Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

[Prism]

Hi all,

I have an ongoing dispute with a claims management company my mother and I stupidly used.

To cut a long story short, she was issued a default judgement by the claimant as she did not reply to the claim form as (apparently) my claims management company would reply on my behalf. Did they - No!!

I have managed to have the judgement set aside and we are in court tomorrow.

I initially have been receiving help on MSE forum and posted a copy of my default notice and CCA.

I have been told that the CCA is enforceable and looks solid. From reading the requirements, I agree.

I was also told that my default notice has not been correctly complied with and this will give me my defence. This is because it was issued on the 29th October 2009 and I was given till 16th November 2009. This is not adequate time as I was told by an (apparent) expert that I was not given 2 working days for postage and 14 working days.

I have the last minute jitters and have spent all day trawling thorugh the internet. I am adamant that it is 14 calendar days and not working days. What do you guys think?

I know this is very very last minute but I believed the advice given until today where I thought I should trust my instincts.

What is your take on the dates above. Should I give 2 days for postage or 4 days for postage? I do not have the original envelope and there is no mention on the default notice on whether it was sent first class or second class.

The other factor with regards to this loan is that it is a joint loan between me and my mother. We both have our names on the CCA agreement and we have both been issued default notices which are exactly the same. When it came to the court process, the claimant only corresponded with my mother and only she was issued a default judgement. Is this OK or have the claimant's done something wrong by not including me?

Thanks in advance and I will greatly appreciate any replies sent today!

Prism

[Guest]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

I would strongly suspect that the legislation provides for 14 days only and not 14 working (or business) days. In addition, documents are deemed served, if posted by first class post, on the second day after they are posted, provided that it is a business day, or if not, the next business day after that day.

According to the dates you have provided above, it is 18 days from the start date to the end date, but not including the end date, so whichever way you look at it, there has been enough time for service including postage.

Finally, that the loan was in joint names is not unusual and typically in these circumstances, joint and several liability is provided for in the terms and conditions. This means that the creditor may serve any party to the loan and in your case, need not serve both of you.

What is it you are attempting to achieve tomorrow?

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

I was hoping to achieve the fact that the agreement is not enforceable as the lender has not correctly complied with the default notice. My basis was that I was told by an 'expert' on mse forum that the default notice was faulty as the lender has too give 14 working days and not 14 calendar days. I triple checked this point with him and he says he is certain.

I wish I trusted my instincts earlier!! I am now in court tomorrow with my mother.

Do you feel there is any issue with me being a lay representative. I would certainly be more confident then mny mother in speaking.

I am now unsure what I want from tomorrow? My mother already has a CCJ issued aginst her name in April this year. The judgement has been set aside so really we have nothing to lose and everything to gain.

By the sounds of it, I feel my best chance is a wing and a prayer tomorrow??!! What do you guys think? The solcitors might not turn up or might not actually have an original CCA? The worst case scenario is surely that the judgement remains and we can setup a payment plan or we can pay off the CCJ in 30 days if we can secure money from family.

I really am not looking forward to court tomorrow and can't believe that after trusting a claims managemenyt company I now blindly follow the advice of somebody on a forum, unless he is correct??!!

[Guest]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Not complying with regulations regarding the default notice is not going to nullify the entire agreement.

I should not imagine that there will be a problem with you speaking tomorrow, provided that you ask the permission of the court before you begin and explain that your mother has requested that you do the talking.

What is the judgment for and why is there a claim management company involved?

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

The judgement was awarded as we did not respond to the original claim form from the courts. The reason for this was that our claims management company told us not to as their inhouse solicitors would be dealing with this.

The claims management company advised us to stop payments as the account was in dispute. This lead to the litigation.

The claims management company became involved as being debt free is hard to resist in our situation but have realised it is too good to be true.

Again the MSE expert told me that the DN not being compliant means that the agreement is non enforceable. I was recommended him by a well known MSE forum user. I shall certainly make him aware of the incorrect advice but it won't help me but maybe others.

[MIKE770]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

I was hoping to achieve the fact that the agreement is not enforceable as the lender has not correctly complied with the default notice. My basis was that I was told by an 'expert' on mse forum that the default notice was faulty as the lender has too give 14 working days and not 14 calendar days. I triple checked this point with him and he says he is certain.

I wish I trusted my instincts earlier!! I am now in court tomorrow with my mother.

Do you feel there is any issue with me being a lay representative. I would certainly be more confident then mny mother in speaking.

I am now unsure what I want from tomorrow? My mother already has a CCJ issued aginst her name in April this year. The judgement has been set aside so really we have nothing to lose and everything to gain.

By the sounds of it, I feel my best chance is a wing and a prayer tomorrow??!! What do you guys think? The solcitors might not turn up or might not actually have an original CCA? The worst case scenario is surely that the judgement remains and we can setup a payment plan or we can pay off the CCJ in 30 days if we can secure money from family.

