Debt Collector thinks can stop Debt becoming SB

[tamarindo]

nothing personal I hope , it is just a reference , just listening from various advices, your advice is also taken onboard, thanks anyway!!

I just to have an open mind about this matter, thanks for your help !!!

Edited October 7, 2013 by ims21

[BRIGADIER2JCS]

What advice you have been given here by members of the CAG site team and others is factual and proven time after time!

[tamarindo]

You need to be aware that any court claim that you encounter will be in a county court. You will be at the mercy of the judge lottery.

 

We know very well who PT is.

 

You have the info about SB. You say it is only a few days until SB.

 

If it were me I would be sitting on my hands.

 

I would not rely solely on a faulty DN to get you of of this.

 

If they do not issue a claim before the SB date then you have an absolute defence.

 

sure there other facts about my defense if needed !!, as ~I said the agreement is unenforceable, I may need your help.

 

It is unenforceable because not pre-scribed terms and conditions anywhere in fact there is no reference on the original application form , why ?I said that? because copy of the original application , it is a marketing mailshot and but I do not know also it is a lottery in court!!! thanks

[tamarindo]

What advice you have been given here by members of the CAG site team and others is factual and proven time after time!

 

yes absolutely , that is why I am here , I value you help, it is only I am preparing for the worse, that is all , thank you for your help !!

[ims21]

All of these small bits should add up to a decent defence.

 

Perhaps you could tell us when exactly the SB date is?

[BRIGADIER2JCS]

Also research the term 'reconstituted credit agreement' just to be prepared!

[tamarindo]

All of these small bits should add up to a decent defence.

 

Perhaps you could tell us when exactly the SB date is?

 

because I know these collectors read post here so I better no give here , I believe they have been tracing me for no reason, even having a person spying on me outside my house once and when I found out they never came back !!! ..

 

But the date is to do when the last payment was made to the account in less than 15 days , no written acknowledgement made after then,

but the date of the last default notice issued was on july 2006 and there were 2 other DN issued before also January 2006 and September 2005,

and as I said the wording was no according to the prescribed format and the DN was issue by the agent , who wrote it on the default notice quote:

 

" we act as agent for xxx bank .."

[tamarindo]

sure

[tamarindo]

Also research the term 'reconstituted credit agreement' just to be prepared!

 

sure

[Peterbard]

Just some thoughts after reading through your thread.

 

Yes The prescribed terms would have had to have been with the signature document when the agreement was signed, if they were not the agreement would be unenforceable via section 65 and 127(3) if it was executed prior to April 2007, if copy documents were not available(with the signed agreement) the agreement would also be unenforceable under section 62.

 

A valid default notice would have had to been issued in order for the agreement to be correctly terminated,(and proceedings commenced) this does not have to have been sent by the creditor but the creditor does have to be stated on the notice. The authority usually depended on for DN defenses is Woodchester Vs Swain, also there is mention in Harrison Vs link were the judges says that a case cannot be brought on a defective DN, these cases are available , if you do not have access to them I can provide links.

 

The statute bar would commence on the date the agreement became due and payable, this was explored in BMW Vs hart, this was as said a HP case and unregulated, but the law still applies in a regulated agreement, and as this is the latest date, if i were defending this i would consider it as being the start date for the SB.

 

If there are any Authorities that you require please give me a shout.

[tamarindo]

Just some thoughts after reading through your thread.

 

Yes The prescribed terms would have had to have been with the signature document when the agreement was signed, if they were not the agreement would be unenforceable via section 65 and 127(3) if it was executed prior to April 2007, if copy documents were not available(with the signed agreement) the agreement would also be unenforceable under section 62.

 

A valid default notice would have had to been issued in order for the agreement to be correctly terminated,(and proceedings commenced) this does not have to have been sent by the creditor but the creditor does have to be stated on the notice. The authority usually depended on for DN defenses is Woodchester Vs Swain, also there is mention in Harrison Vs link were the judges says that a case cannot be brought on a defective DN, these cases are available , if you do not have access to them I can provide links.

 

The statute bar would commence on the date the agreement became due and payable, this was explored in BMW Vs hart, this was as said a HP case and unregulated, but the law still applies in a regulated agreement, and as this is the latest date, if i were defending this i would consider it as being the start date for the SB.

 

If there are any Authorities that you require please give me a shout.

 

 

"creditor does have to be stated on the notice " DN only issue by the debt collector agents , they confirm it in writing, only address of agents present, no address from the original creditor and name of original creditor only referred by the same agents.

 

I found this:

The Defendant notes that the actual Creditors name and address does not appear on the Default notice and thus the Default notice is therefore invalid as per section 2 of the [Consumer Credit (Enforcement, Default and Termination Notices 1983)] which states:-

(2).

 

(1) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain action to enforce a term of an agreement) shall contain--

 

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

 

As per (b) above paragraph 2 of Schedule 1 states:-

 

(2)

(1) The name and a postal address of the creditor or owner.

 

Now The Default notice clearly states “We are acting as agents for xxxx bank” and therefore confirms the defendants assertion that agents are neither Creditor or Owner of the said debt.

