Urgent Advice needed for court case please

[Amethyst]

Re: Urgent Advice needed for court case please

Yes definately read that thread as it sounds exactly the same.

[Amethyst]

Re: Urgent Advice needed for court case please

When they sent the last DN, did they send a letter with it saying that if you sorted the arrears the account would go back to being unterminated etc ?

Also

just over £100. Min monthly contractual payments were around £15.

How much were your Payplan payments ? And have you continued paying them to date ? If not when did you stop ?

Roughly - the new DN is £700 after a year. It was £100 a year ago, your min monthlys were £15 - so £280 arrears - plus interest as you went along (I assume if you were paying a min amount monthly the interest was more or less the same as the min amount) so say £560 - the rest being late payment charges which you can argue against as being penal. So £560 less what you have paid between times, would you be able to pay that, unterminate and go back to paying contractuallly - would you even want to ? Or can this be used to draw a line, freeze interest, and get monthly repayments set by the court, or even, if you are able, allow you to negotiate a full and final probably around the KPR figure to avoid the CCJ ?

What is the outcome do you expect from arguing the incorrect original default notice ?

[NS7589]

Re: Urgent Advice needed for court case please

The letter that accompanied the recent default notice stated:

"The new default notice does not change the amount that you owe our client under the credit agreement, it simply provides you with another opportunity to pay the outstanding arrears. If you settle our client's claim by paying the outstanding arrears as set out in the default notice we will look to bring these current proceedings to a conclusion by way of a consent order which will take into account the issue of costs that have been incurred in our client having to instigate this claim. Going forward, you will only be required to make the payments due under the agreement.

If however, you fail to pay ther arrears within the specified timeframe, we will seek to amend the Particulars of Claim so that it refers to the new default notice and will continue with these proceedings."

That appears to constitute an offer of 'untermination' as they state "make the payments due under the agreement" which can only apply if the agreement is live and current. However, I do not believe that they, having terminated the agreement a year ago (which termination I accepted), can now unilaterally seek to either re-instate it, OR treat it as if the agreement has simply endured to this day, just because it suits them - and when I haven't agreed to it! - contract law doesn't allow for that (I think I know at least that much as I am a contract manager, but not in the financial sector lol).

How much were your Payplan payments ? And have you continued paying them to date ? If not when did you stop ?

Payplan payments are around £2 pcm. Low I know, but I have a lot of other debt (hence the DMP) and so pro rata they don't get much as theirs is one of the smaller debts. I've never missed a single payment to date.

I would not want to go back to paying contractually. They terminated the agreement aggressively, unnecessarily, greedily, and (I believe) in a way that amounts to recission of contract, at a time when I was very vulnerable and was unable to meet their (far too early) demand for full repayment.

When they served the original DN, If they had given me the chance then to pay off the arrears (£100), and then continue contractual minimum payments (£15) that would have been reasonable, and had I refused they could now claim they acted reasonably and are justified in the court action now.
But they didn't! And I believe a legitimate part of my defence is to show how unreasonable they've been, and how unnecessary litigation was!

Not to mention that, since they terminated the agreement, the total debt has increased by nearly 35% with interest /charges etc, and they want to add costs to it also (which they tell me could be another £4-£5k if it goes to a hearing). I think that is vexatious and unreasonable, and it comes back to this point that I clearly was prejudiced by their actions with the original DN.

What is the outcome do you expect from arguing the incorrect original default notice ?

That when they terminated the contract I owed only the outstanding arrears at the time, and that is all they can legitimately claim.
However - I now thing a stronger argument is the lack of the original agreement which would prevent them enforcing the agreement at all.

Obviously I would prefer to settle out of court and avoid a CCJ, but I have tried this through the DMP with Payplan and they're just not interested, having always insisted I repay the full amount. They even refused to enter court mediation after it was ordered, on that basis.

[Amethyst]

Re: Urgent Advice needed for court case please

Similar to this one in essence.

Yours mentions the consent order and costs re withdrawing.

[Amethyst]

Right so Nationwide seem to be doing the same with a number of claims, presumably after a defence has been entered on the Default Notice issue.

That when they terminated the contract I owed only the outstanding arrears at the time, and that is all they can legitimately claim.

