Defence help - two default notices sent for one agreement

[TiredofPaying]

Re: Defence help - two default notices sent for one agreement

I'm not sure about how you would play it (maybe Angry Cat will suggest something) but the answer to the second question is that most sols that I have come up against will bluff and bluster and rely on your ignorance. So much for their code of conduct as shown on the SRA webste with regard to litigants in person and those people who do not have representation. At the end of the day they don't make money out of losing.

I'll find a way of posting the pdf files in a mo.

ToP

[Angry Cat]

Re: Defence help - two default notices sent for one agreement

Thanks Top, that document would be appreciated.

How do you guys suggest I include it in my defence. Should I forward it to the claimant and also to the courts asap, ie tomorrow?
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Also would the claimant and their solicitors be that stupid and take me to court if they did not have an enforceable agreement?

Yes, a creditor has to allow 14 clear days after a DN has been served.
But, you would have to prove that the DN was in fact sent by 2nd class post.
That is why it is so important to retain the envelope(s)

RBS, would just argue that the DN's were sent by 1st class post and the judge would probably believe them, unless you could prove otherwise.

Sorry, only be realistic.

[TiredofPaying]

Re: Defence help - two default notices sent for one agreement

http://www.britishpostmarksociety.or...fUFBJcw==.aspx is a website that may tell you a bit more and I've attached two pdf files that should help.

ToP

[TiredofPaying]

Re: Defence help - two default notices sent for one agreement

If you could get hold of all the data that is held on your account via a Data Subject Access Request (best Ł10 worth you'll ever have) you should be able to see when they have sent a DN. If they say that they have sent it 1st class then you're entitled to ask them to prove it with a signed statement if necessary. Don't take their word for anything just because the judge will. The judge, to be fair, is only able to pass judgment on what he sees and if he sees a solicitor for a bank (the judge probably grew up in an era when banks were to be trusted and as he earns enough he doesn't get to see the questionable goings on of some of the money motivated bank employees) on one side of the table and somebody who appears to be trying to get out of paying on the other side of the table then without any information to the contrary, who's he going to believe? I know it's not fair but who said anything about fairness being part of justice?(rhetorical question, I know)

Dig, dig then dig some more and present the findings properly. If you don't present it then you will lose because the other side do this for a living.

ToP

[Angry Cat]

Re: Defence help - two default notices sent for one agreement

If it were me, then I would pursue RBS for full disclosure of documents and would not be content until I had sight of the alleged credit agreement together with the inception terms of same.

Re: the DN the following may assist but I can only see a possibility that it may be only 1 day out;
[Emphasis] may be.

1. a default notice is required by s87(1) of the Act before the credit agreement can be enforced or terminated

2. By s88(2) of the Act [as amended by s14(1) of the Consumer Credit Act as from 1 October 2006] that date must be not less than 14 days after the date of service of the default notice.

3. The 14 day period was also required by paragraph 3(c) of Schedule 2 of the Enforcement Regulations (as amended).

4. A document dated xx November 2009 which purported to be a default notice under s87(1) of the Act was posted to you. It is to be inferred that it was posted on XX November 2009.

5. By s7 of the Interpretation Act 1978 a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post

6. By case law 14 days in the section means 14 "clear days"

One has also, to bear in mind that a further DN could be served as the agreement has not yet been terminated.
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If you could get hold of all the data that is held on your account via a Data Subject Access Request (best Ł10 worth you'll ever have) you should be able to see when they have sent a DN. If they say that they have sent it 1st class then you're entitled to ask them to prove it with a signed statement if necessary. Don't take their word for anything just because the judge will. The judge, to be fair, is only able to pass judgment on what he sees and if he sees a solicitor for a bank (the judge probably grew up in an era when banks were to be trusted and as he earns enough he doesn't get to see the questionable goings on of some of the money motivated bank employees) on one side of the table and somebody who appears to be trying to get out of paying on the other side of the table then without any information to the contrary, who's he going to believe? I know it's not fair but who said anything about fairness being part of justice?(rhetorical question, I know)

Dig, dig then dig some more and present the findings properly. If you don't present it then you will lose because the other side do this for a living.

