walton v rbos

[elsinore]

Paragraph 17 is IMHO bunkum.

 

Els

[car2403]

Just because the recovery of the default charges is statute barred, doesn't mean that they should be ignored in terms of making the Default/Termination Notices inaccurate! They are pulling the Court's plonker here, IMO!

 

Agree with Shane, in that this is a rescission of contract;

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE EITHER AGREEMENT CORRECTLY;

Failure of a Default Notice or a Termination Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[paulwlton]

Hi Paul,

 

What a thrilling read, will need some time to fully digest all i think but the above quoted did draw my eye. Are you aware of precedent set in Woodchester Lease Management Services Ltd v Swain and Co with regards to inaccurate default notices? Not only does it invalidate the default notice itself and render it void but it also potentially acts as a rescission of contract

 

 

kind regards,

shane

 

Hi Shane, yes Woodchester v Swaine is part of my draft defence.

[paulwlton]

Paul, I have been following your thread for a while - and fully understand your reason for posting EVERYTHING in full here (even though some people advise otherwise)

 

Could it be because you know who is reading this website?

 

No, and i don't post EVERYTHING.

 

Paul

[paulwlton]

The judgment the bank have submitted in their bundle, however the charges issue remains peripheral to other matters that have arisen since judgment was handed down.

 

Paul

 

 

 

[paulwlton]

Paragraph 8 of the bank's witness statement is contrary to the OFTs view, but it is for the court to make the ultimate decision.

Dear Mr. Walton

 

Further to our discussion, the question you asked is whether a debtor could continue to make requests under Section 77 post judgment. The Act is silent on this particular matter and as such we presume that this is the case until the debt is discharged. As we have discussed previously, this is not a definitive statement of the law and a court may or may not take this position. Equally, this is a general comment and, as with our previous communications, should not be taken as advice on your particular circumstances.

 

I understand that you have sought assistance from your Local Authority Trading Standards Service (LATSS) and that the view expressed by it was broadly the same. As the OFT cannot comment or intervene in individual matters and so unfortunately I am unable to assist you further, you may wish to continue to seek assistances from your LATSS.

 

Yours sincerely

 

Henry Aitchison

Consumer Credit Enforcement

 

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[Edz11]

It might not be so silent on the issue. In any case where the creditor insists on contractual interest post judgment that would imply a right under the contract and a duty under the CCA.

[TANZARELLI]

Hi Paul,

 

Still battling I see. That letter is a bit vague, talk about not wanting to commit to anything and sitting on the fence.

 

Tanz.

[Edz11]

And... the court cannot remove the creditor's duties under s77 etc. If there is an amount payable under the agreement; then it cannot be classed as "an agreement under which no sum is, or will or may become, payable by the debtor,...".

 

The Court claim was to legally enforce the rights under the regulated contract. It was not to supercede it. The contract still stands...

[shane5408]

And... the court cannot remove the creditor's duties under s77 etc. If there is an amount payable under the agreement; then it cannot be classed as "an agreement under which no sum is, or will or may become, payable by the debtor,...".

 

The Court claim was to legally enforce the rights under the regulated contract. It was not to supercede it. The contract still stands...

I agree, even if novation takes place the rights and duties under the CCA still stand, as such the creditor must still adhere to a CCA Request, though ufortunately debtor cannot withold payment after 12 working days due to overriding CCJ Judgement

 

 

kind regards,

shane

[paulwlton]

I agree, even if novation takes place the rights and duties under the CCA still stand, as such the creditor must still adhere to a CCA Request, though ufortunately debtor cannot withold payment after 12 working days due to overriding CCJ Judgement

 

 

kind regards,

shane

 

Further to the above, the creditor cannot enforce any contractual term until they produce the "true copy" ie they cannot continue to apply contractual interest.

 

Paul

[paulwlton]

And... the court cannot remove the creditor's duties under s77 etc. If there is an amount payable under the agreement; then it cannot be classed as "an agreement under which no sum is, or will or may become, payable by the debtor,...".

 

The Court claim was to legally enforce the rights under the regulated contract. It was not to supercede it. The contract still stands...

 

Nice one Edz, i have good arguments for every paragraph in the bank's witness statement.

