judgement for claimant but how ??

[skilganon]

Re: judgement for claimant but how ??

Hi,

for reference i will attach the paragraph taken from the defendants witness statement in relation to a compliant default notice, as nothing had been sent prior to the claimants witness statement.

Default Notice
The claimants pleadings state that “ the defendant failed to maintain the required payments and a default notice was served and not complied with” Despite an initial request on 27^th June and a further request made under a cpr31 request the claimant has failed to provide a copy of any default notice referred to in their statement of truth.
For a creditor to terminate a regulated Credit Agreement where there is a breach, demand payment in full or take any legal action to recover any monies due under any agreement, a creditor must serve a default notice under section 87 (1) of the Consumer Credit Act 1974 which states:
Section 87. need for default notice
(1)Service of a notice on the Debtor or hirer in accordance with section 88 ( a “ Default Notice” )is necessary before the creditor or owner can become entitled, by any reason of any breach by the debtor or hirer of a regulated agreement-
(a) To terminate the agreement, or
(b)To demand earlier payment of any sum, or
(c)To recover possession of any goods or land, or
(d) To treat any right conferred on the Debtor or hirer by the agreement as terminated, restricted or deferred, or
(e) To enforce any security

i will also attach a copy of the paragraph taken from the defendants skeleton argument in relation to the default notice submitted by the claimants solicitor, which despite several requests, was the first time anything had been provided.

Default Notice
The defendant is unsure as to what the claimant have filed in relation to a default notice, but would like to attach a copy of what was served upon the defendant ( exhibit J refers ). This alleged default notice submitted is not even addressed to the defendant, does not contain a legible account number, does not contain any legible sums in arrears and does not show any legible amount that needs paying to remedy any breach. Furthermore the claimants solicitor, Sara Kamker, states in her witness statement that the defendant allegedly defaulted on 20^th March 2013, yet the alleged default notice submitted as evidence, on page 2 is dated 2^nd November 2010. This cannot be a copy of any default notice allegedly served on the claimant. What has been sent does not comply with s87 of the CCA , s88 of the CCA nor does it comply with ( enforcement, default and termination notices ) Regulations 1983 ( SI 1983/1561) and Amendment regulations consumer credit ( enforcement, default and termination notices ) ( Amendment ) Regulations 2004 ( SI 2004/3237).
SCHEDULE 2
FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE DEBTOR OR HIRER OF A REGULATED AGREEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY


Details of agreement


1. A description of the agreement sufficient to identify it.

Parties to agreement
2.—(1) The name and a postal address of the creditor or owner.


(2) The name and a postal address of the debtor or hirer.


Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3. A specification of:—

(a)the provision of the agreement alleged to have been breached; and
(b)the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either
(c)if the breach is capable of remedy, what action is required to remedy it and the date, being a date not less than seven days after the date of service of the notice, before which that action is to be taken; or
(d)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date not less than seven days after the date of service of the notice, before which it is to be paid.
Action by the creditor or owner to be ineffective if breach remedied or compensation paid


any comments most welcome.

[Guest]

Re: judgement for claimant but how ??

hi any news on this thread ive noticed its all gone quite and there are no responses :0

[skilganon]

Re: judgement for claimant but how ??

Hi,

sadly the defendant has decided to concede and take the defeat on the chin as they dont want any more distress.

again a 'bad' judge gets away with it, unfortunately an appeal would cost the defendant, the transcript of the hearing would cost the defendant, and any legal representation would cost the defendant and they would be unable to claim their costs for an appeal!?

the dice is loaded in the favour of the claimant from beginning to end, which is probably why they continue to issue claim after claim with no lawful evidence. There are so many of this type of judge on the circuit that they are prepared to take the risk.

anybody who defends against this claimant whereby this judge presides over the final hearing will inevitably lose, sad but true.

[Guest]

Re: judgement for claimant but how ??

very sad to hear this shame,,,, thanks for the update

[skilganon]

Re: judgement for claimant but how ??

further and probably the final update,

the defendant received judgment today and the judge was the very same judge that another recent case i helped with went to a hearing for production of documents , basically an unless order for documents requested under the CCA, and a cpr request ( this was over 10k so cpr 31 DID apply )

the judge did not order them to produce any documents, threw out the unless order application and spent 20 mins trying to convince the defendant in that case to give up and pay, the defendant refused and the judge sent the case to trial.

we submitted a strong WS and then a skeleton argument and the claimant and their solicitors discontinued 4 days before the trial. it was not LOWELLS.

i see a pattern