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

[Lord_Alcohol]

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

Well, often, what would my view be on that,

Well here goes,

A bad notice can be remedied at any point prior to proceedings.

A bad notice can be remedied during proceedings, as the arrears remain payable thus the cause of action remains and is not extinguished by the defective notice

A bad notice cannot be remedied at trial or within 14 days of trial without leave of the court to allow the matter to be stayed

One point on this, if the arrears are paid then that would leave the Claimant needing to discontinue and pay the debtors costs of the action as he would have no cause of action

So that is how i see it, and i was actually the file handler on Harrison, and was in court to hear judge chambers reasoning, so i speak from my own knowledge of this matter which gives us this judgment

Really helpful PT, as usual - many thanks!

I think there is some residual confusion regarding the amount that may be demanded in any new DN.

For a long time I thought that this amount could only be the original arrears (the creditor having refused contractual payments in the meantime), but now I'm not sure.

Although, thinking out loud, it still seems odd that the same breach could result in two different amounts - one amount in the earlier DN, and a new amount in any new DN.

The point being, of course, that arrears are missed contractual payments but the agreement had been (wrongly) terminated by the creditor, who used that error to refuse to accept those same contractual payments (assuming the debtor could make them, which may or may not be the case).

The debtor, having received a TN, is probably unlikely to say to himself "the bank has made an error under S87(1) of the 1974 Consumer Credit Act so I'll deposit the contractual payments into another bank account so I can pay it when he takes me to court".

For rolling credit contracts, it may be almost impossible to know what the contractual payments should be, due to the mathematical challenge of working out the interest.

Is it therefore acceptable for a creditor to demand all amounts up to service of a second DN (ie, those payments that should have been paid had the agreement not been terminated), and to ignore his earlier very strong statements (and actions) made to the debtor that the agreement had been terminated?

TIA

[pt2537]

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

if you are tactical in litigation, id point out that a creditor who goes to trial on a bad notice when he gets your defence and realises its bad, will worry and probably amend his pleaded case.

The rule that costs follow the event applies here too, so an amended pleading leaves the claimant liable for the Defendants costs occasioned by the amendments.


so very quickly you can build a fair bill which could conceivably be offset against the arrears.
#
If the arrears become paid, then the claimants claim fails and thus you can claim further costs

Now that is what i would consider if i were faced with a bad notice

[pt2537]

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

I dont think we are arguing amongst ourselves, one person persists in ramming his view down our throats.

Also, with Chambers, my earlier question about the qualifier which is the word often, and the criteria which define which often can and which cant has never been addressed.

I cannot accept that Chambers is conclusive when his judgement is qualified.

Well, often, what would my view be on that,

Well here goes,

A bad notice can be remedied at any point prior to proceedings.

A bad notice can be remedied during proceedings, as the arrears remain payable thus the cause of action remains and is not extinguished by the defective notice

A bad notice cannot be remedied at trial or within 14 days of trial without leave of the court to allow the matter to be stayed

One point on this, if the arrears are paid then that would leave the Claimant needing to discontinue and pay the debtors costs of the action as he would have no cause of action

So that is how i see it, and i was actually the file handler on Harrison, and was in court to hear judge chambers reasoning, so i speak from my own knowledge of this matter which gives us this judgment


Those are just my view, but i am aware of a number of cases where the courts albeit county court, have followed those lines.

Also if the matter is at trial, then one must also consider the issue of estoppal as the Claimant cannot restart a claim on the back of a defeat using the same facts

[volvodriver]

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

I dont think we are arguing amongst ourselves, one person persists in ramming his view down our throats.

Also, with Chambers, my earlier question about the qualifier which is the word often, and the criteria which define which often can and which cant has never been addressed.

I cannot accept that Chambers is conclusive when his judgement is qualified.

[pt2537]

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

one thing i have just argued, admittedly in the case of a debt purchaser not the original creditor, but they relied on a bad notice, they tried to serve a good notice but had failed to give effect to s86(a-d) of the CCA

so default sums and interest had been added to the balance, which meant it was a bad notice again.

Maybe we should put our minds to consider how best to defeat these things than arguing among ourselves? i cannot see how in light of HHJ Chambers QCs judgment, that it can be said that a creditor cannot reissue a notice,

[Lord_Alcohol]

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

Just a thought ,perhaps they dont know the default is defective,or perhaps they just dont want to take you to court.
The way the default notice works has been explained to you more times than i could count, fact is you are unable to understand, i would find a less mentally taxing hobby.
Peter

Equally, I find your arrogance and inability to concede other views to be both childish and irksome. You seem to be unaware of the fact that you are not compelled to reply to my posts.

As I have stated, and as you continue to ignore, in my cases (and others here and OTR) the creditor was notified of the bad DN prior to remedy date.

IMO, there is no point in debate where an individual ranter with a soap-box fixation keeps verbally abusing those with divergent views. I would have thought it clear to the meanest understanding that the issue of bad DNs and contract termination is by no means clear-cut and, moreover, your own comments have done nothing whatsoever to assist anyone.

I will add that you have already made errors in your posts, such as lambasting me for suggesting that S140 would not apply to the forthcoming Harrison judgement when, after handing down of the judgement, you were shown to be hopelessly adrift from reality by suggesting reliance on harassment regs.

Your replies to my posts are of no interest to me; please may I ask that you do not respond to them again?

[enaid]

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

.
The way the default notice works has been explained to you more times than i could count, fact is you are unable to understand, i would find a less mentally taxing hobby.
Peter

If you are tired of repeating yourself then please ignore the post, being rude helps nothing and no one.
Thanks Enaid

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

Basa

This is certainly an argument that seems to be supported by the courts, even with Harrison (the judge considered that a new DN could be served). However, I have yet to see any conclusive argument that clearly shows that the agreement is not terminated.

S87 merely says "entitled to terminate". It doesn't say "the agreement is not terminated until". Maybe semantics, but to my mind that means the creditor may only terminate and expect the entitlements of the Act where he observes the regs, and nothing more than that.

That the creditor does in fact terminate is, to me, crystal clear. Otherwise I have dreamed the two years of threats from DCAs, the mock court papers, the endless phone calls, the banging on the front door and, importantly, the insistance that I pay the balance and not the contractual payments. To ignore this in order to serve a new DN is, in my view, taking the p**s.

Just a thought ,perhaps they dont know the default is defective,or perhaps they just dont want to take you to court.
The way the default notice works has been explained to you more times than i could count, fact is you are unable to understand, i would find a less mentally taxing hobby.
Peter

[basa48]

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?

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

Once a case has been heard and determined it cannot be heard again. It is 'stopped'. Res judicata is a form of estoppel (or is it the other way round!!).
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S87 merely says "entitled to terminate". It doesn't say "the agreement is not terminated until". Maybe semantics, but to my mind that means the creditor may only terminate and expect the entitlements of the Act where he observes the regs, and nothing more than that.

That the creditor does in fact terminate is, to me, crystal clear. To ignore this in order to serve a new DN is, in my view, taking the p**s.

I agree 100%, my thoughts entirely and something I would argue vociferously if called to.

[Garlok]

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

So Morrit got it wrong and his quotes are irrelevant as are those of Nicholls LJ ? Only the bits that suit come into play then?
Plus I did ask where in the Act does it specifically state where a creditor can keep on issuing faulty paperwork until he does get it right and then going back to court ?

regards
Garlok.

[pt2537]

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

you could not have a void or voidable agreement which operated one way only, as the lords point out, the Debtor can still give effect to the agreement, he can consent to enforcement etc. so it cant be void, sorry

[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
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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.

[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

[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?

[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