Judge Ordered Claimant To Supply Info - They Haven't

[BelstarBomb]

Hi Bazza,

 

Will do.

 

Yes they have finally complied and the statements back up my argument, however it wasn't sent in time to meet the deadline given by the court which means I have next to no time to prepare my case.

 

Bel

[BazzaS]

Hi Bazza,

 

Will do.

 

Yes they have finally complied and the statements back up my argument, however it wasn't sent in time to meet the deadline given by the court which means I have next to no time to prepare my case.

 

Bel

 

Respectfully ask the court to strike out their claim / allow your claim, or if the court feels unable to do so, seek further time to prepare your case based on their failure to provide you with the documents.

 

The court will be able to recognise "data dumping" (supplying information out of time to deluge one of the parties with too much info to digest properly in time.

Edited August 26, 2013 by BazzaS

[BelstarBomb]

Thanks Baza,

 

Michelle

[BelstarBomb]

Phew, a little boggle eyed from all the number crunching but so glad that I did it.

 

I put all the information that the OC had supplied into a spreadsheet broken down by week showing the contractual payments, the payments actually made and when, the charges due, the actual charges applied to the account and any charges refunded.

 

What it showed was that firstly, instead of charging me the £20 the agreement stated for late payments, they were actually charging me the stated DN fee of £25.

 

In addition, the agreement stated that they can only charge a DN fee if I go 2 or more payments overdue. Again, taking this from their own paperwork, there were only 2 occasions that they could charge that fee. All the other times, I was actually in credit or less than two months in arrears.

 

The spreadsheet also shows that even with the refunds, I have been over charged and subsequently overpaid on fees which were included in the DN and TN.

 

More importantly, when they served their penultimate DN on which they then served their first TN, from their own statement of account the amount on the DN includes the charges which were either wrong in their amount or should not have been charged anyway.

 

Even though I had told them that the fees were incorrect and hadn't responded to my letter of complaint, they still went ahead and terminated the agreement. It also shows that I had paid more than the outstanding arrears at the time of the DN and TN after the agreement was terminated.

 

I intend to quote the pertinent parts from Woodchester v Swain - are there any other additional cases/CCA law that anyone knows of that I can also quote?

 

I had written to the court pointing out that the solicitor could not have served the statement of account when they said they had due to the fact the time and date stamp on the fax together with the fact it also had the date the report was run right in the middle of the page shows that it had to be sent after the date they have sworn service took place.

 

As I have still to hear back from the court as to whether they are going to agree to my claim to have it struck out at this stage, I am preparing my case just in case.

 

Any other support/advice/suggestions would be greatly appreciated.

 

Thanks all,

 

Bel

[BelstarBomb]

Just an aside, do you think I should put in a complaint about the solicitors actions? The more I think about it, the more I'm shocked.

 

If they can lie about something like this on a sworn statement instead of holding their hands up and admitting they messed up, what else would they lie about?

 

Bel

[BelstarBomb]

Ok,

 

Having not heard from the court, I called them this morning to be advised that even though I had sent them proof that the solicitors had lied, they are not changing the court date by either allowing my claim or allowing me extra time.

 

Not too sure how to take or what to read into that?

 

I'm preparing my witness statement as will need to get this to the court and the solicitors by tomorrow.

 

Any suggestions to my previous questions on Saturday would be greatly appreciated!

 

Bel

[BazzaS]

I'm not enough of an expert to cite the case law, but go with pointing out the overcharges and erroneous DN's.

 

By all means point out the "data dumping" and "mistaken dates", and your request for extra time as a reason you may not be as prepared as you'd like : but the court ruled not to reschedule, so don't challenge them directly.

 

Get court proceedings sorted, mentioning the solicitors behaviour, before considering an SRA complaint : if the court mentions it when ruling it can be extra ammo!

 

Can someone more knowledgable than me comment on the effect of the false fees on any DN, and then any TN?

Might the TN become defective? If defective, is the agreement still extant / enforceable?

