Application to lift stay

[liberty24]

[liberty24]

[Amethyst]

I think we should go back and ask them for the unredacted default notice.

It appears payment was made of the minimum payment ON the 22nd Nov, but it bounced, and then payment of 117 was made ( which would have been after receipt of the letter ) .... so when the letter was sent the amount of arrears may have been incorrect, or the 117 may have covered the arrears...

Seems to be a number of 2 payments in 2011 so presumably a conversation was had before/after default and an arrangement for token payments made temporarily ?

The claimant has complied with the CCA request, so not a lot of point in doing that but the Halifax SAR might clear up the default date.

There isn't a great deal to go on defence wise though...only really abuse of process / stat barred now....

the list of documents sent through 2017/18/19 - is that correct ?

[liberty24]

the list of documents sent through 2017/18/19 - is that correct ?

I only recall having received correspondence from November 2018. That is not to say that the other documents to which they are referring were not sent. The past four years have been a bit of a blur due to bereavement of three close family members, and so due to grief I have not been of the mind to address this before now.

I believe token payments were arranged after the default notice was issued, put then perhaps stopped when I transferred to another bank account.

Should I check that the copy of the credit agreement agrees with the signed copy?


Thank you for your help.

[liberty24]

How about the following reply:

Dear Sir/Madam,

Thank you for your reply. I would be grateful if you could supply an unredacted copy of the default notice please.

Kind Regards

XXXX

Is there anything else you suggest I add?

[liberty24]

Can anyone advice on the post above. I was hoping to formulate a response to the solicitors by this Friday. Amethyst ?

[Amethyst]

That sounds absolutely fine though I might be tempted to expand a little as to why you want the dates and that you intend to defend any application to lift the stay.

[liberty24]

Hello Amethyst, thank you for feedback. I have revised the response to the following:

Dear Sir/Madam,

Thank you for your reply. I would be grateful for some clarification. I noticed that you stated in your letter that you have supplied a copy of the default notice, however I am unsure why the dates and amounts on the front page of the default notice letter have been blacked out, whilst the date has been included on page 2 of the default notice. Furthermore, I noted from your correspondence that the default notice was issued on 16/12/10, whilst, according to the account statements you have provided, a payment of £117.17 was made on 15/12/10 and there is no indication from the account statements prior to this date that the account was in default. I would therefore question whether a compliant default notice was served and kindly request that you supply me with an unredacted copy of the default notice please. I intend to defend any application to lift the stay on proceedings in this case.

I intend to send it tomorrow and will await their response.

Many thanks

[liberty24]

Following on from the letter that I sent Shoosmiths in my previous post, I received the following response:

"Thank you for your email.

In response to your query regarding the default notice, I confirm that the copy letter supplied to you was a template default notice, not a copy of the default notice issued to you. The purpose of the default notice letter was to illustrate how the default notice issued to you on 16 December 2010 would have been formatted.

As detailed within my previous correspondence, it is clear that you entered into an agreement with Halifax and that the outstanding balance due under the same has not been repaid. Furthermore, documentary evidence of your liability has been provided to you. In the circumstances, it is my client’s view that your defence has no prospects of success.

On the basis of the above, kindly confirm whether you are willing to enter into an affordable repayment arrangement with my client to repay the outstanding balance? I have attached a standard financial statement for your consideration."

I feel that this is really just going back and forward, and that this communication is not achieving anything. Shall I respond or just wait to defend any application that they make to lift the stay?

Thank you for your help.

[liberty24]

Hi, can anyone advise on how I should proceed please? Many thanks.

[liberty24]

In response to the letter I received from Shoosmith's, I am considering sending the following response:

Dear Sir/Madam

The Claimants statement of case states that the account was assigned from Halifax to Cabot Financial (UK) Limited on 24 June 2014. I do not recall receiving notice of this assignment.

It is denied that Halifax served any Default notice to me pursuant to s87 Consumer Credit Act 1974, and respectfully ask your client to prove that a compliant Default Notice was served. Your client is required to also prove that any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

I also question whether the relationship is fair in accordance with section 140A of the CCA, in view of the time that the creditor has taken to supply all of the requested documents four years after they were initially requested, and question whether proceeding with the case after this length of time would be an abuse of court process?

I question whether this practice favours creditors to allow them a means to circumvent the Limitation Act by requesting a stay to be lifted for a considerable time after evidence of liability has been requested, during which time they are afforded an endless time limit in which to gather necessary paperwork to counter a defence. This practice would seem to favour creditors, who should not bring a case to court in the first instance if they do not possess sufficient evidence to do so.

For this reason, I will be defending any application to lift the stay on proceedings.

Should I send this response, or is this bat and ball game of communication not ultimately achieving anything. Shall I respond or just wait to defend any application that they make to lift the stay?

Thank you for your help.

[liberty24]

Can anyone advise please, Amethyst?

[jaguarsuk]

In response to the letter I received from Shoosmith's, I am considering sending the following response:

Dear Sir/Madam

The Claimants statement of case states that the account was assigned from Halifax to Cabot Financial (UK) Limited on 24 June 2014. I do not recall receiving notice of this assignment.

It is denied that Halifax served any Default notice to me pursuant to s87 Consumer Credit Act 1974, and respectfully ask your client to prove that a compliant Default Notice was served. Your client is required to also prove that any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

I also question whether the relationship is fair in accordance with section 140A of the CCA, in view of the time that the creditor has taken to supply all of the requested documents four years after they were initially requested, and question whether proceeding with the case after this length of time would be an abuse of court process?

I question whether this practice favours creditors to allow them a means to circumvent the Limitation Act by requesting a stay to be lifted for a considerable time after evidence of liability has been requested, during which time they are afforded an endless time limit in which to gather necessary paperwork to counter a defence. This practice would seem to favour creditors, who should not bring a case to court in the first instance if they do not possess sufficient evidence to do so.

For this reason, I will be defending any application to lift the stay on proceedings.

Should I send this response, or is this bat and ball game of communication not ultimately achieving anything. Shall I respond or just wait to defend any application that they make to lift the stay?

Thank you for your help.

The thing is that you are going to struggle to defend this, they seems to have come up with everything needed.

You can argue around the default notice that they have simply take a copy of a default notice from around the time out of another case file and redacted it to suit their claim, but that doesn't prove you were sent one.

They have not claimed this to be a reconstituted one from the original creditor and you want to attack the validity of it.

Going at them via 104A(1)(b) with a view to an order by the court under 140B(1)(c) is a good move given the length of time they have taken, but whether it will be successful is another thing. I would say you are considering making your own application to lift the stay and seek an order under it given their clients behaviour though to toughen it up.

I'd lose the bit about who their behaviour favours that whole paragraph reads as a "poor me" statement, you want to appear to be strong.

[liberty24]

I will seek advice from a solicitor I think. I don't feel that I know enough about the court rules and processes to take this further on my own.

[Amethyst]

pt2537 ?