ToP

Yes, we all know that DN's are sent out by second class post and third class (contract mail)
the computer churns them out.

Banks and solicitors, do not play fair and unless you have Barrister to plead for you, the Judge is more likely to take the bank/solicitors word, in that the DN was sent out via 1st class post.

The operative words are; know thine enemy!

[shamen]

Re: Defence help - two default notices sent for one agreement

ToP,
Problem there is his case is heard in 8 days. a SAR response can take up to 40 (and every SAR I have ever submitted has taken nearly the full 40 days). Even a CCA request at this stage is 12+2 which is over the court date

OP:
Im also looking back over the thread and see conflicting information. Firstly that you said the 28 day extension was originally granted as

the judgement has already been awarded and I have had it set aside. My grounds were that I had a full defence to the claimant as the agreement is non enforceable

but then later

then filled in a form N244 to have the judgement set aside as my CMC had misrepresented me

The thing is, if you have filled in an extension request stating to the court 'I have a full defence as the agreement is unenforceable' then going into court on the day with discrepancies around a default notice is probably (and i emphasize probably quite heavily) not going to go down to well with the presiding.

To the more legal of the beagles here: wouldnt that extension then rule out getting another one now, or would agreement form the other side mean it could be ok?

31.14 states they have 7 days to return that information to you, but if you get lucky they may return it sooner thus giving a better chance. However as the court case is on day 7 this is cutting it fine, though if you have not received anything by the court date and dont have much of a leg to stand on, it may be worth arguing that your 31.14 request was not returned within the 7 day timeframe? Again, just a guess but its something i would be thinking of on the back burner.

[TiredofPaying]

Re: Defence help - two default notices sent for one agreement

Hi AC, can you not argue that if the breach was not remedied in Prism's first DN ('If you do not pay the arrears by the date shown then we intend to:- (1) Require immediate payment of the Net Amount Outstanding) that they have demanded the Net Balance and therefore terminated the agreement? If this is true then the second DN is definitely invalid. Just my understanding of the wording of the DN.

ToP

[Prism]

Re: Defence help - two default notices sent for one agreement

ToP,
Problem there is his case is heard in 8 days. a SAR response can take up to 40 (and every SAR I have ever submitted has taken nearly the full 40 days). Even a CCA request at this stage is 12+2 which is over the court date

Im also looking back over the thread and see conflicting information. Firstly that you said the 28 day extension was originally granted as

but then later



The thing is, if you have filled in an extension request stating to the court 'I have a full defence as the agreement is unenforceable' then going into court on the day with discrepancies around a default notice is probably (and i emphasize probably quite heavily) not going to go down to well with the presiding.

To the more legal of the beagles here: wouldnt that extension then rule out getting another one now, or would agreement form the other side mean it could be ok?

31.14 states they have 7 days to return that information to you, but if you get lucky they may return it sooner thus giving a better chance. However as the court case is on day 7 this is cutting it fine, though if you have not received anything by the court date and dont have much of a leg to stand on, it may be worth arguing that your 31.14 request was not returned within the 7 day timeframe? Again, just a guess but its something i would be thinking of on the back burner.

Shamen,

interesting commets and useful too.

Let me clarify the contradiction. I have never requested an extension. I found out that a default CCJ was issued against me. It came as a surprise to me as I thought my CMC was dealing with it but they went bust at the same time. I then had the judgement set aside via a form N244 stating that I was misrepresented which was a genuine reason. I then had to give a defence and I stated on the form that I had a complete defence. If I had not then I would have to admit the debt which is something I did not wish to do.

I like your suggestion about mentioning on the court day that the 31.14 request has not been complied with. The problem is that 7 days expires on the day of the court case.

