Re: Kafka - v -BC/Lowell
The judge that did this would be at risk of appeal for incorrect application of statute.
The statute surrounding this is VERY clear that a complaint DN must be issued prior to the demand for the full balance or enforcement.
If they wished to issue a new, compliant DN they would need to discontinue and reissue but would then fall into Estoppel and require the courts permission to reissue the same claim.
The above is not just my own uneducated, unqualified option, I was given direct advice on this by a barrister with a great number of years in consumer credit law.
28 days for the timeline means nothing if the DN was received 1 day before that 28 days was up! - it is not enough to state a date at the top of the notice, the date by which action must be taken is one of the key points, and it is NOT stated.
There is also a train of thought that a defective DN would amount to repudiation of contract, meaning all they could ever claim now is the arrears due at the time of the faulty DN issue.
Originally posted by nemesis45
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The judge that did this would be at risk of appeal for incorrect application of statute.
The statute surrounding this is VERY clear that a complaint DN must be issued prior to the demand for the full balance or enforcement.
If they wished to issue a new, compliant DN they would need to discontinue and reissue but would then fall into Estoppel and require the courts permission to reissue the same claim.
The above is not just my own uneducated, unqualified option, I was given direct advice on this by a barrister with a great number of years in consumer credit law.
28 days for the timeline means nothing if the DN was received 1 day before that 28 days was up! - it is not enough to state a date at the top of the notice, the date by which action must be taken is one of the key points, and it is NOT stated.
There is also a train of thought that a defective DN would amount to repudiation of contract, meaning all they could ever claim now is the arrears due at the time of the faulty DN issue.
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