Default Re: Me V Bank - defective DN and unfair relationship defence.

[New_Age_Biker]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

I tend to agree, the judge determind the case, therefore Res judicata applies

Sorry to sound thick PT, can you explain in plain english what you mean by this statement?

Is it possible to make sure a creditor is in this position & therefore emulate this decision or would one just refer to this case?

[Garlok]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Another small point to be considered is whether you have received proper statements at the very least on an annual basis since the "termination". If not (and we have not seen hide nor hair for two years) then they are in breach of yet another fundamental requirment of their own T & Cs let alone those required by Statute and regulation. These must come from the OC if the there has been no absolute assignment.

Therefore the termination is just that a termination.

regards
Garlok

[toomanycalls]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

We have guests....

[The Debt Star]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Sorry to sound thick PT, can you explain in plain english what you mean by this statement?

Ha ha ha! lol. Well said buddy!

[Garlok]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Hi N_A_B

This is about the best I can do in a hurry:-

In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
"The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

There's a lot more on the net

regards
Garlok

[New_Age_Biker]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Thanks Garlok,
As I understand it then (trying to put it in plain english)
If proceedings are issued (for non-payment), all parts of the pre-action are part of that case.
As long as a defence is submitted which covers all points possible (including the faulty Dn if applicable)
It is not possible for a claimant to bring a new claim on evidence which has already been put before a court
This would leave the claimant the only option of discontinuing before the judge hears the case, thus requiring permission of the court before re-issuing
Or making an application to reissue the Dn or vary the POC if thats possible during litigation

[Garlok]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Hi N_A_B

I think you have it about right, it is certainly the way I read the quote from "Henderson". However your last comment may not be possible because Henderson says:

"negligence, inadvertance or even accident have omitted part of their case" and goes on to say "reasonable diligence". Surely getting a DN wrong over and over again (like Mercers in thousands of cases) is a systemic failure and hence could never be construed as reasonable diligence.

Just my thoughts.
regards
Garlok

[volvodriver]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Hi N_A_B

I think you have it about right, it is certainly the way I read the quote from "Henderson". However your last comment may not be possible because Henderson says:

"negligence, inadvertance or even accident have omitted part of their case" and goes on to say "reasonable diligence". Surely getting a DN wrong over and over again (like Mercers in thousands of cases) is a systemic failure and hence could never be construed as reasonable diligence.

Just my thoughts.
regards
Garlok

Especially given that the DN is the key that unlocks and opens the door through which the creditor must pass to start his journey to recover his debt.

If the creditor, this "SOPHISTICATED FINANCIAL INSTITUTION" cannot get this right he should forfeit his right to start that journey.

Actually I think that's what the law said before it was fudged and obfuscation crept in.

[pt2537]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Please someone tell me where in the 1974 Act it says a creditor who fails to serve a default notice loses all rights?

[New_Age_Biker]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

I think the creditor loses the entitlement to use the courts to enforce, am I right Pt?
This may be able to be rectified upon service of a valid Dn

[Garlok]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Hi Guys,

I think we may be losing sight a bit as I could equally ask the question where in the Act does it actually say that a creditor may keep on issuing DN's, "terminations" etc until he does get it right?

As the re-issue of DNs is only made available by case law in the lower courts I would refer to comments made in the Wilson v First County case:-

Paragraph [26] of the judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION, after Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999, was void and unenforceable:
“In effect, the creditor—by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms—must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid.”
LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd – 2003] All ER (D) 187 (Jul) paragraph [29]:
“The court’s powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court ‘shall not make’ an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court’s power to make an enforcement order.”
Francis Bennion is the draftsman of the Consumer Credit Act 1974 and a very well respected Barrister who specialises in Consumer Law. On his own website he stated:
“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning.

Further Lloyd LJ sitting in the Court of Appeal said in 1993 that:-

"it matters not what the creditor intended, but what, by his actions and conduct he has led the debtor to believe"

Or words to that effect. We have discussed long and hard in the past what is not in the Act taking precedence over what is in the Act, now the boot is on the other foot with CofA statements to back it up.

Or are we saying that these rulings will only ever work in favour of the creditor now? A correctly served DN is the only way to enforcement which only occurss as per McGuffick or does it?

Perhaps pt, you can throw further light on it. I have looked at several cases including Mitchell, Harrison ( one of your own), a famous Liverpool case, and in most of those cases the courts when ruling on unenforceability also instructed the creditor to write off the debt in its entirety. hence does case law not seem to indicate that the two go together?

regards
Garlok.
------------------------------- merged -------------------------------
Sorry by the way all opur cases are still covered by section127 in its original form.

regards
Garlok

[diddydicky]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Hi N_A_B

I think you have it about right, it is certainly the way I read the quote from "Henderson". However your last comment may not be possible because Henderson says:

"negligence, inadvertance or even accident have omitted part of their case" and goes on to say "reasonable diligence". Surely getting a DN wrong over and over again (like Mercers in thousands of cases) is a systemic failure and hence could never be construed as reasonable diligence.

Just my thoughts.
regards
Garlok

IMO you are 100% correct

the claimant was REQUIRED as part of the original action- to provide a cause of action (a valid DN)- whether he omitted to do so through negilgence or accident- he therefore cannot now serve the DN that he was supposed to provide to support the first case- and expect the court to consider this to be "new" evidence of a case brought on different facts

[New_Age_Biker]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

If the above observations are correct is it possible to submit a defence & request a stike out (on the grounds there is no cause of action) at the same time.
If so this then would put the cat amongst the pidgeons I am sure
As the creditor would still be owed his monies but would have not earned the right to the courts interventions in collecting.
He would also be prevented from reissuing without the courts pemsission.

How could the debtor make sure the creditor does not get such permission?

[Garlok]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

In "Wilson", Ms Wilson asked the court as a claimant please note to make a declaration that her agreement was "void and unenforceable". Please note this wording "void and unenforceable". The court refused but allowed her to appeal (Judge Hull QC).

She had it ALL tp prove as both claimant and appellant. The appeal against judgement was upheld and the statement made that:-

"The creditor had chosen to part with the moneys in circumstances in which it was never (myemphasis), entitled to have them repaid.”

On being brought before the House of Lords, she won again.

Therefore if the creditor gets it wrong, he has got it wrong and there is no redress for him as the agreement is void with no entitlement, my authority, Court of Appeal and the House of Lords.

regards
Garlok

[pt2537]

Re: Default Re: Me V Bank - defective DN and unfair relationship defence.

Outrageously wrong sorry

The House of Lords did not rule the agreement was void,

Reread the wilson ruling
------------------------------- merged -------------------------------
From the House of Lords Judgment

31. These restrictions on enforcement of a regulated agreement are for the protection of borrowers. They do not deprive a regulated agreement of all legal effect. They do not render a regulated agreement void. A regulated agreement is enforceable by the debtor against the creditor. It seems, for instance, that a borrower may insist on making further drawdowns under a regulated agreement even though the agreement is unenforceable against him. Further, section 173(3) expressly permits consensual enforcement against a borrower. A borrower may consent to the sale of a security or to judgment. Moreover, the creditor is entitled to retain any security lodged until either an application for an enforcement order is dismissed or the court makes a declaration under section 142 that the agreement is not enforceable. That is the effect of sections 113(3) and 106.