Nationwide CCA Court Hearing v Jax

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Read Para 5 of Legal Beagles Consumer Forum - that is their argument on the second DN.

[pandora]

Re: Nationwide CCA Court Hearing v Jax

Sorry I haven;t seen the DNs - and can't seem to find them in this thread - but if the account was TERMINATED after the issue of the 1st DN, then thats it, it was terminated and they can't default an already terminated account. But that is only beneficial to you if you can prove a defective 1st DN was issued.

If the 1st DN was defective followed by termination, then they are only entitled to the genuine arrears at the time that the 1st DN was issued. (assuming of course that the CCA is proven as being correctly executed).

If there isn't a correctly executed CCA then they get nothing either way - as neither the agreement or the DN can be enforced by the courts.

But, if you can;t prove a defective 1st DN, and/or the account was never terminated after the issue of the 1st DN - then NW can issue further DNs which will superceed the proceeding. (which of course is handy if they realise the proceding ones had errors making them defective). If you see what I mean .... !!

In this case, they have issued 2 DNS - but want to rely upon the first - which you say you didn't receive - so have not viewed and therefore had no opportunity to remedy.

However, NW may justify the 2nd DN under the Brandon/Amex argument - and use this to explain why they want to go back and rely upon the 1st as part of their case. But quite why they want to rely upon the first and not the 2nd I really don't know their logic .. maybe PT will throw some light on the though process on this.

If its any help I recd a defective DN from NW for a CCard in early 2010 - main probs were that it asked for full payment of the os balance and didn't give sufficient time for remedy - which they then very helpfully also formally terminated. I accepted their unlawful repudiation - whereby they kindly send me a 2nd completely correct DN - which I think they foolishly thought would somehow put them back to sqaure one, and get them off the hook .... shows their underhand tactics if nothing else !!

Is it reasonable to think that their initial DN to you would have been in the same format as mine, and thereby incorrect?

Have you asked for a copy of the 1st DN - the one you didn't receive ?

As time is short .... I think you should give PT a poke and ask for a bit of help with your submission (I've no experience of composing court docs - lucky enough to have avoided this up to now)- he will make sure its correct for the courts and includes everything you need to include for your defence - sure he won't mind giving you a bit of guidance and any experience he has of NW and their tactics.

P :beagle:

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

In this case, they have issued 2 DNS - but want to rely upon the first - which you say you didn't receive. Why they want to rely upon the first and not the 2nd I really don't know their logic .. maybe PT will throw some light on the though process on this.

Have just come across letter from Eversheds dated 28/06/10 which included a new default notice and also the reconstituted CCA!!!

jaxx

.On the basis that the reconstitution exercise was completed, the Claimant considered it prudent to provide the Defendant with a further opportunity to settle this matter without the need for any further court action by serving a default notice on the Defendant. The deadline given in the default notice was 16 July 2010. The Defendant failed to pay the arrears by that date. Given the existence of the new default notice, the Claimant looks to amend the Particulars of Claim in order so it may rely on the default notice dated 25 June 2010 which was served on the Defendant.

So the 28th June letter enclosed a default notice which was created on 25th June but sent on 28th (and dated on either not sure without a copy), which gave you to the 16th July to remedy. Which allows till the 2nd for delivery. S'ok.

But point being they want to rely on the second DN, not the first, as per the amended POC

The Claimant sent a default notice to the Defendant on 28 June 2010. The
Defendant failed to comply with the deadline contained in the default notice.

[pandora]

Re: Nationwide CCA Court Hearing v Jax

Thanks Am. and apols Jax -

For some reason I thought that they wanted to rely on the first DN issued .. not the 2nd in June 2010 - too much Beechams I think !!!

Same applies though ... if they terminated after the 1st DN (either by requesting the full amount, or referring to a DCA who did the same, this signifies they have effectivly ended their agreement with you) which means that they can't subsequently rely on a 2nd DN.

P :beagle:

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Ok gals ... the plot thickens ..................

C'mon Pandora keep up .............. LOL!! :tung:

The DN of the 25 June 2010 is the SECOND DN which was sent along with the letter of 28 June ... therefore the FIRST DN must have been last year sometime as it was mentioned in Eversheds original court claim of 5 August 2009.

Originally Posted by para 5 of application
.On the basis that the reconstitution exercise was completed, the Claimant considered it prudent to provide the Defendant with a further opportunity to settle this matter without the need for any further court action by serving a default notice on the Defendant. The deadline given in the default notice was 16 July 2010. The Defendant failed to pay the arrears by that date. Given the existence of the new default notice, the Claimant looks to amend the Particulars of Claim in order so it may rely on the default notice dated 25 June 2010 which was served on the Defendant.