[TiredofPaying]

Re: Defence help - two default notices sent for one agreement

Hi Shamen, I know it's a bit of a problem because of the time. I have no solution for that at the moment as I've not had the same problem. I've got Subject Access Requests that are incomplete after 60 days. I've got CCA requests that are 3 months overdue (shame they took away the fine for not complying in a timely fashion...) The games they play! However I get the ICO to join in the game as well. They (the ICO) suggested I invite the FSA along as well but what's a slap on the wrist for a creditor every now and again when there's so much to gain? Look at the fines they get for being extremely bad. That rather well known investment bank was fined millions and it was small change to them. Sorry, I get carried away sometimes!

Any comments on my interpretation of the wording on the DN?

ToP

[Prism]

Re: Defence help - two default notices sent for one agreement

TiredofPaying,

That document is very useful. Thank you for taking the time out and posting it

Your help is also greatly appreciated, thank you again.

Likewise Angry Cat too!

[TiredofPaying]

Re: Defence help - two default notices sent for one agreement

Don't thank me - it was a team effort! I've actually learnt one or two things from what you've posted as well. Works both ways.

I'm still interested to see what people say about my interpretation of the wording on your DN, i.e. if you don't pay the arrears then we intend to ask for the balance. I think that's termination but I may be wrong. If so then tell me and save me making a complete ar5e of myself in front of a judge!

ToP

[shamen]

Re: Defence help - two default notices sent for one agreement

Shamen,

interesting commets and useful too.

Let me clarify the contradiction. I have never requested an extension. I found out that a default CCJ was issued against me. It came as a surprise to me as I thought my CMC was dealing with it but they went bust at the same time. I then had the judgement set aside via a form N244 stating that I was misrepresented which was a genuine reason. I then had to give a defence and I stated on the form that I had a complete defence. If I had not then I would have to admit the debt which is something I did not wish to do.

So basically its both - you said you were misrepresented, but in order to complete the form you had to state you had a complete defence - which I would imagine you were led to believe you had/have by the credit management people. Now bearing in mind that you have stated to the court you have a complete defence, you need to go into court armed with that in my opinion. Could the invalid DN's be construed as a complete defence? In common sense, and letter of the law I would probably say yes, but in practice is that still the same? I would probably say no (though you could get lucky)

I like your suggestion about mentioning on the court day that the 31.14 request has not been complied with. The problem is that 7 days expires on the day of the court case.

Id say it all depends on the time of your court case. If you are lucky enough to have an afternoon court time and do not have any of the documents requested under 31.14 by then, you could request the judge to ask the other side how your response was shipped. If they say standard post and your court time is passed the time your postman delivers, then that could be, at a hanging-on-a-single-thread-stretch, some kind of defence.

[Prism]

Re: Defence help - two default notices sent for one agreement

So basically its both - you said you were misrepresented, but in order to complete the form you had to state you had a complete defence - which I would imagine you were led to believe you had/have by the credit management people. Now bearing in mind that you have stated to the court you have a complete defence, you need to go into court armed with that in my opinion. Could the invalid DN's be construed as a complete defence? In common sense, and letter of the law I would probably say yes, but in practice is that still the same? I would probably say no (though you could get lucky)



Id say it all depends on the time of your court case. If you are lucky enough to have an afternoon court time and do not have any of the documents requested under 31.14 by then, you could request the judge to ask the other side how your response was shipped. If they say standard post and your court time is passed the time your postman delivers, then that could be, at a hanging-on-a-single-thread-stretch, some kind of defence.

Shamen regarding the first part of the post, I was in exactly the same situation last month with Tesco. I was in court and the agreement was rock solid which I had a copy sent of previously. The DN was out possibly by two days and the judge was not even intererested in me going there!! It was not mentioned prior to the court date so could not be used as my defence even though I tried to argue it formed a non enforceable agreement.

Regarding the second part of your post, will RBS have to bring the original agreement with them in court?

Thanks

Prism

[Angry Cat]

Re: Defence help - two default notices sent for one agreement

It is a great pity that the CMC has completely messed up your case.
Hopefully, others may learn from your experience, however, that does not help you at this time.

