244 sj/strike out

[dx100uk]

so they are solely relying upon the fact that they can spoof the judge

into believing the SB date runs from default date 19/12/2006

 

 

not from last 'alleged' payment of 24/08/2006

[confusedoldstudent]

Hiya,

 

yes i thought so, but the last alleged payment was 8th of march 2005, according to paragraph 21

[AndyOrch]

Attached default notice is irrelevant...template that contains no evidence.

[dx100uk]

confusedoldstudent said:

Hiya,

yes i thought so, but the last alleged payment was 8th of march 2005, according to paragraph 21

sorry silly me

I meant

not from the end of last deferment period 24/08/2006

dx

[confusedoldstudent]

thats ok:-)

 

documents attached to the W statement

Document (1).pdf

[AndyOrch]

Attached default notice is irrelevant...template that contains no evidence.

 

Scratch that I see you have uploaded the actual default/termination notice...would help if you had left the dates on

[confusedoldstudent]

:oops:sorry ......it was dated 19 December 2006 and the termination notice was dated 21 June 2007.

 

Noted .....these were actually sent to previous adddress

[Guest]

afaik, once the deferment period ends, the payments become due.

in yours, august 06 deferment ended, so according to their terms, they cld then have started the process of recovery (cause) after the first missed payment thereafter. but, the def notice was over 3 mths later. termination notice not until june 07.

edit

it will be tight, partic also as the J seemed to have leaned with them saying 'need more than limitation'

[AndyOrch]

" partic also as the J seemed to have leaned with them saying 'need more than limitation' "

 

Did he say that to you confused or the claimant?

[Guest]

" partic also as the J seemed to have leaned with them saying 'need more than limitation' "

 

Did he say that to you confused or the claimant?

to confused, post #128

[confusedoldstudent]

Hiya, they both did.

 

........when we were going to initially proceed...the claimant started by saying your honour or something like that "may i bring your attention to ....Limitation.

 

then the judge mention it after about 10 mins after adjourning the case and giving me a copy of the claimant statement while i was packing up to leave he mentioned it

[AndyOrch]

Well there's a lot more to it than just Limitation...otherwise the court would not of adjourned and could have given judgment there and then.

 

Have you received anything further since the hearing......further directions to parties ? or is it just your Witness statement that needs to be sharpened or the Claimants also ?

[confusedoldstudent]

further direction was read out by the judge as he was writing and confirm after writing his note. .....that i need to submit my new statement both to the court and claimant sol within 14 days and the case will be adjourn 14 days after that.

 

while he was writing his note he asked me if im going to send a new statement and i replied i dont think so sir. he now said i think you will need to considering the statement of the claimant you just received.

 

And the clerk also said i'll receive a letter as well but it hasnt arrived yet

[AndyOrch]

That would be the statement that they failed to serve on you not less than 7 days pre hearing.....which you could have asked for sanctions to be imposed for failing to adhere to the courts directions...and should be inadmissible...... let's see what you get from the court and we can sharpen it .

[Guest]

also,

is their microfiche copy agreement fully legible, and properly executed?

[WindySock]

If the judge is saying that more is needed than simply limitation, then they must agree with the WS paragraph 26 that the DN or termination being within 6 years of the claim issue means it is not statute barred.

 

So you need to counter that in some way.

[Guest]

i guess it wld be arguing that the cause for limitation purposes runs from the end of deferment,

or just thereabouts ie before the october as thats when they issued the claim? it will be close.

 

generally, cause shld be when there can be cause to start recovery (ie a breach) and claim upon,

regardless of a later required formalised 'notice'.

 

 

a claim is about a breach, not necessarily a notice (unless theres no breach, but a notice calling in),

and a def notice is about a breach if not rectified then actioned upon

ie the breach is the cause of action. thats just imo

 

 

and, it seems it wld take some argument to convince that dj to that way (though some experienced J's do seem to see it that way)

 

also, was the default notice wholly compliant.

 

this is my post in another thread awhile ago

'ibberty (mould )

in general

you mentioned that there is no domestic authority re def notice/limitation. as you know, in such, the courts can consider leading cases from commonwealth with similar laws. albeit not precedent.

heres a leading aussie case where the matter was discussed (they have a v similar credit/limitation regime). eg para 38 etc saying that a def notice is re exercise (procedure) rather than existence of the right/cause, so being re enforcement not cause re limitation (the basis of my thoughts posted prior)? wonder if HC and above wld see it that way?

the case itself was re a loan which is different to a credit card. but the def notice re limitation general issue was still considered.

have a read, see what you think.'

http://www.austlii.edu.au/au/cases/v.../2003/343.html

 

i havent checked caselaw recently re any authority re cause. but, as said, if there isnt any specific domestic authority then other (commonwealth) case law can be considered in argument. the aussies have a v similar regime (s107 being their def notice ' ...being concerned with the exercise rather than the existence of rights' ).

see what you think.

[confusedoldstudent]

Hmmmmm, good morning all

 

I received a letter from court which read as....

 

Upon it appearing to the court that the defendant (whose evidence was filed late) had not secured a copy of the statement of xxxxxx filled in support of the application.

 

it is ordered thaat

 

1. Defendant have permission to file at court and serve on the claimant's solicitors amended evidence in opposition to the application by 4pm on 15 Feb 2016

 

2.The claimant has permission to file and serve evidence in reply by 29 Feb 2016

 

3.Hearing adjourned to first open date after 35 days. Time estimate 1 hour

 

4.Costs in the applicaation

[AndyOrch]

I thought it was the Claimant that filed late and didn't serve a copy on you?

[confusedoldstudent]

No, i filed late to the court, i took my evidence to court on the 26th of Jan and the hearing was 1st of feb. and i posted it to the claimant sol first class on the same day 26th.

 

but claimant sol claimed they did not received it.

 

And i did not receive the claimant sol evidence at all, reason why the case was adjourned

[AndyOrch]

" And i did not receive the claimant sol evidence at all "

So I was correct in effect

[confusedoldstudent]

yes

 

Please what do you advise i do now.........

[AndyOrch]

You must resubmit your witness statement and evidence by the stated date in the Order......there wont be much difference to your initial witness statement apart from informing the court they conveniently missed off the order that the claimant failed to serve you theirs and that sanctions should have been imposed...whats good for the goose is good for the gander.

[confusedoldstudent]

ok thanks, does this have to be in response to the claimant sol statement as you know my initial statement was written in the absence of theirs.

 

And

 

also im a bit worried about the judge hint on limitation

[AndyOrch]

It can now be drafted in view/response of their witness statement....dont worry about his hint on whatever...its obvious from that order who side he is on.