Judge Ordered Claimant To Supply Info - They Haven't

[BelstarBomb]

All done, faxed through to the solicitors and hand delivered to the court.

 

Wish me luck for tomorrow and I will let you know how I get on.

 

Thanks for all the advice and support already given.

 

Bel

[AndyOrch]

Best of luck Belstar.

 

Regards

 

Andy

[honeybee13]

Good luck from me too, Belstar. Please let us know how you get on, fingers crossed.

 

My best, HB

[BelstarBomb]

Thanks All,

 

I keep on thinking that I've missed something out

 

If you have a moment you wouldn't mind taking a look and over the last few posts from the last couple of days just to reassure myself - I can at least make notes and refer to them in court tomorrow.

 

Cheers,

 

Bel

[BRIGADIER2JCS]

ALL BEST WISHES Bel!!

[BelstarBomb]

Hi Guys,

 

A bit mixed.

 

The judge was a little exasperated with the solicitor as he appeared not to understand the CCA! The solicitor completely disregarded the first set of DN and TN and kept on referring to the second set and insisting that they were correct. The judge pointed out in their POC that they had not supplied the Notice of Default Sum as per Sec 86c and as such he could not rule in their favour. He stated that he was sure the OC had sent them but until it was presented to the court, they cannot enforce.

 

I pointed out that this was referring to the second DN and TN and asked what about the first. The judge responded that legal precedent had been set that even with a situation like this, a creditor does have the right to reissue a DN and subsequent TN.

 

Should have asked but didn't think what case law he was referring to.

 

Does anyone know what he is referring to?

 

I then asked if the fact that the fees were incorrect on the first DN and made up to teh tune of approximately 50% of fees made any difference and he referred me to the claimants solicitor and said 'Can you speak to them on that'!

 

The solicitor then said to me outside then said that even though the late payment fee was £20 for each additional month thereafter as it was either a default notice or a failure to promise to pay, they were within their rights to charge £25??? I asked him what was his definition of 'Promise to Pay' and he said me signing an agreement to pay £xx on a certain date. I would have taken it as I have agreed to pay £x to an agent of the company.

 

I will look into that as I know that some charges were made after 8 or so months of perfect payments that inured the fee of £25 the moment they were missed so that would seem to dispute what he is saying.

 

In short the judge said the claimant needs to supply the Notice of Default Sum relating to the DN and they are likely to win their claim as the default fees can legally be included.

 

He did not accept my claim for the 'fiddling' of the date of service relating the original court order and even though I had written to them last week giving my explanation for the lateness of my witness statement, I was penalised for only getting it to the court yesterday and have to pay costs of £60 for wasted time as he said the claimant did not have adequate time to respond.

 

I should have pointed out that they got theirs at 11am yesterday but hey, ho!

 

I asked again about the first set of DN and TN and he quoted 'Affirmation of contract' due to the fact I still am in possession of the item so said that's unlikely to stand!

 

Not too sure what to make of all of this and what my come back should or could be?

 

Your thoughts?

 

bel

[AndyOrch]

Quite a mixed bag there Belstar but he didn't let it go their way.When are the to disclose the Notice of Default Sum by?

 

For info where a repudiatory breach of contract occurs, the innocent party must elect either to treat the contract as terminated (acceptance of the repudiation), or to treat it as continuing (affirmation of the contract).

Affirmation can only take place if the innocent party knows of the breach and of his right to choose between terminating and affirming the contract. Affirmation will often be implied if the innocent party knows of the breach and of his right to choose and acts in a manner consistent with treating the contract as continuing.

 

Although the innocent party does have time to elect whether to affirm or terminate, doing nothing for too long may be seen as an affirmation. Once an innocent party has affirmed a contract, the affirmation is irrevocable.

 

Well done on holding your corner.

 

Regards

 

Andy

[BelstarBomb]

Hi Andy,

 

The judge has given 21 days for the claimant to supply it via a witness statement and will then go for the first available 30 minute hearing after that.