[tamarindo]

"creditor does have to be stated on the notice " DN only issue by the debt collector agents , they confirm it in writing, only address of agents present, no address from the original creditor and name of original creditor only referred by the same agents.

 

I found this:

The Defendant notes that the actual Creditors name and address does not appear on the Default notice and thus the Default notice is therefore invalid as per section 2 of the [Consumer Credit (Enforcement, Default and Termination Notices 1983)] which states:-

(2).

 

(1) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain action to enforce a term of an agreement) shall contain--

 

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

 

As per (b) above paragraph 2 of Schedule 1 states:-

 

(2)

(1) The name and a postal address of the creditor or owner.

 

Now The Default notice clearly states “We are acting as agents for xxxx bank” and therefore confirms the defendants assertion that agents are neither Creditor or Owner of the said debt.

 

 

"if you do not have access to them I can provide links." yes please

[tamarindo]

Just some thoughts after reading through your thread.

 

Yes The prescribed terms would have had to have been with the signature document when the agreement was signed, if they were not the agreement would be unenforceable via section 65 and 127(3) if it was executed prior to April 2007, if copy documents were not available(with the signed agreement) the agreement would also be unenforceable under section 62.

 

A valid default notice would have had to been issued in order for the agreement to be correctly terminated,(and proceedings commenced) this does not have to have been sent by the creditor but the creditor does have to be stated on the notice. The authority usually depended on for DN defenses is Woodchester Vs Swain, also there is mention in Harrison Vs link were the judges says that a case cannot be brought on a defective DN, these cases are available , if you do not have access to them I can provide links.

 

The statute bar would commence on the date the agreement became due and payable, this was explored in BMW Vs hart, this was as said a HP case and unregulated, but the law still applies in a regulated agreement, and as this is the latest date, if i were defending this i would consider it as being the start date for the SB.

 

If there are any Authorities that you require please give me a shout.

 

 

 

"if you do not have access to them I can provide links." yes please

[tamarindo]

Just some thoughts after reading through your thread.

 

Yes The prescribed terms would have had to have been with the signature document when the agreement was signed, if they were not the agreement would be unenforceable via section 65 and 127(3) if it was executed prior to April 2007, if copy documents were not available(with the signed agreement) the agreement would also be unenforceable under section 62.

 

A valid default notice would have had to been issued in order for the agreement to be correctly terminated,(and proceedings commenced) this does not have to have been sent by the creditor but the creditor does have to be stated on the notice. The authority usually depended on for DN defenses is Woodchester Vs Swain, also there is mention in Harrison Vs link were the judges says that a case cannot be brought on a defective DN, these cases are available , if you do not have access to them I can provide links.

 

The statute bar would commence on the date the agreement became due and payable, this was explored in BMW Vs hart, this was as said a HP case and unregulated, but the law still applies in a regulated agreement, and as this is the latest date, if i were defending this i would consider it as being the start date for the SB.

 

If there are any Authorities that you require please give me a shout.

 

 

 

"If there are any Authorities that you require please give me a shout." yes how to search for them or give me links , most helpful thanks , very much appreciated

[fletch70]

My thoughts

 

Brig PT is a well known legally trained person on two other sites.

 

I believe that all that has been ruled on a faulty DN is that it is not deminimus (or whatever the spelling is)

 

The SB clock starts ticking from the cause of action so for example on a credit card it may be over a month after the last payment was made ...

[tamarindo]

My thoughts

 

Brig PT is a well known legally trained person on two other sites.

 

I believe that all that has been ruled on a faulty DN is that it is not deminimus (or whatever the spelling is)

 

The SB clock starts ticking from the cause of action so for example on a credit card it may be over a month after the last payment was made ...

 

"The SB clock starts ticking from the cause of action so for example on a credit card it may be over a month after the last payment was made ..."

good to know that !!!

[Peterbard]

OK

I will get those links together for you.

[tamarindo]

OK

I will get those links together for you.

 

Hi many thanks for your reply very much appreciated!!

[Peterbard]

Some Info

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html Harrison Para 75

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1959.html bmw

 

In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

[volvo]

A court can and often will allow a creditor to serve a new compliant DN, who or what is PT? Nothing illegal there possibly unlawful but only possible all down to a judge.

 

Hi Brig

 

PT2537 was one one of the major 'beneficial' advisors on CAG many years ago whose advice is still relevant to this day particualry with regard to CPR procedures and has had an impressive case load to the appeal court winning many cases for the underdog as many of us old timers would affirm.

 

VOLVO

[BRIGADIER2JCS]

Yes I know of him. My concern is that there have been considerable changes in law, regulation and the debt collection industry since he was advising here.

[fletch70]

Brig with respect, it is his job to keep up with the changes in legislation. he has been involved in some of the big cases Santander v Mayhew being just one. I still have great respect for him, even f he had the misfortune to be involved with a rather odd Scotsman

[Peterbard]

Besides there hasn't been any change in legislation regarding the issuance of default notices since 85, except the increase in the remedy period to 14 days in December 2006.

Most of the appropriate case law is familiar to many on here, should this become an issue for the OP I am sure someone will be able to assist