[BelstarBomb]

Thanks Bazza,

 

Have just picked up on another nugget. The OC had agreed to waive some of the fees that were erroneous and at the time these made the DN defective and therefore the TN null and void. The refund was made well after both DN and TN were issued. On their statement, it shows the fees as being refunded in March however, I have a letter direct from the manager and the complaints department that show that the refund took place in May. If it had taken place in March, I would not have a valid argument. As it stands, it now appears that I can now add falsifying records to suit themselves to the mix?

[The Mould]

Neutral Citation Number: [2008] EWCA Civ 905

Case No: A2/2007/1827

IN THESUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

MR JUSTICE FIELD

HQ04X03766

Royal Courts of Justice

Strand, London, WC2A 2LL

30 July 2008

B e f o r e :

THE RT HON. LORD JUSTICE WARD

THE RT HON LORD JUSTICE SEDLEY

and

THE RT HON LORD JUSTICE WALL

____________________

Between:

 

(1) Burkhard Hedrich

(2) Hedrich Consult

Claimants

- and -

Standard Bank London Limited

Appellants

- and -

Messrs Zimmers

Respondents

I have just briefly read your case (speed reading that is)and as regards non – disclosure or non-compliance with a Court Order on thesame, perhaps have a good read of the above authority (search same by google orwhatever search engine you use) as itmay help you with further argument against this represented party and hissolicitors acting.

Kind regards

The Mould

[The Mould]

Further, if default notice is not compliant with s.87(1) CCA 1974 (as amended), then Claimant cannot continue to enforcement action (the said s.87(1)) provides you with a complete Defence if the creditor has not complied with the same - search Harison v Link and American Express v Brandon and of course Woodchester v Swain.

 

Kind regards

 

The Mould

[BelstarBomb]

Thank you The Mould and Bazza!

[The Mould]

Thank you The Mould and Bazza!

 

You are most welcome my dear fellow CAG member. The authorities that I have cited for you are most important as regards your Defence to this action and all your legal arguments against the same. Study the same my good friend, print off copies of the same for yourself, a copy for the Court and a copy for the Claimant.

 

Kind regards

 

The Mould

[The Mould]

Belstar

 

Can you show the judge that the DN relied upon by claimant does not comply with the provisions (statutory provisions that is) of s.87(1) of CCA 1974 (as amemded)?

 

Kind regards

 

The Mould

[BelstarBomb]

Hi,

 

The first and crucial DN included 35 default charges of which only 19 were 'valid'. However, all but 3 of those charges were charged out at the DN rate of £25 when they should have been charged out at the late payment rate of £20. Those fees are contained within the signed agreement and they have supplied no confirmation that that their rates were going to change.

 

At the time the DN was issued, I was still waiting for a response to a letter of complaint querying said charges and the OC didn't respond directly, their only response being a TN.

 

Their DCA contacted us and I explained to them why we felt they had no right to do what they were doing (defective DN etc means they can't enforce etc) and they came back with the offer of paying half the fees and the arrears. We paid what they told us was the arrears and the fees.

 

Another complaint went to the OC over the handling of that payment between the OC and the DCA as they had lied about what was said during the various conversations. A SAR was sent asking for a transcript of the conversations as the DCA told me all calls were recorded, but despite 6 requests, this has not been forthcoming!

 

I then notice on the statement supplied by the OC that the last payment to clear the arrears was moved a month on from when we actually paid it and the default fees was moved 2 months back even though they were paid at the same time. If the default fees had been paid when they said, I would be on very thin ice as the difference in which it would have been detrimental to me would have been minimal. But I have two letters that clearly state when the payments were made from different departments within the OC's company which give the same information, so copies of these will also be presented to the court.

 

There's a common pattern of both the OC and the solicitors amending things in an attempt to strengthen their case however I have letters to back me up.

 

So yes, I think I have ample proof that it does not meet the requirements of the act to be acceptable.

 

Would you agree?

 

Bel

 

Bel

[BelstarBomb]

I forgot to add that my spreadsheet also shows that the arrears that they quoted in the DN was actually arrears and default charges. The actual amount to remedy the breach should have been less than half.