I really am not looking forward to court tomorrow and can't believe that after trusting a claims managemenyt company I now blindly follow the advice of somebody on a forum, unless he is correct??!!

I was hoping to achieve the fact that the agreement is not enforceable as the lender has not correctly complied with the default notice. My basis was that I was told by an 'expert' on mse forum that the default notice was faulty as the lender has too give 14 working days and not 14 calendar days. I triple checked this point with him and he says he is certain.

I wish I trusted my instincts earlier!! I am now in court tomorrow with my mother.

Do you feel there is any issue with me being a lay representative. I would certainly be more confident then mny mother in speaking.

I am now unsure what I want from tomorrow? My mother already has a CCJ issued aginst her name in April this year. The judgement has been set aside so really we have nothing to lose and everything to gain.

By the sounds of it, I feel my best chance is a wing and a prayer tomorrow??!! What do you guys think? The solcitors might not turn up or might not actually have an original CCA? The worst case scenario is surely that the judgement remains and we can setup a payment plan or we can pay off the CCJ in 30 days if we can secure money from family.

I really am not looking forward to court tomorrow and can't believe that after trusting a claims managemenyt company I now blindly follow the advice of somebody on a forum, unless he is correct??!!

read this section: - look under practice of direction 1st class post & 2nd class post, as set by the Senior Master Queens Bench,

1st class deemed 2nd working day, 2nd class deemed 4th working day, UK MAIL with Big S in stamp area is 4 working days.

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

read this section: - look under practice of direction 1st class post & 2nd class post, as set by the Senior Master Queens Bench,

1st class deemed 2nd working day, 2nd class deemed 4th working day, UK MAIL with Big S in stamp area is 4 working days.

Mike770, thanks for the above. I can't find the link or did you not attach one?

Cheers

[MIKE770]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

1. Interpretation Act 1978, Section 7: -

With effect from 16 April 1985 the Practice Direction issued on 30 July 1969 is hereby revoked and the following is substituted therefore: -

1. Under S7 of the Interpreation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the course od post was effected: -

a. in the case of first class mail, on the second working day after posting.

b, in the case of second class mail, on the fourth day after posting.

"Working Days" are Monday to Friday, excluding any Bank Holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. The direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

Dated 8 March 1985
J R BICKFORD SMITH Senior Master
Queens Bench Division.
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Mike770, thanks for the above. I can't find the link or did you not attach one?

Cheers

1. Interpretation Act 1978, Section 7: -

With effect from 16 April 1985 the Practice Direction issued on 30 July 1969 is hereby revoked and the following is substituted therefore: -

1. Under S7 of the Interpreation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary xourse of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that dselivery in the course od post was effected: -

a. in the case of first class mail, on the second working day after posting.

b, in the case of second class mail, on the fourth day after posting.

"Working Days" are Monday to Friday, excluding any Bank Holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. The direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

Dated 8 March 1985
J R BICKFORD SMITH Senior Master
Queens Bench Division.


Sorry link to big so have copied section above.
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Mike770, thanks for the above. I can't find the link or did you not attach one?

Cheers

Note UK MAIL is a later mail service, but taken from their own staement.

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Mike770, thanks for providing the information.

Assuming that the default ntoice was sent to me second class post, then the correct date should have been 18th Nov 09 if it was issued on the 29th Oct 09.

Can anybody confirm if a faulty DN notice mans that it will be kicked out of court?

[MIKE770]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Bit confused your Heading is personal loan, yet CCA is mentioned??

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Bit confused your Heading is personal loan, yet CCA is mentioned??

Sorry Mike, I don't get you. Could you elaborate?

The CCA in terms of the consumer credit act or consumer credit agreement?

A consumer credit agreement has been supplied by the lender to the claims management company before they went bust. I have a copy and according to a well known MSE forum CCA guru it is enforceable.

[MIKE770]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Sorry Mike, I don't get you. Could you elaborate?

The CCA in terms of the consumer credit act or consumer credit agreement?

A consumer credit agreement has been supplied by the lender to the claims management company before they went bust. I have a copy and according to a well known MSE forum CCA guru it is enforceable.

Got it confused CCA (credit card agreement) not card.
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good luck to-morrow, sorry cannot help further, pity it is at a late stage on here, maybe somebody will be along soon.

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Got it confused CCA (credit card agreement) not card.
------------------------------- merged -------------------------------
good luck to-morrow, sorry cannot help further, pity it is at a late stage on here, maybe somebody will be along soon.

Thanks Mike770

[Prism]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

I will monitor this forum for a few hours. Please guys, if you can assist then please post!

[TUTTSI]

Re: Hearing tomorrow 13/7/10 for personal loan - Need urgent help please

Hi Prism

Good luck for your hearing today.

Can you please give us the link to your MSE thread and also advise which CMC?

Tuttsi