 

Regarding the affirmation, could it be argued that as I had told them they had messed up and terminated when they did and all arrears were paid up and therefore they had revoked all rights to enforce and I was keeping it?

 

I thought that that was the case when an agreement was terminated incorrectly?

 

Do you know of the case law he was referring to?

 

Bel

[AndyOrch]

Not sure it really applies in credit term claims Belstar...is the card still live...do you still have the use of this facility?

[BelstarBomb]

It was a car Andy

[AndyOrch]

Ah right...my apologies ...do you still have the car ? sorry if you have already explained this.

[BelstarBomb]

No worries Andy, I know the hours you put in.

 

Yes I still have the car.

 

Bel

[AndyOrch]

Ok I see where the DJ is going with this so if you didn't elect (inform them) of the repudiatory breach of contract (Termination) then you have accepted (elected) affirmation....that basically throws the DN/TN argument out of the mix.

 

I will just bring my previous post forward for others to respond.

 

Where a repudiatory breach of contract occurs, the innocent party must elect either to treat the contract as terminated (acceptance of the repudiation), or to treat it as continuing (affirmation of the contract).

Affirmation can only take place if the innocent party knows of the breach and of his right to choose between terminating and affirming the contract. Affirmation will often be implied if the innocent party knows of the breach and of his right to choose and acts in a manner consistent with treating the contract as continuing.

 

Although the innocent party does have time to elect whether to affirm or terminate, doing nothing for too long may be seen as an affirmation. Once an innocent party has affirmed a contract, the affirmation is irrevocable.

 

 

They still have to get around the Notice of Default Sums though regardless of the above.

[AndyOrch]

And the relevant Legislation for that :-

 

11Failure to give notice of sums in arrears

 

After section 86C of the 1974 Act (inserted by section 10 of this Act) insert—

“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.”

[BelstarBomb]

Hi Andy,

 

I had informed them in writing of my intentions many times which is part of the reason I believe they applied a refund to the account 3 months before it actually took place.

 

Bel

[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

 

Dear Bel

 

In respect of the first para above, if amount stated in DN is inaccurate, then you rely upon the Woodchester v Swain case in your Defence.

 

No record, apparently! of the telephone calls recorded between you and the DCA - the creditor's nominated agent to deal with this matter - not showing up on your SAR is questionable, that is, these parties, the main contractor and the subcontractor, on the balance of probabilities would have discussed this matter/your account via an agent communication system, which is a filing system that is readily accessible and easily located within their internal system for the daily administration involved between these two parties as regards the same and would, therefore, hold your personal data relating to this account and all correspondence - sent and received between all three of you parties, will be recorded therein.

 

Re-examine the SAR file that you have been sent, you may find a particular number or abbreviated ref occurring therein relating to your account - such would be classed and recognised in law as a data filing system, any personal data held therein relating to you and the account you held with this Co. is disclosable to you pursuant to your s.7 rights of access under the DPA 1998.

 

Kind regards

 

The Mould

[BelstarBomb]

Hi Guys

 

Just a quick one

 

In writing to them and telling them where they messed up, does that give me a basis with which to argue the affirmation angle?

 

Secondly, they or their solicitor was wrong about the fees. He advised that they have the right to charge the default fees rate of £25 if I had missed two, however they charged the default fees right off the bat.

 

This would and does affect both DN and TN's that were issued.

 

Can they then simply correct these 'errors' and start the whole ball rolling again?

 

Cheers,

 

Bel

[AndyOrch]

Further argument can be raised within a supplemental Witness Statement Bell...are you at that stage yet ..have you already submitted a WS?

[BelstarBomb]

Hi Andy,

 

I have already entered my WS which has been accepted as my defence.

 

The OC have been given the opportunity to supply another WS which should attach the Notice of Default Sums. They have sent one to me showing the balloon payment of the car and nothing else and I'm assuming that is what they will be supplying with the WS to the court however the letter did not state that 'this is our ws etc'. They've been given until 17th September to supply their WS so we'll see then

 

Bel