 

Bel

[The Mould]

I forgot to add that my spreadsheet also shows that the arrears that they quoted in the DN was actually arrears and default charges. The actual amount to remedy the breach should have been less than half.

 

Bel

 

Yes, I agree with your contentions. What about the remedy date - 14 clear days to remedy the default relied upon by your creditor (s.87(1) CCA 1974 (as amended). The default notice appears to be invalid based upon your posts here, therefore, no enforcement proceedings can be continued by your creditor based upon his breach of his statutory duties under s.87(1) of the said act.

 

Kind regards

 

The Mould

[The Mould]

Hi,

 

The first and crucial DN included 35 default charges of which only 19 were 'valid'. However, all but 3 of those charges were charged out at the DN rate of £25 when they should have been charged out at the late payment rate of £20. Those fees are contained within the signed agreement and they have supplied no confirmation that that their rates were going to change.

 

At the time the DN was issued, I was still waiting for a response to a letter of complaint querying said charges and the OC didn't respond directly, their only response being a TN.

 

Their DCA contacted us and I explained to them why we felt they had no right to do what they were doing (defective DN etc means they can't enforce etc) and they came back with the offer of paying half the fees and the arrears. We paid what they told us was the arrears and the fees.

 

Another complaint went to the OC over the handling of that payment between the OC and the DCA as they had lied about what was said during the various conversations. A SAR was sent asking for a transcript of the conversations as the DCA told me all calls were recorded, but despite 6 requests, this has not been forthcoming!

 

I then notice on the statement supplied by the OC that the last payment to clear the arrears was moved a month on from when we actually paid it and the default fees was moved 2 months back even though they were paid at the same time. If the default fees had been paid when they said, I would be on very thin ice as the difference in which it would have been detrimental to me would have been minimal. But I have two letters that clearly state when the payments were made from different departments within the OC's company which give the same information, so copies of these will also be presented to the court.

 

There's a common pattern of both the OC and the solicitors amending things in an attempt to strengthen their case however I have letters to back me up.

 

So yes, I think I have ample proof that it does not meet the requirements of the act to be acceptable.

 

Would you agree?

 

Bel

 

Bel

Thank you for the above Bel

 

Notwithstanding the errors in the DN and the terms and conditions affecting such, what is the date of DN notice and the date stated therein for you to remedy the breach relied upon therein?

 

Kind regards

 

The Mould

[BelstarBomb]

Thought as much.

 

The date is just about within by a day - not enough for a court to rule in my favour on that I'm afraid ;-)

 

Thanks again The Mould

[BelstarBomb]

29th March 2012 issued - payment by 18th April 2012

[The Mould]

Thought as much.

 

The date is just about within by a day - not enough for a court to rule in my favour on that I'm afraid ;-)

 

Thanks again The Mould

 

Don't worry, date and amount to remedy the breach relied upon must comply with s.87(1)!

 

Kind regards

 

The Mould

[The Mould]

Based upon what you say, amount to remedy breach relied upon by creditor is inaccurate, therefore, invalid for the purposes of s.87(1) and so.......creditor not entitled to terminate and demand full amount claimed on the account! Creditor has actually repudiated on the contract! Look this up (repudiation of contract and innocent party's options to elect as consequence of such fundamental breach of contract)

Kind regards

 

The Mould

[BelstarBomb]

Will do that now TM - many thanks again

[BelstarBomb]

Hi The Mound,

 

Have read some articles and wondered if you could clarify something for me.

 

Why do you think they have repudiated the contract as opposed to recission?

 

Bel

[The Mould]

Hi The Mound,

 

Have read some articles and wondered if you could clarify something for me.

 

Why do you think they have repudiated the contract as opposed to recission?

 

Bel

 

Recission is a remedy under the common law that is available for the innocent party to elect as a remedy.

 

Repudiation is where one party to a contract refuses to honour his obligations thereunder and treats such as no longer valid.

 

Kind regards

 

The Mould

[BelstarBomb]

Long day, sorry 'The Mould'