At the end of the day, you have been greatly dis-advantaged by this CMC, as clearly they have not provided to you the file of papers relating your case and you cannot make an SAR to them due to the lack of time (I would suggest though that in due course, you should make an SAR to the CMC concerned)

One would hope that the judge, on the day, will take this into consideration and grant to you the courtesy you deserve as being an LIP.
[Quote]:
Good judges are sympathetic and helpful to people who are called ‘litigants in person’. You should also be treated with courtesy by lawyers on the other side. You yourself should be polite to everyone; it never helps to become emotional or lose your temper, although you can be hugely tempted to do either or both in a situation where the outcome matters so much to you.[End Quote]

Under normal circumstances, a Draft Order for Directions, should have been applied for at the AQ stage, in order to obtain full disclosure, if the firm had not disclosed prior.

Next step, I suggest that you write to the Court Manager concerned and explain that you are still awaiting the documents that you have requested under CPR 31.14. Also, state that you would like to make an application under CPR 15.5 but are awaiting agreement from the Claimant.

"Agreement extending the period for filing a defence
15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing."

Important to keep the court informed and to show that you are a reasonable person.

No doubt, they (the courts) are aware that many general consumers could been disadvantaged by some CMC firms...turn your disadvantage, into an advantage.

IMO, you need more time, to submit a sensible informed defence.

Hopefully, PT will pop in and offer some assistance
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Regarding the second part of your post, will RBS have to bring the original agreement with them in court?

Thanks

Prism

Yes, plus the terms & conditions and copy statements.

But, again you will be disadvantaged, because, you have not been provided with a copy of the original executed credit agreement and the terms that related to that agreement at the point of execution.

How will you know, if the agreement is not a reconstruction?
How will you know if the T&C's provided to the court, are the inception terms or, current terms?

How will you know?
The Judge will not know, either;
he/she will just accept that they are what the bank/solicitor provides within their court bundle.

[Prism]

Re: Defence help - two default notices sent for one agreement

[quote=Angry Cat;165236]It is a great pity that the CMC has completely messed up your case.
Hopefully, others may learn from your experience, however, that does not help you at this time.

At the end of the day, you have been greatly dis-advantaged by this CMC, as clearly they have not provided to you the file of papers relating your case and you cannot make an SAR to them due to the lack of time (I would suggest though that in due course, you should make an SAR to the CMC concerned)

One would hope that the judge, on the day, will take this into consideration and grant to you the courtesy you deserve as being an LIP.

:
Good judges are sympathetic and helpful to people who are called ‘litigants in person’. You should also be treated with courtesy by lawyers on the other side. You yourself should be polite to everyone; it never helps to become emotional or lose your temper, although you can be hugely tempted to do either or both in a situation where the outcome matters so much to you.[End Quote]

Under normal circumstances, a Draft Order for Directions, should have been applied for at the AQ stage, in order to obtain full disclosure, if the firm had not disclosed prior.

Next step, I suggest that you write to the Court Manager concerned and explain that you are still awaiting the documents that you have requested under CPR 31.14. Also, state that you would like to make an application under CPR 15.5 but are awaiting agreement from the Claimant.

"Agreement extending the period for filing a defence
15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing."

Important to keep the court informed and to show that you are a reasonable person.

No doubt, they (the courts) are aware that many general consumers could been disadvantaged by some CMC firms...turn your disadvantage, into an advantage.

IMO, you need more time, to submit a sensible informed defence.

Hopefully, PT will pop in and offer some assistance
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Yes, plus the terms & conditions and copy statements.

But, again you will be disadvantaged, because, you have not been provided with a copy of the original executed credit agreement and the terms that related to that agreement at the point of execution.

How will you know, if the agreement is not a reconstruction?
How will you know if the T&C's provided to the court, are the inception terms or, current terms?

How will you know?
The Judge will not know, either;
he/she will just accept that they are what the bank/solicitor provides within their court bundle.

Thank you so much for your insightful post.

At what point do you feel I should write to the court manager? The CPR31.14 request was sent yesterday at 5pm so even though it was special delivery, will not geth there until Friday. Should I wait till next week or today?

On a side note can I make a SAR to the CMC? I know you can for the banks and you have FOI for the public sector. The CMC has also had its trading authority taken away from the MoJ.