 

 

Paul

[Edz11]

And... (again) the existing EU Consumer Credit Directive says that agreements must (apart from a few exceptions) be in writing. So the protection afforded by the directive has been efectively sidestepped. I would suggest that a complaint to the Commission that you would appear to have no effective remedy arising from non compliance with this requirement would seem a good idea. Your complaint is that the UK Government has not fully implemented the Directive.They would have to show that they have and where that requirement has been met in your case, (although that might mean that your Euro MP may have to do some prodding of the Commission to really investigate your complaint).

[paulwlton]

The bank also plead in para 10: it is an abuse of process to request copy agreements etc after 9 years. I think that's desperate.

[paulwlton]

The bank seem to contradict themselves, by claiming in para 8 that they've no legal obligation to comply with sec 77 post judgment and that the judgment precedes the contract. However, according to para 14 they claim my liability remains under the contract.

 

Once judgment is obtained for monies due under a contract the contract merges with the judgment IT DOES NOT SUPERSEDE IT. FACT.

 

If anyone has any arguments regarding the banks witness statement feel free to post or pm me,

 

Paul

 

Paul

[The GodMother]

The bank also plead in para 10: it is an abuse of process to request copy agreements etc after 9 years. I think that's desperate.

 

BALL HOOKS.

 

They have to provide you with a copy of your CCA request at any time up to and including 6 years AFTER the account was closed.

 

This is how l have understood the system works.

 

Chrissi

[paulwlton]

Cobbetts attempt to intimidate the LIP.

 

[Having_A_Knightmare]

Paul

 

Do they expect you to pay this.

[paulwlton]

Paul

 

Do they expect you to pay this.

 

 

Yes, i'm afraid this is not the small claims court. So anyone who attempts to set aside judgment should be aware of this.

 

I haven't posted the second page - the costs increase.

 

Paul

[caro]

A good warning to those who decide to risk exposing themselves to costs just how big the risk can be. If it's not allocated to small claims Paul wouldn't have a choice if he lost his case and the judge awarded costs.

[Having_A_Knightmare]

Paul

 

Whats the limit on the small claims court as I was going to try and get my CCJ/C-O set aside in the new year but looking at these costs I may not bother.

[paulwlton]

Paul

 

Whats the limit on the small claims court as I was going to try and get my CCJ/C-O set aside in the new year but looking at these costs I may not bother.

 

The limit in small claims is £5000.

 

Any application to set aside judgment is not covered by the no cost rule. You have to take it on the chin i'm afraid.

 

Paul

[Vulture_Bank]

Lynsey Burgoyne was only admitted in 2002 and Cobbetts will probably be retained for so many hours by RBS to get a reduced rate.

 

Richard Webb is a partner/member of the firm, who was admitted in 1988, and will be charging at a higher rate than Burgoyne. However, Webb most likely does little work aside from overseeing the work of Burgoyne, a more junior solicitor.

 

there are 96 partners at cobbetts

 

was their any need for a grade A solicitor to oversee a grade C solicitor ?

 

the last page will have the definitions N260 form

 

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n260_1001.pdf

 

captain webb is supposed to oversee incasso ???? seems a stupid question is he allowed to represent cobbetts as such ???

 

don't forget to work out your costs !!! and yes there is vat

[paulwlton]

Thanks for the PM VB,

 

It appears the hourly rate for grade A has been downgraded from £170.00 Jan 2007 to £135.00 an hour in Dec 2007!.

 

Paul

[caro]

I'm sure I don't need to remind you Paul to think very carefully about whether to proceed. No doubt you feel you have a water tight case, but you know that something might be thrown up in court that you've missed. Even if you withdraw now, you may still have to pay costs, although you may be able to negotiate that you'll withdraw the case if they don't claim costs from you. It may or may not work.

 

You are absolutely right not to be intimidated by the costs threat, but by the same token just sit back and think about if you and your family can afford the risks. Principles, rights and justice are wonderful things, but a roof over your head is more important, and it's easy for others to encourage you on, but at the end of the day it's you who would pay.

 

In all honesty I'm not just posting this for you, but for others thinking of fighting on the basis of theories of how the law should or could be interpreted.

 

Just out of interest, have you worked out how much the costs are in total so far including VAT?