On what basis do you think that ?


Also you mentioned theres no CCA ? Have you requested one, what have they sent etc ?

Can you post up the defence you originally entered too please.

[NS7589]

Re: Urgent Advice needed for court case please

Yes, I guess the main difference is that in my case they brought the default to an end a year ago by terminating the agreement, after which there is no agreement for me to continue to be in default of - all that remains is an outstanding debt which they have then sought to recover through the courts, except that they have continued to load charges etc on to it and inflate the amount considerably

[Amethyst]

Re: Advice on Defence against Nationwide!

Similar to Legal Beagles Consumer Forum - View Single Post - Advice on Defence against Nationwide! ?

(ie have they actually terminated ? and how did you accept said termination ? )

[Amethyst]

Re: Urgent Advice needed for court case please

ahh

a reconstructed agreement, (admitting they don't have the original) quoting Waksman/Carey to enable them to enforce the agreement in court.

Is the recon of the entire thing (ie not a copy of the page you signed?) or just the T&Cs and an actual copy of the signed bit ?

[Differentjudge]

Re: Urgent Advice needed for court case please

BASA48

ref your quote in post no 3

"

I would have thought the complete lack of a signed agreement was an absolute defence.

Reconstructions are fine for s78 compliance, but are not OK for proof of execution under s61. Particularly if there have been any variations to the account (interest, credit limit etc).


Read more at: Urgent Advice needed for court case please - Legal Beagles Consumer Forum"

I was in a similar situation with MBNA they had admitted that due to archive retrieval issues they could not find my agreement

i thought it was going to be an easy SJ for me to win

BUt the blind judge accepted the recon as proof i had an agreement his actual words were that a recon could satisfy section 61 or why else have a system for being able to reconstitute agreements ..

he also allowed them to produce a new witness statement and exhibits 40 minutes into the hearing, allowing me 15 minutes to read them and come up with a defence

the rest as they say is history

some judges make vey bad decisions and we suffer for them

[Angry Cat]

Re: Urgent Advice needed for court case please

some judges make vey bad decisions and we suffer for them

Agree...

Name that Judge!

I also have experienced discourtesy from a circuit judge who appeared to be more interested in chatting to the Defendent's junior barrister.

[The Debt Star]

Re: Urgent Advice needed for court case please

I would have thought the complete lack of a signed agreement was an absolute defence.

Reconstructions are fine for s78 compliance, but are not OK for proof of execution under s61. Particularly if there have been any variations to the account (interest, credit limit etc).

Hi. I find this whole CCA theme a total minefield and hard to come to grips with. Are you saying that if a creditor has lost the signed copy CCA and cannot provide a reconstructed copy of the CCA agreement that the debt is totally irrecoverable by them?

Doesn't the court take the view that, for example, you borrowed £X on cfedit, have been paying it X years and therefore there is an implied contract to repay?

If not, then thats great news.

Can the creditors still trash one's credit report if they don't have a CCA to enforce?

Also, what if they have a signed credit card or a copy of the signed credit card on file? I have read somewhere that the court accepts this as evidence?

[WendyB]

Re: Urgent Advice needed for court case please

No DS, he's not saying that at all. The quote above you've quoted wasn't a post by DJ, he was quoting a previous post and giving his thoughts. If you read DifferentJudge's thread you'll see what he's getting at.

Don't know if what I've just written above makes any sense at all lol. But it does to me....

[Amethyst]

Re: Urgent Advice needed for court case please

As in Thouris, a complete lack of agreement means they are unable to enforce, temporarily, they can enforce if/when they find it.

Havent worked out from N7859 if there is no agreement, recon of entire thing, or just recon of T&Cs part of the agreement (ie the app form is signed and refers to terms overleaf etc) so long as the recon is a true recon from the inception of the agreement. (ie not 2010s terms for a 1999 agreement etc)

[The Debt Star]

Re: Urgent Advice needed for court case please

Hi. Yep, I see that now, Wends. Thanks. My error. :confused2:
Was being a bit hopeful there for a moment!

[Angry Cat]

Re: Urgent Advice needed for court case please

[Quote] by NS7589:
CC Agreement commenced 31 March 2007.[End Quote]

Unlikely, that s82 would apply in this case!