toomanycalls v nationwide

[toomanycalls]

Started this on someone elses thread so thought I should post my own.

I'm in a similar situation, have a faulty DN - full amount claimed and no time for service, followed by a termination letter 4 months later. Received a money claim 6 months after which is now. I've filed an AOS but still need to do my defence.

Any advice to what I should put as a defence? Sounds like I shouldn't go into too much detail beyond a faulty default notice or they will just re-issue it.

Really confused...

[diddydicky]

Re: toomanycalls v nationwide

can you post up the DN?

i would let them make their claim- hopefully using the faulty DN- once made your defence will then be in respect of the claim being brought when the claimant is not entitled to claim sums not yet due under the agreement due to the effects of s87 and an application to strike out

he would find it difficult to issue a new DN mid trial (even if he could pursuade the court to allow him to amend the DN-) since

a/ You would not have time during the trial to comply with the DN

b/ As the claimant had notified you that the account was terminated and you need not make any further monthly payments (demanded full payment of outstanding sums) he could not serve a DN with a valid amount in it an which- if you remedied it- would lead to the allegred breach having never occurred and a return to the status quo (s88)


others may disagree....

i have already seen off nationwide on this same argument

when i submitted my defence and sought a strike out- they discontinued

[Lord_Alcohol]

Re: toomanycalls v nationwide

Totally agree.

If they serve a new DN, what do they put on it?

To get a S129 time order, how will they persuade the judge that it is "just" to do so? Moreover, a DN showing the original (actual) arrears would of necessity have to be followed by a second DN showing those arrears that have accumilated between the first and the second, but where you have been prevented from avoiding further arrears by the bank's demand for the balance (and his termination of the contract).

So for the judge to allow a new DN, he would by default give the claimant a further opportunity to take you to court some months later for the second breach (assuming you are unable to pay).

Whether a court will consider that "fair" or not I don't know, but as the claimant has already terminated your contract any further DN would show a breach that was unavoidable; as diddy has said, he has already removed your entitlement to make monthly payments. A second DN would show a breach that was a fait accompli...

Alternatively, could the court just tell the claimant to consider the intervening period a payment holiday and serve a new DN with the correct arrears? To do that, the bank would have to acknowldge its error but would also have to re-open the contract, in addition to re-writing it to remove the various unfair terms (see below). I think that is a challenge for the bank.

If they refer to your contractual clause for payment of the balance on breach, the defence is merely (I think) that the regulations supercede contractual terms and therefore it has no effect.

I think this is a hopeless mess for the bank.