This whole paragraph stinks to my mind ......................

On the basis that the reconstitution exercise was completed, the Claimant considered it prudent to provide the Defendant with a further opportunity to settle this matter without the need for any further court action by serving a default notice on the Defendant. The deadline given in the default notice was 16 July 2010. The Defendant failed to pay the arrears by that date.

Are they implying this was the FIRST DN .... they don't mention I didn't comply with the FIRST one for which they have not given a date ... only this one! This is very ambiguous in my opinion.

Given the existence of the new default notice, the Claimant looks to amend the Particulars of Claim in order so it may rely on the default notice dated 25 June 2010 which was served on the Defendant.

Are they claiming the DN of 25 June was the FIRST or the 'NEW' one??? I can see how and why Pandora is getting confused because I am now!!! Sorry Pandora I take it all back ... can't keep up myself LOL!

I am going to have ago at attaching Saturday as they won't upload again and they are only very small files

1) the correspondence and enclosures from 28 June (minus the recon agreement as they are already in #4 and#5) ,
2) the original claim and my defence
3) letter stating reasons I consider agreement unenforceable
4) letter requesting dox under CPR31.14

jax

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

ok not sure if this has been raised, i havent had time to scrutinise the thread, however, a party amending its pleadings, is liable for the costs of the party who has to amend either their defence or claim as a result.

So, Eversheds client will be liable for any of your costs as a result of their amendment.

i need to have a proper read of this, but sadly, im in the High Court on Thursday with a case that needs my attention
------------------------------- merged -------------------------------
ok

do we know what the rate of interest charged when the account was opened was?


We may have an argument if the document has a different rate than actually applied.


Also i note there is no reference to the "use of your information" section which the document you signed asks us to look at.

Finally, the bit about section 78 copies being sufficient is utter testicles, section 78 is not proof of execution, Carey makes t hat very clear, it is for information purposes for the debtor,

Carey did not touch enforcement other than to say that, in my opinion, a lender may reconstruct and give evidence as to that recon, if the original has been lost, but they must show how the copy is created, from what records etc.

I would suggest a spot of digging is in order here, as if you find the rate of interest which applied on the first statement is wrong, and not correct, then the agreement they have produced is unenforceable

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Hi Paul

Thanks for response - am frantically trying to upload some documentation but failing miserably I'm afraid.

I think that might help clarify things a little if I can get it posted up.

So, Eversheds client will be liable for any of your costs as a result of their amendment.

Cool!
Does this mean from Day 1 or just from when they made the amendment??

i need to have a proper read of this, but sadly, im in the High Court on Thursday with a case that needs my attention

Bugger!

do we know what the rate of interest charged when the account was opened was?

We may have an argument if the document has a different rate than actually applied.

It was 0% and when that finished it went up to the rate on the 'recon agreement' so in that respect all is kosher :tinysmile_cry_t: therefore this aspect would not render agreement unenforceable.

Don't if there is anything else in the dox that would???

Also i note there is no reference to the "use of your information" section which the document you signed asks us to look at.

Please refer to #12 where I typed up the DECLARATION on the signed application form - yes it does refer to "Use of your information" under "I agree that:"

Will try to get Ames to help with uploading dox.

Thanks for your input - really appreciated.

jaxx

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Jax, email me anything and I'll put it up for you. I dont know how to fix the limits on uploads Though I am trying.

Ame
xx

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

no no no no no

i mean


it refers to something that i cant see in the recon agreement,

this may be a point to latch on to

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Doesn't it mean to read the section called ''Use of information'' directly before the bit where it says to read it. (Ie. it's right there) or is that incomplete ?

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Que??

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

on reading post 4 and 5 i cannot see the part of the recon doc that deals with "USE OF YOUR INFORMATION"

So, one questions if these are the terms that applied

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Sorry Jax, I meant that it says confirm you have read USE OF INFORMATION which is the bit on the agreement directly preceeding where it says you have read it so was questionning whether it would be in the terms recon or original as well ?

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

it must be

Waksman made that clear, the recon must contain everything that was in the original

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Also i note there is no reference to the "use of your information" section which the document you signed asks us to look at.

Sorry - I thought you meant the document I had actually signed, ie the application form

on reading post 4 and 5 i cannot see the part of the recon doc that deals with "USE OF YOUR INFORMATION"

So, one questions if these are the terms that applied

Didn't realize you meant the recon doc!


So ... first impressions - do you think I have a case to defend?